THOMAS, Chief Judge:

We voted to rehear this case en banc to consider the requirements for two different pathways by which a child of a naturalized citizen parent can derive U.S. citizenship under former 8 U.S.C. § 1432(a)(5) (1994) (repealed 2000). Under the first pathway, a child “residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent” is eligible for derivative citizenship; under the second, a child is eligible who “thereafter begins to reside permanently in the United States while under the age of eighteen years.” Id.

A three-judge panel of this court previously interpreted this statute, holding that both pathways required the child to have lawful permanent resident status. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062–63 (9th Cir. 2008). In re- examining Romero-Ruiz, we now conclude that the phrase “or thereafter begins to reside permanently in the United States,” 8 U.S.C. § 1432(a)(5), does not require that the child have necessarily been granted lawful permanent residency, although the child must have demonstrated an objective official manifestation of permanent residence. With this clarification, we remand this case to its three-judge panel so that the panel may, in its discretion, apply the revised rule to this case.

I

The facts of the case are detailed in the panel opinion, and we need not recount them here in detail. See Cheneau v. Barr, 971 F.3d 965, 966–67 (9th Cir. 2020). In brief, Cheneau entered the United States lawfully at age thirteen under a non-immigrant student visa. Id. at 966. His mother was naturalized in 1999, and he applied for adjustment of status to lawful permanent resident at age fifteen, in 2000. Id. Due to an administrative error, he was not granted adjustment of status until 2003, after he had turned eighteen. Id. at 966–67. Years later, the Department of Homeland Security initiated removal proceedings after Cheneau’s convictions for various theft offenses. Id. at 967. Cheneau moved to terminate, asserting a claim of derivative citizenship. Id.

The three-judge panel held, in a per curiam opinion, that under Romero-Ruiz the panel was required to hold that Cheneau was not a derivative citizen under either pathway of § 1432(a)(5). See Cheneau, 971 F.3d at 969–70. The applicable statute provides that a child born outside the United States may obtain derivative citizenship on the basis of a parent’s naturalization if:

Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432(a)(5) (1994) (emphasis added).1 The Cheneau panel concluded that, since “under [Romero-Ruiz] ‘lawful admission for permanent residence’ is required by both provisions of clause (5),” Cheneau was not eligible for derivative citizenship. 971 F.3d at 969.

However, the entire panel joined a concurring opinion, authored by Judge Bennett, encouraging this Court to revisit Romero-Ruiz. The concurrence noted that “Congress chose two different phrases—one that refers to status while the other refers to actual residence”—that “have been used in other sections of the [Immigration and Nationality Act (“INA”)] to mean different things.” Cheneau, 971 F.3d at 977 (Bennett, J., concurring). The concurrence urged reexamination because Romero-Ruiz “was phrased too The relevant history begins in the early part of the twentieth century. Although § 1432(a)(5) was adopted in 1952, the phrase “reside permanently” has been part of the derivative citizenship statute since 1907. Act of Mar. ^[2], 1907, ch. 2534, § 5, 34 Stat. 1228, 1229. The 1907 Act provided that “[t]he citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States.” Id. (emphasis added).

Relevant to our interpretation of this same phrase in later iterations of the statute, there is considerable evidence that “reside permanently” was understood to require lawful permanent residence: “[o]ne of the conditions [of the 1907 Act] is that such minor child shall have a lawful permanent residence in this country.” United States ex rel. Garos v. Reimer, 24 F. Supp. 869, 870 (S.D.N.Y. 1938), aff’d, 97 F.2d 1019 (2d Cir. 1938); see also id. (“[T]he difficulty is that the relator never lawfully acquired a permanent residence in the United States which was an essential requisite under section 5 [of the 1907 Act]. He was never lawfully admitted for permanent residence.”).

As one treatise thus explains:

All statutes regarding derivative naturalization . . . have been interpreted to require a lawful admission before the child would be considered to have been ‘dwelling’ or ‘residing lawfully’ in the United States. . . . [T]he requirement of lawful admission to permanent residence has been adopted, at least for the purposes of the post-1907 statutes. . . . A person does not derive citizenship even when at the time of his or her original entry, he or she was eligible for lawful permanent resident status and failed to obtain it through no fault of his or her own.

U.S. Citizenship and Naturalization Handbook § 5:8 (2020) (citing cases); see also Matter of C—, 8 I. & N. Dec. 421, 422 (BIA 1959) (explaining that “[l]awful permanent residence has always been a prerequisite to derivative citizenship” (quoting S. Rep. No. 81-1515, at 707 (1950))). Another treatise similarly explains that to gain derivative citizenship, “[l]egal entry must be strictly complied with. Mere physical presence or temporary entrance by permission is not legal entry nor legal residence for the purpose of acquiring citizenship.” Sidney Kansas, U.S. Immigration: Exclusion and Deportation and Citizenship of the United States of America 345 (1940); see also Sidney Kansas, Citizenship of the United States of America 81–82 (1936) (same).

In 1940, Congress repealed and replaced the derivative citizenship provisions. Nationality Act of 1940, ch. 876, § 504, 54 Stat. 1137, 1172–74. Like § 1432(a)(5), the 1940 Act broke things down based on the timing of the child’s residence in the United States as compared to the timing of the parent’s naturalization. Thus, under the 1940 Act, a child would gain derivative citizenship if he: “[1] resid[ed] in the United States at the time of the naturalization of the parent last naturalized . . . or [2] thereafter begins to reside permanently in the United States while under the age of eighteen years.” Nationality Act of 1940, ch. 876, § 314, 54 Stat. 1137, 1145–46. The second clause, one will observe, carries forward the “reside permanently” language from the 1907 Act and is identical to the clause we are required to interpret in this case. See 8 U.S.C. § 1432 (a)(5) (1994) (repealed 2000).

There is substantial evidence that this section of the 1940 Act, irrespective of the two clauses, was also generally understood to require permanent residence on a lawful basis. See Matter of C—, 8 I. & N. Dec. at 422 (finding that a child who lived in the United States did not gain derivative citizenship under the 1940 Act because “[l]awful permanent residence has always been a prerequisite to derivative citizenship . . . [so] [e]ven though an alien may reside physically within the United States, if he be in an excluded class, such residence cannot be considered as a permanent residence” (citations omitted)); U.S. Citizenship and Naturalization Handbook § 5:15 (2020) (under the 1940 Act, a “child would not derive citizenship unless both the naturalization of the parent or parents and the child’s lawful permanent residence occurred before the child turned eighteen years of age”).

Indeed, there is good reason to believe that the second provision in the 1940 Act in particular required lawful permanent residence as a condition for children who sought derivative citizenship after a parent had naturalized. Besides using the same “reside permanently” language that had long been understood to require lawful permanent residence, the explanation also lies in how the 1940 Act distinguished between immigrants and nonimmigrants.

While the Nationality Act of 1940 was in place, Congress classified aliens as immigrants or nonimmigrants. See S. Rep. No. 81-1515, at 414, 612 (1950).1 Immigrants were those “coming to this country for permanent residence.” Id. at 612; see also id. at 414, 618; Immigration Act of 1924, ch. 190, § 3, 43 Stat. 153, 154–55. Nonimmigrants, in contrast, could only reside here temporarily and could not gain citizenship. S. Rep. No. 81-1515, at 414, 612 (1950); United States v. Kwan Shun Yue, 194 F.2d 225, 228 (9th Cir. 1952) (“Only those entering as immigrants establish formal residence and gain eligibility to citizenship.”). Conversely, a person who was an immigrant, and who thus “ha[d] a record of admission for permanent residence,” could be eligible for citizenship. S. Rep. No. 81-1515, at 732 (1950); see also 8 C.F.R. §§ 363.1, 363.3–.4 (1949).

This meant that a child seeking derivative citizenship “was required to be in possession of a valid immigration visa to be lawfully admitted for permanent residence.” Matter of C—, 8 I. & N. Dec. at 422. A child who was not “lawfully admitted into the United States for permanent residence[] . . . [l]ack[ed] this essential element” and thus could “not derive citizenship.” Id. at 423; see also S. Rep. No. 81-1515, at 709 (1950) (noting that a child could gain citizenship after the death of a parent if all the 1940 Act’s “conditions are fulfilled,” which included “lawfully residing permanently in the United States”); Marian Schibsby & Read Lewis, How to

1 Here I use a Senate Report not as an authoritative indicator of legislative intent but because this Senate Report provides a useful description of the statutory history for derivative citizenship, much like a learned secondary source. See S. Rep. No. 81-1515, at 1 (1950) (describing how the Senate commissioned the report as “a full and complete investigation of [the] entire immigration system”). Become a Citizen of the United States 51–52 (1959) (under the 1940 Act, a “child did not derive American citizenship through the naturalization of its parents unless both parents were American citizens before the child reached the age of 18 and the child was legally admitted to the United States for permanent residence before [he] was 18”).

The majority errs in relying on cases from before 1952 in suggesting that derivative citizenship turned on whether a child’s initial entry into the United States was lawful. These cases merely show that legal entry was necessary for derivative citizenship. But they also have language and reasoning supporting my view that legal entry was not sufficient to derive citizenship because what was required was lawful permission to remain here permanently. See, e.g., Reimer, 24 F. Supp. at 870 (the child did not derive citizenship because “[h]e was never lawfully admitted for permanent residence,” “which was an essential requisite”); Matter of M—, 3 I. & N. Dec. 815, 816 (BIA 1949) (“[L]awful admission for permanent residence[] . . . is required in order for [the] subject to establish that she derived citizenship.”); Matter of C—, 8 I. & N. Dec. at 423 (the child did not derive citizenship because he did not meet requirements to “presume[] a lawful admission for permanent residence”). That is what all the treatises and other secondary sources I have cited say as well, confirming a commonly shared understanding at the time. The majority, meanwhile, identifies no case, treatise, or any other source endorsing its theory that, before 1952, a child could be present here on a temporary basis (such as a student visa) and from there make the immediate leap to derivative United States citizenship through a naturalized parent.

The 1952 Act bears out my view of the history. When Congress enacted the INA in 1952, it repealed the Nationality Act of 1940. Immigration and Nationality Act, ch. 477, § 403(a)(42), 66 Stat. 163, 279 (1952). Before the INA, a nonimmigrant temporarily residing in the United States generally could not adjust his status to residing permanently within the United States; he “had to leave the country and apply for an immigrant visa at a consulate abroad.” Elkins v. Moreno, 435 U.S. 647, 667 (1978); see also Landin-Molina v. Holder, 580 F.3d 913, 915–16 (9th Cir. 2009) (describing this statutory history); S. Rep. No. 81-1515, at 591 (1950) (nonimmigrants “may not change from a temporary status to the status of an immigrant for permanent residence” inside the country).

To address this issue, Congress in 1952 introduced the formal term “lawful permanent residence” as part of a broader overhaul of the immigration laws that allowed persons to adjust to legal permanent residency from within the United States, rather than outside it. See Elkins, 435 U.S. at 667; Landin-Molina, 580 F.3d at 916. To account for this change, Congress amended the first clause of the derivative citizenship provision to require that the child be “residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent.” 8 U.S.C. § 1432(a)(5) (1952) (repealed 2000).

The majority seizes on this new statutory language to suggest that the long-used phrase “reside permanently” must mean something different under the 1952 Act than “lawful admission for permanent residence.” But the history tells us otherwise. There is, as I have discussed, considerable evidence that the 1940 Act (and its predecessor) had generally been understood to contain a lawful permanent residence prerequisite. So when Congress in 1952 adopted the term “lawful admission for permanent residence,” that as a general matter reflected a “codification of court decisions denying naturalization to those who entered illegally or on temporary visas.” Developments in the Law—Immigration and Nationality, 66 Harv. L. Rev. 643, 713 (1953).

Contrary to what the majority suggests, Congress did not need to make similar changes to § 1432(a)(5)’s second clause, which applied to children who began to “reside permanently” in the United States after their parents had naturalized. As I explain below in detail, as a textual matter, it was clearly sufficient for Congress to insert the phrase “lawful admission for permanent residence” only into the first clause of § 1432(a)(5) because under basic principles of statutory construction, the statute is most naturally read as extending that requirement to the second clause as well. Otherwise, the first clause is entirely, or almost entirely, superfluous. Even so, it was unnecessary for Congress to add an explicit reference to “lawful admission for permanent residence” to the second clause if the second clause already embodied that concept, as the history suggests.^[2]

2 The First Circuit has suggested that the 1940 Act’s first provision “apparently” did not require lawful permanent residence. Thomas v. Lynch, 828 F.3d 11, 16 & n.6 (1st Cir. 2016). The First Circuit did not explain the basis for that theory. But even if true, it at most suggests that Congress in 1952 increased the lawful permanent residency requirement for the first provision to align it with the second provision. The position that the majority adopts today means that under § 1432(a)(5), Congress in 1952 imposed more onerous requirements on children seeking to become derivative citizens at the time of their parents’ naturalization than afterward. But as the First Circuit explained, “it is not at all clear why

Unsurprisingly, the 1952 Act was thus itself understood, consistent with its predecessors, to require lawful admission for permanent residence as a general requirement for derivative citizenship. See, e.g., Schibsby, supra, at 52 (under the 1952 Act, “[t]he child must be residing in the United States—after being legally admitted for permanent residence—prior to his 16th birthday”); Frank L. Auerbach, The Immigration and Nationality Act: A Summary of Its Principal Provisions 70 (1953) (§ 1432(a)(5) requires that “the child is lawfully admitted to the United States for permanent residence at the time of the naturalization of the parent last naturalized or is lawfully admitted for permanent residence after the parent’s or parents’ naturalization while under sixteen years of age”); Sidney Kansas, Immigration and Nationality Act Annotated with Rules and Regulations 203 (1953) (under the 1952 Act, a child gains derivative citizenship “if he was lawfully admitted to the United States for permanent residence”). The majority opinion’s re- interpretation of the 1952 Act is contrary to this long-held understanding.

The majority therefore errs in claiming that a Senate Report supports its interpretation of the 1952 Act. I do not believe it appropriate to use legislative history to ascertain legislative intent, but the majority’s analysis should be unpersuasive even to those who do. Referencing the lawful permanent residence requirement in § 1432(a)(5)’s first clause, the majority concedes that the Senate Report recommended only “minor changes in the law relating to derivative citizenship.” S. Rep. No. 81-1515, at 712 (1950).

Congress [in 1952] would have intended that result” if the 1940 Act instead made it harder to obtain derivative citizenship after a parent had naturalized. Id. at 16.

Yet the majority still infers from this that the prior statutes contained no lawful permanent residence requirement.

That inference is not warranted. The same Senate Report that the majority quotes also states that “[t]he subcommittee makes no recommendations for substantial changes in the law relating to derivative citizenship . . . .” Id. (emphasis added). And at other points, the Senate Report notes that “[l]awful permanent residence has always been a prerequisite to derivative citizenship,” and that the 1952 Act would “[r]equire that all persons taking citizenship derivatively be residing in the United States pursuant to a lawful admission for permanent residence.” Id. at 707, 713. The Senate Report therefore supports my view that irrespective of § 1432(a)(5)’s differing language across the two clauses, the 1952 Act was merely a continuation of prior law, which required lawful permanent residence to be eligible for derivative citizenship.

The majority, echoing the panel concurrence of our fine colleague Judge Bennett, thus errs in believing it is “difficult to imagine why Congress [in 1952] would write two provisions that use different words but mean the same thing, when it could have written one provision along the lines of ‘pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter.’” Cheneau, 971 F.3d at 974 (Bennett, J., concurring). Just as a painter need not start every new work from a clean canvas, Congress may add to what it has already created. In my view, that is the more probable explanation of what Congress did here. And it is understandable why it might have done so: such an approach can promote stability in the law when, as here, the statutory phrase had existed for decades.

I therefore do not think that treating § 1432(a)(5)’s second clause as requiring lawful permanent residence would reflect “a radical change” in the law. Id. at 976 (Bennett, J., concurring). From the perspective of the question at issue, the better view is that the 1952 Act worked no material change in the law, radical or otherwise. As we previously recognized, the 1952 Act in fact “affirmatively disclaimed any intention to change the existing law with respect to derivative citizenship.” Acevedo v. Lynch, 798 F.3d 1167, 1171 (9th Cir. 2015) (quotations omitted). It is actually the majority opinion that creates a substantial change in the law, treating people as derivative citizens irrespective of whether they are permanently residing in the United States on a lawful basis and despite the crimes they have committed here.

B

The statutory history also helps us to understand why the majority’s construction of the text is mistaken. A proper interpretation of the text leads to the same conclusion as the statutory history suggests: lawful permanent residence is a prerequisite for derivative citizenship under § 1432(a)(5).

Again, under the provision as it existed at the relevant time for Mr. Cheneau, a child born outside this country could obtain derivative citizenship based on a parent’s naturalization, if:

Such child [1] is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or [2] thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432(a)(5) (1994) (repealed 2000).

Given the history I have set forth above, it makes sense to read “reside permanently” as meaning “reside permanently with lawful permission to do so.” “[C]ourts presume that Congress will use clear language if it intends to alter an established understanding about what a law means; if Congress fails to do so, courts presume that the new statute has the same effect as the older version.” Firstar Bank, N.A. v. Faul, 253 F.3d 982, 988 (7th Cir. 2001); see also Bragdon, 524 U.S. at 645; Cottage Sav. Ass’n v. Comm’r, 499 U.S. 554, 562 (1991). Nothing in the language Congress put into law in 1952 suggested any intention to depart from preexisting law on whether derivative citizenship required the child to be permanently present in the United States on a lawful basis.

But one need not agree with me on the history to see that the majority’s interpretation is mistaken. Focusing only on the language of § 1432(a)(5) abstracted from its historical moorings, the reason the majority’s interpretation is wrong as a textual matter is that if “reside permanently” in § 1432(a)(5)’s second clause does not mean lawful permanent residence, then § 1432(a)(5)’s first clause is effectively a nullity. This is precisely why our prior decision in Romero-Ruiz rejected the majority’s current interpretation as “unreasonable and contrary to the natural reading of the language.” 538 F.3d at 1062. As Romero-Ruiz explained, “[t]o interpret the second clause as conferring derivative citizenship on children who otherwise meet the requirements as long as they are permanently living in the United States would render the first clause—requiring legal permanent residence—superfluous.” Id. That reasoning was right on the mark.

Section 1432(a)(5)’s first clause confers derivative citizenship if the child “is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent.” As the Board of Immigration Appeals has explained, under the majority’s interpretation, “[a]n alien would rarely if ever need to be ‘residing in the United States pursuant to a lawful admission for permanent residence’ because he or she could simply show that some lesser form of residence was ‘thereafter’ acquired before the alien reached the age of 18.” Matter of Nwozuzu, 24 I. & N. Dec. 609, 614 (BIA 2008). A child who did not have lawful permanent residence “at the time” his parent naturalized and who was thus ineligible for derivative citizenship under § 1432(a)(5)’s first clause could wake up the morning after his parent naturalizes and be a derivative citizen under the second clause.

It is hard to imagine why Congress would have made it harder for a child to gain citizenship at the time his parents naturalized than it would afterward. See Thomas, 828 F.3d at 16. And it is equally hard to imagine that Congress intended such easy evasion of the lawful permanent resident requirement in § 1432(a)(5)’s first clause. That significant surplusage problem thus makes the majority’s interpretation “contrary to the natural reading of the language.” Romero-Ruiz, 538 F.3d at 1062. It also counsels heavily in favor of reading “resides permanently” to mean lawful permanent residence, a meaning it can easily bear (and that finds support in the statutory history).

The majority cannot overcome the “unreasonable” surplusage that its interpretation generates. Romero-Ruiz, 538 F.3d at 1062. The majority claims there is no superfluity problem because under its interpretation, “each pathway applies distinct requirements to distinct categories of children with distinct timing.” But that merely restates the rule the majority is trying to prove. That each of the majority’s “pathways” contains “distinct requirements” does not demonstrate that the second pathway would not make the first one irrelevant.

The majority’s only attempt to demonstrate otherwise is buried in a lengthy footnote. Contrary to what we said in Romero-Ruiz, the majority now concludes that its reading does “not necessarily” create a surplusage problem because “[s]omeone with lawful permanent residence may not permanently reside in the United States within the meaning of the INA.” The majority gives as its example “green card commuters” who “can be lawfully admitted for permanent residence despite physically residing in Canada or Mexico and crossing the border to work.” But this example only confirms the depth of the surplusage problem that the majority opinion creates.

It is true that those with lawful permanent resident status, such as green card commuters, may live outside this country and not necessarily reside in the United States. But § 1432(a)(5) is a statute about citizenship. And § 1432(a)(5)’s first clause provides derivative citizenship to children “residing in the United States pursuant to a lawful admission for permanent residence.” The majority does not explain how a child permanently residing outside the United States would even qualify for derivative citizenship. Congress enacted § 1432 “to ensure that only those alien children whose ‘real interests’ were located in America with their custodial parent, and not abroad, should be automatically naturalized.” Nehme v. INS, 252 F.3d 415, 425 (5th Cir. 2001). It is hard to see how that interest is served (or the statute satisfied) by granting derivative citizenship to a child who does not even permanently reside in the United States with his naturalized parent. See also Cheneau, 971 F.3d at 973 (Bennett, J., concurring) (explaining that § 1432(a)(5)’s first clause “imposes an actual residence requirement”).

Of course, even if the majority’s hypothetical scenario were possible under the statute, it is exceedingly unlikely to occur. In the one example the majority gives, § 1432(a)(5)’s first clause but not the second would apply only to the negligible class of people (1) who are under 18 years old, (2) who do not live in the United States, (3) who happen to regularly commute to the United States for work, see 8 C.F.R. § 211.5, and (4) whose parent or parents became naturalized citizens. This class is made even smaller considering that children below a certain age will not be regular workers.

The upshot is that even if the majority has shown there is some potential scenario in which its reading of § 1432(a)(5)’s second clause does not make the first clause entirely superfluous, that scenario is surely rare. The linguistic and logical intuitions behind the canon against surplusage are not overcome simply because one can identify some highly unusual situation in which a statutory provision would technically remain operative. See TRW, 534 U.S. at 29 (statutes should not be read to render a provision “entirely superfluous in all but the most unusual circumstances”). Whether the majority’s reading of § 1432(a)(5)’s second clause results in a total or near total elimination of its first clause, the majority’s interpretation of “reside permanently” is unsound.^[3]

The majority’s other arguments are equally unpersuasive. The majority maintains that “the terms ‘lawful admission for permanent residence’ and ‘reside permanently’ have different meanings in the INA.” But that again assumes the conclusion to the question we are trying to answer here.

As the majority acknowledges, although the phrase “lawful admission for permanent residence” is defined in the statute, the phrase “reside permanently” is not. The statute does separately define “permanent” and “residence,” see 8 U.S.C. §§ 1101(a)(31), (33), as the majority points out. But we are not considering those terms individually (and the term “residence” is not even in the operative provision). We are instead evaluating a phrase—“reside permanently”—in both its textual and historical contexts. The question is thus whether, in the context in which it is used in § 1432(a)(5), “reside permanently” should be construed to mean lawful permanent residence. In this context, and to avoid making § 1432(a)(5)’s first clause nearly or completely unnecessary, it is better to read “reside permanently” as I do and as the history of this provision further supports.

3 The majority also claims that “an individual may reside permanently in the United States without lawful permanent resident status.” To support this point, the majority categorizes G-4 visa holders and seamen as residing permanently in the United States, even though they do not have lawful permanent resident status. The majority misstates these statutes. Both require employment for the person to continue to reside here, which an employer may end. See 8 U.S.C. § 1101(a)(15)(D), (a)(15)(G)(iv). These persons may not reside permanently in the United States irrespective of their employment. See 8 U.S.C. § 1101(a)(31). They are thus not permanent residents in any relevant sense.

The majority therefore errs in claiming that my interpretation “involves reading other language into the statute” because “[t]he word ‘lawful’ is conspicuously absent from the second pathway.” That is a mischaracterization. My interpretation consists of giving meaning to a particular phrase—“reside permanently”—when that phrase is used in a particular textual setting and with a particular historical backdrop. Notably, the majority reads in a “lawfulness” requirement too, seemingly requiring that Cheneau’s initial entry into the United States be “lawful.” The difference, however, is that the majority’s more limited “lawfulness” requirement has no basis in the structure or history of the statute. And the majority of course adds on top of that an “objective official manifestation” component that has no basis in the statute at all.

The majority similarly gets no mileage in pointing out that “[t]he term ‘reside permanently’ appears elsewhere in the INA, but not as a synonym for ‘lawful admission for permanent residence.’” The examples the majority cites from other code provisions all have one thing in common: the phrase “reside permanently” is used in a provision that on its own already required lawful permanent residence. In those different contexts, “reside permanently” must therefore be performing a different function than it does in § 1432(a)(5)’s second clause.

Take for instance 8 U.S.C. § 1438. It provides that former U.S. citizens who lost their citizenship after fighting for allied countries during World War II could regain their citizenship if they had “been lawfully admitted to the United States for permanent residence and intend[] to reside permanently in the United States.” 8 U.S.C. § 1438(b)(2) (emphasis added). In this context “reside permanently” creates an additional, domicile-type requirement beyond lawful permanent resident status. The same is true of the other provisions the majority cites. See id. § 1431(a)(2) (1994); id. § 1433(a)(5)(A) (1994).

What this at most proves is that like most statutory phrases (especially undefined ones), the phrase “reside permanently” can have different meanings depending on the context in which it is used. If it is in a statutory provision as an additional requirement to lawful permanent resident status, as in the majority’s examples, we should not interpret it to mean lawful permanent resident status, or else we would be making parts of the provision surplusage. But in this case, § 1432(a)(5)’s two clauses are separated by an “or,” not an “and,” and reading “reside permanently” as a domicile-type requirement only, as the majority does, makes the first provision entirely or almost entirely unnecessary. That was our core holding in Romero-Ruiz, with which the Eleventh Circuit has since agreed. See United States v. Forey-Quintero, 626 F.3d 1323, 1326–27 (11th Cir. 2010).

Section 1432(a)(5)’s two clauses thus work together but apply to two different circumstances. The first clause applies to children who are lawful permanent residents “at the time” their parent naturalizes; the second clause applies to children who become lawful permanent residents after their parent naturalizes. As we explained in Romero-Ruiz, “[a] plain reading of the statute evidences the requirement that the child be residing pursuant to lawful admission either at the time of the parent’s naturalization or at some subsequent time while under the age of 18. The phrase ‘or thereafter begins to reside permanently’ alters only the timing of the residence requirement, not the requirement of legal residence.” 538 F.3d at 1062.

Is this the only way the statute could have been drafted to accomplish this result? No—there are of course other ways it could have been written. Perhaps it could have been written more clearly, although Congress might have thought it inadvisable (or unnecessary) to drop “reside permanently” from a statute that had used this language without apparent incident for decades. Even so, that Congress might have made our lives easier does not change the more natural meaning of the text it enacted.

That brings me back to the final piece of statutory history. In the Child Citizenship Act of 2000, Congress consolidated the derivative citizenship provisions into a single provision found at 8 U.S.C § 1431(a). Child Citizenship Act of 2000, Pub. L. No. 106-395, § 101, 103, 114 Stat. 1631, 1631–33. The new language provides that a child born outside the United States gains derivative citizenship “when all of the following conditions have been fulfilled:” (1) the parent is a citizen, “whether by birth or naturalization,” (2) the child is under 18, and (3) “[t]he child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” 8 U.S.C. § 1431(a).

Once again, the statute requires the child to have lawful permanent resident status before he turns 18. That is why, if the “critical event” for Cheneau’s derivative citizenship is his becoming a lawful permanent resident, Minasyan, 401 F.3d at 1075, it is clear Cheneau is not a derivative U.S. citizen because he did not achieve this status until after his 18th birthday.

The majority agrees but concludes that Congress’s 2000 revision “indicates that the previous version of the statute was broader.” There is no apparent basis for that assumption, which even the majority concedes does not, “[s]tanding alone,” “compel” its interpretation. I think the better view is instead that the statute has long required a child to have permanent residency on a lawful basis, and so Congress’s revisions in 2000 were merely a carry-over of previous law.

But on the majority’s view, the 2000 amendment was instead a seismic shift in immigration law, upending a supposed understanding, persisting since at least 1952 (and maybe longer), that lawful permanent residency was not always a requirement for derivative citizenship. If that were the case, one would imagine significant evidence—in the legislative history, case law, commentary, or otherwise—discussing such a foundational change in how children may become citizens. But the majority cites no such evidence and neither does Cheneau.

In fact, as to other aspects of child citizenship not at issue here, it is recognized that the purpose of the 2000 Act was “to liberalize then-existing law to make it easier for foreign-born children of United States citizens to obtain citizenship.” Pina v. Mukasey, 542 F.3d 5, 8 (1st Cir. 2008) (emphasis added). It would therefore be strange if the 2000 Act simultaneously made it harder for children to become derivative citizens, as the majority opinion necessarily implies.

The better read of the 2000 amendments is that, like the 1940 and 1952 amendments, they were just another way to say the same thing: a child seeking derivative citizenship must show that he has lawful permission to reside permanently in the United States.

II

There remains one final set of problems for the majority. If “reside permanently” does not mean residing permanently in the United States under lawful status to do so, what does “reside permanently” mean? The majority tells us it means “that an applicant demonstrate an official manifestation of permanent residence.” (Emphasis added). The majority then concludes that Cheneau meets this requirement because he “filed an application for adjustment of status to lawful permanent resident status after his mother naturalized” and before he turned 18, thus “expressing his intent to resident permanently in the United States.” Unfortunately, many issues flow from the majority’s decision to interpret the statute at odds with its text and historical roots.

The first, most obvious, is that if “reside permanently” does not mean “lawful permanent residence,” then by its plain text it should just mean “reside permanently,” full stop. But if that were the case, a minor could enter the United States unlawfully, remain here illegally, commit numerous deportable offenses, and yet achieve (and maintain) automatic citizenship. Or the minor could enter lawfully, stay unlawfully, and become a citizen that way. There is no basis to conclude Congress meant to confer citizenship on such persons, much less condone the unlawful conduct that would lead to it.

To avoid these untoward results, the majority is forced to place a new gloss on the statute, requiring a person “officially” to declare himself as “inten[ding] to reside permanently in the United States.” It is not apparent that someone would need to be present in the United States legally to meet the majority’s test. But even so, the statutory text says nothing about “official manifestations” of permanent residency. The majority’s self-created requirement exceeds an (incorrect) “strict construction” reading of “reside permanently”—measured by length of physical presence only. At the same time, it falls short of the restriction Congress actually imposed—a lawful permanent residency requirement.

The majority’s only support for its middle-ground “official manifestation” approach is the Second Circuit’s decision in Nwozuzu v. Holder, 726 F.3d 323, 333 (2d Cir. 2013), which adopted the same rule. But Nwozuzu purported to locate this rule in its prior decision in Ashton v. Gonzales, 431 F.3d 95, 98 (2d Cir. 2005). See Nwozuzu, 726 F3d. at 333. And Ashton cited no authority for its qualification, instead merely stating that the court “believe[d] that there must be some objective official manifestation of the child’s permanent residence.” Ashton, 431 F.3d at 98 (emphasis added). Such an atextual “belief” should not command our allegiance here.

But that is not the end of the difficulties. Presumably because the statutory language says “thereafter begins to reside permanently,” the majority suggests it matters here that Cheneau made his “official manifestation” “after his mother naturalized.” That would seemingly address my hypothetical of the child who is not a lawful permanent resident and who is therefore ineligible for derivative citizenship under § 1432(a)(5)’s first clause, but who wakes up the morning after his parent naturalizes and finds himself a United States citizen under the second clause. But even then, the child could later that day “officially” manifest his intent to reside permanently, which would apparently suffice under the majority opinion.

It is hard to see what sense there is in any of this. If Cheneau had applied for adjustment of status before his mother naturalized and not done anything after that time to further manifest his intent permanently to remain here, it appears that under the majority opinion he would not be a derivative U.S. citizen. But if he had consistently manifested that “official” intent before her naturalization, including for years, what difference should it make if he did nothing more afterwards? The majority’s approach rewards people who “officially manifested” a permanent intent to remain in the United States toward the end of their minority, while placing at a comparative disadvantage those children who arrived here at a young age, resided here for many years, but failed to take any further “official” action after their parents naturalized and before they turned 18.

The arbitrariness that the majority’s approach invites can be seen in Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016). There, the First Circuit declined to decide whether my view or the majority’s view was correct, holding that even under the majority’s view, the petitioner there could not prevail because he had taken “no official action with respect to his citizenship status in the three-day window between his mother’s naturalization and his eighteenth birthday.” Id. at 17 (emphasis added). That was so even though the petitioner, Thomas, had lived in the United States since he was five years old and even though his mother, before her naturalization, had made repeated immigration filings on Thomas’s behalf, including seeking to have Thomas classified as a lawful permanent resident. Id. at 12–13. Cheneau, in comparison, did not arrive in the United States until he was 13 and his mother apparently allowed three years to pass before pressing the INS on the status of his application for adjustment of status. Is Cheneau really more deserving of derivative citizenship than Thomas?

Congress could of course have decreed that a petitioner like Thomas should have done something “official” in the mere 72 hours between the happy occasion of his mother’s naturalization and his turning 18. If that result were considered unjust, Congress could have changed the law. Or if Congress refused, we could at least have the satisfaction of knowing that such a rule, potentially harsh in some of its applications, was the product of a democratic process. The difficulty is that when courts depart from the statutory text and bear responsibility for a new legal regime, they must also face the valid criticism that the regime they have put into law may produce its own inequities.

Finally, we are left with the question of what counts as an “official manifestation of permanent residence.” To my knowledge, that is not a concept with any understood meaning in immigration law. Before today, it was understood that “[a] child’s acquisition of citizenship on a derivative basis occurs by operation of law and not by adjudication.” Matter of Fuentes, 21 I. & N. Dec. 893, 896 (BIA 1997). That makes sense when the triggers for derivative citizenship are two legal events: a parent’s naturalization and a child securing permission permanently to remain in the United States lawfully. But an “official manifestation” test almost by definition will require adjudications as courts sort through the limits of that concept.

Here the majority holds it is sufficient that Cheneau filed for adjustment of status to lawful permanent resident after his mother naturalized. But left unsaid is whether any manifestation short of that would also suffice. What about the many other actions a non-citizen could take that might reasonably reflect an intent to remain in the United States permanently? Knowing which actions are “official” enough or indicative enough of an intent to reside here permanently is hard to say after reading the majority’s opinion.

The uncertainty that the majority opinion produces clashes with Congress’s objective that derivative citizenship—a status conferred automatically when the required conditions are met—should be relatively easy to determine. In the derivative citizenship context, “[t]he Congressional goal was to create a bright-line test so that those who fell without the derivative citizenship provision could recognize that fact.” Peignand v. INS, 440 F.2d 757, 759 (1st Cir. 1971); see also Cheneau, 971 F.3d at 968 (“The INA confers automatic derivative citizenship on the children of a naturalized citizen, provided certain statutorily prescribed conditions are met.” (quotations omitted and emphasis added)). Being able to assess with relative ease whether someone is a derivative citizen has obvious benefits for both the government and for those persons who may be derivative citizens, as well as their families. An “official manifestation” test injects considerable ambiguity into that process, while expanding the population of derivative citizens beyond what Congress authorized.

The implications of today’s decision are thus potentially significant. While the statute we construe here is no longer operative, it was in place for a very long time and in the not- too-distant past. Government statistics indicate that close to 11.5 million people naturalized between 1952 and 2000, which is the timeframe that former § 1432(a)(5) was in effect. See Naturalizations, Department of Homeland Security, https://www.dhs.gov/immigration-statistics/naturalizations (select “Naturalizations 2019 Data Tables” to download ZIP file and then select “fy2019_table20.xlsx” within ZIP file). The majority’s interpretation of “reside permanently” would also presumably extend to the derivative citizenship statutes in place going back to 1907, and another 6.5 million people became naturalized citizens between 1907 and 1940. See id. If these many millions of persons who naturalized over this nearly 100-year period had children born abroad who came to the United States, those children (who are now adults) could turn out to be derivative U.S. citizens, perhaps without appreciating it.

This matters because derivative citizenship confers important benefits. And there may now be substantial questions about who is entitled to those benefits. Cheneau asks to not be removed from the United States, which is one very basic, though significant, benefit of citizenship. But there are many others, “including rights to vote in federal elections, to travel internationally with a U.S. passport, to convey citizenship to one’s own children even if they are born abroad, to be eligible for citizen-only federal jobs, and, indeed, to be free of discrimination by Congress on the basis of alienage.” Xia v. Tillerson, 865 F.3d 643, 650 (D.C. Cir. 2017). There are other benefits as well, such as being able to run for certain public offices, serve on federal juries, and access certain federal benefits. See, e.g., U.S. Const. art. I, § 2, cl. ^[2]; id. § 3, cl. ^[3]; 28 U.S.C. § 1865(b)(1); 8 U.S.C. §§ 1612, 1613(a). The citizenship issue also arises in criminal law, such as in illegal re-entry prosecutions. See Forey-Quintero, 626 F.3d at 1324.

Courts, and the federal government more generally, may now need to determine whether someone has “officially manifested” enough intent to remain in the United States permanently to qualify for the rights and benefits of citizenship. And that is to say nothing of persons who were previously denied these benefits because of their perceived lack of U.S. citizenship, such as persons who were removed from this country but who in fact were derivative citizens like Cheneau and may now claim they should be allowed to reenter.

That the majority’s interpretation raises more questions than it answers is another sign that our Court’s new interpretation is incorrect. I would have thus held, consistent with the statutory text, its history, and our prior precedent, that Cheneau is not a derivative citizen. I therefore respectfully dissent.