                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ALFRED MINASYAN,                            
                             Petitioner,            No. 02-73556
                    v.
                                                    Agency No.
                                                    A29-617-744
ALBERTO R. GONZALES,* Attorney
General,                                              OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                 Submitted December 7, 2004**
                     Pasadena, California

                         Filed March 22, 2005

   Before: Stephen Reinhardt, Cynthia Holcomb Hall, and
           Kim McLane Wardlaw, Circuit Judges.

                   Opinion by Judge Reinhardt




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
  **This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                 3465
3468                MINASYAN v. GONZALES


                         COUNSEL

Houman Varzandeh, Zaman & Varzandeh, Los Angeles, Cali-
fornia, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division;
Linda S. Wendtland, Assistant Director; and Elizabeth J. Ste-
vens, Attorney, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington D.C., for the
respondent.


                         OPINION

REINHARDT, Circuit Judge:

   Alfred Minasyan, a native of Armenia, petitions for review
of a per curiam order of the Board of Immigration Appeals
(“BIA”). The BIA affirmed the decision of the immigration
judge (“IJ”), denying Minasyan’s applications for withholding
of removal and protection under the Convention Against Tor-
ture (“CAT”). The BIA also found that Minasyan had not
demonstrated eligibility for derivative citizenship under a now
defunct provision of the Immigration and Nationality Act
(“INA”), § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1999), repealed
by Pub. L. 106-395, Title I, § 103(a), Oct. 30, 2000, 114 Stat.
                          MINASYAN v. GONZALES                         3469
1632.1 We conclude that Minasyan is a derivative citizen of
the United States pursuant to that provision, and is thus not
subject to removal as a felon convicted of an aggravated
offense.

                                      I.

   Minasyan, now twenty-five years old, first entered the
United States with his family when he was eight, as a refugee
from Armenia. He obtained lawful permanent resident status
when he was ten. In October 1993, when he was fourteen,
Minasyan’s parents separated and his mother assumed sole
custody of him. In December 1994, his mother became a
United States citizen through naturalization.2

 Shortly after his eighteenth birthday, in October 1997,
Minasyan was arrested on charges of first degree burglary and
  1
   Under former INA § 321(a), 8 U.S.C. § 1432, a child born outside of
the United States of alien parents automatically 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 par-
      ents 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 the child has not been established by legiti-
      mation; and if
      (4) Such naturalization takes place while such child is unmar-
      ried and under the age of eighteen years; and
     (5) Such child is residing in the United States pursuant to a law-
     ful admission for permanent residence at the time of the natural-
     ization 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.
  2
    Minasyan’s father became a citizen through naturalization on June 10,
1999, after Minasyan had turned eighteen.
3470                   MINASYAN v. GONZALES
attempted first degree burglary. He pleaded guilty to both
crimes and was sentenced to two years in state prison.3
Because of this conviction, the Immigration and Naturaliza-
tion Service (“INS”)4 initiated removal proceedings. During
the proceedings, Minasyan raised a claim of derivative citi-
zenship on the basis of his mother’s naturalization. The Immi-
gration Judge denied the claim on April 30, 1999, and on
February 26, 2000, Minasyan was removed to Armenia.

   On April 19, 1999, just before the IJ ordered Minasyan
removed, Minasyan’s mother filed an action for the dissolu-
tion of her marriage. In April of 2001, the Los Angeles Supe-
rior Court filed an order granting the dissolution, to be
effective in October 2001. The stipulated judgment issued by
the court declared that Minasyan’s parents had separated on
October 1, 1993, and that his mother maintained sole legal
custody of him from that date on. No one contests the accu-
racy of the factual findings or legal determinations contained
in the court order.

   Minasyan reentered the United States on a visitor’s visa
around the end of January 2001. In May 2001, the INS issued
a notice of intent to reinstate the prior removal order. In
response, Minasyan again asserted his citizenship claim,
while also contending that he would be persecuted or tortured
if he were returned to Armenia. The INS Citizenship Unit
reviewed his file and found that although Minasyan “may
have been in the legal custody of his mother at the time of her
naturalization, no evidence has been provided to show that his
parents’ marital separation had been recognized by a court of
  3
     He did not use any weapons or other dangerous items during the com-
mission of the burglary and, consequently, received the minimum sen-
tence.
   4
     The INS ceased to exist on March 1, 2003, when its functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. However, we
refer to the agency as the INS here because the proceedings in this case
were initiated before the transfer.
                        MINASYAN v. GONZALES                         3471
law.” The agency then scheduled a hearing before an IJ to
adjudicate his persecution and torture claims.

   Before the IJ, Minasyan renewed his claim to derivative cit-
izenship. He relied not only on the 2001 dissolution decree
entered by the Los Angeles Superior Court, but on a subse-
quent nunc pro tunc judgment of that court confirming that
his parents were legally separated on October 1, 1993. On the
basis of the dissolution decree and the nunc pro tunc order,
the IJ concluded that “the respondent has made out a prima
facie claim to derivative United States citizenship through his
United States citizen mother.” She directed Minasyan to file
a N-600 form (“Application for Certificate of Citizenship”)
and ordered the INS to adjudicate that application. The IJ
explained that “if the applicant is not an ‘alien’ the court lacks
jurisdiction to proceed and conduct a withholding only hear-
ing.” On March 12, the District Director denied Minasyan’s
citizenship application and informed Minasyan of his right to
appeal.5

   The IJ proceeded with the hearing, but declined to consider
Minasyan’s claim to citizenship. She explained that because
the Citizenship Unit had denied his application, “any judicial
interference or decision would have to come from the federal
courts and not from the Immigration Court because we do not
have authority to declare the respondent a citizen of the
United States.” The IJ ruled against Minasyan on the merits
of his withholding and CAT claims.6
  5
     The District Director emphasized the issue of custody, explaining that
“[t]he Service does not acknowledge nunc pro tunc nor any other type of
retroactive agreements to establish legal, physical[ ] custody for the pur-
pose of obtaining an Immigration benefit. To derive your mother’s Ameri-
can citizenship, there must have been a court order prior to your
eighteenth birthday awarding your care and custody to your mother.”
Notably, on appeal, the government concedes that, if Minasyan’s parents
were legally separated, then he was in the legal custody of his mother.
   6
     At the hearing, Minasyan testified as follows: Upon arriving in Arme-
nia, he was interrogated and beaten by six police officers because he was
3472                     MINASYAN v. GONZALES
  On appeal, the BIA affirmed, concluding that Minasyan
had not demonstrated “that he derived United States citizen-
ship under former section 321(a)(3) of the Act.”7 It also
upheld the IJ’s decision that Minasyan was ineligible for
withholding of removal and protection under CAT. Minasyan
seeks review only of the determination that he is not a United
States citizen.

                                     II.

   We do not have jurisdiction to review a criminal alien’s
final order of removal. 8 U.S.C. § 1252(a)(2)(C). However,
where, as here, a petitioner claims that he is a United States
citizen and that he is therefore not subject to removal, we

of Iranian descent, and spoke accented Armenian. They hit him in the back
of the head, made him strip to his underwear, and robbed him of all his
money. Then, while he was dazed and nearly naked, an officer attacked
him with a knife, slashing open his hand when he tried to protect himself.
After his release, Minasyan, without money or a place to stay, drifted
through Yerevan, the capital of Armenia, for several months, picking up
odd jobs, using the public baths, and sleeping on park benches. One day,
two of the police officers who interrogated him found him sleeping in a
park; they handcuffed him, took him to an underground garage and beat
him, fracturing his ribs and burning his hands with cigarettes. After he was
released, he sought medical attention and then contacted his mother in the
States in an attempt to return home. Upon inspection at the hearing, the
IJ noted the marks on his hand but concluded that she could not identify
them as cigarette burns.
   The IJ found that the crime for which Minasyan was deported was “a
particularly serious crime,” making him ineligible for withholding of
removal under either INA § 241(b)(3) or CAT. In the alternative, she
found that even if his crime were not “particularly serious,” he failed to
establish a clear probability of persecution on account of a protected
ground and that his experiences did not constitute torture. Although she
indicated that she had some doubts about Minasyan’s testimony, she did
not make an adverse credibility determination, finding instead that “even
if he is telling us the truth” he had not established eligibility for relief.
   7
     Thus, although the BIA noted that the IJ did not have jurisdiction to
reconsider the INS’s denial of Minasyan’s citizenship claim, it considered
and decided the merits of his claim.
                       MINASYAN v. GONZALES                        3473
have jurisdiction to determine his nationality claim. 8 U.S.C.
§ 1252(b)(5)(A); see also Barthelemy v. Ashcroft, 329 F.3d
1062, 1064 (9th Cir. 2003).8 We review the legal questions
involved in Minasyan’s claim de novo. Perdomo-Padilla v.
Ashcroft, 333 F.3d 964, 966 (9th Cir. 2003); Hughes v.
Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001). Because “the
INA explicitly places the determination of nationality claims
solely in the hands of the courts of appeals and (if there are
questions of fact to resolve) the district courts,” we are not
required to give Chevron deference to the agency’s interpreta-
tion of the citizenship laws. Hughes, 255 F.3d at 758 (citing
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)).

   Minasyan argues that he is a derivative citizen pursuant to
§ 321(a) of the INA because his parents were legally sepa-
rated and he was in the sole custody of his mother and under
the age of eighteen when she was naturalized. In response, the
government contends that this court does not have jurisdiction
to consider Minasyan’s citizenship claim because he failed to
exhaust all available administrative remedies; specifically, he
failed to appeal the decision of the District Director to the
Administrative Appeals Unit. In the alternative, the govern-
ment argues that Minasyan is not a derivative citizen by virtue
of his mother’s naturalization because he has not established
that his parents were legally separated before his eighteenth
birthday. We reject both of these arguments and conclude that
Minasyan meets the requirements of citizenship as set forth in
former § 321(a).

1.       Exhaustion

     [1] For a court to review a final order of removal an alien
     8
   Because there is no genuine issue of material fact pertaining to
Minasyan’s nationality claim, we do not transfer the case to the district
court but rather maintain jurisdiction to decide the legal issue. See 8
U.S.C. § 1252(b)(5)(A) - (B); see also Perdomo-Padilla, 333 F.3d at 966.
3474                    MINASYAN v. GONZALES
must typically exhaust all administrative remedies available to
the alien as of right. 8 U.S.C. § 1252(d)(1); see Barron v. Ash-
croft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that § 1252
“generally bars us, for lack of subject-matter jurisdiction,
from reaching the merits of a legal claim not presented in
administrative proceedings below”). However, a claim to citi-
zenship need not be exhausted. Rivera v. Ashcroft, 394 F.3d
1129 (9th Cir. 2005).9 As we explained in Rivera:

      The executive may deport certain aliens but has no
      authority to deport citizens. An assertion of U.S.
      “citizenship is thus a denial of an essential jurisdic-
      tion fact” in a deportation proceeding. Ng Fung Ho
      v. White, 259 U.S. 276, 284 (1922); see also Frank
      v. Rogers, 253 F.2d 889, 890 (D.C. Cir. 1958)
      (“Until the claim of citizenship is resolved, the pro-
      priety of the entire proceeding is in doubt.”).

Id. at 1136. As in Rivera, if the government’s argument that
exhaustion is required were correct, “it would be possible to
unintentionally relinquish U.S. citizenship . . . . The Constitu-
tion does not permit American citizenship to be so easily
shed.” Id. Thus, “[t]he statutory administrative exhaustion
requirement of § 1252(d)(1) does not apply” to “a person with
a non-frivolous claim to U.S. citizenship” even if he has pre-
viously been (illegally) deported by the government. Id. at
1140. See also Moussa v. INS, 302 F.3d 823, 825 (8th Cir.
2002) (holding that the exhaustion requirement of
§ 1252(d)(1) applies “only to an ‘alien’ ” “challenging a final
order of removal” and not to “ ‘any person.’ ”). Because
Minasyan’s claim to citizenship is not patently frivolous, we
have jurisdiction to review it, irrespective of whether he has
exhausted his claim before the agency.
  9
   In Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002), we declined to
consider a patently frivolous claim to citizenship. See Rivera, 394 F.3d at
1138 (distinguishing Taniguchi).
                         MINASYAN v. GONZALES                          3475
2.    Derivative Citizenship

   [2] Citizenship for one not born in the United States may
be acquired “only as provided by Acts of Congress.” Miller
v. Albright, 523 U.S. 420, 424 (1998). Since the enactment of
the first naturalization statute in 1790, our immigration laws
have conferred derivative citizenship on the children of a nat-
uralized citizen, provided certain statutorily prescribed condi-
tions are met. See Charles Gordon, Stanley Mailman, &
Stephen Yale-Loehr, Immigration Law and Procedure
§ 98.03[1]-[2] (2004) (hereinafter Immigration Law); INS
Interp. § 320.1(a)(1).10 As with all forms of citizenship, deriv-
ative citizenship is determined under the law in effect at time
the critical events giving rise to eligibility occurred. See Immi-
gration Law at § 91.03(a) (citing Montana v. Kennedy, 366
U.S. 308 (1961)). Thus, we analyze Minasyan’s citizenship
claim under § 321(a), the provision in effect at the time his
mother became a naturalized citizen.

     [3] INA § 321(a), provides, in pertinent part, that:

       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 sep-
       aration of the parents . . . ; and if

       (4) Such naturalization takes place while such
       child is under the age of eighteen years; and
   10
      Because citizenship is transmitted automatically upon the parent’s nat-
uralization, it does not depend on the filing of an application, an adminis-
trative decision, a court order, an oath of allegiance, or any other
procedure. Immigration Law at § 98.03[5] (citing INS Interp.
§ 320.1(a)(1)).
3476                    MINASYAN v. GONZALES
       (5) Such child is residing in the United States pur-
       suant to a lawful admission for permanent residence
       at the time of the naturalization of . . . the parent nat-
       uralized under clause (2) or (3) of this subsection, or
       there-after begins to reside permanently in the
       United States while under the age of eighteen years.

8 U.S.C. § 1432(a) (repealed 2000).11 Minasyan meets condi-
tion (4), as his mother was naturalized in 1994, when he was
15 years old. He also meets condition (5) because he began
to reside in the United States in 1988, when he was eight.
With respect to condition (3), the government concedes that,
because Minasyan was in the actual custody of his mother
when she was naturalized, the legal custody condition would
be met if he could show that his parents were legally sepa-
rated at that time.12 The critical question, therefore, is
whether, at the time of his mother’s naturalization, “there
ha[d] been a legal separation of the parents.” INA § 321(a)(3).

   [4] The meaning of the term “legal separation” as contained
in former INA § 321(a)(3) is a question of federal statutory
interpretation. See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d
Cir. 2004); Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir.
2000). Yet, the INA does not define the term and the only
  11
      The Child Citizenship Act of 2000 (“CCA”), P.L. 106-395, repealed
INA § 321 and amended INA § 320, 8 U.S.C. § 1431. Under this new pro-
vision, a child becomes a citizen if a custodial parent naturalizes, even if
there has been no legal separation between the parents. However, this
court has held that “the CCA granted automatic citizenship only to those
children who were under the age of 18, and who met the other criteria, on
February 27, 2001.” Hughes, 255 F.3d at 760. Neither party claims that
the CCA applies to this case.
   12
      In its brief, the government concedes that Minasyan’s mother had
actual custody over him and explains that, under agency policy, “[i]n the
absence of a judicial determination or judicial statutory grant of custody
where the parents are legally separated, the parent having actual uncon-
tested custody is to be regarded as having ‘legal custody’ of the person
concerned.” See also Matter of M, 3 I. & N. Decl. 850 (BIA 1950).
                     MINASYAN v. GONZALES                    3477
case from our circuit to discuss it merely holds that a legal
separation must be preceded by a legal marriage. See Bar-
thelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003)
(holding that a petitioner did not “enjoy derivative citizenship
under the first clause of § 321(a)(3) because his natural par-
ents never married and thus could not legally separate.”
(emphasis in original)); see also Wedderburn, 215 F.3d at
797, 799-800 (same).

   The Supreme Court has long held that while the “scope of
a federal right is, of course, a federal question, . . . that does
not mean that its content is not to be determined by state,
rather than federal law.” De Sylva v. Ballentine, 351 U.S. 570,
580 (1956). Although uniformity is an important concern in
federal statutory interpretation, see, e.g., Kahn v. INS, 36 F.3d
1412, 1414 (9th Cir. 1994), where the term in question
involves a legal relationship that is created by state or foreign
law, the court must begin its analysis by looking to that law.
See De Sylva, 351 U.S. at 580. “This is especially true where
a statute deals with a familiar relationship.” Id. (noting that
there is no federal law of domestic relations).

   [5] Here, we conclude that the term in question — “legal
separation” — means a separation recognized by law; because
there is no federal law of domestic relations, that necessarily
means a separation recognized by state law. As the Supreme
Court recently emphasized, “ ‘[t]he whole subject of the
domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the
United States.’ ” Elk Grove Unified Sch. Dist. v. Newdow, 124
S.Ct. 2301, 2309 (2004) (alteration in original) (quoting In re
Burrus, 136 U.S. 586, 593-594 (1890)). “So strong is our def-
erence to state law in this area that we have recognized a
‘domestic relations exception’ that ‘divests the federal courts
of power to issue divorce, alimony, and child custody
3478                     MINASYAN v. GONZALES
decrees.’ ” Id. (quoting Ankenbrandt v. Richards, 504 U.S.
689, 703 (1992)).13

   [6] Thus, we must look to the law of California — the state
with jurisdiction over Minasyan’s parents’ marriage — when
deciding whether a legal separation occurred. See Wedder-
burn, 215 F.3d at 799 (“ ‘Legal custody’ and ‘legal separation
of the parents,’ as words in a federal statute, must take their
meaning from federal law . . . [b]ut federal law may point to
state (or foreign) law as a rule of decision, and this is how the
INS has consistently understood these terms.”); Fierro v.
Reno, 217 F.3d 1, 4 (1st Cir. 2000) (“[S]ubject to possible
limitation, we think that the requirement of ‘legal custody’ in
section 1432 should be taken presumptively to mean legal
custody under the law of the state in question.”).

   Our decision to look to state law is consistent with our
practice in other areas of federal law generally, and immigra-
tion law specifically. For example, entitlement to federal
social security benefits often hinges on marital status as
defined by state law. See Califano v. Jobst, 434 U.S. 47, 52-
53 n.8 (1977); Purganan v. Schweiker, 665 F.2d 269, 270-71
(9th Cir. 1982); see also Gillett-Netting v. Barnhart, 371 F.3d
593, 599 (9th Cir. 2004) (holding that whether children are
legitimate for purposes of entitlement to insurance benefits is
determined by state law). Similarly, in the immigration con-
text, although the question whether a couple entered into a
marriage merely to avoid the immigration laws is a federal
question, see 8 U.S.C. § 1186a(d)(1)(A)(i)(III), the first
inquiry in determining whether a citizen can petition for a visa
  13
     This circuit has previously declined to incorporate state law into the
INA when construing the term “family ties” in an unrelated provision of
the INA. In that instance, however, the term was a broad, general one for
which state law provided no express definition. See Kahn, 36 F.3d at 1415
(rejecting incorporation of state marriage law into definition of “family
ties” to bar discretionary relief under INA § 212(c)). Here, by contrast “le-
gally separated” is a status that necessarily derives from state or foreign
law.
                         MINASYAN v. GONZALES                            3479
for his non-citizen spouse is whether the couple is legally
married under state law. See 8 U.S.C. § 1186a(d)(1)(A)(i)(I).
Thus, our approach accords with the INS’s long standing pol-
icy of looking to state law to determine questions of family
relations, specifically marriage and custody. See INS Interp.
§ 320.1(a)(6) (noting that state law governs the issue of cus-
tody); Wedderburn, 215 F.3d at 799 (explaining that “the INS
determines the existence, validity, and dissolution of wedlock
using the legal rules of the place where the marriage was per-
formed (or dissolved)”).14

  We now turn to California law. The California Family
Code provides for both “legal separation” and “dissolution of
marriage.” See Cal. Fam. Code §§ 2320-21, 2330, 2338
(2004). In addition, California case law recognizes that
spouses are separated for legal purposes beginning on a court-
defined “date of separation.” Such a separation is a separation
by virtue of law. See In re Marriage of Norviel, 102 Cal. App.
4th 1152 (2002); In re Marriage of Marsden, 130 Cal. App.
3d 426 (1982); Makeig v. United Sec. Bank & Trust Co., 112
Cal.App. 138, 143-44 (1931). That form of legal separation
occurs under California law when the spouses “have come to
a parting of the ways with no present intention of resuming
marital relations.” In re Marriage of Marsden, 130 Cal. App.
3d at 434 (quoting In re Marriage of Baragry, 73 Cal. App.
3d 444, 448 (1977)).
   14
      Although we look presumptively to state law to determine whether a
legal separation has occurred, “[t]his does not mean that a State would be
entitled to use the [term at issue] in a way entirely strange to those familiar
with its ordinary usage.” De Sylva, 351 U.S. at 581. For example, “some
orders that the relevant state or nation might not characterize as creating
a legal separation may nonetheless effect such a drastic change in the cou-
ple’s marital existence that the couple may be considered legally separated
for purposes of [§321(a)(3)].” Brissett, 363 F.3d at 134. Thus, in some cir-
cumstances, the rule of the state with jurisdiction over the marriage might
not control. But, “to the extent that there are permissible variations in the
ordinary concept . . . we deem state law controlling.” De Sylva, 351 U.S.
at 581.
3480                    MINASYAN v. GONZALES
   [7] We must consider which of these three forms of separa-
tion under California law constitute a legal separation for pur-
poses of § 321(a). First, although the INA uses the term “legal
separation” and does not mention “divorce” or “dissolution,”
we think it clear that Congress did not intend to exclude
orders of divorce or dissolution from coverage under the stat-
ute. Second, because the term “legal separation” cannot possi-
bly be limited to orders expressly so titled, we conclude that
it encompasses other forms of court-ordered recognition of
the final breakup of a marriage. When the term “legal separa-
tion” was adopted by Congress as part of the derivative citi-
zenship provision, first in 1940 and then again in 1952,15 it
clearly referred to a separation by virtue of law, rather than
the narrower statutory procedure titled “legal separation.”
Indeed, the narrower “legal separation” provision that cur-
rently appears in the California Code did not exist at the time
of the Congressional actions. Rather, California law provided
for dissolution of marriage and annulment, see, e.g., Cal. Civ.
Code §§ 82-86, 90-92 (1939); Cal. Civ. Code §§ 82-84, 90-92
(1951), and it recognized spouses to be separated in a “legal
sense” when they were “living separate and apart” and there
had been a “final rupture of the marital relationship.” Makeig,
112 Cal. App. at 143; see also Cal. Civ. Code §§ 99, 169, 198
(1939); Cal. Civ. Code §§ 99, 169, 198 (1951).16 Ultimately,
we conclude that in California a separation by virtue of law
constitutes a legal separation for purposes of the INA. See
  15
      Nationality Act of 1940, Pub. L. No. 76-853, ch. 876, § 314, 54 Stat.
1137, 1145-46 (1940) (codified at former 8 U.S.C. § 714); Immigration
and Nationality Act, Pub. L. 82-414, Title III, ch.2 § 321, 66 Stat. 245
(1952) (codified at former 8 U.S.C. § 1431).
   16
      We note that there have been significant changes to California’s fam-
ily law in the last fifty years, most notably the amendment of provisions
that discriminated on the basis of gender. By contrast, the form of legal
separation that occurs under California law when spouses “have come to
a parting of the ways with no present intention of resuming marital rela-
tions,’ ” Marsden, 130 Cal. App. 3d at 434 (internal quotations omitted),
has remained unchanged.
                         MINASYAN v. GONZALES                          3481
Makeig, 112 Cal. App. at 143 (classifying such separations as
“separation in the legal sense”).

   [8] Central to our determination is the fact that in California
a separation by virtue of law entails important legal conse-
quences under state law. Specifically, it “dictates the character
of property acquired thereafter.” Norviel, 102 Cal. App. 4th at
1158. Also, “[a] spouse’s ‘earnings and accumulations . . .
while living separate and apart from the other spouse’ are sep-
arate property.” Id. (citing Cal. Fam. Code § 771(a)) (alter-
ations in original); see also Marsden, 130 Cal. App. 3d at
432-33; Cal. Fam. Code § 772.17 Critically, these conse-
quences flow from the date of the separation, not from the
date of a court order. See Norviel, 102 Cal. App. 4th at 1158.

   [9] In this case, the California Superior Court entered a for-
mal order — the judgment of dissolution of marriage — that
recognized that Minasyan’s parents separated in October 1993.18
Cf. Brissett, 363 F.3d at 136 (holding that there was no legal
separation where there was “no evidence . . . that the orders
at issue mandated or acknowledged separate existences”).
Thus, although the dissolution was not final until October
2001, the order establishes that, for purposes of state law, the
separation was effective well before Minasyan’s mother’s nat-
uralization in 1994. It also makes clear that Minasyan’s
  17
      Notably, under the California Code the “earnings and accumulations
of . . . the minor children living with, or in the custody of, the spouse,”
are also the separate property of the custodial spouse after the date of sep-
aration. Cal. Fam. Code § 771(a). “ ‘Property’ includes real and personal
property and any interest therein.” Cal. Fam. Code § 113.
   18
      The subsequent nunc pro tunc order reiterates the original judicial
determination that Minasyan’s parents separated, as a matter of law, in
October 1993. It clarifies that the separation constituted a legal separation
under California law. It does not, however, change in any way the parties’
prior status. In their arguments, the parties both emphasize the nunc pro
tunc order. However, we need not consider whether to give any effect to
that order because the judgment entered during the divorce proceedings
resolves the legal question definitively.
3482                    MINASYAN v. GONZALES
mother had sole custody over her son from that date on.
Because the order establishes the date of the legal separation
for purposes of California law, we conclude that it is suffi-
cient to establish the date for purposes of Minasyan’s deriva-
tive citizenship under § 321(a).19

   Our recognition of Minasyan’s citizenship status is consis-
tent with several of the identified purposes of former INA
§ 321(a). In enacting this particular derivative citizenship pro-
vision, Congress sought to protect parental rights, to preserve
the family unit, and to ensure that only those alien children
whose “real interests” were located in the United States with
their custodial parent, and not abroad, should be automatically
naturalized. See S. Rep. No. 2150, at 4 (1940); 86 Cong. Rec.
11945-53 (1940); H.R. Rep. No. 82-1365 pt. B., at 1680
(1952); Barthelemy, 329 F.3d at 1066 (identifying the protec-
tion of parental rights as an important purpose of § 321(a)(3));
Fierro, 217 F.3d at 6; Wedderburn, 215 F.3d at 800.

   In this case, there is no danger that one parent’s desire that
the child attain derivative citizenship would overcome the
objections of another parent with comparable legal rights. Cf.
Barthelemy, 329 F.3d at 1066. To the contrary, giving effect
to the state order protects the parental rights of the parent
empowered to make decisions on behalf of the child under
state law: Under the California Family Code, Minasyan’s
  19
     We note that at least one circuit has concluded that a separation must
be formally or judicially recognized for it to constitute a legal separation
within the meaning of the INA. As the Second Circuit reasoned, “[a] con-
trary interpretation would render superfluous the provision’s specification
that the separation must be ‘legal.’ ” Brissett, 363 F.3d at 134. We need
not consider whether, in the absence of a judicial order, a complete and
final break in a California marital relationship would constitute a legal
separation within the meaning of § 321(a)(3), because a court order declar-
ing that the requisite separation occurred exists in this case. We also note
that, here, the order of dissolution served a primary function that is
entirely separate from the establishment of the date of separation and that
the provision determining that date carries important legal consequences
apart from any questions of immigration law. See infra note 20.
                        MINASYAN v. GONZALES                          3483
mother, as the parent with sole legal custody had the sole
“right and the responsibility to make the decisions relating to
the health, education, and welfare of a child.” Cal. Fam. Code
§ 3006; see also Cal. Fam. Code § 3007; Newdow, 124 S.Ct.
at 2311-12 (explaining the limited rights of the non-custodial
parent under California law).20

                                    III.

   [10] In sum, Minasyan meets the statutory requirements of
§ 321(a), because his parents were legally separated when his
custodial parent naturalized. He may not be a model citizen,
but “citizenship is not a license that expires upon misbehav-
ior.” Rivera, 394 F.3d at 1140 (quoting Trop v. Dulles, 356
U.S. 86, 92 (1958) (plurality opinion)). We grant the petition
and order that Minasyan be released from detention forthwith
upon the issuance of the mandate.
  20
     This case is unlike those in which petitioners have sought to change
relationships retroactively. See Fierro v. Reno, 217 F.3d 1, 6 (1st Cir.
2000) (holding that a state nunc pro tunc order, which retroactively
changed custody from the petitioner’s non-citizen mother to his citizen
father, did not establish that he met all the criteria of INA § 321 because
during the relevant time period he was actually in the custody of his
mother); Hendrix v. INS, 583 F.2d 1102, 1103 (9th Cir. 1978) (holding
that a woman admitted to the United States based on her representation
that she was unmarried could not retroactively cure the fact that she was
married at the time of entry by obtaining a subsequent annulment). As the
court explained in Fierro, “Congress was concerned with the legal custody
status of the child at the time that the parent was naturalized and during
the minority of the child.” 217 F.3d at 6 (emphasis in original). Retroac-
tively changing the legal relationship would create a legal fiction and
would not serve the purpose of the statute. Id. By contrast, the divorce
decree declaring that Minasyan’s parents were separated in October 1993
(as well as the subsequent nunc pro tunc order reiterating the original rul-
ing) did not create a legal fiction, but rather acknowledged a separation
that was actually in effect both in practice and as a matter of California
law at the time Minasyan’s mother was naturalized and while Minasyan
was under age eighteen.
3484         MINASYAN v. GONZALES
  PETITION GRANTED.
