                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3156
                                   ___________

Gamal Abdi Moussa,                      *
                                        *
            Petitioner,                 *
                                        * Petition for Review of
      v.                                * an Order of the Immigration
                                        * and Naturalization Service.
Immigration and Naturalization          *
Service,                                *
                                        *
            Respondent.                 *
                                   ___________

                             Submitted: June 14, 2002

                                 Filed: September 10, 2002
                                  ___________

Before HANSEN, Chief Judge, BOWMAN and BYE, Circuit Judges.
                              ___________

BYE, Circuit Judge.

       After an immigration judge (IJ) ruled in Gamal Abdi Moussa's favor on his
nationality claim, the Board of Immigration Appeals (BIA) concluded Moussa was
an alien subject to removal and vacated the IJ's order. We now grant Moussa's
petition for review, vacate the BIA's order of removal, and decide Moussa's
nationality claim in his favor.

      Moussa was born in Addis Ababa, Ethiopia, on March 19, 1977. His father
entered the United States as a refugee four years later, while Moussa and his mother
remained in Ethiopia. His parents divorced when Moussa was five. When Moussa
was twelve, he came to the United States and began living with his father.

       Moussa's father became a United States citizen on August 7, 1992, while
Moussa was in his legal custody. At that time, the Immigration and Nationality Act
(INA) provided that a child born outside the United States acquired citizenship upon
"the naturalization of the parent having legal custody of the child when there has been
a legal separation of the parents . . . if [s]uch naturalization takes place while such
child is under the age of eighteen years." 8 U.S.C. § 1432(a)(3) & (4) (repealed
effective February 27, 2001).

       In January 1999, the government commenced removal proceedings against
Moussa based on several criminal convictions he obtained between 1996 and 1998.
In the removal proceedings, Moussa claimed he was not subject to removal because
he became a citizen, pursuant to § 1432, at the time of his father's naturalization.

       Moussa's nationality claim turns on whether there was a "legal separation" of
his parents at the time of his father's naturalization. As one might expect, the term
"legal separation" in § 1432(a)(3) includes a divorce. Wedderburn v. INS, 215 F.3d
795, 799 (7th Cir. 2000) (citing Matter of H, 3 I.&N. Dec. 742 (1949)). Although
Moussa's parents were divorced in 1982, they remarried in December, 1989, before
Moussa's father was naturalized. The remarriage occurred via a proxy ceremony,
however, while Moussa's mother was still in Ethiopia and his father remained in the
United States. Moussa's mother did not come to the United States until several years
later, and thus it is undisputed that Moussa's parents never consummated their
remarriage before Moussa's father acquired his citizenship.

      The government contends Moussa's parents resumed their marital relationship
in December, 1989, and therefore were not legally separated when Moussa's father
was naturalized. Moussa's derivative citizenship would then depend on both his

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parents being naturalized while he was a minor. See 8 U.S.C. § 1432(a)(1). Moussa,
on the other hand, believes the IJ correctly determined his parents were legally
separated when his father became a citizen. He contends the proxy marriage is not
recognized as a valid marriage under well-established immigration law, relying
primarily upon the INA's definitions of "spouse," "wife," and "husband" which do not
include persons who participate in "any marriage ceremony where the contracting
parties thereto are not physically present in the presence of each other, unless the
marriage shall have been consummated." Id. § 1101(a)(35). As a result, he argues
the BIA erred when it ordered his removal from the United States and vacated the IJ's
order.

        We first address our jurisdiction to review the BIA's order of removal. "A
court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right." Id. § 1252(d)(1). The
government claims Moussa failed to exhaust his administrative remedies because he
did not articulate before the BIA the precise argument he now advances on appeal,
that is, his reliance on the INA's definition of "spouse" as the grounds for contending
his parents were still legally separated in 1992. The government further contends §
1252(d)(1)'s exhaustion provisions are jurisdictional in nature. See Nehme v. INS,
252 F.3d 415, 420 (5th Cir. 2001); cf. Chelette v. Harris, 229 F.3d 684, 687 (8th Cir.
2000) (noting a statutory exhaustion provision is jurisdictional if it contains
"sweeping and direct" language indicating a lack of jurisdiction prior to exhaustion,
rather than language merely codifying a general exhaustion requirement).

      Even assuming § 1252(d)(1) is jurisdictional in nature, we reject for two
reasons the government's contention that we lack jurisdiction. First, we necessarily
have jurisdiction to determine our jurisdiction, Kansas City So. Ry. Co. v. Great
Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir. 1980), and the exhaustion
provisions of § 1252(d)(1) do not apply to "any person" challenging a final order of
removal, only to an "alien" — precisely what Moussa claims not to be. Thus, we

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must determine whether Moussa is an alien in order to decide whether § 1252(d)(1)
applies to him. See Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001)
("Nevertheless, we do have jurisdiction to review Petitioner's claim that he is a United
States national or citizen and thus is not 'an alien' subject to removal.").

       Second, we disagree with the government's claim that Moussa failed to exhaust
his administrative remedies. We find it somewhat incongruous for the government
to rely upon an exhaustion-of-remedies defense when Moussa obtained in the
administrative process the very remedy he sought, only to have it taken away by an
appellate tribunal. The undisputed facts regarding the 1989 remarriage were before
both the IJ and the BIA, and both tribunals considered the effect of the remarriage on
Moussa's nationality claim, and therefore the issue was exhausted in the
administrative process. The government contends Moussa failed to exhaust the issue
only because he did not precisely articulate his reliance upon the INA's definition of
"spouse" when the issue was before the BIA. We disagree. Having prevailed on his
nationality claim before the IJ, Moussa could not be expected to prognosticate and
rebut in advance the precise grounds upon which the BIA might reject the IJ's order.
Often a party cannot point out a tribunal's alleged legal error until after the alleged
error is made. We believe that is essentially what occurred here, and are loathe to
apply the exhaustion doctrine under these circumstances.

       We turn now to the merits. Moussa claims he acquired citizenship upon his
father's naturalization in 1992 because his parents were still legally separated at the
time. He contends the BIA erred when it concluded his parents resumed their marital
relationship via the proxy marriage in 1989. We agree. Immigration law does not
recognize the validity of a proxy marriage which has never been consummated, even
where the parties lived together as husband and wife and consummated their
relationship prior to the proxy marriage. See In the Matter of B, 5 I.&N. Dec. 698,
699 (1954). The undisputed facts considered by both the IJ and the BIA showed
Moussa's parents never consummated the proxy marriage prior to the father's

                                          -4-
naturalization. Thus, the BIA erred by failing to address that fact before deciding
when Moussa's parents resumed their marital relationship.

       In the Matter of B involved an application for a preference visa for the spouse
of a lawful resident alien. The case turned on the INA's definition of "spouse" which,
as stated above, excludes any person married in a "ceremony where the contracting
parties thereto are not physically present in the presence of each other, unless the
marriage shall have been consummated." 8 U.S.C. § 1101(a)(35). The government
attempts to distinguish In the Matter of B on the grounds it involved a statute that
used the term "spouse" (what is now 8 U.S.C. § 1153(a)(2)), whereas § 1432 does not
include the terms "spouse," "wife," or "husband." We are not persuaded by that
argument.

       Although § 1432 does not specifically use the terms "spouse," "wife," or
"husband," we must determine whether Moussa's parents became a "husband" and
"wife" via the proxy marriage to decide whether they were still legally separated
when Moussa's father was naturalized. If they did not become "husband" and "wife"
via the proxy marriage, their divorced status remained when Moussa's father became
a citizen. In asking us to recognize a marital relationship between Moussa's parents
via the proxy marriage, the government would have us divorce the terms "spouse,"
"wife," and "husband" from the concept of marriage. This we are unwilling to do.
If a man and woman are not "husband," "wife" or "spouses" for immigration
purposes, then neither are they married for immigration purposes. Conversely, a
couple can not be in a marital relationship without being "husband" and "wife."
Thus, it would be inconsistent to recognize a marital relationship between Moussa's
parents under § 1432 when the INA does not otherwise recognize them as "husband"
and "wife."

      The government also relies upon a Department of Justice interpretation letter
which states that a child's derivative citizenship does not vest under § 1432 when his

                                         -5-
parents' "marital relationship is resumed before the naturalization of the one parent."
INS Interp. 320.1(a)(6) n.28a. Reliance upon this interpretation merely begs the
question, however, of when Moussa's parents resumed their marital relationship —
at the time of the proxy marriage, or when the proxy marriage was consummated.
Consistent with the INA's definition of the terms "spouse," "wife," and "husband," we
conclude a marital relationship is not resumed via a proxy marriage until the marriage
is actually consummated. Therefore, Moussa's parents had not resumed their marital
relationship before Moussa's father was naturalized.

      Finally, we reject the government's request to remand this issue back to the
BIA rather than decide it ourselves. There are no disputed facts in this case, and
Moussa's claim of nationality turns on a purely legal issue. Under these
circumstances, the INA commands us to decide the issue ourselves. See 8 U.S.C. §
1252(b)(5)(A) ("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.") (emphasis added).

      For the reasons stated above, we grant Moussa's petition for review, vacate the
BIA's order of removal, and decide Moussa's nationality claim in his favor.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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