Citizen Gain

Garcia v. USICE, No. 09-4211-pr (2d Cir. December 29, 2011) (Miner, Wesley, Chin, CJJ)

This interesting derivative citizenship decision – although not a criminal case – is a great read, and flags a potentially important issue for defense lawyers.

Carlos Garcia was born in the Dominican Republic, and his family brought him to the United States when he was five years old. He soon became a permanent resident, and lived with his family on West 107th Street in Manhattan.

Four years after the family emigrated, they vacationed in the D.R. and, while they were there, his parents divorced. The divorce decree gave Garcia’ smother “personal guardianship” over him. Despite the divorce, however, the parents continued to live together on West 107th when they returned to New York. One year later, the whole family moved to West 109th Street and, five years later – six years after the divorce – the mother moved into her own apartment. In 1996, when Garcia was not yet 18, his father naturalized.

As a young man, Garcia had trouble with the law several times, and eventually faced removal. He applied for derivative citizenship based on his father’s naturalization, asserting that he lived with his father, not his mother, when the father naturalized in 1996, and thus that the father had “actual uncontested custody” of him. ICE denied the petition based on the Dominican divorce decree, which gave the mother, not the father, “legal custody.” After losing his administrative appeal, Garcia filed a pro se habeas petition in the Western District, which denied it. Relying on the wording of the divorce decree, the court held that Garcia could not demonstrate that he was in his father’s sole legal custody when the father naturalized. He appealed, and now assisted by appointed pro bono counsel, the circuit reversed.

In the case of a foreign-born child whose parents have separated, the applicable statute – it has since been repealed – granted citizenship to the child if the parent having “legal custody” naturalized before the child turned eighteen. Here, there was no dispute that, when Garcia’s father naturalized, Garcia was under eighteen and the parents were legally separated. The disagreement was only over the “legal custody” requirement.

This question turns on federal law, but the analysis is guided by state law if there is “no extant body of federal common law.” Thus, in the past, for example, the circuit has looked at New York law – which requires a formal act – to determine whether there has been a “legal separation.” But the court was less certain that looking at state law would be helpful in determining “legal custody.” “Decisions about the marital relationship tend to be final; custody decisions, in contrast, tend to be fluid and frequently change depending on the parents’ situations and well-being.” Requiring a “formal act” to change custody would also be contrary to the obvious parental goal after a divorce – ensuring the child’s best interest.

Here, the court’s the first step was determining whether a judicial decree or statutory grant awarded custody to the naturalizing parent. If there is none, then, under longstanding Board of Immigration Appeals precedent, the parent having “actual uncontested custody” is the one that has “legal custody” for the derivative citizenship purposes. And here, the circuit agreed with Garcia that the Dominican custody award was not enforceable in New York, and thus that the “actual uncontested custody” standard applied. At the time of the Dominican divorce, New York was the family’s home state, and thus New York had jurisdiction to determine custody, not the D.R. The circuit held that the Dominican custody award was not made in “substantial accordance” with New York law – although it did not really explain why – and thus that New York would not recognize that award.

Even acting pro se in the district court, Garcia introduced “largely uncontradicted” evidence that he was in his father’s “actual uncontested custody” when the father naturalized in 1996. At that time, the father lived on West 109th Street, and both Garcia and his parents filed affidavits – unrebutted by the government – that he lived there then, too. School records obtained by Garcia’s appellate counsel further supported this, as did Garcia’s 2003 Alien Change of Address form, which listed th3 109th Street address as the “old” – that is, pre-change, address.

This government’s evidence was limited to an assertions that statements in some of the father’s pre-naturalization tax and immigration documents were inconsistent with his current claim that he had custody of Garcia in 1996. The circuit has not particularly convinced by the government’s evidence, but rather than simply holding for Garcia, it concluded that there was a “genuine dispute of material fact” over which parent had uncontested custody over Garcia when the father naturalized. It accordingly vacated and remanded for an evidentiary hearing, and also took the unusual step of ordering the district court to appoint counsel for Garcia.