Javier Ontoniel Bustamante-Barrera v. Alberto R. Gonzales, U.S. Attorney General
Docket: 05-60247
Court: Court of Appeals for the Fifth Circuit; April 20, 2006; Federal Appellate Court
Javier Ontoniel Bustamante-Barrera petitions for review of the Board of Immigration Appeals' (BIA) dismissal of his appeal against an Immigration Judge's (IJ) removal order. He argues that he automatically derived U.S. citizenship under the former version of 8 U.S.C. 1432(a) when his mother became a naturalized citizen in 1994. This statute allowed a child born abroad to alien parents to derive citizenship if, before turning 18, certain conditions were met, including that one parent became a naturalized citizen and had 'legal custody' of the child.
The focus is on the 'legal custody' requirement, specifically whether it necessitates sole legal custody from the naturalized parent. The court concludes that it does require sole legal custody. The facts are undisputed: Born in Mexico in 1979, Bustamante immigrated with his parents in 1983, and all became legal permanent residents that same year. Following his parents' 1991 divorce in California, his mother was awarded sole physical custody, but both parents retained joint legal custody, granting the father visitation rights. Petitioner resided with his mother, who naturalized in 1994 while he was still a minor.
Bustamante has a criminal history, including two significant assaults that led to a ten-year prison sentence and subsequent removal proceedings initiated by the Department of Homeland Security (DHS) in 2002. DHS cited two bases for removal: convictions for crimes involving moral turpitude and an aggravated felony. Despite admitting his convictions, Bustamante argued against removal, claiming he was a U.S. citizen due to meeting 1432(a) requirements. However, he faced a challenge because his parents' joint legal custody meant his father retained legal rights, undermining his claim to sole custody. Consequently, the court denies his Petition for Review, finding no merit in his arguments.
In 2002, during Petitioner's removal proceedings at age 23, his mother sought to change his legal custody status retroactively, leading a California court to issue a nunc pro tunc amended divorce decree granting her sole legal custody effective February 4, 1991. This request was made explicitly to satisfy immigration requirements regarding Petitioner. The Immigration Judge (IJ) determined that Petitioner met the criteria for derivative citizenship under 8 U.S.C. § 1432(a), leading to the termination of removal proceedings, as the Department of Homeland Security (DHS) failed to prove Petitioner was an alien. However, the Board of Immigration Appeals (BIA) reversed this decision in October 2003, interpreting § 1432(a)(3) to mean that a lawful permanent resident (LPR) with two living parents, only one of whom is a naturalized citizen, does not derive citizenship unless the naturalized parent had sole legal custody before the LPR's eighteenth birthday. The BIA dismissed the retroactive effect of the amended decree, viewing it as a legal fiction designed to manipulate immigration law, and remanded the case, resulting in the IJ ordering Petitioner's removal.
Petitioner appealed the IJ's removal order to the BIA, arguing that the BIA overstepped its authority, violated the Full Faith and Credit Act, and infringed upon his Fifth Amendment rights. The BIA rejected these arguments in March 2005, referencing its prior decision. Petitioner then filed a Petition for Review. While general jurisdiction to review removal orders against aliens convicted of certain crimes is limited, jurisdiction is retained for constitutional claims or questions of law. All of Petitioner's claims fit within these categories, allowing for de novo review. The court found no genuine issues of material fact regarding Petitioner's nationality, thus enabling a review of his legal and constitutional claims related to U.S. citizenship.
The review is de novo, but whether to defer to the BIA’s interpretation of 1432(a) is unresolved. Typically, the BIA's reasonable interpretation of ambiguous provisions in the INA receives Chevron deference, contingent upon congressional delegation of interpretive authority. This issue is contentious among circuits; the Ninth Circuit denies Chevron deference, asserting that Congress assigned nationality claims to federal courts via 8 U.S.C. 1252(b)(5)(A) and (B), while the Second Circuit has granted such deference without addressing its appropriateness. The current court has not ruled on this specific matter, although in Nehme v. INS, it held that the BIA’s interpretation of 1432(a) does not warrant Chevron deference, particularly in the context of jurisdiction over removal orders for criminal aliens. Nehme's ruling, however, is not determinative for the present interpretation of 1432(a)(3) since subsequent amendments to the INA affirm the court's jurisdiction over constitutional and legal claims from criminal aliens, irrespective of their alien status.
For the current case, the question of Chevron's applicability is secondary; the court aligns with the BIA’s interpretation of 1432(a). Whether the court interprets the statute de novo or applies Chevron, the conclusion remains consistent: the BIA's interpretation is reasonable and affirmed. Citizenship sources are limited to birth and naturalization; given the petitioner was not born in the U.S., naturalization is the sole avenue for citizenship claims. The petitioner bears the burden of proof for naturalization eligibility, with an emphasis on resolving doubts in favor of the United States.
Petitioner claims automatic citizenship based on his mother's 1994 naturalization, referencing 8 U.S.C. § 1432(a) as it was in effect at that time. This statute allows for derivative citizenship for children born abroad to alien parents if specific conditions are met: 1) the naturalization of the parent with legal custody during a legal separation; 2) the child's age being under eighteen at the time of naturalization; and 3) the child residing in the U.S. as a lawful permanent resident (LPR) during the parent's naturalization. Petitioner meets all conditions except one: whether his parents' joint custody arrangement meets the requirement of having 'the' naturalized parent as 'the' legal custodian under § 1432(a)(3).
The interpretation of whether 'the parent having legal custody' necessitates sole legal custody is established as a legal question of first impression across federal circuits. The conclusion reached is that sole legal custody is required to fulfill this condition. Two main factors support this conclusion: the statutory text of § 1432(a)(3) and its legislative history. Since Petitioner failed to prove he was in his mother's sole legal custody before turning eighteen, his petition for derivative citizenship is denied. The analysis emphasizes that 'the parent having legal custody' should not be interpreted in isolation, as the entire phrase must be considered together to determine eligibility for citizenship.
Congress defined the legal custody requirement for a child's citizenship under 8 U.S.C. 1432(a)(3) using the singular term "parent," indicating that only the parent with sole legal custody, who is also a naturalized U.S. citizen, can confer citizenship to the child. The choice of singular language shows that in cases of legal separation, if only one parent is naturalized, that parent must hold legal custody for the child to derive citizenship. If Congress had intended to allow for joint legal custody in such situations, it would have used more inclusive language, as seen in other provisions of the Immigration and Nationality Act (INA) where "parent or parents" is specified. These provisions allow for both sole legal custody and joint legal custody, highlighting the distinction in language compared to 1432(a)(3). Ignoring this specific wording would violate statutory construction principles, as it would render some provisions redundant. The historical context of 1432(a) reinforces the requirement for sole legal custody, aiming to ensure that citizenship is conferred to children whose custodial interests are tied to a naturalized parent in America, thereby promoting family unity and preventing separation from an alien parent with legal rights. This legislative intent further supports the conclusion that joint legal custody does not satisfy the requirements of 1432(a)(3).
Congress intended that the naturalization of one parent results in the automatic naturalization of an alien child only following a formal judicial alteration of the marital relationship, ensuring that the non-naturalized parent's rights are adequately protected. Various circuit courts have interpreted 8 U.S.C. § 1432(a) as a measure to prevent one parent from usurping the rights of another. For instance, the Ninth Circuit emphasizes the importance of safeguarding the parental rights of the non-naturalized parent, while the Seventh Circuit limits automatic citizenship changes to scenarios where the other parent is deceased or legally separated.
A legally separated parent with joint legal custody retains rights over their child, indicating that the naturalization of the other parent should not automatically change the child’s citizenship status. Such an interpretation would contradict the statute's purpose and lead to incongruity, where derivative citizenship is recognized for children of legally separated parents but not for those of married parents who share rights. The requirement under § 1432(a)(3) that "the parent having legal custody of the child" must be a naturalized citizen is satisfied only when one parent holds sole legal custody after a legal separation.
Petitioner acknowledges that his parents' 1991 divorce decree established joint legal custody, which is the sole relevant evidence regarding his custodial status before turning eighteen. Thus, it is concluded that he did not automatically derive citizenship upon his mother’s naturalization in 1994. Petitioner presents three arguments for his derivative citizenship claim: (1) he should be considered under the sole legal custody of his mother for federal immigration purposes; (2) the amended divorce decree, retroactively granting sole custody to his mother, should be applied; and (3) failing to recognize his derivative citizenship would violate his Equal Protection rights under the Fifth Amendment's Due Process Clause.
Petitioner's argument regarding the interpretation of 1432(a)(3) lacks sufficient merit. Federal law governs this interpretation, emphasizing the need for uniformity in immigration and naturalization laws. Previous rulings have established that a state’s law cannot dictate whether an alien child's parents are considered 'legally separated' under 1432(a)(3), nor can a child's 'legal custody' status be determined by any single state's law. Although a lawful permanent resident (LPR) child might theoretically demonstrate that they should be viewed as in the sole legal custody of their naturalized parent despite a state's joint custody designation, Petitioner has not provided evidence to support his claim of having been in his mother's sole legal custody at her naturalization, relying instead on unsubstantiated assertions.
Additionally, Petitioner contends that a 2002 amended decree retroactively granting his mother sole legal custody from the time of her 1991 divorce satisfies the sole legal custody requirement of 1432(a)(3). However, the argument that the Full Faith and Credit Act compels recognition of this decree is rejected. The determination of custody under 1432(a) is governed by federal law, independent of state law, and while state determinations may inform federal decisions, they do not bind federal proceedings. The validity of the amended decree is not questioned; however, it does not have conclusive effect on U.S. naturalization processes. The precedent set by the First Circuit in Fierro reinforces that a nunc pro tunc order aimed at influencing federal immigration outcomes does not fulfill the custody requirement of 1432(a)(3).
Fierro, a Cuban immigrant, became a lawful permanent resident (LPR) in 1976 after his parents divorced in 1973, with his mother receiving custody. His father naturalized in 1978, while Fierro was still a minor. Years later, during removal proceedings, a Massachusetts court issued a nunc pro tunc order retroactively granting his father legal custody from 1977. This order was obtained with the explicit intent to help Fierro derive citizenship through his father and avoid deportation. Fierro argued that this order established his legal custody at the time of his father’s naturalization, thus entitling him to citizenship. However, the First Circuit rejected this argument, citing concerns about potential abuse of the immigration system if such orders were used to establish derivative citizenship. The current case parallels Fierro's, where the petitioner’s mother amended a divorce decree retroactively to block removal proceedings. The court affirmed that recognizing such orders for citizenship claims would open avenues for manipulation of federal immigration law, emphasizing that the mother's intent was solely to obstruct removal. Although the court acknowledged there could be legitimate instances where a nunc pro tunc order could support a claim of derivative citizenship, this case did not qualify. In a final attempt to avoid deportation, the petitioner claimed that not recognizing the amended decree as meeting the custody requirement violated the Equal Protection component of the Fifth Amendment. He argued that his situation was akin to that of a child originally placed in the sole custody of a naturalized parent, asserting it was irrational to treat him differently due to the nature of the custody order.
The argument presented is found to lack merit. The court acknowledges the potential for recognizing a nunc pro tunc amended divorce decree as sufficient proof of sole legal custody under 8 U.S.C. § 1432(a)(3), yet emphasizes that such a scenario does not apply to the Petitioner. The Petitioner claims he should not be treated differently from children who are in sole legal custody of their naturalized parent; however, he fails to provide evidence that the amended decree is valid under federal immigration law. Evidence indicates that the amended decree was improperly obtained to influence federal immigration status without legitimate state purpose. Consequently, the Petitioner has not demonstrated that he was in the sole legal custody of his mother prior to turning eighteen, thus failing to meet the criteria for derivative naturalization under § 1432(a). The petition for review is denied. The court distinguishes this case from previous rulings, clarifying that existing precedents do not address the specific issue of whether sole legal custody is required under § 1432(a)(3). Other courts have interpreted "legal custody" in various contexts, but none have definitively resolved this particular question.
Brissett, Nehme, and Wedderburn v. INS provide relevant case law for the analysis at hand, though none of these cases are determinative. The opinion consistently references the 2000 version of Title 8 of the U.S. Code. Key provisions include 8 U.S.C. 1432(a)(1), which states that derivative citizenship for a child is only available if both parents are living and not legally separated at the time of the parent's naturalization. Under 8 U.S.C. 1432(a)(3), derivative citizenship can be granted to a minor child if the parent with legal custody naturalizes after a legal separation. The court may consider claims of legal separation under federal law, despite the absence of formal state law separation. Additionally, if a petitioner claims U.S. nationality and raises a genuine issue of material fact, the court of appeals is required to transfer the case to the appropriate district court for further proceedings, as established in Agosto v. INS. The Full Faith and Credit Act ensures that federal courts recognize state judicial proceedings similarly to how they would be recognized by the originating state court.
