Garcia v. USICE (Department of Homeland Security)

28 Carlos Garcia was born in the Dominican Republic on

29 December 24, 1978. His family immigrated to the United

30 States in 1984, and shortly thereafter, he became a lawful

31 permanent resident. When Garcia's family arrived in the

32 United States, they resided on West 107th Street in

33 Manhattan.

34 In 1988, while his family was vacationing in the

35 Dominican Republic, his mother divorced his father in a

36 Dominican court. The divorce decree purported to grant

1 The Dominican Divorce Law is unclear as to what is

encompassed by the term "guarda personal.” The Divorce Decree

includes no specific reference to custody.



3

1 Garcia's mother "guarda personal” ("personal

2 guardianship”).1 Following the vacation, Garcia's family

3 returned to Manhattan and his parents continued living

4 together on West 107th Street. In 1989, the entire family

5 moved to 201 West 109th Street, and in August 1994 (six

6 years after the divorce), Garcia's mother finally moved into

7 her own apartment.

8 On April 20, 1996, when Garcia was under the age of

9 eighteen, his father naturalized. Garcia alleges that at

10 the time, he resided with his father and that his father had

11 "actual uncontested custody” of him.

12 B.

13 On January 27, 1998, the former Immigration and

14 Naturalization Service ("INS”) charged Garcia as removable

15 under Immigration and Nationality Act ("INA”) § 237(a)(2)(C)

16 (conviction for a firearm offense). INS took Garcia into

17 custody until an immigration judge ultimately cancelled his

18 removal. See Garcia v. U.S. Dep't of Homeland Sec., 657 F.

19 Supp. 2d 403, 405 (W.D.N.Y. 2009). Garcia, however, soon

20 found himself back on the wrong side of the law.

2 On June 1, 2005, the district court transferred Garcia's

citizenship petition to this court for consideration under the

REAL ID Act. On September 28, 2006, this court remanded Garcia's

case in a one-paragraph order and directed the district court to

hold further proceedings "regarding petitioner's claim that he is

a national of the United States.” Order, Garcia v. Dep't of

Homeland Security, No. 05-2818-ag (2d Cir. Sept. 26, 2006); see

also 8 U.S.C. § 1252(b)(5)(B) (2006).



4

1 As a result of several convictions in 2001 and 2002,

2 the Government served Garcia with a Notice to Appear and

3 ultimately ordered him removed to the Dominican Republic.

4 Garcia applied for derivative citizenship based on his

5 father's 1996 naturalization, but United States Citizenship

6 and Immigration Services ("CIS”) denied his application,

7 finding that the Dominican Republic divorce decree granted

8 Garcia's mother, and not his father, "legal custody.” Id.

9 at 406. After the CIS Administrative Appeals Office denied

10 his appeal, Garcia filed a petition for a writ of habeas

11 corpus in the district court.2

12 The district court denied Garcia's petition. It found

13 the Dominican Republic divorce decree highly probative of

14 which parent had custody (Garcia's mother) and therefore

15 concluded that Garcia was unable to demonstrate that he was

16 in his father's sole legal custody when his father

3 From the record, it appears that neither Garcia nor the

Government ever questioned the enforceability of the divorce

decree's purported custody award.



5

1 naturalized.3 Garcia, 657 F. Supp. 2d at 407–08.

2 Throughout the initial proceedings, Garcia proceeded

3 pro se. When the case came before us, we appointed Garcia

4 pro bono counsel and asked for supplemental briefing.

5 II.

6 A.

7 Prior to its repeal, INA § 321 provided, in pertinent

8 part:

9 A child born outside of the United States of

10 alien parents . . . becomes a citizen of the United

11 States upon fulfillment of the following conditions:

12 . . .

13 (3) The naturalization of the parent having

14 legal custody of the child when there has been a

15 legal separation of the parents . . .; and if

16 (4) Such naturalization takes place while such

17 child is under the age of eighteen years . . . .

18 INA § 321, 8 U.S.C. § 1432(a) (1996) (emphasis added),

19 repealed by Child Citizenship Act Of 2000, Title I,

20 § 103(a), 114 Stat. 1632.

21 The parties agree that when Garcia's father naturalized

22 on April 20, 1996, (1) there was "a legal separation of the

23 parents” and (2) Garcia was under the age of eighteen. The



6

1 parties disagree as to whether Garcia was in the "legal

2 custody” of his father at the time.

3 "Legal custody” is a matter of federal law. See Fierro

4 v. Reno, 217 F.3d 1, 4 (1st Cir. 2000). Nevertheless, we

5 often look to state law for a rule of decision

6 "[w]here . . . there is no extant body of federal common law

7 in the area of law implicated by the statute.” Brissett v.

8 Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004). For example, in

9 Brissett, we held that the term "legal separation” contained

10 in the same subsection of the statute requires a formal act,

11 as defined by state law, that alters the marital

12 relationship. Brissett, 363 F.3d 133-34. In New York, the

13 qualifying "formal act” is either divorce (termination of

14 the marriage) or a formal written or judicial separation,

15 which recognizes the separate existence of the marital

16 parties. See id. We believe a similar reference to state

17 law is appropriate, at least initially, for determining

18 "legal custody,” as "[l]egal relationships between parents

19 and children are typically governed by state law, there

20 being no federal law of domestic relations.” Fierro, 217

21 F.3d at 4 (internal quotation marks omitted).

22



7

1 The first step in deciding whether a naturalizing

2 parent has "legal custody” of a child for purposes of

3 derivative citizenship is to determine whether a judicial

4 decree or statutory grant awards custody to the naturalizing

5 parent. Bagot v. Ashcroft, 398 F.3d 252, 268-69 (3d Cir.

6 2005) (Rosenn & Nygaard, concurring). But, notwithstanding

7 a formal termination of the marriage, what if there is no

8 judicial or authorized determination of custody? In

9 Brissett, we indicated that the absence of a formal judicial

10 determination or written separation agreement was fatal to a

11 derivative citizenship claim. Brissett, 363 F.3d at 134.

12 Is an immigrant child of a naturalizing alien denied

13 citizenship because there is no court order or formalized

14 custody agreement? We think not; we are not convinced that

15 our reasoning in Brissett equally applies to determinations

16 of "legal custody.”

17 In Matter of M—, 3 I. & N. Dec. 850 (BIA 1950), a child

18 was born in Czechoslovakia to married parents; the mother

19 was German and the father Jewish. In 1940, the mother

20 "annulled” the marriage and father and daughter immigrated

21 to the United States. They were lawfully admitted, and the

22 father naturalized in 1947 when the child was under the age

4 Indeed, Congress specifically softened the custody

requirement when it enacted the successor statute to former INA

§ 321:

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



8

1 of eighteen. Id. at 850–51. The "annulment,” which the

2 Board of Immigration Appeals ("BIA”) treated as a divorce,

3 made no provision for custody, but the mother had

4 surrendered custody to the father. Id. at 851, 854.

5 The BIA held:

6 [I]n the absence of judicial determination or

7 judicial or statutory grant of custody in the case

8 of legal separation of the parent of a person

9 claiming citizenship under section 314(c) [INA

10 § 321(a)'s predecessor], the parent having actual

11 uncontested custody is to be regarded as having

12 "legal custody” of the person concerned for the

13 purpose of determining that person's status under

14 section 314(c).

15 Id. at 856. We "accord substantial deference to the BIA's

16 interpretations of the statutes and regulations that it

17 administers.” Brissett, 363 F.3d at 133. Moreover, Matter

18 of M— has been the law for sixty-one years without

19 congressional intervention.4 The BIA's interpretation,

pursuant to a lawful admission for permanent residence.

8 U.S.C. § 1431(a) (2006).



9

1 thus, has substantial persuasive weight. See Zhang v.

2 Holder, 617 F.3d 650, 662 (2d Cir. 2010) (citing Commodity

3 Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986))

4 (other citations omitted).

5 Decisions about the marital relationship tend to be

6 final; custody decisions, in contrast, tend to be fluid and

7 frequently change depending on the parents' situations and

8 well-being. See Bagot, 398 F.3d at 270 (Rosenn & Nygaard,

9 concurring). Parents' "agreement to transfer legal custody

10 [is] within the purview of their authority and . . . it is

11 not necessary for parents to come into court to change or

12 amend a de[c]ree of divorce every time they . . . jointly

13 make a major decision concerning the care and custody of

14 their children.” Tabucbuc v. Ashcroft, 84 F. App'x 966, 969

15 (9th Cir. 2004) (internal quotation marks omitted)

16 (unpublished memorandum).

17 Requiring a formal act to change custody—something more

18 than mere agreement—is counterintuitive to the attempts that

19 parents make following a divorce to conduct their lives and

20 those of their children with one goal: the children's best



10

1 interest. Moreover, in the absence of a judicial

2 determination giving one parent sole custody of the child,

3 each parent generally retains the rights and

4 responsibilities that come with parenthood. N.Y. Dom. Rel.

5 Law § 81 (McKinney 2010); see also 45 N.Y. Jur. 2d Dom. Rel.

6 § 333.

7 Our holding today is consistent with our decision in

8 Brissett. Divorce and judicial separation are inherently

9 different from custody decisions. Bagot, 398 F.3d at 267;

10 see also Morgan v. Att'y Gen., 432 F.3d 226, 234 (3d Cir.

11 2005) (recognizing after Bagot that in contrast to "legal

12 custody,” "legal separation” does require a "formal

13 governmental action”). The BIA itself has recognized as

14 much. Compare Brissett, 363 F.3d at 133-34 (recognizing

15 that the BIA interprets "legal separation” to require a

16 formal act), with Matter of M-, 3 I. & N. Dec. at 856 (BIA's

17 interpretation that "actual uncontested custody” can

18 constitute "legal custody”).

19 B.

20 In his supplemental brief, Garcia argues that New York

21 would not recognize the Dominican Republic custody award and

22 that if the Dominican custodial decree is unenforceable, the

5 The UCCJA limited the jurisdictional bases for making a

custody determination. N.Y. Dom. Rel. Law § 75-d (McKinney

1987). New York replaced the UCCJA with the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA) on April 29,

2002. We include the text of former § 75-d as an appendix to

this opinion.

6 In contrast to the UCCJEA, which mandates recognition of

a foreign custody award made in substantial accordance with the

UCCJEA, see N.Y. Dom. Rel. Law § 75-d(1) (McKinney 2010), UCCJA

merely encouraged recognition and enforcement of such awards, see

N.Y. Dom. Rel. Law § 75-w (McKinney 1987).



11

1 parent with actual uncontested custody is the parent with

2 "legal custody” for the purpose of evaluating his derivative

3 citizenship claim. We agree.

4 At the time that Garcia's mother secured the divorce,

5 Garcia and his family resided in New York and had resided

6 there for four years; New York was their "home state.” At

7 that time, New York had enacted the Uniform Child Custody

8 Jurisdiction Act ("UCCJA”).5 Pursuant to the UCCJA, New

9 York would not even consider recognizing a foreign custody

10 award unless the foreign law substantially complied with the

11 UCCJA.6 N.Y. Dom. Rel. Law § 75-n (McKinney 1987); N.Y.

12 Dom. Rel. Law § 75-w (McKinney 1987). As the New York Court

13 of Appeals explained, the UCCJA required "[m]aximum rather

14 than minimum contacts with the State.” Vanneck v. Vanneck,

15 49 N.Y.2d 602, 610 (1980).

16

7 Our conclusion that New York would not recognize the

Dominican Republic custody award is also consistent with the

United States' obligations under the Hague Convention. We are

mindful that district courts must ensure that their

determinations of "actual uncontested custody” involving a

foreign person or custody determination comply with the Hague

Convention. See 42 U.S.C. §§ 11601-11611.



12

1 It is quite clear that New York had jurisdiction to

2 determine custody, not the Dominican Republic. New York was

3 Garcia's home state when his mother secured the divorce; his

4 family had lived in New York for four years prior to the

5 divorce. Moreover, the record reflects that no other

6 jurisdictional basis was present. Therefore, the Dominican

7 Republic custodial award was not made in "substantial

8 accordance” with the UCCJA. Garcia is correct; New York

9 would not recognize the award.7

10 This case thus turns then on who had "actual

11 uncontested custody” of Garcia when his father naturalized.

12 Two predominant indicators of "actual uncontested custody”

13 are (i) the child's physical residence, and (ii) consent to

14 custody by the non-custodial parent. See Bagot, 398 F.3d at

15 267.

16 In the district court, Garcia, acting as his own

17 counsel, presented largely uncontradicted evidence that he

18 was in his father's "actual uncontested custody” when his



13

1 father naturalized. When Garcia's father became a citizen,

2 he resided at 201 West 109th Street, Basement Apartment.

3 The affidavits of Garcia and each of his parents provide

4 unrebutted evidence that Garcia resided with both parents at

5 that address from 1989 to at least August 1994.

6 A middle school abstract (procured by Garcia's pro bono

7 counsel and submitted with this appeal) confirms that Garcia

8 resided at 201 West 109th Street, Basement Apartment, during

9 the 1993 school year. The affidavits of Garcia and his

10 mother each discuss her move out of the family residence in

11 August 1994, leaving Garcia with his father at 201 West

12 109th Street, and that Garcia's father was "legally,

13 financially, [and] physically responsible for him.” His

14 parents contended that they had agreed that Garcia would

15 remain with his father and not move out with his mother.

16 The affidavits are further corroborated by a 2003 U.S. Alien

17 Change of Address form completed by Garcia, which lists

18 Garcia's "OLD address”—i.e., up until 2003—as his father's.

19 Garcia alleges that this piece of evidence connects the

20 dates between the school records from the 1990s through and

21 past 1996 (when his father naturalized).

22

8 The Government did not place the 1992 tax return into the

record and Garcia's appointed counsel suggests that the

Government does not have a copy; the district court should ensure

that the tax return is in the record if it chooses to rely on the

tax return.

9 As with the 1992 tax return, the Government did not place

the affidavit into the record and Garcia's appointed counsel

suggests that the Government does not have a copy; if the

district court relies on the affidavit, it must be part of the

record.

10 We believe that the omission can equally be understood

as a lack of adequate space on the naturalization form or minimal

understanding of the English language. The naturalization form

had seven lines for children. Garcia's father had eight

children. He listed Garcia on an additional page, which lacked

the form blanks to enter Garcia's date of birth, country of

birth, citizenship, alien number, and address.



14

1 Before the district court, the Government pointed out

2 that Garcia's father's 1988 and 1992 tax returns either

3 listed Garcia as a dependent without providing his address,

4 or indicated that he had no dependents.8 It also argued

5 that in 1993, Garcia's father submitted an affidavit in

6 support of his second wife's visa application that listed no

7 dependents.9 In addition, Garcia's father's naturalization

8 application omitted Garcia's address, an omission that the

9 Government argues means that Garcia must have lived with his

10 mother.10

11 In our view, there is a genuine dispute of material

12 fact about which parent (if either) had uncontested custody

13 of Garcia when his father naturalized. The Government and



15

1 district court relied almost entirely upon the Dominican

2 Republic divorce decree to resolve the matter; without the

3 divorce decree, the Government has introduced very little

4 evidence to contradict Garcia's claim. It is the district

5 court, however, that must weigh the probative value of

6 Garcia's and the Government's evidence. 8 U.S.C.

7 § 1252(b)(5)(B) (2006).

8 Garcia now has the benefit of appointed counsel, who

9 has diligently searched for and found additional

10 records—such as Garcia's school records—that shed further

11 light on the issue of actual uncontested custody. Further,

12 when acting pro se, Garcia was detained at the Batavia

13 immigration detention center, which severely limited his

14 ability to provide the court with documents and other

15 evidence that might assist it in making its determination of

16 which, if either, of Garcia's parents had actual uncontested

17 custody of him when his father naturalized. Thus, we

18 instruct the district court to hold a hearing under 8 U.S.C.

19 § 1252(b)(5)(B) (2006).

20 The district court should conduct this hearing in the

21 same manner that it conducts any other evidentiary hearing.

22 The district court should give Garcia's appointed counsel

11 We note that W.D.N.Y. Local Rule 83.1(f) requires

members of the district court's bar to be available "upon the



16

1 (and the Government) a fair opportunity to supplement the

2 record, if necessary, with any additional evidence,

3 including witness testimony, that is material to the custody

4 issue.

5 III.

6 We appoint Garcia counsel in the district court. We

7 may appoint an unrepresented party counsel if we find the

8 factors set forth in Hodge v. Police Officers, 802 F.2d 58

9 (2d Cir. 1986), satisfied. These factors include:

10 (1) whether the party's claim has substantial merit;

11 (2) whether the nature of the factual issues requires an

12 investigation, and whether the party's ability to

13 investigate is inhibited; (3) whether the claim's factual

14 issues turn on credibility, which benefits from the skills

15 of those trained in presentation of evidence and cross16

examination; (4) the party's overall ability to present its

17 case; and (5) whether the legal issues presented are

18 complex. Hodge, 802 F.2d at 60-61. We find that all of

19 these factors favor appointing Garcia counsel in the

20 district court. Therefore, we instruct the district court

21 to appoint Garcia counsel.11 28 U.S.C. § 1915(e) (2006);

Court's request for appointment to represent or assist in the

representation of indigent parties.” We take judicial notice

that Garcia's appointed counsel before this court, Mr. Timothy W.

Hoover, is a member of the Western District Bar. We appreciate

Mr. Hoover's outstanding representation before us. We recommend

that the district court ask Mr. Hoover to continue representation

in the district court, and if he declines, appoint another

attorney to represent Garcia pro bono.



17

1 Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997);

2 Hodge, 802 F.2d at 60-61.

3 IV.

4 We have reviewed Garcia's other claims on appeal and

5 find them to be without merit. To conclude, we VACATE and

6 REMAND the district court's order and judgment. We instruct

7 the district court to hold a hearing consistent with this

8 opinion, and we appoint Garcia counsel for the district

9 court proceedings. We continue Garcia's stay of removal

10 pending further proceedings in this court.

11 VACATED and REMANDED.





APPENDIX

1. A court of this state which is competent to decide

child custody matters has jurisdiction to make a child

custody determination by initial or modification decree

only when:

a. this state (i) is the home state of the child at

the time of commencement of the custody

proceeding, or (ii) had been this child's home

state within six months before commencement of

such proceeding and the child is absent from this

state because of his removal or retention by a

person claiming his custody or for other reasons,

and a parent or person acting as a parent

continues to live in this state; or

b. it is in the best interest of the child that a

court of this state assume jurisdiction because

(i) the child and his parents, or the child and at

least one contestant, have a significant

connection with this state, and (ii) there is

within the jurisdiction of the court substantial

evidence concerning the child's present or future

care, protection, training, and personal

relationships; or

c. the child is physically present in this state and

(i) the child has been abandoned or (ii) it is

necessary in an emergency to protect the child; or

d. (i) it appears that no other state would have

jurisdiction under prerequisites substantially in

accordance with paragraph (a), (b), or (c), or

another state has declined to exercise

jurisdiction on the ground that this state is the

more appropriate forum to determine the custody of

the child, and (ii) it is in the best interest of

the child that this court assume jurisdiction.

App'x 2

2. Except under paragraphs (c) and (d) of subdivision one

of this section, physical presence in this state of the

child, or of the child and one of the contestants, is

not alone sufficient to confer jurisdiction on a court

of this state to make a child custody determination.

3. Physical presence of the child, while desirable, is not

a prerequisite for jurisdiction to determine his

custody.

N.Y. Dom. Rel. Law § 75-d (McKinney 1987) (emphasis added).



See: http://www.ca2.uscourts.gov/decisions/isysquery/a6c9ac59-12cb-4031-9edb-05b107f79270/1/doc/09-4211_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a6c9ac59-12cb-4031-9edb-05b107f79270/1/hilite/

Vacated and Remanded.

Digested by Angela Monore