United States Court of Appeals 

For the First Circuit 

No. 14-1858 

RICHARD MARVIN THOMPSON, 

Petitioner, 

v. 

LORETTA E. LYNCH,*

ATTORNEY GENERAL OF THE UNITED STATES, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

 THE BOARD OF IMMIGRATION APPEALS 

Before 

Howard, Chief Judge, 

Torruella and Lipez, Circuit Judges. 

Thomas S. Rome, on brief for petitioner. 

Joseph D. Hardy, Trial Attorney, Office of Immigration 

Litigation, Civil Division, U.S. Department of Justice, 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, 

Civil Division, and Blair T. O'Connor, Assistant Director, on brief 

for respondent. 

December 29, 2015 

 

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Loretta E. Lynch is substituted for former Attorney General 

Eric H. Holder, Jr. as respondent. 
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TORRUELLA, Circuit Judge. Petitioner Richard Marvin 

Thompson ("Thompson") is a lawful permanent resident who was 

convicted of a deportable offense. Thompson contends that he has 

derivative citizenship from his father's naturalization and 

therefore cannot be deported. Former section 321(a) of the 

Immigration and Nationality Act provides that a child derives 

citizenship from the naturalization of one parent if (1) the 

naturalized parent has "legal custody of the child when there has 

been a legal separation of the parents"; (2) the naturalization 

occurs before the child turns eighteen years old; and (3) the child 

is a lawful permanent resident either at the time of or after the 

naturalization. 8 U.S.C. § 1432(a) (repealed 2000). 

In his petition for review, Thompson argues the Board of 

Immigration Appeals ("BIA") incorrectly rejected his argument that 

his parents were in a common-law marriage and legally separated 

within the meaning of former section 321(a)(3) when they ceased 

cohabitation. But Thompson has not proven that his parents' 

relationship or separation was legally recognized. As a result, 

we deny Thompson's petition. 

I. Facts 

Thompson was born in 1982 to Jamaican parents in Jamaica. 

Sometime after Thompson's birth, Thompson's father moved to the 

United States and, in 1992, became a naturalized citizen. In 
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1997, Thompson's father petitioned for Thompson to immigrate to 

the United States. Later that year, at the age of fourteen, 

Thompson was admitted as a lawful permanent resident and moved to 

the United States to live with his father. Thompson remained in 

the custody of his father until he reached adulthood. 

In 2001, Thompson pleaded guilty to one count of seconddegree assault in violation of section 53a-60a(2) of the 

Connecticut General Statutes and received a sentence of five years' 

imprisonment, suspended, and three years' probation. The parties 

do not dispute that this qualified as a removable offense under 

either 8 U.S.C. § 1227(a)(2)(A)(iii) (an aggravated felony) or 8 

U.S.C. § 1227(a)(2)(A)(i) (a crime of moral turpitude committed 

within five years after admission and for which a sentence of one 

year or more of imprisonment could be imposed). 

By 2012, the government had detained Thompson and 

initiated deportation proceedings against him. Thompson then 

filed an N-600 application for citizenship with U.S. Customs and 

Immigration Services ("USCIS"), claiming that he derived 

citizenship from his father's naturalization. USCIS denied 

Thompson's application, explaining that because Thompson's parents 

were never legally married, they could not have legally separated 

as required by section 321(a)(3). An immigration judge adopted 

USCIS's reasoning fully and ordered Thompson be removed to Jamaica.
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Thompson appealed the removal order to the BIA. In his 

appeal, Thompson asserted that his parents "were common law spouses 

in Jamaica" who legally separated when they ceased cohabitation. 

The BIA rejected this argument on the grounds that Thompson had 

not proven that Jamaica recognized common-law marriage at the time 

of his birth and that the cessation of cohabitation did not qualify 

as a "legal separation." Based on these conclusions, the BIA 

affirmed the removal order. 

II. Discussion 

Thompson's citizenship claim depends on former section 

321(a), which reads: 

A child born outside of the United States of 

alien parents becomes a citizen of the United 

States upon fulfillment of 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) 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 . . . or thereafter begins to 

reside permanently in the United States while 

under the age of eighteen years. 
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8 U.S.C. § 1432(a) (repealed 2000).1 The parties do not dispute 

that Thompson meets subsections (4) and (5)'s requirements. What 

the parties do dispute is whether Thompson meets subsection (3)'s 

requirement that his father had legal custody of Thompson following 

a "legal separation" from Thompson's mother. 

We have previously held that the term "having legal 

custody" as used in former section 321(a)(3) is "a question of 

federal statutory interpretation." Fierro v. Reno, 217 F.3d 1, 

3-4 (1st Cir. 2000). But because "[l]egal relationships between 

parents and children are typically governed by state law, there 

being 'no federal law of domestic relations,'" the term "legal 

custody" as used in former section 321(a)(3) "should be taken 

presumptively to mean legal custody under the law of the state in 

question." Id. at 4 (quoting De Sylva v. Ballentine, 351 U.S. 

570, 580 (1956)). Based on the same reasoning, we believe "legal 

separation" as used in former section 321(a)(3) presumptively 

incorporates the wedlock rules of the state (or, in Thompson's 

 

1 The Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 

Stat. 1631, repealed this provision. The BIA has interpreted the 

Child Citizenship Act as applying only to individuals who turned 

eighteen after its effective date. In re Rodríguez-Tejedor, 23 

I. & N. Dec. 153, 162, 2001 WL 865412 (BIA 2001). Thompson turned 

eighteen before the Child Citizenship Act's effective date and 

never argued (either at the administrative level or in his petition 

to this Court) that the Child Citizenship Act's new provisions 

should apply to his case. 
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case, country) in which the legal relationship originated and 

terminated. See also Wedderburn v. INS, 215 F.3d 795, 799 (7th 

Cir. 2000) (looking to Jamaican law to determine marital status of 

petitioner's parents). 

Simply put, Thompson's claim of citizenship under former 

section 321(a)(3) fails because he cannot prove his parents were 

in a legally recognized relationship from which they could legally 

separate. As Thompson points out, Jamaica's Property (Rights of 

Spouses) Act ("Property Act"), defines the term "spouse" as 

including persons who cohabitated together "as if [they] were in 

law [husband and wife] for a period of not less than five years." 

Property (Rights of Spouses) Act, pt. I, § 2(1) (Act No. 4/2004) 

(Jam.). But Thompson fails to explain how a law enacted in 2004, 

and with an operational date of 2006, id., helps us understand 

whether a relationship that must have ended by 1992 (the year 

Thompson's father became a United States citizen) was legally 

recognized. Cf. Wedderburn, 215 F.3d at 799 (recognizing the 

petitioners' "diligent search" did not find any Jamaican law 

proving that Jamaica recognized common-law marriages as of 2000). 

In fact, Part V of the Property Act states that it does not affect 

"any legal proceeding in respect of property. . . instituted" or 

"any remedy in respect of any such legal proceeding . . . acquired, 

accrued or incurred" prior to its enactment -- in other words, by 
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its terms, it is not retroactive. Property (Rights of Spouses) 

Act, pt. 5, § 24 (Act No. 4/2004). Without a legally recognized 

relationship, Thompson's parents could not have legally separated 

as required by section 321(a)(3). 

Thompson's failure to prove that Jamaica recognized 

common-law marriages while his parents were in a relationship is 

dispositive of his claim. But even if the Property Act applied 

retroactively, we note that Thomson has adduced no evidence showing 

his parents were common-law spouses within its definition. 

Because the Government proved that Thompson was born abroad, 

Thompson had the burden of proving "by a fair preponderance of the 

evidence" his derivative citizenship. Leal Santos v. Mukasey, 516 

F.3d 1, 4 (1st Cir. 2008). The only evidence of this fact in the 

administrative record is Thompson's bare assertion in his BIA 

appeal.2 Although this Court may consider evidence outside of the 

administrative record, Batista v. Ashcroft, 270 F.3d 8, 14-15 (1st 

Cir. 2001), Thompson has not provided any additional evidence on 

 

2 In his BIA brief, Thompson directs the BIA to look at a "[c]opy 

of submission evidencing Common Law Marriage Relationship 

previously submitted to DHS on June 27, 2012." This submission 

was not included in the administrative record nor separately 

submitted to this Court. Moreover, USCIS's denial of Thompson's 

citizenship application states it requested Thompson's attorney to 

"provide legal authority for the theory that she represented as 

the basis of [Thompson's] derivative citizenship" but she did not 

respond.
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appeal. For example, there are no affidavits from either of 

Thompson's parents stating that they lived together at the time of 

his birth. Thompson himself only provided this assertion through 

filings by his counsel.3 Thus the factual basis for Thompson's 

claim is also suspect. 

Finally, even if Thompson's parents were in a commonlaw marriage, Thompson has failed to provide any details (factual 

or legal) showing that they "legally separated." Thompson's 

argument is entirely premised on the idea that common-law spouses 

legally separate when they cease cohabitation. Thompson has 

failed to cite any authority, federal or Jamaican, that supports 

his purported definition of "legal separation" and we have not 

found any. 

III. Conclusion 

For the reasons stated above, Thompson's petition for 

review is Denied. 

 

3 When a petitioner makes a citizenship claim, we have 

jurisdiction under 8 U.S.C. § 1252(b)(5)(A) and (B) "to determine 

whether there is a 'genuine issue of material fact' as to the 

citizenship claim" and if so, we must transfer the case to district 

court for fact-finding proceedings. Batista, 270 F.3d at 12. 

Because we have equated this to summary judgment review, id., we 

conclude Thompson could not rely solely on unsupported statements 

in his pleadings to prove his parents' relationship.