United States Court of Appeals Fifth Circuit
FILED REVISED MAY 8, 2005 April 20, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 05-60247
JAVIER OTONIEL BUSTAMANTE-BARRERA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
-------------------- On Petition for Review of an Order of the Board of Immigration Appeals --------------------
Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
WIENER, Circuit Judge:
Javier Otoniel Bustamante-Barrera (“Petitioner”) seeks review
of the Board of Immigration Appeal’s (“BIA”) dismissal of his
appeal from an Immigration Judge’s (“IJ”) order of removal.
Petitioner’s challenge to the BIA’s decision is based on a former
version of 8 U.S.C. § 1432(a), under which Petitioner claims to
have automatically derived U.S. citizenship when his mother became
a naturalized citizen in 1994. Prior to its amendment in 2000,
§ 1432(a) granted derivative citizenship to a child born outside
the United States to alien parents if, before that child’s
eighteenth birthday, (1) he became a legal permanent resident
(“LPR”) of the United States, (2) his two living parents “legal[ly]
separat[ed],” (3) one (but not both) of his parents became a naturalized U.S. citizen, and (4) that naturalized parent had
“legal custody” of the child.1 We are concerned today with only
the last of these conditions: We must construe § 1432(a)(3)’s
“legal custody” requirement to determine whether a child seeking
derivative naturalization must have been under the sole (as
distinguished from joint) legal custody of his one naturalized
parent. This is a question of first impression in this Circuit,
and, because we answer it in the affirmative and perceive no merit
in any of Petitioner’s other arguments, we deny his Petition for
Review.
I. FACTS AND PROCEEDINGS
The facts of this case are not in dispute. Born in Mexico in
1979 to Mexican nationals, Petitioner immigrated here with them in
1983. All three became LPRs of this country that same year. In
1991, Petitioner’s parents divorced in California. Their divorce
decree awarded his mother “sole physical custody” of Petitioner,
but awarded both his parents “joint legal custody.”2 Following his
parents’ divorce, Petitioner resided exclusively with his mother.
By virtue of his parents’ joint legal custody, however,
1 8 U.S.C. § 1432(a) (2000), repealed by Child Citizenship Act of 2000 § 103, Pub. L. No. 106-395, 114 Stat. 1631 (emphasis added). All citations to § 1432(a) herein are to the 2000 version of the U.S. Code. We interpret the pre-Child Citizenship Act version of § 1432(a) because that version was in effect at all times relevant to Petitioner’s citizenship claim. See Bagot v. Ashcroft, 398 F.3d 252, 257 & n.3 (3d Cir. 2005). 2 Emphasis added.
-2- Petitioner’s father retained visitation rights.3 In 1994, while
Petitioner was still a minor under the age of 18, his mother became
a naturalized citizen of the United States. His father never did.
Petitioner’s tenure in the United States has not been without
legal mishaps. In 2000, he was convicted in a Texas state court of
assault causing bodily injury to a family member. In 2002, a Texas
court again convicted him of assault crimes, this time of
aggravated assault with a deadly weapon and assault resulting in a
bodily injury, repeat offender. These latter convictions led not
only to a sentence of ten years’ imprisonment, but also to the
initiation of removal proceedings by the Department of Homeland
Security (“DHS”) in August 2002.
In those immigration proceedings, DHS asserted two bases for
Petitioner’s removal: (1) He had been convicted of two crimes
involving moral turpitude and not arising out of a single scheme of
criminal misconduct4; and (2) he had been convicted of an
aggravated felony.5 Petitioner admitted his convictions but
defended against removal by arguing that the IJ lacked jurisdiction
3 The record indicates that Petitioner’s mother claimed him as a dependent for tax purposes in 1991, the year that she and Petitioner’s father divorced. Her tax returns for the years 1992- 2000 are also in the record, however, and she did not claim Petitioner as a dependent for those years. Petitioner’s father’s tax returns are not part of the record, so we do not know whether he claimed Petitioner as a dependent for any year between 1992 and 2000. 4 See 8 U.S.C. § 1227(a)(2)(A)(ii). 5 See id. § 1227(a)(2)(A)(iii).
-3- to order Petitioner removed because he is a U.S. citizen. His
citizenship, Petitioner insisted, flowed from his meeting the
requirements for derivative citizenship under the pre-2000 version
of § 1432(a), which automatically granted derivative citizenship to
specified classes of children born outside of the United States to
alien parents.6 Before the IJ, Petitioner contended that he
satisfied § 1432(a)’s requirements because, at the time of his
mother’s naturalization, he was (1) under the age of 18, (2) under
her legal custody, and (3) residing in the United States as a LPR.
Petitioner appears to have recognized a possible problem with
his claim to derivative citizenship, however. As noted earlier,
his parents’ 1991 divorce decree had granted them joint legal
custody; it did not grant his mother sole legal custody. Thus,
when Petitioner’s mother was naturalized in 1994, his non-citizen
father was a legal custodian as well, sharing some parental rights
with his ex-wife.
In 2002 —— after the initiation of Petitioner’s removal
proceedings at a time when he was 23 years old —— his mother sought
to eliminate this problem by having his legal custody status
changed retroactively. At her request, and without any objection
from Petitioner’s father, a California court issued a nunc pro tunc
amended divorce decree (“amended decree”) which purported to award
Petitioner’s mother sole legal custody retroactively effective to
6 8 U.S.C. § 1432(a).
-4- February 4, 1991. In support of his mother’s request for the
amended decree, her lawyer filed a declaration candidly stating
that “[t]he purpose” for seeking the order was “to satisfy
requirements of the Department of Immigration and Naturalization”
in regards to Petitioner. In other words, Petitioner’s mother
expressly sought the amended decree for the sole purpose of
affecting the outcome of her major son’s removal proceeding.
Faced with the amended decree, the IJ concluded that
Petitioner met the requirements for derivative citizenship under
§ 1432(a). Reasoning that DHS had not carried its burden of
proving that Petitioner was an alien, the IJ terminated the removal
proceedings.
DHS appealed the IJ’s decision to the BIA, which, in October
2003, reversed in favor of DHS. The BIA interpreted § 1432(a)(3)
as requiring that a LPR with two living parents, only one of whom
is a naturalized citizen, does not automatically derive citizenship
from his naturalized parent unless that parent had sole legal
custody over the LPR prior to his eighteenth birthday. Because
Petitioner’s mother had not been his sole legal custodial parent
before his eighteenth birthday, the BIA sustained DHS’s appeal. In
so doing, the BIA refused to credit the retroactive effect of the
California court’s amended decree for purposes of removal.
The BIA viewed the amended decree as nothing more than a legal
fiction created for the express purpose of manipulating federal
immigration and naturalization law. “To allow courts to circumvent
-5- the clear language of the naturalization requirements . . . is
contrary to public policy and decades of Supreme Court
jurisprudence requiring strict compliance with . . . statutory
requirements to obtain citizenship.”7 The BIA remanded the case to
the IJ with instructions to order Petitioner removed, and the IJ
did so on remand.
Petitioner appealed the IJ’s removal order to the BIA, arguing
that by ignoring the amended decree, the BIA (1) overstepped its
legal authority; (2) violated the Full Faith and Credit Act8; and
(3) violated the Equal Protection component of the Fifth
Amendment’s Due Process Clause. In March 2005, the BIA rejected
each of these arguments “for the reasons stated” in its October
2003 decision.9 Petitioner then filed the instant Petition for
Review.10
7 In re: Bustamante-Barrera, No. A38-097-162, at 3 (BIA Oct. 3, 2003) (“Bustamante-Barrera I”). 8 28 U.S.C. § 1738. 9 In re: Bustamante-Barrera, No. A38-097-162, at 1 (BIA Mar. 2, 2005). 10 Before the BIA, Petitioner did “not contest the argument that” § 1432(a)(3)’s reference to “legal custody” requires sole legal custody. Bustamante-Barrera I at 2. Instead, it appears that Petitioner raised the argument for the first time in his Petition for Review filed with us. Ordinarily, we will not consider an argument raised for the first time on appeal, but we do have discretion to do so. See In re HECI Exploration Co., 862 F.2d 513, 521-22 (5th Cir. 1988) (stating that we have discretion to “consider an argument advanced for the first time on appeal,” but, “ordinarily[,] only if the issue is a purely legal one and if consideration of the argument is necessary to avoid a miscarriage of justice”). The issue whether § 1432(a)(3)’s reference to “legal
-6- II. ANALYSIS
A. Jurisdiction
As a general rule, we have jurisdiction to review the BIA’s
removal orders.11 Congress created an exception, however, that
deprives us of jurisdiction to review removal orders issued against
aliens convicted of, inter alia, an aggravated felony or a crime
involving moral turpitude.12 Congress has curtailed this
jurisdiction strip, though, by making clear that we retain
jurisdiction to review “constitutional claims or questions of law”
raised in a petition for review filed by a criminal alien.13 All
four of Petitioner’s claims fall within one or the other of these
two categories: Three of his arguments are legal14 and the fourth
custody” requires sole legal custody is purely a legal one. And, considering the grave consequence facing Petitioner if he fails —— removal from the country in which he grew up —— we consider HECI Exploration Co.’s “miscarriage of justice” requirement to be satisfied. Moreover, Respondent has not argued that Petitioner waived the argument that § 1432(a)(3) is satisfied by joint legal custody; indeed, Respondent has significantly briefed the question. We thus proceed to consider it. 11 See 8 U.S.C. § 1252(a)(1). 12 See id. § 1252(a)(2)(C). 13 Id. § 1252(a)(2)(D). 14 Petitioner argues that he derivatively obtained citizenship under § 1432(a) because (1) that provision is satisfied by a grant of joint legal custody over an alien child; (2) despite the California court’s grant to his parents of joint legal custody, his mother had effective sole legal custody of him; and (3) the amended decree proves that his mother had sole legal custody of him.
-7- is constitutional.15 We thus have jurisdiction to review each of
them, even if it turns out that Petitioner is indeed an alien.
B. Bustamante-Barrera’s citizenship status under § 1432(a)
1. Standard of review
We review each of Petitioner’s claims de novo. Under the
plain words of 8 U.S.C. § 1252(b)(5)(A), we are empowered to
“decide [a putative citizen’s] nationality claim” if we “find[]
from the pleadings and affidavits that no genuine issue of material
fact about [his] nationality is presented.” We agree with the
parties that this case presents no material fact issues, so our
review of the three legal arguments and one constitutional argument
that comprise Petitioner’s claim to U.S. citizenship is de novo.16
That our review is de novo does not, however, answer whether
we must defer to the BIA’s interpretation of § 1432(a). Usually,
the BIA’s reasonable interpretation of an ambiguous provision of
the INA (which, in general, it administers) is entitled to Chevron
15 Petitioner argues that the BIA’s application of § 1432(a) violated the equal protection component of the Fifth Amendment’s Due Process Clause. 16 See 8 U.S.C. § 1252(b)(5)(A) (“If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.”); see also Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (stating that we decide legal claims made in a petition for review de novo); Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003) (stating that we decide constitutional claims made in a petition for review de novo).
-8- deference.17 But Chevron deference will apply here only if Congress
has delegated authority to the BIA to clarify a statutory
ambiguity.18 If Congress has not done so, then we are not required
to defer to the BIA’s interpretation.
There is disagreement among the circuits as to whether the
BIA’s interpretation of § 1432(a) is entitled to Chevron deference.
The Ninth Circuit insists that it is not, reasoning that Congress
has delegated responsibility for deciding nationality claims to the
federal courts.19 That circuit makes the point that 8 U.S.C.
§§ 1252(b)(5)(A) and (B) expressly provide that the federal courts
“shall decide [a] nationality claim” presented in a petition for
review. The Second Circuit appears to be unconvinced. It recently
accorded Chevron deference to the BIA’s interpretation of
§ 1432(a), albeit without ever questioning whether such deference
was warranted.20
We have not weighed in on this precise issue, and neither
party has briefed it. In Nehme v. INS, however, we addressed a
very similar issue and held that the BIA’s interpretation of
17 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984); see Singh, 436 F.3d at 487. 18 See 467 U.S. at 843-44. 19 See Minasyan v. Gonzales, 401 F.3d 1069, 1974 (9th Cir. 2005). 20 See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004).
-9- § 1432(a) is not entitled to Chevron deference.21 Nehme was decided
in the context of determining whether we had jurisdiction to review
a removal order issued against a criminal alien.22 As we stated
there, the question whether we have jurisdiction in a particular
case is subject to plenary review. In other words, we interpret
statutes that operate to deprive us of jurisdiction de novo,
without regard to an administrative agencies preferred
interpretation of the statute.23
Nehme’s holding, however, does not control our interpretation
of § 1432(a)(3). After all, our inquiry today is not
jurisdictional: It was after we decided Nehme that Congress amended
the judicial review provisions of the INA to clarify that we retain
jurisdiction over constitutional and legal claims made by a
criminal alien in a petition for review.24 At the time that we
decided Nehme, the INA merely deprived us of jurisdiction to
entertain petitions for review filed by specific sub-classes of
criminal aliens. The question whether the petitioner in Nehme was
in fact an alien went straight to our jurisdiction: If he was, we
did not have jurisdiction; if he was not, we did. Here, in
contrast, § 1252(a)(2)(D) grants us jurisdiction to hear
21 252 F.3d 415, 420 (5th Cir. 2001). 22 See id. 23 Id. 24 See 8 U.S.C. § 1252(a)(2)(D).
-10- Petitioner’s legal and constitutional claims, regardless of whether
he is an alien. Nehme’s holding that we must interpret § 1432(a)
de novo to determine our jurisdiction is thus not controlling.
For today’s purposes, however, the question of Chevron’s
applicability is beside the point: As we agree with the BIA’s
interpretation of § 1432(a), our conclusion in this case would be
the same whether we were to interpret the statute de novo or,
instead, within Chevron’s framework. If we were operating under
Chevron, we would defer to the BIA’s interpretation of § 1432(a) as
reasonable; and when we interpret the statute de novo, we reach the
same conclusion as did the BIA. As we thus would affirm the BIA’s
interpretation as the appropriate one under either standard of
review, we need not determine whether the BIA’s interpretation is
entitled to Chevron deference.
2. Bustamante-Barrera’s claim to U.S. citizenship
“There are ‘two sources of citizenship, and two only: birth
and naturalization.’”25 As Petitioner was not born in the United
States, naturalization is his sole source for a claim of
citizenship. Naturalization is available “only as provided by Acts
of Congress”26 and, even then, only “in strict compliance with the
terms of” such acts.27 Petitioner has the burden of proving that
25 Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). 26 Id. at 424. 27 INS v. Pangilinan, 486 U.S. 875, 884 (1988).
-11- he qualifies for naturalization, and he must do so in the face of
the Supreme Court’s mandate that we resolve all doubts “in favor of
the United States and against” those seeking citizenship.28
In his claim to derivative naturalization, Petitioner contends
that he automatically became a citizen in 1994 when his mother was
naturalized. His argument tracks the version of § 1432(a) that was
in effect in 1994. It granted derivative citizenship to
child[ren] born outside of the United States [to] alien parents . . . upon fulfillment of[, inter alia,] the following conditions: . . .
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents . . . ; and if
(4) [s]uch naturalization takes place while such child is under the age of eighteen years; and
(5) [s]uch child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the
custodial parent’s naturalization.29 None dispute that Petitioner
satisfies all but one of these conditions: (1) He was born outside
of the United States to alien parents; (2) his parents’ 1991
divorce (which occurred while he was under the age of 18) qualifies
as a “legal separation”; (3) his mother was naturalized while he
was under the age of 18; and (4) at the time of his mother’s
naturalization, Petitioner was residing in the United States as a
LPR. Thus, Petitioner’s status as a derivatively naturalized
28 Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967). 29 8 U.S.C. § 1432(a)(3)-(5) (emphasis added).
-12- citizen turns entirely on § 1432(a)’s fifth condition, viz.,
whether, before he reached the age of 18, his parents’ joint
custody regime satisfied § 1432(a)(3)’s requirement that “the”
naturalized parent be “the” parent having legal custody.
This case, then, is one of federal statutory interpretation.
We must construe the one of § 1432(a)(3)’s express conditions that
requires “the parent having legal custody of the child” to have
been naturalized and determine whether this condition requires that
parent to have had sole, as opposed to joint, legal custody. This
issue is one of first impression, not only in this Circuit but
also, it appears, in all of the federal circuits.30 In the end, we
30 Respondent disagrees, contending that all “[t]he courts that have addressed this issue have reached the” conclusion that § 1432(a)(3) requires sole legal custody. In support of this assertion, Respondent cites Minasyan, 401 F.3d at 1069, Batista v. Ashcroft, 270 F.3d 8 (1st Cir. 2001), and Espindola v. Barber, 152 F. Supp. 829 (N.D. Cal. 1957). None of these cases, however, addressed the precise issue we face today. The Minasyan court interpreted a different term from § 1432(a)(3) —— “legal separation” —— not the phrase at issue today. See 401 F.3d at 1076. The Batista court merely assumed that sole custody is required, but did not engage in an analysis of the issue. See 270 F.3d at 15-16. And in Espindola, it was conceded that the “legal custody” requirement was met. See 152 F. Supp. at 831. To be sure, other courts have faced similar issues, but none that we have found has faced this precise one. The Third Circuit, for example, interpreted “legal custody” in § 1432(a)(3) to be satisfied when no formal decree has granted either parent legal custody of the child, but the child nonetheless resides in the “actual uncontested custody” of the naturalized parent. See Bagot, 398 F.3d at 266. The First and Ninth circuits have also interpreted “legal custody,” but neither court has considered whether § 1432(a)(3) requires sole legal custody. See Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000); Tabucbuc v. Ashcroft, 84 Fed. Appx. 966 (9th Cir. 2004) (unpublished per curiam opinion). And we, along with at least three other circuits, have interpreted the term “legal separation” in § 1432(a)(3). See Minasyan, 401 F.3d at 1069; Brissett, 363 F.3d at 130; Nehme, 252 F.3d at 415; -13- hold that only sole legal custody satisfies § 1432(a)(3). Two
factors lead us to this conclusion: (1) the text of § 1432(a)(3)
and its relation to the overall scheme of the INA; and (2)
§ 1432(a)’s purpose, as demonstrated by its legislative history.
As Petitioner cannot meet his burden of proving that he was in the
sole legal custody of his naturalized mother prior to his
eighteenth birthday, he cannot obtain derivative citizenship. We
must, therefore, deny his petition for review.
3. Obtaining derivative citizenship under 8 U.S.C. § 1432(a)
We start with the statute’s text. As earlier explained,
§ 1432(a)(3) grants derivative citizenship to a child born outside
of the United States to alien parents only if, inter alia, “the
parent having legal custody of the child” has been naturalized. To
determine whether these words require sole legal custody, we must
construe the entire phrase.
Petitioner would have us frame the issue more narrowly,
restricting our interpretation to but two words of this eight-word
phrase, “legal custody.” Indeed, Petitioner’s core argument ——
that reading “legal custody” to require “sole legal custody” would
be to amend § 1432(a)(3) judicially —— might have more force if
“legal custody” were indeed the only words that we must construe.
But the words “legal custody” do not stand alone in § 1432(a)(3);
rather, they immediately follow, and must be read in pari materia
Wedderburn v. INS, 215 F.3d 795 (7th Cir. 2000). Each of these decisions informs our analysis, but none controls it. -14- with, the whole descriptive phrase, which begins with and includes
“the parent having.” Stated another way, “the parent having legal
custody” cannot be parsed to consider, in a vacuum, just “the
parent” or “legal custody.” The who is “the parent”; but, being
singular, more must be known, viz., whether “the” parent in
question is the one with “legal custody.” The words “the parent”
are thus modified by the words “having legal custody.” Only
together do these words describe who must have “the” legal custody
of a child if that child is to derive citizenship.
As noted, Congress chose to identify which progenitor must
have legal custody by using the singular form of “parent”: A child
derives citizenship under § 1432(a)(3) only if “the parent having
legal custody of the child” was himself or herself naturalized.31
Congress’s use of the singular form is telling. It leaves no room
to dispute that, when only one of two legally separated parents is
a naturalized U.S. citizen, that parent is the one who must have
legal custody. Had Congress meant that § 1432(a)(3)’s requirements
could be met when two legally separated parents shared joint legal
custody of a child and only one of those two parents was
naturalized, it could have used more inclusive language to signify
as much. For example, Congress could easily have specified “the
parent or parents having legal custody of the child.”
Not surprisingly, Congress has used just such more inclusive
language in other parts of the INA where the term “legal custody”
31 8 U.S.C. § 1432(a)(3) (emphasis added). -15- is employed. For example, 8 U.S.C. § 1101(b)(1)(C)32 defines
“child” as used in specified portions of the INA to include, among
others, “a child legitimated under the law of the child’s residence
or domicile, . . . if such legitimation takes place before the
child reaches the age of eighteen years and the child is in the
legal custody of the legitimating parent or parents at the time of
such legitimation.”33 And, in § 1101(b)(1)(E)(i), Congress defined
“child” to include “a child adopted while under the age of sixteen
years if the child has been in the legal custody of, and has
resided with, the adopting parent or parents for at least two
years.”34 Finally, 8 U.S.C. § 1101(c)(1), which also defines
“child” (but for other portions of the INA), requires that “the
child [be] in the legal custody of the legitimating or adopting
parent or parents.”35
By their plain language, these three INA provisions are
expressly satisfied either if one of two parents has sole legal
custody or if the two parents share joint legal custody.
Congress’s use of “parent or parents” in these provisions contrasts
sharply with its exclusive use of the singular form of “parent” in
§ 1432(a)(3). We cannot ignore this distinction between different
32 For consistency’s sake, all references in this part of the opinion to provisions in title 8 of the U.S. Code are to the 2000 version of the Code. 33 8 U.S.C. § 1101(b)(1)(C) (emphasis added). 34 8 U.S.C. § 1101(b)(1)(E)(i) (emphasis added). 35 8 U.S.C. § 1101(c)(1) (emphasis added). -16- provisions in the same statute without violating a well-established
canon of statutory construction: We must read the statute as a
whole, so as to give effect to each of its provisions without
rendering any language superfluous.36 Were we to read
§ 1432(a)(3)’s use of “the parent” (singular) as also permitting
joint legal custody, we would effectively read the words “or
parents” out of §§ 1101(b) and (c)’s definitions of “child.” This
we may not —— and will not —— do. Given Congress’s use of “parent
or parents” in §§ 1101(b) and (c), we are confident that, had
Congress intended § 1432(a)(3) to be satisfied by either sole or
joint legal custody, it would have used the same words or at least
very similar ones. That it did not do so confirms to us that joint
legal custody does not meet § 1432(a)(3)’s requirements. Only sole
legal custody will suffice.
As demonstrated by its legislative history, § 1432(a)’s
purpose bolsters our conclusion that the statute requires sole
legal custody. Congress enacted the provision “to ensure that only
those alien children whose ‘real interests’ were located in America
with their custodial parent [singular], and not abroad, should be
automatically naturalized.”37 This provision was adopted to
“promote marital and family harmony and . . . prevent the child
from being separated from an alien parent who has a legal right to
36 See Beck v. Prupis, 529 U.S. 494, 506-07 (2000). 37 Nehme, 252 F.3d at 425; see also S. Rep. No. 2150, at 4 (1940); 86 Cong. Rec. 11,945-53 (1940); H.R. Rep. No. 82-1365, reprinted in 1952 U.S.C.C.A.N. 1653, 1680. -17- custody.”38 In other words, Congress meant for § 1432(a) to protect
the rights of both parents for as long as each one of them has
legal rights over the child. This is why, when we were asked in
Nehme to determine whether an informal separation of a married
couple satisfied § 1432(a)(3)’s “legal separation” requirement, we
answered in the negative:
It makes sense . . . that when the child’s parents are still married, the child does not automatically acquire a new citizenship upon the naturalization of only one parent. . . . [W]e think Congress clearly intended that the naturalization of only one parent would result in the automatic naturalization of an alien child only when there has been a formal, judicial alteration of the marital relationship.39
After all, only when there has been a “formal . . . alteration of
the marital relationship” could the federal courts be confident
that the non-custodial, non-naturalized parent truly has no rights
over the child.40
Other circuits have also interpreted § 1432(a) as serving the
purpose of protecting parental rights. The Ninth Circuit, for
example, views § 1432(a) as a measure meant to “prevent[] the
naturalizing parent from usurping the parental rights of the alien
parent.”41 And, in dicta, the Seventh Circuit reasoned that
§ 1432(a) protects parents’ rights by “limit[ing] automatic changes
38 Nehme, 252 F.3d at 425. 39 Id. at 425-26 (emphasis in original). 40 See id. 41 Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003). -18- [in citizenship] to situations in which the other parent has been
removed from the picture —— either by death or by ‘legal
separation.’”42 A legally separated parent with joint legal custody
—— such as Petitioner’s father —— has not “been removed from the
picture”43 to such a degree that he has no legal rights over his
child. Thus, the naturalization of such a parent’s ex-spouse
should not lead to an automatic change in his child’s citizenship.
That kind of change could seriously interfere with the non-
naturalized parent’s rights, and thereby undermine § 1432(a)’s
purpose.
In addition, interpreting § 1432(a)(3) as amenable to being
satisfied by a decree of joint legal custody would lead to an
absurd result: (1) not recognizing derivative citizenship when an
alien child’s parents are married and only one parent is
naturalized,44 while (2) recognizing derivative citizenship when an
alien child’s parents are legally separated, continue to share
legal custody (and thus legal rights) over the child, and only one
parent is naturalized. Inasmuch as, in each example, both parents
share rights over the child, we can conceive of no non-absurd
reason —— and Petitioner has furnished us none —— why Congress
42 Wedderburn, 215 F.3d at 800 (emphasis added); see also Minasyan, 401 F.3d at 1079; Fierro, 217 F.3d at 6. 43 Wedderburn, 215 F.3d at 800. 44 Under 8 U.S.C. § 1432(a)(1), if a child’s parents are both living and are not “legal[ly] separat[ed],” then derivative citizenship is available only on “[t]he naturalization of both parents.” (Emphasis added). -19- would grant derivative citizenship to the child of the legally
separated parents but not to the child of the married parents. We
decline Petitioner’s invitation to read § 1432(a)(3) in a way that
reaches such an incongruous result. We hold instead that
§ 1432(a)(3)’s requirement that “the parent having legal custody of
the child” be a naturalized citizen of the United States is
satisfied only when but one of two living and legally separated
parents is a naturalized U.S. citizen and that parent is vested
with the sole legal custody of the child.
4. Whether, prior to his eighteenth birthday, Bustamante- Barrera was in the sole legal custody of his mother
Petitioner concedes that the 1991 divorce decree granted his
parents joint legal custody. This decree is the only evidence in
the record relevant to his custodial status prior to his eighteenth
birthday. In the absence of evidence contradicting the 1991
divorce decree, we must conclude that Petitioner did not derive
citizenship ipso facto at the time of his mother’s subsequent
naturalization in 1994.
Petitioner nevertheless advances three arguments to support
his derivative citizenship claim. First, he contends that he
automatically derived citizenship under § 1432(a) when his mother
was naturalized because, even if we disregard the original divorce
decree’s plain language and meaning under California law, he was,
for purposes of federal immigration law, effectively in the sole
legal custody of his mother prior to his eighteenth birthday.
-20- Second, Petitioner insists that under the Full Faith and Credit
Act,45 we must apply the amended decree to his naturalization claim
under § 1432(a). He notes that the amended decree retroactively
grants his mother sole legal custody as of the date of the original
judgment of divorce, which was rendered before his eighteenth
birthday. Finally, Petitioner contends that our failure to
recognize his derivative naturalization would violate the Equal
Protection component of the Fifth Amendment’s Due Process Clause.
a. Whether Bustamante-Barrera was effectively in the sole legal custody of his mother prior to his eighteenth birthday
On a purely theoretical level, Petitioner’s first argument has
some appeal —— but not enough to carry the day. Interpretation of
§ 1432(a)(3) is a matter of federal law.46 And, because of the
overarching constitutional interest in uniformity of federal
immigration and naturalization laws,47 we have previously “reject[ed
the] contention that the law of any one state should govern the
determination” under § 1432(a)(3) “whether an alien child’s parents
were ‘legally separated.’”48 Especially given Nehme’s firm
45 28 U.S.C. § 1738. 46 Nehme, 252 F.3d at 422-23. 47 See U.S. Const. art. I, § 8, cl. 4 (granting Congress the power “[t]o establish an uniform Rule of Naturalization”). 48 Nehme, 252 F.3d at 424 (emphasis added); see also 8 U.S.C. § 1432(a)(3) (granting derivative citizenship to a minor child of alien parents upon “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents”) (emphasis added). -21- rejection of the contention that the meaning of the term “legal
separation” in § 1432(a)(3) is controlled by any given state’s
domestic relations law, we are satisfied that neither may a child’s
“legal custody” status be controlled by any one state’s law. It is
true, at least in theory, that a LPR child seeking derivative
citizenship under § 1432(a) might prove that, despite a state’s
explicit grant of joint legal custody to his parents, he must be
regarded as being (or having been) in the sole legal custody of his
naturalized parent as a matter of federal law.49 In this case,
however, Petitioner has failed to prove that, for federal
naturalization purposes, he should be regarded as having
effectively been in the sole legal custody of his mother at the
time of her naturalization. In fact, he has offered us no evidence
to that effect; he merely asserts as much conclusionally in his
brief. Such a bald assertion is not sufficient to meet his burden
of proving his claim to citizenship; neither is it enough to create
an issue of material fact that would require a hearing before a
district court.50
49 Cf. Nehme, 252 F.3d at 427 (reasoning that the petitioner could have attempted to prove that, despite his parents’ lack of a formal legal separation under state law, they should be regarded as legally separated under federal law). 50 See 8 U.S.C. § 1252(b)(5)(B) (“If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim . . . .”); Agosto v. INS, 436 U.S. 748, 754-57 (1978) (holding that traditional summary judgment principles govern -22- b. The effect of the amended decree
Likewise without merit is Petitioner’s second contention,
i.e., that, at the time of his mother’s naturalization, he met
§ 1432(a)(3)’s sole legal custody requirement because the 2002
amended decree expressly and retroactively grants her sole legal
custody as of the date of her 1991 divorce. Petitioner insists
that we are bound by the Full Faith and Credit Act51 to recognize
California’s amended decree as having such retroactive effect. We
disagree.
Our refusal to credit the amended decree for purposes of
federal immigration law does not even implicate the Full Faith and
Credit Act. For purposes of § 1432(a), Petitioner’s custody status
prior to his eighteenth birthday is determined by federal law; it
is not dependent on the law of any particular state. True, his
custody status under state law might provide evidence of his such
status for federal naturalization purposes; yet, even for these
purposes, we are not bound by California’s determination of his
legal relationship with his mother. Stated differently, even
assuming arguendo that the state’s amended decree retroactively
altered Petitioner’s relationship with his mother for some
the determination whether a petitioner claiming nationality has created an issue of material fact warranting a hearing in the district court). 51 28 U.S.C. § 1738. The Full Faith and Credit Act mandates that federal courts accord the same “full faith and credit” to state “judicial proceedings” as other courts of the state from which the state court judgment comes would accord the judgment. Id. -23- legitimate state purpose, we would not be bound to follow the
amended decree in determining Petitioner’s custody status for
purposes of the subject section of the INA. Federal naturalization
law exists independent of state family law. Here, we do not
question the amended decree’s validity —— a question that, in other
circumstances, the Full Faith and Credit Act might prohibit our
asking. But the Full Faith and Credit Act certainly does not
require us to accord that state decree conclusive effect in U.S.
naturalization proceedings.
We are not the first court to address the effect of a nunc pro
tunc order on a § 1432(a)(3) analysis. Facing similar
circumstances in Fierro, the First Circuit rejected the assertion
that a nunc pro tunc amended custody decree obtained for the
express purpose of affecting the outcome of federal immigration
proceedings satisfied § 1432(a)(3)’s “legal custody” requirement.52
Born in Cuba, Fierro and his parents immigrated to the United
States in 1970. When his parents divorced in 1973, his mother was
granted custody in the divorce decree.53 In 1976, Fierro became a
LPR, and in 1978, when Fierro was still under the age of 18, his
non-custodial father became a naturalized U.S. citizen. Twenty
years later, while a middle-aged Fierro was facing removal
proceedings, a Massachusetts court entered a nunc pro tunc order
that granted his father legal custody effective retroactively to
52 217 F.3d at 1. 53 Id. at 2. -24- 1977.54 To obtain that court order, both of Fierro’s parents had
expressly averred that the post-hoc “modification [of his custody
status] is necessary for [him] to derive citizenship through his
father and avoid being deported to Cuba.”
The Massachusetts court acquiesced and entered the nunc pro
tunc order, after which Fierro insisted that he was not removable
because he had derived citizenship when his father was naturalized
in 1978. As evidenced by the nunc pro tunc order, argued Fierro,
he was in his father’s legal custody at that time. The First
Circuit rejected this argument, reasoning, inter alia, that
reliance on such an order as the basis of derivative citizenship
would open the floodgates for abuse, “allow[ing] . . . state
court[s] to create loopholes in the immigration laws on grounds of
perceived equity or fairness.”55
The instant case is strikingly similar to Fierro. After
Petitioner’s removal proceeding had been initiated —— which was
years after he had reached the age of 18 —— Petitioner’s mother was
successful in having her 11 year-old divorce decree amended
retroactively for the sole purpose of blocking her son’s removal
from the United States. We agree with the First Circuit that
relying on such a nunc pro tunc order to recognize derivative
citizenship would create the potential for significant abuse and
manipulation of federal immigration and naturalization law. We
54 Id. 55 Id. at 6. -25- therefore decline to credit it.
We should not, though, be seen as foreclosing any possibility
that there could be a situation in which such a nunc pro tunc
amended decree could enhance an alien’s claim of derivative
citizenship under § 1432(a). It is at least possible that
circumstances could exist in which such a decree would legitimately
demonstrate that an alien child had in fact been in the sole legal
custody of his one naturalized parent prior to his eighteenth
birthday. This, however, is not such a case. The record here
confirms that Petitioner’s mother sought the amended decree solely
for the purpose of controlling immigration and naturalization law.
We refuse to reward such blatant manipulation of federal law.
c. Bustamante-Barrera’s Equal Protection claim
In a last-ditch effort to avoid removal, Petitioner asserts
that our refusal to recognize the amended decree as sufficient to
satisfy § 1432(a)(3)’s sole legal custody requirement would violate
the Equal Protection component of the Fifth Amendment’s Due Process
Clause. He argues that he is similarly situated to an alien child
whose parents’ original separation decree placed the child in the
sole legal custody of his one naturalized parent. This is so,
argues Petitioner, because his “status, as determined by the
California court, is legally the same as if he were originally
placed in the sole legal custody of his mother at the time of the
[original] custody” decree. It would be irrational, he contends,
to treat him differently only because a retroactive nunc pro tunc -26- order —— distinct from an original decree —— dictates his custody
status.
This argument too is meritless. As we explained earlier, we
need not —— and therefore do not —— rule out the possibility that
some set of circumstances might exist in which we would recognize
a nunc pro tunc amended divorce decree as sufficient to prove sole
legal custody under § 1432(a)(3). In such a hypothetical case,
there would be no differential treatment between, on the one hand,
a minor child who was unquestionably in the sole legal custody of
his naturalized parent from the outset, and, on the other hand, one
whose parents’ original custody decree placed him in the joint
legal custody of both of his parents but who, in actuality, was in
the sole legal custody of his one naturalized parent. Petitioner
argues that he falls within the latter category and that it would
be irrational to treat him differently than children in the former
one. But Petitioner does not fall within the latter group: He has
shown us no evidence that the amended decree is effective for
purposes of federal immigration and naturalization law. On the
contrary, the uncontradicted evidence confirms that the amended
decree was brazenly obtained for the sole purpose of manipulating
federal immigration law and had no legitimate state purpose
whatsoever. Petitioner’s equal protection claim cannot prevail
under such circumstances.
CONCLUSION
Having failed to prove that, prior to his eighteenth birthday, -27- he was in the sole legal custody of his mother, Petitioner has not
carried his burden of proving his derivative naturalization under
§ 1432(a). His petition for review is, therefore,
DENIED.
-28-