2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-24-2010

Tavares v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4360

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4360

___________

FREDERICO TAVARES,

Petitioner,

v.

ATTORNEY GENERAL,

 Respondent

______________

Appeal from the Board of Immigration Appeals

Agency No. A36 684 822

__________

Argued September 14, 2010

Before: RENDELL, FISHER and GARTH Circuit Judges.

(Opinion Filed: September 24, 2010)

Uma N. Everett (Argued)

Covington & Burling LLP

1201 Pennsylvania Avenue, NW

Washington, DC 20004

Counsel for Petitioner

Christina Parascandola (Argued)

Office of Immigration Litigation

Civil Division

U.S. Department of Justice
2

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent

______________

OPINION

___________

GARTH, Circuit Judge:

In May 2000, Petitioner Frederico Tavares (“Tavares”) was charged with

removability as an alien convicted of an aggravated felony. The Board of Immigration

Appeals (“BIA”) ultimately ordered Tavares removed.

Tavares seeks to terminate the removal proceedings against him by arguing that,

pursuant to former 8 U.S.C. § 1432(a), he derived U.S. citizenship through his mother’s

naturalization in 1990 because his father’s paternity was not established by legitimation. 

If Tavares has not been legitimated, he is a U.S. citizen and cannot be deported. 

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we set forth only those facts necessary to our

analysis. 

Tavares was born in Cape Verde in 1974. At the time of his birth, his mother,

Maria Tavares (“Maria”), was not married to his father, Manuel Tavares (“Manuel”), who
1

 The relevant portion of 8 U.S.C. §1432(a) 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) [t]he naturalization of the parent having legal custody of the child where

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) [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 naturalization of the . . . parent

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was married at that time to another woman, Maria Landin (“Landin”). On Tavares’ birth

certificate, Manuel’s name appears typed in the form which asks for Tavares’ father’s

name. No signature appears on the form. 

In 1981, Maria entered the United States as a lawful permanent resident. In 1982,

Tavares, who was approximately eight years old at the time, joined his mother in the

United States, entering as a lawful permanent resident. In 1985, Manuel came to the

United States. In 1986, Manuel obtained a divorce from Landin, his then wife, in the

Commonwealth of Massachusetts, and in 1987, Maria and Manuel married. Maria became

a U.S. citizen in 1990, when Tavares was fifteen years old. In 1995, Manuel became a

U.S. citizen.

In 1992, Tavares was convicted in Bristol Superior Court in Massachusetts of

armed robbery. In May 2000, the INS charged Tavares with removability. Tavares

requested termination of the proceedings, claiming he derived U.S. citizenship from his

mother in 1990 because his paternity was not “established by legitimation,” pursuant to

former 8 U.S.C. § 1432(a)(3).1

 It is uncontested that Tavares has met the other necessary
naturalized under claim . . (3) of this subsection.”

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criteria for derivative citizenship under the statute: he was born out of wedlock in Cape

Verde, his mother’s naturalization occurred when he was under the age of 18, and he was

residing in the United States as a lawful permanent resident at the time of the

naturalization.

In October 2000, the Immigration Judge terminated the removal proceedings,

finding that Tavares’ paternity was not established under the laws of Massachusetts or

Cape Verde. The BIA reversed and remanded, determining that the Immigration Judge

had misinterpreted Massachusetts law. The BIA stated that it appeared that Tavares was

legitimated under Massachusetts General Laws Chapter 190, Section 7. 

On remand, a different immigration judge determined that Tavares was legitimated

under the laws of Massachusetts. On appeal, the Board agreed that Tavares was

legitimated under Massachusetts law because at the time of Maria’s naturalization,

Tavares’ parents had been married for three years and there was “no dispute that

[Tavares’] father had at all relevant times acknowledged his paternity.” In re Frederico

Tavares, No. A036684822, at *2 (BIA, Sept. 30, 2008). Tavares timely appealed. 

We will reverse the BIA.

II.

Under former 8 U.S.C. § 1432(a), Tavares must show that Manuel’s paternity was

not established by legitimation when his mother naturalized in 1990. If Tavares is correct,
2

 The parties also debate the extent to which we must defer to the BIA’s

determination to look to Massachusetts law. See Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984). However, the BIA merely assumed that

Massachusetts law applied without recognizing that it was not the only place where the

father and son had both resided. Under these circumstances, we owe no deference

because the BIA never made any reasoned determination that Massachusetts, not Cape

Verde, law should apply.

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then absent legitimation by his father, Tavares obtained citizenship through his mother’s

naturalization and thus could not be deported. The parties contest whether to apply Cape

Verde law or Massachusetts law as to whether Tavares was legitimated by his father as of

1990. Because Tavares was not legitimated under either sovereignty’s law, we need not

choose which law governs.2

A. Massachusetts law

Two chapters of the Massachusetts General Laws are potentially relevant to the

question of legitimation: Chapter 209C, and Chapter 190, Section 7. Both provisions

require an act of acknowledgment by the father to establish legitimation. There is

insufficient evidence on the record to constitute an act of acknowledgment by Tavares’

father in this case. 

Chapter 209C establishes a means for children born to parents who are not married

to “be acknowledged by their parents voluntarily, or . . . to have an acknowledgment or

adjudication of their paternity.” Mass. Gen. Laws ch. 209C § 1. 209C requires an act of

acknowledgment by the father, or an adjudication of paternity. There is no evidence or

claim by either party that Manuel was adjudged to be the father of Tavares. Further, there
6

is insufficient evidence to conclude that Manuel performed an act of acknowledgment. 

The only evidence the Attorney General identifies as an act of acknowledgment is

the Cape Verde birth certificate. However, there is no evidence that Manuel ever knew his

name was placed on the birth certificate. Manuel was married to another woman at the

time. His name is typewritten in the form, as previously noted, and there was no signature

on the birth certificate, or any other indication of acknowledgment. Cf. Pina v. Mukasey,

542 F.3d 5, 6-7 (1st Cir. 2008) (father signed son’s birth certificate); Lopes v. Downey,

134 N.E.2d 131, 132 (Mass. 1956) (both parents acknowledged boy as their child in the

birth record in the public registry in Cape Verde island). 

Massachusetts Law Chapter 190 § 7 speaks of legitimation in the context of

inheritance. For a child to be deemed legitimate for the purposes of inheritance, the father

must have “acknowledged him as his child.” Mass. Gen. Laws ch. 190 § 7. While a

formal act of acknowledgment is not required, some evidence of acknowledgment is. See

Wrenn v. Harris, 503 F. Supp. 223, 226 (D. Mass. 1980) (looking to “the probative value

of any evidence, oral or written,” explaining that “consistent oral testimony . . . especially

when supported by documentary evidence” might be more helpful than one document with

a signature on it, and finding ample evidence of acknowledgment). In this case, as

explained above, there is insufficient evidence of acknowledgment by Manuel.

Because both Massachusetts statutes require some act of acknowledgment to

establish legitimation by the father, and because the record discloses no evidence of any

act of acknowledgment, we conclude that Tavares has not been legitimated under
7

Massachusetts law.

B. Cape Verde 

Petitioner asserts, and the government does not refute, that Tavares was not

legitimated by his father under Cape Verde law. The BIA does not discuss the question of

whether Cape Verde law legitimates Tavares. Since Cape Verde was a province of

Portugal and under Portuguese law when Tavares was born, the parties appear to agree

that Portguese Civil Code Article 119 (“Code”) applies in this case. The Code states that a

marriage between two parents legitimates children born prior to the marriage if the

children are recognized (1) by the father and mother “on registering the marriage;” (2) “at

the time of their births were recorded;” (3) in a will or public document; or (4) via judicial

action and judgment.

Tavares’ parents’ marriage had not been recognized under Cape Verde law as of

1990. Further, the mechanisms for recognition of a child suggest a formal process, and

there is no evidence of formal recognition in this case. There is no indication that Manuel

Tavares formally recognized Tavares when Tavares’ birth was recorded or in any will or

other public document. Nor was there a judicial action or judgment. Therefore, Tavares

was not legitimated under the laws of Cape Verde.

III.

Because Tavares had not been legitimated by his father as of 1990, and because he

meets the other criteria for nationalization under former 8 U.S.C. § 1432(a), Tavares

derived citizenship through his mother and became a U.S. citizen in 1990. 
8

We will REVERSE the determination of the BIA, and ORDER that Tavares, as a

United States citizen, is not subject to removal. Accordingly, the proceeding to remove

Tavares is terminated.