2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2005

Joseph v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-2885

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AMENDED PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No: 04-2885

____________

MARC HILAIRE JOSEPH,

 Petitioner

 v.

ALBERTO GONZALES,* Attorney General 

of the United States of America, 

 Respondent

*Substituted pursuant to Federal Rule of Appellate Procedure

43(c)(2)

 

___________________________________

On Petition for Review

from the Board of Immigration Appeals

(No. A40-135-340)

Argued July 14, 2005
2

Before: SLOVITER, McKEE, and WEIS, Circuit Judges

(Filed September 20, 2005)

Jennifer H. Kim, Esq. (Argued)

Association of the Bar of the City of New York

Refugee Assistance Program

42 W. 44 Street th

New York, NY 10036

Attorney for Petitioner

Peter D. Keisler, Esq.

Assistant Attorney General

Linda S. Wernery, Esq.

Senior Litigation Counsel

William C. Minick, Esq. (Argued)

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent
 Rosemane died before the commencement of the 1

immigration proceedings at issue here.

3

OPINION OF THE COURT

McKEE, Circuit Judge:

Marc Hilaire Joseph petitions for review of an order of

the Board of Immigration Appeals dismissing his appeal from

the Immigration Judge’s determination that he is deportable as

charged, and denying his claim of derivative citizenship. Joseph

contends that he is not subject to deportation because he is a

United States national. Alternately, he asks us to transfer this

matter to the District Court for a de novo determination of his

claim of United States citizenship pursuant to INA §

242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B). For the reasons that

follow we will grant Joseph’s petition for review, vacate the

order of the BIA, and transfer the case to the appropriate District

Court for adjudication.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Joseph was born in Haiti on July 5, 1973. He alleges that

his mother was Rosemane Joseph. According to Joseph, 1

Rosemane became pregnant with him when she was 12 years old

as a result of being raped by an unknown assailant. Joseph

alleges that, due to the circumstances surrounding his birth, he
 On March 1, 2003, the INS ceased to exist as an independent 2

agency within the Department of Justice and its functions were

transferred to the newly formed Department of Homeland

Security. See Homeland Security Act, 116 Stat. 2135, Pub. L.

107-296 (2002). The former INS was divided into three

separate agencies: United States Immigration and Customs

Enforcement; Bureau of Customs and Border Protection; and the

United States Citizenship and Immigration Services.

4

was raised in Haiti by his grandparents – Rosemane’s father,

Hermann Joseph (“Hermann”) and her mother, Lolita Clergé

Joseph (“Lolita”). Hermann and Lolita are now deceased. He

also claims that he grew up believing that Hermann and Lolita

were his father and mother, and that Rosemane was his older

sister. He maintains that he did not learn that Rosemane was

actually his mother until he was 13 years old.

It is undisputed that Rosemane came to the United States

in 1981 and settled in New Jersey. She married Angelo

Morales, a United States citizen, in 1983. Morales filed a

spouse petition for Rosemane, and she was admitted to the

United States as an immigrant on March 23, 1985. On

September 5, 1985, Morales filed a petition identifying Joseph

as Rosemane’s son, and his stepson. The Immigration and

Naturalization Service (“INS”) approved the petition on 2

October 7, 1985, and on February 15, 1986, Joseph was

admitted to the United States; he was then 13 years old. Joseph

maintains that he learned the truth about his mother some point
Rosemane’s brother, Garry Joseph, testified at Joseph’s 3

immigration hearing that Joseph learned that Rosemane was his

mother while he was still living in Haiti. 

5

after his arrival in the United States. Rosemane was naturalized 3

as a United States citizen when Joseph was 16 years old. Joseph

now maintains that, as Rosemane’s son, he derived citizenship

through her.

Joseph’s contact with the INS began after his 1995 and

1996 convictions in New Jersey for state criminal offenses,

including crimes considered “aggravated felonies” under the

INA. On January 2, 1997, the INS served Joseph with an Order

to Show Cause charging him with being deportable under INA

§ 241(a)(2)(A)(iii) for his aggravated felony convictions, and

under INA § 241(a)(2)(B)(I) for his conviction for a crime

involving a controlled substance. At his initial deportation

hearing on March 6, 1997, Joseph asserted that he had derived

U.S. citizenship through his mother and was therefore not

subject to deportation under the Act. His claim was rejected,

and he was ordered deported to Haiti.

On January 31, 2001, Joseph filed a pro se motion to

reopen, recounting his out-of-wedlock birth in Haiti and

asserting that he obtained derivative citizenship, under INA §

321(a)(3), upon his mother’s naturalization prior to his 18th

birthday. On November 21, 2001, the IJ denied Joseph’s motion

to reopen, concluding that Haitian law precluded Joseph from

benefitting from the out-of-wedlock provision of § 321(a)(3).

The BIA dismissed Joseph’s appeal of that decision because
6

Haiti had eliminated all distinctions between legitimate and

illegitimate children. In the BIA’s view, it was therefore

irrelevant under the Act whether his natural father

acknowledged him since Joseph had been legitimated at birth

and could therefore not derive U.S. citizenship pursuant to §

321(a)(3).

Thereafter, pro bono counsel filed a petition for review

on Joseph’s behalf. The petition alleged that the Civil Code of

Haiti only legitimized children born out of wedlock who had

been acknowledged by their natural father. Since Joseph’s

mother had been raped and his natural father was unknown,

Joseph contended that he was never acknowledged by his

natural father and could therefore not be considered legitimated

under Haitian law. The government agreed. 

On December 12, 2002, the U.S. Department of Justice,

Office of Immigration Litigation, filed a motion for remand with

this court. After additional filings with this court and the BIA

that we need not detail for purposes of our decision, newlyreopened proceedings began in front of the IJ. One month later,

the government issued a new charge of deportability against

Joseph, charging him with deportability under INA §

241(a)(1)(A). The government now asserted that Joseph was

excludable at the time of entry because Rosemane was not

actually his mother. Rather, according to the government, she

was really his elder sister, and Joseph was therefore Morales’s

brother-in-law rather than his stepson. Thus, the government

claimed that Joseph’s immigrant visa was invalid and

introduced a series of documents and reports from Haiti to

support this claim.
 Although we are reviewing the decision of the BIA, not that 4

of the IJ, the BIA’s ruling cannot be understood in a vacuum,

given its analysis. Thus, we must refer to the IJ’s analysis in

order to provide the proper context and background for our

analysis of the BIA’s ruling. 

7

On December 29, 2003, in a written decision, the IJ

agreed with the INS’s position and ordered Joseph deported to

Haiti based upon the judge’s finding that Joseph was a

deportable alien, and not a U.S. citizen. The BIA affirmed, and

this petition for review followed.

II. DISCUSSION.

A. The IJ’s Decision.4

The IJ reviewed the government’s evidence including

reports of an investigation into the circumstances surrounding

Joseph’s birth in Haiti. The IJ then recounted the testimony of

each of the witnesses at the removal hearing including Joseph,

Rosemane’s brother Garry Joseph (“Garry”) and Morales.

The IJ ruled that Joseph failed to prove derivative

citizenship by a preponderance of the evidence. First, the IJ

noted that Joseph did not submit any police or medical reports

to confirm that Rosemane had been raped, nor had he submitted

any evidence to establish that Rosemane had failed to attend

school or that she had received medical care during her

pregnancy. The IJ also commented on the fact that, although

Garry had testified that Rosemane’s rape and pregnancy were
 Under Haitian law: 5

declarations of birth must be made to an official

of the civil status of the locality where the birth

occurred within one month of delivery, and the

birth certificate must be drawn up immediately.

If the birth has not been declared within two years

after this legal deadline has run out, the birth

certificate cannot be drawn up by an official of

the civil status, except pursuant to a declaratory

judgment pronounced by the civil court (Tribunal

Civil) of the child’s birthplace or, if this place is

unknown, of the child’s domicile.

8

common knowledge in the neighborhood, no affidavits had been

submitted from any neighbors.

The IJ gave little weight to Rosemane’s spouse petition,

concluding that, while the petition listed Joseph as Rosemane’s

child, this petition and the other U.S. immigration documents

that named Joseph as Rosemane’s child were not primary

evidence of a mother-child relationship. Moreover, the IJ

concluded that, because the documents were prepared by

Joseph’s family, they were self-serving. The IJ also questioned

the validity of the September 1985 birth certificate Joseph

submitted because the certificate named Rosemane as the

mother and Hermann as the father, and Joseph failed to submit

the civil judgment required for a delayed birth certificate to be

issued in Haiti.

5
Joseph testified that he discovered that Rosemane was his 6

mother after his arrival in the United States. Garry testified that

Joseph was still living in Haiti when he learned of his

relationship with Rosemane.

 According to Garry’s testimony, a birth of recognition 7

acknowledges an adopted or recognized child while a birth

certificate indicates the existence of a natural father of the child.

9

In the IJ’s view, Morales’ testimony was not persuasive

since Rosemane had not informed him of her “baby” in Haiti for

several years, and Morales only knew of the circumstances of

Joseph’s birth through his conversations with Rosemane.

Moreover, while the IJ thought Garry’s testimony was generally

consistent with Joseph’s, the IJ noted that the testimony of the

two was in conflict as to when Joseph learned that Rosemane

was his mother and that she had conceived him as a result of

being raped. Additionally, the IJ noted that Garry was unable 6

to give details about Joseph’s birth, including whether Joseph

was born at home or in the hospital. The IJ also found

inconsistencies between Garry’s affidavit and his testimony. In

his affidavit, Garry explained that Hermann’s name appeared as

the natural father on Joseph’s birth certificate “as a

convenience” and “to expedite the request for a birth

certificate.” However, during his testimony, Garry said that

Hermann put his name down as Joseph’s father out of

embarrassment because Joseph was “a child of violation or

rape.” Garry later explained that, due to his father’s lack of

education, he erred and should have attempted to get a birth of

recognition instead of a birth certificate. The IJ thought 7
 This section states, in relevant part: 8

Use of prior statements. The immigration judge

10

Garry’s testimony was vague and seemed rehearsed.

Conversely, the IJ found the government’s evidence

persuasive. He was particularly impressed with the

government’s overseas investigation report. That report

contained: (1) a patients’ record book from the Haiti University

General Hospital of State dated July, 1973, stating that a patient

named Janita Clergé gave birth to her fifth child on July 5, 1973;

(2) comments from the investigator, Mrs. Lucienne D. Brutus,

explaining that the Financial and Administrative Director of the

Maternity Hospital of the University of Haiti concluded that the

birth certificate submitted by Joseph, which purportedly came

from the Hospital, did not in fact come from the Hospital; and

(3) additional reports from Mrs. Brutus explaining that Dr.

Edouard Viala, a prominent ob-gyn physician in Haiti, denied

signing Joseph’s submitted birth certificate and offered a sample

of his own signature for comparison.

Joseph tried to have at least some of the documents in

these reports excluded as “unsworn, uncorroborated, and

unreliable” hearsay, arguing that any reliance on them would

deny him due process and a fair hearing because he had no

opportunity to cross-examine the witnesses. He based his

argument on Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir.

2003). However, the IJ admitted the reports into evidence citing

8 C.F.R. § 1240.46. The IJ ruled that the strict rules of 8
may receive in evidence any oral or written

statement that is material and relevant to any issue

in the case previously made by the respondent or

any other person during any investigation,

examination, hearing, or trial.

11

evidence are not applicable in deportation proceedings, and that

Joseph’s due process rights were not infringed because the

reports offered by the government were relevant and probative

as required by Ezeaguwana. The IJ explained that the reports

were expeditiously served on Joseph; Mrs. Brutus’s experience

and credentials had been documented; Mrs. Brutus personally

directed the investigation and provided a detailed account of it

including a sample of authentic Haitian birth certificates; and

Joseph had adequate time to make his own follow-up inquiries,

submit written interrogatories and offer rebuttal evidence. 

The IJ concluded:

Upon a careful review of the entire record, and

after fully evaluating and weighing the evidence

and arguments presented, the Court determines,

on balance, that Joseph’s evidence is insufficient

to meet his burden of proof. Joseph has failed to

establish that he derived United States citizenship

by a preponderance of credible evidence. I

conclude that Joseph is the child of Hermann

Joseph and Zalita Clerge and the sister of

Rosemane Joseph Morales. Joseph has failed to

satisfy the requirements set forth in INA §

321(a)(3). Therefore, he has not derived United
12

States citizenship. I further find that deportability

has been established by clear, convincing, and

unequivocal evidence under each of the four

charges brought by the Department.

B. The BIA’s Decision.

In his appeal to the BIA, Joseph argued that (1) the IJ

improperly considered the reports submitted by the government

and (2) the IJ’s adverse credibility findings were not supported

by the record. With respect to the latter, the BIA found:

the [IJ] did not make an explicit adverse

credibility determination. Instead, the [IJ] found

that the testimony presented by each witness was

either insufficient to prove the respondent’s claim

or undermined by the documentary evidence in

the record. Thus, as a matter of proof, not

credibility, the [IJ] found that the testimony of

[Joseph], his alleged uncle, and his alleged

stepfather, was insufficient to meet his burden.

The BIA also rejected Joseph’s argument that the IJ erred

in relying upon the investigative report from Haiti. The BIA

explained: “even absent reliance on the information contained

in the hospital records, [Joseph’s] claim is still undermined by

other evidence in the record which suggests that Rosemane

Joseph was his sister, not his mother.” This “other evidence”

included a portion of one of the investigator’s reports that

Joseph had not objected to. That portion of the report asserted

that the birth certificate Joseph submitted was fraudulent. The
 The BIA also denied Joseph’s motion to remand to apply for 9

deferral of removal under the Convention Against Torture,

finding that Joseph could not establish a prima facie case for

such relief. Joseph had argued that, due to his criminal

conviction in the United States, he would be indefinitely

detained once removed to Haiti, and it is more likely than not

that he would be tortured once detained. Joseph does not appeal

this part of the BIA’s decision.

 On March 7, 2005, we denied Joseph’s motion for a stay of 10

removal, and on May 16, 2005 Joseph was removed from the

United States to Haiti. The parties dispute whether, prior to the

enactment of the REAL ID Act, which we discuss infra, we

would have retained jurisdiction over Joseph despite his

departure from the United States. This dispute is no longer

relevant, however, since both parties agree that under § 242, we

retain jurisdiction over Joseph’s petition for review.

13

BIA noted that Joseph had not offered any evidence to rebut that

assertion, nor had he submitted an authentic birth certificate or

evidence that Rosemane Joseph gave birth on July 5, 1973. The

BIA discredited the 1985 birth certificate Joseph submitted. The

Board believed that the birth certificate was undermined by

Hermann and Lolita’s marriage certificate, which listed Joseph

and Rosemane as brother and sister. The BIA concluded: “the

record does not contain any reliable, consistent, or accurate

evidence to prove that [Joseph] is the son of Rosemane Joseph

through whom he claims to have derived United States

citizenship.” This petition for review followed. 9 10
14

III. JURISDICTION & STANDARD OF REVIEW.

After Joseph filed this petition for review, Congress enacted the

Real ID Act. REAL ID Act of 2005, Pub. L. No. 109-13, Div.

B, § 106, 119 Stat. 231. Although the impact of that Act here is

minimal, it does affect our jurisdiction.

Prior to the enactment of the REAL ID Act, our

jurisdiction was controlled by the “transitional rules” for judicial

review set forth in § 309 of IIRIRA, and those provisions of the

former § 106 of the INA, 8 U.S.C. § 1105a (repealed 1996).

However, pursuant to § 106(d) of the REAL ID Act, a petition

for review filed under former § 106(a) of the INA is treated as

if it had been filed as a petition for review under § 242 of the

INA, 8 U.S.C. § 1252. We must treat Joseph’s petition for

review accordingly.

Thus, Joseph’s citizenship claim is now governed by 8

U.S.C. § 1252(b)(5). That section provides:

Treatment of nationality claims

(A) Court determination if no issue of fact.

If the petitioner claims to be a national of the

United States and the court of appeals finds from

the pleadings and affidavits that no genuine issue

of material fact about the petitioner’s nationality

is presented, the court shall decide the nationality

claim.

(B) Transfer if issue of fact. If the
15

petitioner claims to be a national of the United

States and the court of appeals finds that a

genuine issue of material fact about the

petitioner’s nationality is presented, the court

shall transfer the proceeding to the district court

of the United States for the judicial district in

which the petitioner resides for a new hearing on

the nationality claim and a decision on that claim

as if an action had been brought in the district

court under section 2201 of title 28, United States

Code.

In determining whether a genuine issue of material fact

is presented, our inquiry is the same as that which we employ in

reviewing grants of summary judgment. See Agosto v. INS, 436

U.S. 748, 754-57 (1978). Thus, “a court of appeals cannot

refuse to allow a de novo review of a citizenship claim if the

evidence presented in support of the claim would be sufficient

to entitle a litigant to trial were such evidence presented in

opposition to a motion for summary judgment.” Id. at 756; see

also Baeta v. Sonchik, 273 F.3d 1261, 1265 (9th Cir. 2001)

(same). Accordingly, the government, as the party seeking what

amounts to summary judgment, “bears the burden of

establishing that no genuine issue of material fact exists and that

the undisputed facts establish [its] right to judgment as a matter

of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61

(2d Cir. 1995). Under this standard, we draw all factual

inferences in favor of Joseph, the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986).
16

IV. ANALYSIS.

Given the aforementioned scope of review, we must

determine if there is a genuine issue of material fact as to

Joseph’s claim of United States citizenship so as to warrant a de

novo determination of that issue in the District Court. 

Section 1432(a) of Title 8 sets forth the requirements for

obtaining derivative United States citizenship. The relevant

provision provides in part as follows:

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 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
 Section 321(a) was repealed and superceded in 2000 by the 11

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

1631 (2000). However, Joseph claims to have derived

citizenship in 1989, before § 321(a) was repealed. Consequently,

the repeal has no bearing on our discussion. 

17

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.

8 U.S.C. § 1432(a), INA § 321(a) (repealed and superceded

2000).11

As we noted at the outset, Joseph maintains that he was

born out-of-wedlock in Haiti and derived United States

citizenship through his mother – Rosemane – who was

naturalized before his eighteenth birthday. Joseph presented

documentary evidence that included: (1) the spouse petition filed

by Morales for Rosemane listing Joseph as Rosemane’s son; (2)

Joseph’s birth certificate issued in 1985 listing Rosemane as his

mother; (3) Rosemane’s visa application from 1985 listing

Joseph as her son; (4) the alien relative visa petition Morales

filed for Joseph listing Joseph as his step-son; (5) Joseph’s visa

application from Haiti, listing Rosemane as his mother; (6)

Joseph’s immigrant visa and alien registration; (7) Rosemane’s

petition for naturalization listing Joseph as her son; (8)

Rosemane’s petition for alien relative for Lolita Joseph, which

does not list Joseph as Lolita Joseph’s child; and (9) Lolita

Joseph’s Haitian visa application, which does not list Joseph as
 In its brief, the government, like the IJ and the BIA, 12

focused much of its attention on the fact that Joseph did not

present “primary” evidence to support his claim. Such evidence,

according to the government, includes police or medical reports

that could confirm that Rosemane was raped in 1972, school

records demonstrating Rosemane’s failure to attend school

during or after her pregnancy, and medical records indicating

that Rosemane received medical care during her pregnancy. To

his credit, counsel for the government stated at oral argument

that he would not rely on that argument as he did not think it

particularly probative. We agree. Regrettably, emphasis on such

18

her child. 

Joseph’s testimonial evidence included: (1) Garry’s

testimony explaining that he was home the night his family

learned of Rosemane’s rape, how he subsequently observed

Rosemane’s developing pregnancy, and how Joseph was raised

by Hermann and Lolita as their own son; (2) Morales’s

testimony that he was sure that Joseph and Rosemane were

mother and son; and (3) Joseph’s testimony explaining

Rosemane’s rape, his understanding of his family structure as a

child, and how, at the age of 13, he learned that Rosemane was

his mother. Joseph also argues that the fact that he submitted to

a blood test at the government’s request is evidence that

supports his contentions.

The government maintains that Joseph has not raised a

genuine issue of material fact because his evidence is from

secondary sources, the testimonial evidence does not 12
“primary” evidence is yet another example of the cultural

parochialism that sometimes creeps into the immigration

proceedings we review. 

 Rosemane was allegedly raped in 1972, during the brutal

dictatorship of Jean-Claude (“Baby-Doc”) Duvalier. Common

sense suggests that, during this period in Haiti’s history,

Haitians would have been most reluctant to get involved with

police and report crimes, and this may especially have applied

to rape. See Inter-American Commission on Human Rights,

Organization of American States, Report on the Situation of

H u m a n R ights i n H a iti , at

http://www.cidh.oas.org/countryrep/Haiti88eng/chap.3.htm

(Sept. 7, 1988); http://www.womenwarpeace.org/haiti/haiti.htm

(last viewed Aug. 11, 2005). 

 Moreover, Haiti was, and continues to be, the poorest

country in the Western Hemisphere and it is certainly fair to

assume that only an extremely small number of Haitian

adolescents attended school when Rosemane is alleged to have

been raped. UC Atlas of Global Inequality, Haiti, Education, at

http://ucatlas.ucsc.edu/country/84/education (last visited Aug.

11, 2005). Worse yet, given the reality that teachers and

administrators must have had to confront in Haitian schools in

1972 - a reality that did not include compulsory education - it

is totally unrealistic to think that the schools that did exist would

maintain the kind of detailed attendance records that might

reflect the absence or pregnancy of a young student. See Irwin

P. Stotzky, Symposium on the Role of a Free Press and Freedom

of Expression in the Development and Consolidation of

Democracies in Latin America, 56 U. Miami L. Rev. 255, 283

19
(Jan. 2002). Although that is not outside the realm of

possibility, the government’s reliance on the absence of school

records is neither logical, appropriate, nor realistic absent some

proof that it would be appropriate to expect such evidence to be

available. 

 Similarly, if Rosemane was in fact pregnant in 1972, there

is no reason to assume that she received prenatal care that might

generate the kind of medical records that Joseph was expected

to produce. Haiti, like many other developing countries, has a

very high infant mortality rate, which, common sense suggests

is directly related to the fact that so few women receive prenatal

and postnatal care. See UC Atlas of Global Inequality, Haiti,

Health, at http://ucatlas.ucsc.edu/country/84/health (last visited

A u g . 1 1 , 2 0 0 5 ) ;

http://www.nationmaster.com/country/ha/Health (last visited

Aug. 11, 2005).

20

support his theory, and the birth certificate he produced is

unreliable. We disagree. We think this case is controlled by

the Supreme Court’s decision in Agosto v. INS, 436 U.S. 748

(1978). We think Agosto establishes that Joseph is clearly

entitled to a de novo hearing in the District Court. 

In Agosto, the Court evaluated a derivative citizenship
 Former INA 106(a)(5) stated: 13

whenever any petitioner, who seeks review of an order under

this section, claims to be a national of the United States and

makes a showing that his claim is not frivolous, the court shall

(A) pass upon the issues presented when it appears from the

pleadings and affidavits filed by the parties that no genuine issue

of material fact is presented; or (B) where a genuine issue of

material fact as to the petitioner's nationality is presented,

transfer the proceedings to a United States district court for the

district where the petitioner has his residence for hearing de

novo of the nationality claim and determination as if such

proceedings were originally initiated in the district court under

the provisions of section 2201 of title 28. Any such petitioner

shall not be entitled to have such issue determined under section

1503(a) of this title or otherwise . . . .

 This testimony explained that Agosto was the illegitimate 14

son of Crocifessa Pianetti’s sister – Angela Porello – who left

her Italian husband and two daughters in 1921 to move to the

United States with her cousin. Through correspondence with

21

claim under former INA § 106(a)(5). Before the IJ, Agosto 13

provided testimonial evidence from himself and several other

witnesses, including his adoptive parents, Crocifessa and Pietro

Pianetti, and his half-brother. They testified in support of his

claim that he had been born to an unmarried Italian mother in

Ohio, and sent to Italy at a young age to reside with an Italian

couple. Id. at 758. The government presented documentary 14
Angela, the Pianettis learned that petitioner had been born in

Ohio, that his father was Salvatore Agosto, and that Angela

could not care for him on her own. Angela therefore sent

petitioner to Italy to be raised by the Pianettis. Id. at 758.

 The government’s evidence included an entry from the City 15

of Agrigento registry of births for 1927 relating that a 75-yearold handywoman appeared before the registrar and declared that

“at 4:00 a.m. on the 17 day of [July] in a house situated in Via th

Oblati, of a woman who does not want to be named, a male

child was born, which she presents to me and to whom she gives

the first name of Vincenzo and the surname of Di Paola.” The

registry also indicated that this child was sent to a foundling

home. The government also introduced a registry from the

foundling home, which indicated that a Vincenzo Di Paola was

born on July 16, 1927 and was consigned to Crocifessa and

Pietro Pianetti on August 26, 1927. Id. at 757.

The Pianettis testified that petitioner was never in the

foundling home, but that the documents presented by the

government concerning petitioner’s birth in Italy were created

by Angela’s father to hide the fact that petitioner was his

illegitimate grandson. Id. at 758. 

22

evidence that undermined Agosto’s evidence and tended to

establish that he had instead been born in Italy to unknown

parents in 1927, placed in a foundling home there, and

ultimately adopted by an Italian couple. Id. at 757. 

15

The IJ rejected Agosto’s claim and the BIA affirmed. In

deciding the subsequent petition for review, the Court of
23

Appeals for the Ninth Circuit refused to transfer the case to the

District Court for a de novo hearing on petitioner’s citizenship

claim and upheld the deportation order. Id. at 752. The court

held that, because “[t]he evidence presented to the [IJ] does not

disclose a colorable claim to United States nationality,” Agosto

had not presented “substantial evidence” in support of his

citizenship claim. Id. 

The Supreme Court reversed, holding: 

The Service’s proof that petitioner is not a United

States citizen would certainly be sufficient, if

uncontradicted, to establish his birth in Agrigento,

Italy, in July 1927. However, the evidence

adduced by petitioner to support his claim of

American citizenship creates genuine issues of

material fact that can only be resolved in a de

novo hearing in the District Court.

Id. at 757. 

The Court acknowledged that Agosto had told conflicting

stories about his upbringing during the course of his

immigration proceedings; however, the Court found that, given

the obvious confusion and uncertainty surrounding the

circumstances of Agosto’s birth under either Agosto’s or the

government’s theory, “it is hardly surprising that petitioner

cannot say with any degree of certainty who his true parents

might have been.” Id. at 759-60. The Court found that the

events, as recounted by Agosto and the witnesses who testified

on his behalf, “while out of the ordinary, are not so
 Of course, the District Court, as the trier of fact, might 16

reject the testimony of Joseph and his supporting witnesses

because of their interest in the outcome. However, “that

determination has been committed by Congress to the district

courts by [§ 242] of the Act,” and is not for this court to decide.

See id. at 761.

24

extraordinary as to compel disbelief in their occurrence,”

therefore the record established a genuine issue of material fact

regarding Agosto’s citizenship, which the District Court had to

resolve. Id. at 760-61. The Court explained:

Although as the trier of fact the District Court

might reject the testimony of these witnesses

because of their interest in the outcome, that

determination has been committed by Congress to

the district courts by § 106(a)(5)(B) of the Act

and not to the courts of appeals.

Id. at 761. 

That is precisely the situation here. Moreover, Joseph

and his witnesses have told one consistent version of his story

throughout the lengthy procedural history of this case, and the

documentary evidence introduced by Joseph supports his

account. Although the government’s account contradicts

Joseph’s evidence, the evidence Joseph submitted is “not so

extraordinary as to compel disbelief in their occurrence.”16

Indeed, it is certainly possible that the documentary evidence

submitted by the government would be refuted by the testimony
 Indeed, “where the evidence consists of the testimony of 17

live witnesses concerning material factual issues, it will seldom

if ever be appropriate to deny a de novo hearing, since ‘[i]t is

only when the witnesses are present and subject to crossexamination that their credibility and the weight to be given

their testimony can be appraised.’" Id. at 757(quoting Poller v.

Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962)). 

 As noted above, Joseph also argues that his due process 18

rights were violated when the government was permitted to

introduce certain documents from the Haitian investigator’s

report. We need not decide that issue here as Joseph will

receive a de novo hearing on his claim in the District Court. If

the government chooses to introduce these documents again

during those proceedings, and if Joseph objects, the District

Court can resolve that issue in the proper context.

25

of Joseph’s witnessesif that testimony were accepted by the trier

of fact. We therefore cannot reject Joseph’s evidence as a

matter of law. Accordingly, we conclude that the evidence

adduced by Joseph in support of his claim of American

citizenship creates genuine issues of material fact that can only

be resolved in a de novo hearing in the District Court.17

Anything less risks depriving Joseph of “one of the most

precious [rights] imaginable” – his right to United States

citizenship. See Alexander v. INS, 74 F.3d 367, 370 (1st Cir.

1996). “To deport one who . . . claims to be a citizen, obviously

deprives him of liberty, . . . [and] may result also in loss of both

property and life; or of all that makes life worth living.” Ng

Fung Ho v. White, 259 U.S. 276 (1922).18
26

V. CONCLUSION.

For the reasons set forth above, we believe a genuine

issue of material fact exists as to Joseph’s derivative citizenship

claim, and we will therefore grant his petition for review, vacate

the order of the BIA and remand the case to the United States

District Court for the District of New Jersey for further

proceedings.