1 18-3028 Allen v. Barr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 3 rd day of January, two thousand twenty.

PRESENT: J OSÉ A. C ABRANES , J OSEPH F. B IANCO , Circuit Judges

, C HRISTINA R EISS , District Judge

. *

R OGER G AIRY C HRISTOPHER A LLEN , AKA R OGER A LLEYNE , AKA R ONALD A LLEN , AKA R AYAN K OWLESSEAR , AKA R ONALD W ALTERS , AKA R OGER G AIRY A LLEN ,
Petitioner, 18-3028

v.

W ILLIAM P. B ARR , U NITED S TATES A TTORNEY G ENERAL , Respondent

.

* Judge Christina Reiss, of the United States Dist rict Court for the District of Vermont, sitting by designation.2 FOR PETITIONER: T IMOTHY W. H OOVER , Hodgson Russ LLP, Buffalo, NY.

FOR RESPONDENT: J OHN F. S TANTON (Joseph H. Hunt and Keith McManus, on the brief ), Trial Attorney, for William P. Barr, United States Attorney General, Washington, D.C.

Appeal from a September 19, 2018 order of the Board of Immigration Appeals.

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review be GRANTED , the order of the Board of Immigration Appeals be VACATED , and removal proceedings against petitioner be TERMINATED

. Petitioner Roger Allen (“Allen”) challenges the Board of Immigrat ion Appeals’ (“BIA”) affirmance of removal proceedings against him, in itiated by order of the Department of Homeland Security (“DHS”). Specifically, Allen argues that such proceedings should be halted because he is a United States citizen. He argues that the BIA wrongly concluded he was not a citizen because they erred in finding that his mother—a non-citizen who divorced his father in 1976—had legal custody of him in 1983, when Allen’s father naturalized. He contends that, in fact, his father had legal custody of him at that time and that, as a result, he derived United States citizenship from his father—as the Government has since concluded hi s sister did—under then-applicable immigration law. We assume the parties’ familiarity with the un derlying facts, the procedural history of the case, and the issues on appeal.

“We apply de novo review to questions of law raised in petitions for review of removal orders.” Phong Thanh Nguyen v. Chertoff , 501 F.3d 107, 111 (2d Cir. 2007). “To determine whether an alien obtained derivative citizenship through a pare nt’s naturalization, we look to the law in effect when [petitioner] fulfilled the last re quirement for derivative citizenship.” Gil v. Sessions , 851 F.3d 184, 186 (2d Cir. 2017) (internal quotation marks omitted).

In this case, the law in effect when Allen allege dly fulfilled the last requirement for derivative citizenship was the law in effect in 1983—the yea r in which his father naturalized. Under the relevant portion of the Immigration and Nationali ty Act (“INA”) then in force, “[a] child born outside of the United States of alien parents . . . becomes a citizen of 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” so long as the child is also “under the age of eighteen years” and “is residing in the United States pursuant to a lawf ul admission for permanent residence at the time of naturalization.” INA § 321(a)(3)-(5). Since it is uncontested that Allen was under the age of eighteen3 in 1983 and that he was lawfully residing in the United States then, the only question is whether his father, as opposed to his non-citizen moth er, had “legal custody” over him.

“‘Legal custody’ is a matter of federal law.” Garcia v. USICE (Dept. of Homeland Sec.) , 669 F.3d 91, 95 (2d Cir. 2011). We have previously noted that decisions about legal custody, “in contrast” to “[d]ecisions about the marital relationship [which] tend to be final” are instead “fluid and frequently change depending on the parents’ situations and well-being.” Id. at 96. Although we still look first at any relevant state judicial determinations of legal custody in a given case, we are not bound by those initial determinations. Indeed, we have stated that state judicial determinations of custody may be modified even without going to state court. In determining legal custody for INA purposes, we do not “[r]equir[e] a formal act to change custody.” Id. Instead, we look to the circumstances— including “mere agreement[s]”—at the time th at the alleged custodial parent naturalized. Id

. We rely on several “indicators” in order to make custody determinations. Id. at 97. “Two predominant indicators of actual uncontested custod y are (i) the child’s physical residence, and (ii) consent to custody by the non-custodial parent.” Id . (internal quotation marks omitted). Additional indicators of custody are derived from the state law in existence at the time of naturalization. Id. at 95 (noting that “we often look to state law for a rule of decision”).

Applying these indicators to the instant case, we conclude that Allen’s father did, in fact, have legal custody over Allen in 1983.

First , as the Government does not contest, Allen began physically residing with his father in 1983, within weeks of his father’s naturalization. A llen relocated to Brooklyn in June and enrolled in high school there while still under the age of eighteen.

Second , Allen moved in with his father with the “consent” of his “non-custodial parent”—his mother. Such consent was made explicit in a 1979 agreement between Allen’s mother and father in which they transferred custody to Allen’s father. That agreement, notarized in New York County, effectively abrogated any earlier custody order (inc luding the 1976 divorce decree which had initially given Allen’s mother custody). It was precisely the kind of agreement we said would be sufficient in
Garcia to transfer custody between parents.

Third , that very agreement would have been recognized as sufficient under New York law in 1983 had New York courts been asked to determine the custody of Allen at that time. As the First Department noted in 1964, courts in New York “will, as a general rule, enforce an agreement between a husband and wife regarding custody of ch ildren so long as the agreement is in the best interests and welfare of the children.” Sheets v. Sheets

, 22 A.D.2d 176, 178 (N.Y. App. Div. 1964). In 1982, the New York Court of Appeals further noted that “an agreement as to which parent should have custody” would have “[p]riority . . . as a weighty factor” in considering which parent should4 retain custody. Eschbach v. Eschbach , 56 N.Y.2d 167, 171 (N.Y. 1982). There is much reason to believe, as a result, that the 1979 agreement woul d have been enforced in Allen’s home courts in New York at the time of his father’s naturalization.

Accordingly, given the existence of these factors indicating that Allen’s father had legal custody, we conclude that Allen derived citizenship from his father in 1983, under the terms of the INA. Allen is a United States citizen by operation of law.

CONCLUSION

For the foregoing reasons, we GRANT the petition for review, VACATE the order of the Board of Immigration Appeals, and TERMINATE removal proceedings against petitioner.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk