United States Court of Appeals For the First Circuit
No. 99-8018
MIGUEL NOEL FIERRO,
Petitioner,
v.
JANET RENO, ATTORNEY GENERAL,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ____________________
No. 00-1037
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.
Matthew S. Robinowitz for petitioner. Brenda M. O'Malley, Office of Immigration Litigation, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on consolidated brief for respondent.
JUNE 5, 2000 BOUDIN, Circuit Judge. On this appeal, Miguel Noel
Fierro seeks review of a final order of removal, and a denial of
reconsideration, from the Board of Immigration Appeals ("the
Board"). The removal order is based on a statutory provision
providing for the removal from the United States of "[a]ny alien
who is convicted of an aggravated felony at any time after
admission." 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996).
Fierro concedes that he has been convicted of such a crime but
says that he is not an alien but rather a citizen of the United
States.
The critical background facts are not in dispute.
Fierro was born in Cuba on October 25, 1962. He and both of his
parents were admitted to the United States as refugees in 1970.
On October 19, 1973, Fierro's parents were divorced pursuant to
a decree from a Massachusetts probate court, and the decree
awarded Fierro's mother custody of both Fierro and his sister.
On March 25, 1976, Fierro's immigration status was changed to
that of lawful permanent resident.
On March 21, 1978, when Fierro was 15 years old, his
father became a naturalized citizen. Had Fierro then been in
the "legal custody" of his father, he would automatically have
become an American citizen under 8 U.S.C. § 1432(a) (1994),
which in defined circumstances provides automatic citizenship
-3- for alien children whose parents are naturalized. Pertinent
language in the statute, reprinted in full in an appendix to
this decision, grants such citizenship to a child born outside
the United States upon "[t]he naturalization of the parent
having legal custody of the child when there has been a legal
separation of the parents," assuming that this occurs while the
child is under age 18 and that the child is a lawful permanent
resident. Id. The last two conditions are satisfied here, and
the case thus turns on whether the first condition ("legal
custody") can also be met.
On February 15, 1996, Fierro was convicted in
Massachusetts of larceny and sentenced to a term of four years
in prison. It is undisputed that this conviction makes him an
aggravated felon subject to removal. 8 U.S.C. §§
1101(a)(43)(G), 1227(a)(2)(A)(iii) (Supp. II 1996). Fierro's
criminal record is fairly long and it includes drug offenses,
breaking and entering with intent to commit a felony, assault
and battery, larceny, uttering and forgery. However, it was the
1996 larceny conviction that triggered an INS proceeding to
remove Fierro from the country.
In the removal proceeding, Fierro argued inter alia
that he became a United States citizen when his father was
naturalized in 1978. On January 5, 1998, the immigration judge
-4- rejected Fierro's citizenship claim because his mother had been
awarded legal custody of him in 1973 and had never become a
naturalized citizen. The judge ordered Fierro removed to Cuba.
Fierro then appealed to the Board and on appeal he submitted an
amended custody judgment secured from the Massachusetts probate
court dated May 18, 1998, four months after the immigration
judge's removal order. Although Fierro was now 35 years old,
this decree purported to award custody to Fierro's father "nunc
pro tunc to September 1, 1977."
On March 29, 1999, the Board issued a decision holding
that Fierro should be given an opportunity to pursue a different
avenue to avoid removal but it dismissed Fierro's claim of
citizenship, concluding that the state court's 1998 modification
of the custody decree had no effect on Fierro's citizenship
status. After correcting a factual error on reconsideration,
the Board adhered to its ultimate conclusion. Fierro then
abandoned his alternative avenue for seeking to avoid removal
and sought review of the Board's rejection of his citizenship
claim.
The procedural path by which Fierro arrived in this
court is complicated, see Fierro v. INS, 81 F. Supp. 2d 167 (D.
Mass. 1999); Fierro v. INS, 66 F. Supp.2d 229 (D. Mass. 1999),
but the intricacies are of no importance on this appeal, which
-5- the government concedes is properly before this court. This
court's authority to review removal orders based on an alien's
commission of an aggravated felony has recently been restricted,
8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996), but this does not bar
Fierro's claim on review that he is a citizen rather than an
alien, 8 U.S.C. § 1252(b)(5); Maghsoudi v. INS, 181 F.3d 8, 13
n.12 (1st Cir. 1999); Hall v. INS, 167 F.3d 852, 855-56 (4th
Cir. 1999).
It is common ground that Fierro was not subject to
removal as an alien convicted of an aggravated felony if he is
presently an American citizen. Whether Fierro is an American
citizen turns, in this case, entirely on issues of law,
including the meaning of the automatic citizenship statute in
question, 8 U.S.C. § 1432(a) (1994), and the legal effect to be
accorded to the nunc pro tunc ruling of the Massachusetts
probate court. Accordingly, our review is de novo and there is
no occasion to transfer the case to a district court to resolve
factual disputes pursuant to 8 U.S.C. § 1252(b)(5)(B) (Supp. II
1996).
Citizenship for one not born in the United States may
be acquired "only as provided by Acts of Congress." Miller v.
Albright, 523 U.S. 420, 423 (1998). Here, Fierro's claim of
citizenship requires that there have occurred, while he was
-6- under 18 and a permanent resident, "the naturalization of the
parent having legal custody of the child." 8 U.S.C. § 1432(a)
(1994). What is meant by the phrase "having legal custody of
the child" is, of course, a question of federal statutory
interpretation. But the Immigration and Naturalization Act
provides no definition nor does the legislative history
illuminate the concept. See H.R. Rep. No. 82-1365 (1952),
reprinted in 1952 U.S.C.C.A.N. 1653, 1740.
Legal relationships between parents and children are
typically governed by state law, there being "no federal law of
domestic relations." De Sylva v. Ballentine, 351 U.S. 570, 580
(1956); see also Ex parte Burrus, 136 U.S. 586, 593-94 (1890).
Accordingly, subject to possible limitations, we think that the
requirement of "legal custody" in section 1432 should be taken
presumptively to mean legal custody under the law of the state
in question. Although there is no decision directly on point,
this view is consistent with the approach taken in other cases
in which a federal statute depends upon relations that are
primarily governed by state law. E.g., De Sylva, 351 U.S. at
580.
On the premise that state law presumptively governs
such relationships, Fierro reasons that the matter is controlled
by the state probate court judgment entered in May 1998. In
-7- that judgment, the court purported to decree that "as of
September 1, 1977 custody of the minor child [Fierro] . . . is
to be awarded" to the father and that "said order granting
custody [of Fierro to his father] . . . be entered nunc pro tunc
to September 1, 1977." There is authority under Massachusetts
law, as in other jurisdictions, that a "judgment entered nunc
pro tunc is respected and enforced as if it had been entered at
the proper time." 43 Flanagan, Massachusetts Practice § 406
(1993 & Supp. 1999).
Fierro's argument is not without a certain surface
plausibility, but we do not accept it. It is, as will become
apparent, quite doubtful whether the nunc pro tunc decree is
correct even as a matter of Massachusetts law; but while the
reasons for suspecting a possible infirmity are pertinent to our
ultimate holding, we do not rely upon this ground. Rather, even
assuming arguendo that the nunc pro tunc order accords with
Massachusetts law, it reflects an approach to defining legal
custody that is not consistent with section 1432.
It is useful to begin by explaining in somewhat more
detail (there is not a lot of detail available) the origin and
substance of the state decree-modification proceeding. In
December 1997, after the removal proceedings against Fierro had
begun but before the immigration judge rejected Fierro's claim
-8- of citizenship, his parents filed a "complaint for modification"
in the probate court which asserted that on or about September
1, 1977, Fierro had moved to Florida to live with his father.
Accompanying affidavits from Fierro's parents indicated that
Fierro had at that date moved to Florida to live with his father
in order to enroll in a school in Miami, Florida, and that
Fierro was thus living with his father when in early 1978 his
father became an American citizen.
The complaint for modification expressed the joint
request of the parents that the order be entered "nunc pro tunc
to . . . September 1, 1977," explaining that "[t]his
modification is necessary for Miguel Noel Fierro to derive
citizenship through his father and avoid being deported to
Cuba." There is no indication of what proceedings, if any,
followed, but by order dated May 18, 1998, the probate court
granted the judgment modifying the earlier divorce and custody
decree in terms already described--awarding custody to the
father and providing that the custody order be entered nunc pro
tunc to September 1, 1977.
Whether this is a proper nunc pro tunc order under
state law is open to question. Like many other concepts in the
law wrongly assumed to have a fixed meaning, nunc pro tunc is a
somewhat loose concept, like "jurisdiction" or "waiver," used
-9- somewhat differently by different courts in different contexts.
Literally meaning "now for then" (in Latin) see Black's Law
Dictionary 1097 (7th ed. 1999), it is a phrase typically used by
courts to specify that an order entered at a later date should
be given effect retroactive to an earlier date--that is, that it
should be treated for legal purposes as if entered on the
earlier date. Id. The critical question here is not the
intended effect of the phrase but in what circumstances a court
may properly order that a new judgment be given effect nunc pro
tunc.
The core notion, in Massachusetts as in many other
jurisdictions, is that a nunc pro tunc order is appropriate
primarily to correct the record at a later date to make the
record reflect what the court or other body actually intended to
do at an earlier date but did not sufficiently express or did
not get around to doing through some error or inadvertence.
Thus, a clerical mistake in a judgment might be corrected nunc
pro tunc when discovered later or a franchise sought as of
October 1 might be backdated to that date where the application
was timely made.
These concepts are embodied in a widely cited
Massachusetts case explaining the scope of a court's nunc pro
tunc authority as follows:
-10- The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or inferentially at an earlier time, which by accident, mistake or oversight was not made [a] matter of record, or to validate some proceeding actually taken but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement.
Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917). However,
it is clear that there are limits on the court's authority to
make retroactive revisions to prior orders. In Perkins itself,
the court said that "a defect in a judgment, order or decree
which expressed exactly the intention of the court at the time
when it was made cannot be remedied by a nunc pro tunc entry."
Id. at 714.1
Under the then-prevailing decree, Fierro on September
1, 1977, was--and was intended by the probate court to be--in
the "legal custody" of his mother. Fierro had moved in with his
father and perhaps the probate court might, if requested at the
time, have ordered a transfer of legal custody. But nothing
1Many other jurisdictions have said much the same thing. E.g., Murry v. State Farm Mut. Auto. Ins. Co., 725 S.W.2d 571, 572 (Ark. 1987); Jones v. Jones, 442 P.2d 319, 322-23 (Okla. 1968); 46 Am. Jur. 2d, Judgments § 157 (1994).
-11- prevented his mother from retaining legal custody while Fierro
was living (apparently for about a year) with his father in
Florida. There is no indication of error, inadvertence or any
of the conventional preconditions under Massachusetts law for a
revision of the original decree nunc pro tunc.
The Supreme Court has held that where federal law
incorporates a state characterization, a state trial court's
construction of state law is not binding on a federal court.
See Commissioner v. Estate of Bosch, 387 U.S. 456, 457 (1967)
(federal estate tax liability turning on character of property
interest). Several circuit courts have applied the Bosch rule
in the context of probate court nunc pro tunc orders, holding
that these orders are controlling for purposes of federal tax
liability only when the federal court determines that they are
proper under state law. E.g., Estate of Goldstein v.
Commissioner, 479 F.2d 813, 816-20 (10th Cir. 1973). Seemingly,
we could choose to disregard the probate court's modification
order here as a misapplication of Massachusetts law.
Instead, we are more comfortable leaving the state law
issue undecided and resting instead on a strictly federal
ground. We do not think that Congress can be taken as intending
to give effect, for purposes of section 1432, to the kind of ex
post modification of a custody decree reflected in this record--
-12- even if we assume that for purposes of Massachusetts law (e.g.,
inheritance, taxation), the probate court's modification decree
could properly reclassify Fierro's status nunc pro tunc as of
September 1977. This is so for two different reasons.
First, both the language of the automatic citizenship
provision and its apparent underlying rationale suggest that
Congress was concerned with the legal custody status of the
child at the time that the parent was naturalized and during the
minority of the child. See 8 U.S.C. § 1432(a)(4)-(5) (1994).
Congress clearly intended that the child's citizenship should
follow that of the parent who then had legal custody and it is
rather easy to imagine the reasons for this choice: presumably
Congress wanted the child to be protected against separation
from the parent having legal custody during the child's
minority.
Here, viewing matters at the time that Fierro's father
became naturalized (and indeed through the time that Fierro
turned 18), Fierro was under Massachusetts law in the legal
custody of his mother, and any Massachusetts court asked in 1978
would certainly have identified his mother as the legal
custodian under the 1973 decree. It is thus hard to see how it
could be said that in 1978 there occurred the "naturalization of
the parent having legal custody of the child," as section 1432
-13- requires. Similarly, the apparent rationale of the statute
would hardly be served by conferring citizenship on Fierro for
the first time at age 35.
Second, recognizing the nunc pro tunc order in the
present case would in substance allow the state court to create
loopholes in the immigration laws on grounds of perceived equity
or fairness. There is no suggestion that the original custody
decree was entered by mistake, was contrary to law, or otherwise
did not reflect the true legal relationship between Fierro and
his parents at any time during his minority. Congress' rules
for naturalization must be applied as they are written, and a
state court has no more power to modify them on equitable
grounds than does a federal court or agency. See generally INS
v. Pangilinan, 486 U.S. 875, 883-85 (1988); Examining Bd. of
Engineers, Architects & Surveyors v. de Otero, 426 U.S. 572, 605
(1976).
Obviously there are equitable arguments against
separating Fierro even as an adult from his parents, one of whom
is a naturalized citizen and the other a permanent resident.
But Congress did not view these as compelling enough to provide
for automatic citizenship for a "child" who is over 18 at the
time one or more of his parents becomes naturalized. And
Congress' fierce intention to deport aggravated felons, despite
-14- their entry into this country as children and their long-
standing residence in the United States, has only been
strengthened by recent legislation. E.g., Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, Div. C., tit. III, 110 Stat. 3009-575.
The closest precedent on point is Miller v.
Christopher, 96 F.3d 1467 (D.C. Cir. 1996), aff'd sub nom.
Miller v. Albright, 523 U.S. 420 (1998). There, an alien born
out of wedlock sought to gain citizenship through his father
under an immigration-law provision providing for citizenship if
the child was legitimated prior to reaching age 21. The D.C.
Circuit rejected an effort to achieve this result through a
state-court paternity decree obtained after the alien had
reached age 21, holding that to give retroactive effect to the
state court decree would undercut Congress' intent. Id. at
1472-73. The approach of Miller is not dissimilar to our own.
Conversely, we think Fierro gets little help from a
Board doctrine, which he urges us to follow, that "[i]n the
absence of judicial determination or judicial or statutory grant
of custody in the case of legal separation . . . the parent
having actual uncontested custody is to be regarded as having
'legal custody.'" In re M-----, 3 I & N Dec. 850, 856 (BIA
1950); see also In re Yoon, A-39-764-548 (BIA, Dec. 30, 1999)
-15- (same). In our case there was a judicial decree granting
custody to, and only to, Fierro's mother. Neither the letter
nor the policy of the default rule expressed in In re M----- has
any application to the present case.
However, In re M----- does illustrate how careful one
must be about categorical pronouncements in this area. There
are too many possible variations to say in the abstract, as the
government urges, that a later state court decree must always be
disregarded in applying section 1432. Suppose the original 1973
decree in Fierro's case had through a clerical error named his
mother as legal custodian when the judge had ruled orally, and
the parties had understood at the time, that custody had been
awarded to his father. Our own decision is limited to the
circumstances before us.
There is one loose end. In a pro se motion for
bail/bond or in the alternative for supervised release, Fierro
says that Cuba is not accepting deportees and that he is
potentially subject to indefinite detention by the INS, which he
claims would be unlawful. Compare Ma v. Reno, 208 F.3d 815 (9th
Cir. 2000), with Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000).
At this point there is nothing in the record to indicate whether
Cuba refuses all deportees or has refused or will refuse to
accept Fierro, nor do we know whether in that event the INS
-16- would release Fierro under some form of supervision. See 8
U.S.C. § 1231(a)(3), -(6) (Supp. II 1996); 8 C.F.R. § 241.4,
241.5 (2000). Our affirmance is without prejudice to any future
assertion of such claims by Fierro if and when they become ripe.
The petitions for review of the order of removal and
denial of reconsideration are denied.
-17- APPENDIX
8 U.S.C. § 1432 (1994) provides as follows:
(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) 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 last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.
-18-