Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2311

RUBEN JORGE MONTEIRO PINA,

Petitioner,

v.

MICHAEL B. MUKASEY, United States Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya, and Dyk , Circuit Judges. *

Lawrence Gatei for petitioner.

Corey L. Farrell, with whom Gregory G. Katsas, Acting

Assistant Attorney General, was on brief, for respondent.

September 12, 2008
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DYK, Circuit Judge. The Department of Homeland Security

(“DHS”) charged petitioner Ruben Jorge Monteiro Pina (“Pina”) with

removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien

convicted of an aggravated felony after admission. The Immigration

Judge (“IJ”) determined that Pina had automatically acquired United

States citizenship under the Child Citizenship Act of 2000 (“CCA”),

8 U.S.C. § 1431, and ordered the removal proceedings terminated.

The Board of Immigration Appeals (“BIA”) determined that Pina was

not a U.S. citizen because the requirements of the CCA had not been

satisfied, and vacated and remanded for further proceedings. The

IJ issued an order of removal. This court granted a stay of

removal pending review. Because we disagree with the decision of

the BIA on the issue of legal custody, we vacate the removal order

and remand for further proceedings.

I.

Pina was born in the Republic of Cape Verde on November

11, 1983. His parents have never married each other, and he

initially lived with his mother in Cape Verde. However, Pina’s

father signed his birth certificate in 1988, thereby legitimating

him under the Civil Code of Cape Verde. In 1985, Pina’s father

moved to the United States. After moving to the United States, he

supported Pina financially, had regular contact with him, and

visited him in Cape Verde once a year.
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In November 1994, eleven-year-old Pina and his mother

also moved to the United States and were admitted as lawful

permanent residents. Initially, they lived in Everett,

Massachusetts, a town about thirty minutes’ drive from Dorchester,

Massachusetts, where Pina’s father resided. Approximately one year

later, Pina and his mother moved to Dorchester at his father’s

suggestion. The IJ found that, during this time, Pina’s mother and

father had, by informal agreement, “an arrangement similar to that

of shared legal custody” and “akin to ‘shared physical custody’”

under Massachusetts law. A.R. at 69. Pina had daily contact with

his father, frequently eating meals with him and occasionally

spending the night at his house. Pina’s father also continued to

support him financially, and was involved in decisions regarding

major aspects of Pina’s life, including his education. Pina’s

mother informed his father of any disciplinary issues at school or

with law enforcement; Pina’s father would then talk to his son

about proper behavior.

Pina’s father became a citizen in 1996, when Pina was

thirteen years old. The same relationship continued after Pina’s

father acquired citizenship and continued through Pina’s eighteenth

birthday; the record does not disclose Pina’s relationship with his

father after Pina turned eighteen.

On November 20, 2002, Pina was convicted in Massachusetts

state court of receiving a stolen vehicle in violation of Mass.
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Gen. Laws chapter 266, section 28. He was sentenced to a term of

imprisonment of two years. On March 12, 2007, DHS served Pina with

a notice to appear in Immigration Court and charged him with

removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides

that “[a]ny alien who is convicted of an aggravated felony at any

time after admission is deportable.” A theft offense, including

receipt of stolen property, is defined as an aggravated felony

under 8 U.S.C. § 1101(a)(43)(G) if it carries a term of

imprisonment of at least one year.

On April 4, 2007, Pina, through counsel, moved to

terminate the removal proceedings, claiming derivative citizenship

through his father under the CCA. The CCA provides:

A child born outside of the United States

automatically becomes a citizen of the United

States when all of the following conditions

have been fulfilled:

(1) At least one parent of the child is

a citizen of the United States, whether by

birth or naturalization.

(2) The child is under the age of

eighteen years.

(3) The child is residing in the United

States in the legal and physical custody of

the citizen parent pursuant to a lawful

admission for permanent residence.

8 U.S.C. § 1431(a). The IJ held a hearing on April 11, 2007. The

parties agreed that Pina satisfied the first two requirements for

derivative citizenship under the CCA, because Pina had at least one

parent who was a United States citizen and because he was under age
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eighteen when the CCA took effect. See 8 C.F.R. § 320.2(a) (“To be

eligible for citizenship under [the CCA], a person must establish

that the [statutory] conditions have been met after February 26,

2001.”).

The sole question was thus whether Pina’s father had

“legal and physical custody” when the act became effective. At the

hearing, Pina and both of his parents testified as to his

relationship with his father. The IJ granted Pina’s motion to

terminate the following day, and issued a written decision on April

26, 2007. After reviewing the testimonial evidence, the IJ

determined that Pina’s father had both legal and physical custody

of Pina at the time the CCA went into effect in February 2001.

Accordingly, the IJ held that Pina had established that he

automatically acquired U.S. citizenship pursuant to the CCA. The

IJ then terminated the removal proceedings and ordered that Pina be

released from DHS custody.

The government appealed the decision of the IJ to the

BIA. On July 23, 2007, the BIA sustained the appeal and vacated

the IJ’s decision, finding that the requirements of derivative

citizenship under the CCA were not met because Pina’s father did

not have “legal custody” of him. The BIA interpreted Massachusetts

law to require a court order or judgment of custody before the

father of a child born out of wedlock will be deemed to have legal

custody of the child. Pina’s parents did not have a formal court
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order related to his custody. The BIA determined that Pina’s

father also could not establish legal custody under 8 C.F.R. §

320.1(2), which allows a finding of legal custody when the U.S.

citizen parent has been “awarded ‘joint custody’” or when “other

factual circumstances” support such a finding. The BIA did not

explain the basis of its conclusion that no such “other factual

circumstances” existed here. The BIA did not reach the question of

whether Pina’s father had physical custody. The BIA remanded the

case to the IJ for further proceedings.

On September 12, 2007, the IJ issued an order directing

that Pina be removed to Cape Verde. Pina timely petitioned for

review in this court. On November 14, 2007, the court granted

Pina’s motion to stay removal pending the outcome of his petition

for review. Although the removal order is stayed, Pina remains in

DHS custody. We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1) and 8 U.S.C. § 1252(b)(5), to review questions of law.

II.

The government agrees that the facts of this case are not

in dispute and that Pina satisfies the first two requirements for

automatic citizenship under the CCA. Pina’s father is a citizen of

the United States by naturalization, and Pina was seventeen years

old and living in the United States in February 2001, when the CCA

became effective. The question on review is whether Pina’s father
Under the CCA, a child obtains automatic citizenship if, 1

at any time between the relevant parent’s naturalization and the

child’s eighteenth birthday, the statutory requirements are met.

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had “legal custody” of him at that time. That issue is a question 1

of law which we review with “deference to the BIA’s interpretation

of the immigration statutes it is charged with enforcing.”

Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64 (1st Cir. 2008); see

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-44 (1984).

The current version of § 1431(a) was enacted in 2000 and

became effective on February 26, 2001. See Pub. L. No. 106-395,

114 Stat. 1631. Its purpose was to liberalize then-existing law to

make it easier for foreign-born children of United States citizens

to obtain citizenship. See H.R. Rep. No. 106-852, at 4 (2000),

reprinted in 2000 U.S.C.C.A.N. 1499, 1501. Prior to 2000, the

relevant statute provided:

A child born outside of the United States of

alien parents . . . becomes a citizen of the

United States upon fulfillment of the

following conditions:

(1) The naturalization of both parents;

or

(2) The naturalization of the surviving

parent if one of the parents is deceased; or

(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
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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 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) (1994) (emphases added).

Because Pina’s paternity had been established by

legitimation, under the pre-2000 statute Pina could have obtained

automatic citizenship only through the naturalization of both

parents. Pina’s mother was never naturalized.

The new version of the statute requires only one

naturalized parent, so long as that parent has legal and physical

custody of the child. See 8 U.S.C. § 1431(a). The CCA not only

liberalized the requirements for automatic citizenship in general,

it also equalized the position of mothers and fathers with regard

to the citizenship of children born out of wedlock. Under the

previous statute, a child born out of wedlock could gain automatic

citizenship only if both parents became naturalized, or if the

mother did (when the child had not been legitimated); such a child

can now gain citizenship if either the mother or father becomes

naturalized and has legal and physical custody.
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This court has established that, because “[l]egal

relationships between parents and children are typically governed

by state law,” the term “legal custody” as used in federal

immigration law “should be taken presumptively to mean legal

custody under the law of the state in question.” Fierro v. Reno,

217 F.3d 1, 4 (1st Cir. 2000) (applying former § 1432, precursor to

current § 1431, and holding that legal custody could not be

established for automatic citizenship purposes by later nunc pro

tunc order). Accordingly, absent a contrary provision in the

statute or its regulations, state law will govern the

interpretation of “legal custody.”

Nothing in the CCA itself defines the term, and the

legislative history is unilluminating. A regulation promulgated by

the Immigration and Naturalization Service (“INS”), formerly the

agency responsible for the administration of immigration services,

pursuant to the CCA defines “legal custody” as “the responsibility

for and authority over a child.” 8 C.F.R. § 320.1. This

definition is in accord with the traditional understanding of the

term. See Black’s Law Dictionary 413 (8th ed. 2004) (defining

“legal custody” as “[t]he authority to make significant decisions

on a child’s behalf, including decisions about education, religious

training, and healthcare”). Although the Massachusetts statute

dealing with children born out of wedlock does not contain a

definition of legal custody, the statute pertaining to divorce
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defines it in accordance with the general definition and the

regulation: the right and responsibility to make “major decisions

regarding the child’s welfare including matters of education,

medical care and emotional, moral and religious development.”

Mass. Gen. Laws ch. 208, § 31 (2007) (defining “sole legal custody”

and “shared legal custody” for purposes of custody orders).

The government agrees that Pina’s father in fact

exercised the rights traditionally associated with legal custody.

As the IJ determined, Pina’s parents had an informal agreement

under which they exercised what amounted to shared legal and

physical custody as defined by Massachusetts law. However, the

government argues that, even though neither the traditional

definition of legal custody, nor the CCA, nor the INS regulations

require a court order, Massachusetts law imposes the additional

requirement of a court order. It contends that, under

Massachusetts law, the father of a child born out of wedlock cannot

have “legal custody” of that child absent a court decree awarding

such custody, and that a parental agreement cannot confer legal

custody without the approval of a court. The government relies

primarily on section 10(b) of chapter 209C of the Massachusetts

General Laws, which provides:

Prior to or in the absence of an adjudication

or voluntary acknowledgment of paternity, the

mother shall have custody of a child born out

of wedlock. In the absence of an order or

judgment of a probate and family court

relative to custody, the mother shall continue
Under state law, child support payments are paid to the 2

Department of Revenue as partial reimbursement for the TAFDC

benefits.

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to have custody of a child after an

adjudication of paternity or voluntary

acknowledgment of parentage.

Mass. Gen. Laws ch. 209C, § 10(b) (emphasis added). The government

interprets section 10(b) to mean that, in the absence of a court

order, the mother of a child born out of wedlock shall have sole

legal custody, even where paternity has been established.

In our view, the government has not accurately

interpreted Massachusetts law. In Dep’t of Revenue v. C.M.J., 731

N.E.2d 501 (Mass. 2000), the Supreme Judicial Court held that the

legitimated father of a child born out of wedlock may be considered

a “custodial” parent in the absence of a court order of custody.

C.M.J. involved a father of three children born out of wedlock who

resided with the children and their mother; both parents and the

children were corecipients of Transitional Aid to Families with

Dependent Children (“TAFDC”) benefits. A Probate and Family Court

judge nonetheless ordered the father to pay child support to the

Department of Revenue. The trial judge, relying on section 10(b), 2

found that the father was a noncustodial parent obligated to make

child support payments because “there had been no order from the

Probate Court awarding the defendant legal or physical custody of

his children.” Id. at 507.
As the Supreme Judicial Court recognized, article 1 of 3

the Massachusetts Declaration of Rights, as amended by article 106,

the state Equal Rights Amendment, has been interpreted to require

equal treatment of fathers and mothers. See Lowell v. Kowalski,

405 N.E.2d 135, 139 (Mass. 1980). Statutory classifications of

natural parents based on sex are also suspect under the Fourteenth

Amendment of the United States Constitution. See, e.g., Stanley v.

Illinois, 405 U.S. 645, 658 (1972) (holding that a state could not

presume unfitness of unwed fathers but not unwed mothers).

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The Supreme Judicial Court vacated the child support

order. The court found that the family court judge’s reading of

section 10(b) was “an erroneous interpretation of the law.” Id.

The court noted that section 10(b) “does not state that an

adjudicated father shall not have custody in the absence of . . .

an order or judgment, nor does it employ the term ‘noncustodial’ or

apply this term to the father.” Id. at 507-08. Indeed, the court

noted that to interpret the statute that way–-as the government

here urges–-would “raise potential constitutional problems” in

light of article 1 of the Massachusetts Declaration of Rights, as

amended by article 106 of the Amendments to the Massachusetts

Constitution, id. at 508, which guarantees that “[e]quality under

the law shall not be denied or abridged because of sex,” Mass.

Const. pt. 1, art. 1. The court explained that, because both 3

parents were exercising the rights associated with both physical

and legal custody, under the statute the father was also a

custodial parent. See C.M.J. at 508. Despite the fact that there

was no court decree awarding shared custody to the father, the
8 C.F.R. § 320.1(1) creates a rebuttable presumption of 4

legal custody by a U.S. citizen parent “[i]n the case of a

biological child born out of wedlock who has been legitimated and

currently resides with the natural parent.” The IJ appears to have

determined that this presumption applied to Pina. We need not

decide whether the presumption is applicable, because we find that

Pina’s father had legal custody of him regardless of whether the

predicates for the presumption were satisfied.

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Supreme Judicial Court determined that the father had shared legal

custody.

The government contends that C.M.J. is distinguishable on

its facts because the children in that case resided with both

natural parents, while here the parents lived separately. The

government thus appears to argue that, absent a decree, the father

can secure legal custody only through residence with the child. We

think that C.M.J. cannot be confined to its specific facts. While

Massachusetts law, like the INS regulations, may create a 4

presumption of legal custody in residence situations, nothing in

C.M.J. suggests that residence is the only way to acquire legal

custody rights. Indeed, if residence creates a presumption of

legal custody, the INS regulations necessarily suggest that legal

custody may be obtained by other means when residence is absent.

And in other contexts where state law is not to the contrary, the

BIA itself has recognized that the father of a child born out of

wedlock who has legitimated the child should be presumed to share

legal custody, even in the absence of a court decree. See Matter

of Rivers, 17 I&N Dec. 419, 423 (BIA 1980) (“Unless there is
Other courts have enforced voluntary custody and support 5

agreements between parents even though those agreements were not

filed with a court. See, e.g., Duffy v. Duffy, 881 A.2d 630, 632

(D.C. 2005) (enforcing agreement between divorcing parties as to,

inter alia, “the legal and physical custody of their daughter”).

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evidence to show that the father of a legitimated child has been

deprived of his natural right to custody, he will be presumed to

share custody with the mother.”).

Massachusetts statutes and cases suggest that in

situations in which a child was born out of wedlock, as well as in

divorce situations, agreements between the parents as to the

upbringing and legal custody of the child are favored. See, e.g.,

Mass. Gen. Laws ch. 208, § 31 (“Where the [divorcing] parents have

reached an agreement providing for the custody of the children, the

court may enter an order in accordance with such agreement, unless

specific findings are made by the court indicating that such an

order would not be in the best interests of the children.”); In re

Custody of Zia, 736 N.E.2d 449, 457 n.16 (Mass. App. Ct. 2000) (“It

goes without saying that we encourage parental agreement in the

sensitive area of child custody when it is possible and in the best

interests of the child.”). Section 10(a) itself recognizes that

courts in making formal custody determinations should give weight

to the fact that “parents have successfully exercised joint

responsibility for the child prior to the commencement of

proceedings.” Mass. Gen. Laws ch. 209C, § 10(a).5
Section 11(b) provides that “[s]uch agreements, if filed 6

with and approved by the court shall have the same force and effect

as a judgment of the court.” Mass. Gen. Laws ch. 209C, § 11(b).

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At oral argument we called the parties’ attention to

section 11(b) of chapter 209C of the Massachusetts General Laws,

and requested further briefing as to the effect of that section.

Both parties recognize that section 11(b) specifically provides

that “[i]f a mother and father execute a voluntary acknowledgment

of parentage . . . , they may also make agreements regarding

custody, support, and visitation,” and further provides that courts

shall honor such absent a finding that they are not in the best

interests of the child. However, the government argues that

section 11(b) requires that the agreements be filed with the

court. The petitioner disagrees, arguing that such filing is not 6

required.

The statute on its face only permits the parents to file

such an agreement, providing that “[s]uch agreements may be filed

with any court with jurisdiction.” Mass. Gen. Laws ch. 209C,

§ 11(b) (emphasis added). While the statute also provides that

agreements related to custody “must” be filed “with a division of

the probate and family court department in the judicial district or

county in which the child and one of the parents lives,” id., this

language seems clearly designed only to specify the court in which

the custody agreement “must” be filed if the parents elect to file

the agreement with a court. Notably, the statute does not provide
While the IJ determined that Pina’s father also had 7

shared physical custody of him, the BIA did not address that issue,

and we may not conduct our own de novo inquiry. I.N.S. v. Orlando

Ventura, 537 U.S. 12, 16 (2002). If the government elects to

challenge that finding, the BIA may consider it on remand.

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that such agreements are ineffective if not filed with the court.

Given the language of the statute and that Massachusetts favors

parental agreements with regard to custody, we think section 11(b)

cannot be construed to require that such an agreement be filed with

the court.

Thus, the informal agreement here between Pina’s parents

to share legal custody of him is entitled to effect. The

government has conceded that, under that agreement, Pina’s father

exercised the rights and responsibilities associated with legal

custody. Accordingly, the CCA’s requirement that, at the time the

statute went into effect, Pina was “in the legal . . . custody of

the citizen parent”–-that is, his father–-is satisfied.7

III.

For the foregoing reasons, the removal order issued by

the IJ is vacated and remanded for further proceedings not

inconsistent with this opinion.