Alexander v. INS

• Court: Court of Appeals for the First Circuit
• Decided: January 31, 1996
• Docket: 92-1735
• Status: Published

Opinion

USCA1 Opinion

February 13, 1996

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 92-1735

        No. 95-1558



                          ROGER F. ALEXANDER, ETC., ET AL.,



                                     Petitioners,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                                 ____________________



                                     ERRATA SHEET


The opinion of this Court, issued on  January 31, 1996, should  be

        amended as follows:



            On cover sheet, line 1 of  attorney listings, replace "William  A.
                                                                   ___________

        Maganiello" with "William A. Mangiello".
        __________        ____________________



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 92-1735

        No. 95-1558



                          ROGER F. ALEXANDER, ETC., ET AL.,



                                     Petitioners,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                                 ____________________



                        ON PETITION FOR REVIEW OF AN ORDER OF



                           THE BOARD OF IMMIGRATION APPEALS

                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
                                        _____________



                            Bownes, Senior Circuit Judge,
                                    ____________________



                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



            Michael G. Hillinger with whom William  A. Mangiello was on briefs
            ____________________           _____________________

        for petitioners.

            Carl H.  McIntyre, Jr.,  Office of  Immigration Litigation,  Civil
            ______________________

        Division, Department of Justice, with whom Stuart M. Gerson, Assistant
                                                   ________________

        Attorney General, Civil Division,  Frank W. Hunger, Assistant Attorney
                                           _______________

        General, Civil Division,  and David J. Kline, Assistant Director, were
                                      ______________

        on briefs for respondent.


____________________



                                   January 31, 1996

                                 ____________________



BOUDIN,  Circuit Judge.    Petitioner  Roger  Alexander,
                          _____________



            named Roger  Alexander  Hobbs at  birth,  was born  in  Great



            Britain  on February  13, 1945,  son of  Sarah Hobbs  and, he



            alleges, Floyd Alexander, an  American serviceman.  Roger was



            unaware of  his true  father until  1968, when  he discovered



            that the  man whom he believed  to be his father  had died in



            1943.   His mother then told him  that his father was in fact



            Floyd Alexander.  Sometime after Floyd's death in 1970, Roger



            established contact with his supposed American half-siblings.



            In  1984, Roger, his wife Anne, and their three sons moved to



            the United States.  



                 In 1985, Roger filed an application for a certificate of



            U.S. citizenship  which was denied the following  year.  Some



            months after Roger filed the application, the Immigration and



            Naturalization Service ("INS") served  an order to show cause



            on Roger and Anne, charging that they were deportable under 8



            U.S.C.   1251(a)(2), on the  ground that they had  overstayed



            their  non-immigrant visas.   Roger  contested this  order by



            presenting a claim to derivative citizenship through Floyd.  



                 The  INS   held  three  days  of   hearings  on  Roger's



            citizenship claim in Boston  in 1987 and 1988.   On September



            22,  1988, the  immigration  judge entered  an order  denying



            Roger's  claims,  finding  the  Alexanders   deportable,  and



            granting their  request for voluntary departure.   That order



            was  appealed to the Board of Immigration Appeals; on June 9,


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1992 the Board dismissed the Alexanders' appeal, holding that



            Roger had  not met the statutory  requirements for derivative



            citizenship  under 8 U.S.C.    1401 and 1409.  The Alexanders



            filed a  motion for  reconsideration which the  Board denied.



            The Alexanders then filed in this court a timely petition for



            review, which we now grant.  



                 8  U.S.C.      1105a(a)(5)  provides  that   whenever  a



            petitioner, who seeks review of an order of deportation,



                 claims to  be a national  of the United  States and

                 makes a  showing that  his claim is  not frivolous,

                 the court shall (A)  pass upon the issues presented

                 when it  appears from the pleadings  and affidavits

                 filed  by  the parties  that  no  genuine issue  of

                 material fact is presented;  or (B) where a genuine

                 issue  of material  fact  as  to  the  petitioner's

                 nationality is presented, transfer  the proceedings

                 to a United States district court . . . for hearing

                 de novo . . . .



            The  government  does not  contest that  Roger has  alleged a



            viable  theory of  citizenship.   The  only question  for our



            decision is  whether there  is a  "genuine issue  of material



            fact"  for determination  by the district  court.   Agosto v.
                                                                ______



            INS, 436 U.S. 748, 754 (1978).  This standard is analogous to
            ___



            that  governing motions  for summary  judgment under  Fed. R.



            Civ. P. 56.   Anderson v.  Liberty Lobby, 477  U.S. 242,  248
                          ________     _____________



            (1986).  



                 If Roger has a  statutory claim to U.S. citizenship,  it


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is  by  operation of  8 U.S.C.     1409(b),1 which  states in



            relevant part that



                 the  provisions of  section  1401(g) of  this title

                 shall  apply to a child  born out of  wedlock on or

                 after January  13, 1941,  and  before December  24,

                 1952, as of the  date of birth if the  paternity of

                 such child  is established  at any time  while such

                 child  is  under the  age  of  twenty-one years  by

                 legitimation.  



            18  U.S.C. 1401(g)  provides that  the foreign-born  child of



            parents, one  of whom is a U.S. citizen and one of whom is an



            alien, is  "a citizen  . .  . at birth"  if the  U.S. citizen



            parent resided in the United States for a statutorily defined



            period prior to the child's birth.



                 Thus, to show that he was a U.S. citizen at birth, Roger



            must  prove that  (1) Floyd was  his father; (2)  Floyd was a



            U.S. citizen who satisfied the physical presence requirements



            of section 1401(g); and (3) Floyd's paternity was established



            prior to Roger's 21st  birthday.  Enough evidence at  the INS



            hearing indicated  that Floyd was  Roger's biological father,



            and  Floyd was  admittedly a  U.S. citizen who  satisfied the



            physical  presence requirements.    So this  appeal turns  on



            whether there is also a genuine factual dispute as to whether



            Roger was legitimated prior to his 21st birthday.


____________________



                 1Roger argues that he  qualifies for citizenship under 8

            U.S.C.     1409(a), but  it  is  clear that  current  section

            1409(a) does not apply to individuals  born prior to November

            15, 1968.   See 102 Stat.  2619 (1988).   And former  section
                        ___

            1409(a) applies only to individuals born on or after December

            24, 1952.  66 Stat. 238 (1952).



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At  the  hearing  before  the immigration  judge,  Roger



            offered the  affidavit of  David Klickstein, now  deceased, a



            Maine  attorney   and  notary  public.     According  to  the



            affidavit, in 1955 Floyd signed a document acknowledging that



            Roger was his son; Klickstein  notarized the document but did



            not keep a  copy, nor was  any copy  offered at the  hearing.



            Roger also offered testimony by Floyd's first wife that Floyd



            had told  her  that he  had executed  the alleged  affidavit.



            Floyd's  alleged  document,  if  made  and   acknowledged  as



            described  in  Klickstein's affidavit,  legitimated  Roger as



            Floyd's son under Maine law in 1955, when Roger was under age



            21.   See  8 U.S.C.    1101(c)(1)  (providing that  state law
                  ___



            governs).2



                 To  be sure,  the Board  found the  Klickstein affidavit



            unconvincing,  saying  that Roger's  "claim  that  his father



            executed a purported document acknowledging paternity  is not



            adequately  supported."    But  under  the  unusual statutory



            procedure already described, this  court does not review that



            finding  under  a  substantial-evidence  or  other  customary



            standard.   Once a genuine  material issue of  fact is posed,



            the statute entitles Roger to a trial de novo in the district
                                                  _______



                                
            ____________________



                 2Under  Maine law in 1955,  "[i]f the father  of a child

            born out of  wedlock adopts him or her into  his family or in

            writing  acknowledges before  some  justice of  the peace  or

            notary public that he is the father, such child is  . . . the

            heir and legitimate child of his  or her father."  4 Me. Rev.

            Stat. c.  170,   3 (1954), repealed by 1979 Me. Laws ch. 540,
                                       ___________

              24-C.  



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court.  8 U.S.C.  1105a(a)(5).



                 On  appeal the INS argues that the absence of the actual



            document is  fatal to Roger's claim  as a matter of  law.  We



            disagree:   there  is nothing  in the  language of  the Maine



            statute  to  indicate that  the  continued  existence of  the



            document is essential to legitimation, nor does the INS refer



            us to  any Maine  case  law to  support this  view.   To  the



            contrary,  the statute indicates  that it is  the creation of



            the  document, not its preservation, that matters.  Cf. In re
                                                                ___ _____



            Joyce's Estate, 183 A.2d 513, 514 (Me. 1962).
            ______________



                 Although it  might  surprise a  lay  person to  see  how



            little  importance  we  attach  to the  preservation  of  the



            affidavit,  no  lawyer  would  be  surprised.    A  will, for



            example, must be made  and executed with startling formality,



            but  if lost  or misplaced  may be  proved by  oral evidence.



            E.g., In re  Estate of Fuller, 399 A.2d 960, 961 (N.H. 1979).
            ____  _______________________



            Indeed, the whole tendency of  the law of evidence  governing



            documents  is to  demand  the original  if  available but  to



            forgive  its absence if explained.   See Fed.  R. Evid. 1004.
                                                 ___



            Of course,  Roger must  prove that his  legitimation occurred



            but this is a matter for the district court.3



                                
            ____________________



                 3The   Board   apparently   considered  the   Klickstein

            affidavit at the hearing  but found it insufficient.   As the

            issue has  not been raised by the INS, we have no occasion to

            consider  whether  the  affidavit  would  be   admissible  in

            district court under a hearsay exception, e.g., Fed. R. Evid.
                                                      ____

            804(b)(5), whether  the rules  of evidence would  be strictly

            applied in a proceeding before the district judge, or whether



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The INS argues  in the  alternative that  even if  Roger



            became a "citizen . .  . at birth" under section  1401(g), he



            lost  his citizenship  under  the retention  requirements  of



            former  section 1401(b).   That section  originally provided,



            with  a qualification  not  here pertinent,  that anyone  who



            became a  citizen under section 1401(g)  lost his citizenship



            unless he came to the U.S. before age 23 and  remained for at



            least five years.  66 Stat. 235 (1952).  Roger admits that he



            does  not  satisfy  this  requirement, nor  a  slightly  less



            rigorous version later enacted.  See 92 Stat. 1046 (1972).
                                             ___



                 Although the retention requirement was repealed entirely



            in 1978, the repeal was by its own terms not retroactive.  92



            Stat. 1046.  We were therefore initially disposed to conclude



            that  Roger's  section  1409(b)   claim  was  barred  by  the



            retention requirement.   However, in the  course of preparing



            the opinion, the court encountered a 1994 amendment, codified



            at 8 U.S.C.   1435, that provides relief as follows: 



                      A  person  who was  a  citizen  of the  United

                 States  at  birth  and  lost such  citizenship  for

                 failure  to  meet the  physical  presence retention

                 requirements  under section  1401(b) of  this title

                 (as in effect before October 10, 1978), shall, from

                 and after taking the oath of allegiance required by

                 section  1448 of  this title  be a  citizen of  the

                 United States and have the  status of a citizen  of

                 the  United  States  by  birth, without  filing  an

                 application for naturalization . . . . 



            The effect of this language appeared to allow Roger to escape



                                
            ____________________



            other more  readily admissible  evidence exists to  show that

            Floyd's statement was prepared and notarized.



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the  retention  requirement  merely  by  filing  an  oath  of



            allegiance.  See 8 U.S.C.   1448 (prescribing oath).
                         ___



                 Confident that the  INS would wish to  see justice done,



            we   asked  the   parties  to   address  this   provision  in



            supplemental briefs.  Roger replied that he had not yet taken



            such an oath but proposed  to do so.  The INS,  in its reply,



            did not  deny that  the oath would  erase the  bar of  former



            section  1401(b).   But  it argued  that  this court  has "no



            jurisdiction"  to consider the  1994 amendment  issue because



            that would  require consideration of  evidence not  appearing



            "upon  the administrative  record upon which  the deportation



            order is based."  8 U.S.C.   1105a(a)(4).



                 Section  1105a(a)(4),  like many  counterparts,  e.g., 5
                                                                  ____



            U.S.C.    706; 29 U.S.C.     160(e)  and (f), is  intended to



            prevent  a  reviewing  court  from considering  evidence  not



            before an administrative agency,  i.e., to assure that agency
                                              ____



            findings are reviewed upon the record made before the agency.



            Cf. Camp v. Pitts, 411 U.S. 138, 142 (1973).  Nothing in such
            ___ ____    _____



            provisions prevents a reviewing  court from applying  correct



            legal  principles to  a  dispute, whether  or not  previously
            _____



            identified in the  agency proceeding.  And  if former section



            1401(b) is now  a hollow shell, the INS' argument  fails as a



            matter of law.



                 Of course,  Roger did not  rely upon the  1994 amendment



            (nor did the  INS mention it to us in its brief).  Failure to


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raise an argument  in timely fashion  means that a  reviewing



            court is  free to disregard it.  Thomas v. INS, 976 F.2d 786,
                                             ______    ___



            789 (1st  Cir. 1992).  But  the law that was  overlooked (the



            1994 amendment) is not disputed, Congress' intent to preserve



            citizenship on  condition is  apparent, the condition  can be



            mechanically satisfied,  and the right  in question--American



            citizenship--is one of the most precious imaginable.



                 We therefore  transfer this  case to the  district court



            for trial de novo.  8 U.S.C.  1105a(a)(5).  We do not at this
                      _______



            time pass upon any  alternative constitutional claims made by



            Roger.   The  district court  may  require Roger  to  present



            evidence within  a reasonable time  that he has  executed the



            oath prescribed by 8 U.S.C.   1448; if Roger fails  to do so,



            the  district  court  may   dismiss  on  that  ground  alone.



            Otherwise,  the court  should  proceed to  the merits  of his



            claim under section 1409(b).  



                 It is so ordered.
                 _________________


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