                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2006

De Oca-Montero v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2609




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                                                   NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                        No. 05-2609



        CESAR AUGUST MONTES DE OCA-MONTERO,
                                    Petitioner

                             v.

      ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent



               Petition for Review of the Order
             of the Board of Immigration Appeals
                        (A37-641-578)
             Immigration Judge: Henry S. Dogin


          Submitted Under Third Circuit LAR 34.1(a)
                     November 6, 2006

 Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges

                  (Filed November 8, 2006)



                         OPINION
SLOVITER, Circuit Judge.

       Petitioner Cesar August Montes De Oca-Montero petitions this court for review of

a Board of Immigration Appeals (“BIA”) decision finding that he failed to establish that

he is entitled to derivative citizenship under former § 321(a)(3) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1432(a) (repealed and superseded 2000). Oca-

Montero is a native of the Dominican Republic, who was admitted to the United States on

December 9, 1982, at the age of ten as a legal permanent resident. He argues that he is a

citizen of the United States and that he derived his citizenship from his father, who was

his custodial parent after Oca-Montero’s parents terminated their common-law marriage.

                                             I.

       There is no affidavit or testimony of Oca-Montero himself in the record but

according to his counsel Oca-Montero’s parents had a common-law marriage in the

Dominican Republic. He claims that his parents separated while he was young and that

he was left in the custody of his father. His mother came to the United States and

remarried on April 14, 1981, a fact verified by the record. While Oca-Montero entered

the United States in 1982, it is unclear when his father came. Regardless, his father

became a naturalized United States citizen on January 16, 1990, while Oca-Montero was

seventeen.

       Oca-Montero was convicted on February 18, 2000 in the United States District

Court for the Eastern District of New York for the offense of conspiracy with intent to

distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)

                                             2
(2000) and sentenced to imprisonment for 60 months. On June 3, 2004, he was served

with a Notice to Appear, charging that he was removable under INA § 237(a)(2)(B)(i), 8

U.S.C. § 1227(a)(2)(B)(i) (2000), as an alien convicted of a crime relating to a controlled

substance and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an

alien convicted of an aggravated felony, in this case a drug trafficking crime.

       At his hearing before an immigration judge (“IJ”), Oca-Montero moved to

terminate the removal proceedings, claiming that he acquired derivative citizenship

pursuant to former INA § 321(a)(3), 8 U.S.C. § 1432(a), when his father was naturalized

on January 16, 1990. Specifically, his claim was based on § 321(a)(3), which provided

that where one parent is naturalized, a child can acquire derivative citizenship if the

naturalized parent is the “parent having legal custody of the child when there has been a

legal separation of the parents.”1 Oca-Montero did not testify or submit affidavits


                    1
                        Section 321(a)(3) of the Act provided:

                    A child born outside of the United States of alien
                    parents . . . becomes a citizen of the United States
                    upon the fulfillment of the following conditions:
                    ...

                    (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
                    legitimation; and if

                    (4) Such naturalization takes place while such child
                    is under the age of eighteen years; and

                                              3
supporting this claim.

       The IJ found that Oca-Montero did not acquire United States citizenship under

former § 321(a), denied his motion to terminate proceedings, and found him removable as

charged. Although the IJ noted that Oca-Montero did not submit any documentary

evidence supporting his claim that his father had legal custody or uncontested physical

custody of him, he presumed that the father had physical custody, but found no evidence

of legal separation of the parents. Therefore, the IJ held that Oca-Montero did not derive

citizenship from his father. The BIA dismissed Oca-Montero’s appeal, finding that he

failed to establish that he is entitled to derivative citizenship under former § 321(a). The

BIA held that there was no evidence that Oca-Montero’s parents’ relationship was

brought to a formal end or that they were legally separated. In addition, the BIA held that

there was nothing to indicate he lived with his father pursuant to “legal custody.”



                    (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 naturalized under . . . (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) (2000), repealed by Child Citizenship Act of
            2000, § 103, Pub. L. No. 106-395, 114 Stat. 1631.

                   Although the statute under which Oca-Montero claims
            citizenship was repealed and superseded in 2000, the repeal has no
            bearing on Oca-Montero’s claim because he claims to have derived
            citizenship in 1990, before § 321(a) was repealed. See Jordon v.
            Att’y Gen., 424 F.3d 320, 328 (3d Cir. 2005).

                                               4
Administrative Record (“A.R.”) at 2. Instead, the BIA found that Oca-Montero seemed

to live intermittently with both his father and mother.

       Oca-Montero filed this timely petition for review.

                                             II.

                                             A.

       This Court has jurisdiction pursuant to 8 U.S.C. § 1252 to review a final BIA

order. Because the BIA provided an independent analysis of the facts, our review is

limited to the Board’s decision. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.

2003). The issue of derivative citizenship is a purely legal issue of statutory

interpretation, Morgan v. Att’y Gen., 432 F.3d 226, 229 (3d Cir. 2005), over which we

exercise plenary review. Jordon, 424 F.3d at 328.

       Oca-Montero’s claim is governed by INA § 242(b)(5), 8 U.S.C. § 1252(b)(5)

(2000), which provides:

              (5) Treatment of nationality claims

                     (A) Court determination if no issue of fact

                     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.

                     (B) Transfer if issue of fact

                     If the petitioner claims to be a national of the
                     United States and the court of appeals finds that

                                              5
                     a genuine issue of material fact about the
                     petitioner’s nationality is presented, the court
                     shall transfer the proceeding to the district court
                     of the United States for the judicial district in
                     which the petitioner resides for a new hearing
                     on the nationality claim and a decision on that
                     claim as if an action had been brought in the
                     district court under section 2201 of Title 28.

                     (C) Limitation on determination

                     The petitioner may have such nationality claim
                     decided only as provided in this paragraph.

Thus, if no genuine issue of material fact is presented, we must decide the nationality

claim. 8 U.S.C. § 1252(b)(5)(A). If a genuine issue of material fact is presented, we must

transfer the proceedings to the district court for an evidentiary hearing. 8 U.S.C. §

1252(b)(5). In determining if a genuine issue of material fact is presented, we employ

principles of summary judgment practice. See Joseph v. Att’y Gen., 421 F.3d 224,

229-30 (3d Cir. 2005).

       Oca-Montero argues that (1) his parents were legally separated, and (2) his father

had legal custody of him at the time his father was naturalized. The Government argues

that Oca-Montero has not presented a genuine issue of material fact, but that the only

issues presented are legal in nature, which we should decide in its favor.




                                              6
                                              B.

       Oca-Montero argues that his parents’ common-law marriage was terminated by

their permanent separation in fact and the subsequent remarriage of his mother. Petr.’s

Br. 8. His mother remarried on April 14, 1981, before Oca-Montero was eighteen. The

BIA found that Oca-Montero did not establish the legal separation of his parents, because

Dominican law does not define when common-law marriages end. It noted that, while the

Dominican Republic may be “working on” a law that would specify rules for the

termination of common-law marriages, there was nonetheless nothing in the record

indicating that Oca-Montero’s parents brought their marriage to any formal end, as

required by § 321(a). A.R. at 2.

       In Morgan, we held that a legal separation for purposes of § 321(a) “occurs only

upon a formal governmental action, such as a decree issued by a court of competent

jurisdiction that, under laws of a state or nation having jurisdiction over the marriage,

alters the marital relationship of the parties.” 432 F.3d at 234. We need not decide

whether Oca-Montero’s mother’s remarriage in the state of New York in 1981, which

certainly altered the former marital relationship of the parties, should be presumed

equivalent to a formal separation decree because we can decide this appeal on another

ground.

                                              C.

       In order to have derivative citizenship under section 321(a)(3), Oca-Montero must

prove that he was in the legal custody of his father at the time of his father’s

                                              7
naturalization. The Government argues that there is nothing in the record regarding

custody beyond Oca-Montero’s personal claims. In Matter of M— , 3 I. & N. Dec. 850

(BIA 1950), the BIA held that in the absence of a judicial decree awarding custody,

“actual uncontested custody” would suffice. Although we did not explicitly adopt Matter

of M— in our divided opinion in Bagot v. Ashcroft, 398 F.3d 252, 260-61 (3d Cir. 2005),

the parties in the present case agree that Matter of M— controls. See id. at 261, 270;

Pet’r Br. 12; Resp’t Br. 21. Thus, if there is no judicial grant of custody to a particular

parent, the parent with “actual uncontested custody” is deemed to have legal custody.

       In Oca-Montero’s case, there was no judicial determination of custody. Instead, he

argues that his father had “actual uncontested custody” of him when he was naturalized.

Curiously, he presented no evidence to support his claim. As we held in Bagot, the

burden of proof of eligibility for citizenship is on the applicant. Bagot, 398 F.3d at

256-57. Even if Montes De Oca-Montero were in fact living with his father at the time

his father was naturalized, there is no evidence in the record to indicate that this situation

was uncontested or permanent as is required under Matter of M— to constitute “legal

custody” for purposes of Section 321(a). There is no evidence in the record that his

mother consented to the custody arrangement. The IJ certainly gave Oca-Montero many

opportunities to present his evidence for citizenship. See A.R. at 37-64. Instead,

counsel’s unsupported assertions are the only indication in the record that his father may

have had uncontested custody of him. See A.R. at 74. A review of the record reveals

absolutely no evidence that Oca-Montero was in his father’s custody. While Oca-

                                               8
Montero may be correct in his assertion that the IJ did not fully address this issue, the

BIA did conduct a full review of the record and found no evidence of custody. Thus,

without any evidence in the record demonstrating that his father had “actual uncontested

custody,” there is no genuine issue of material fact that would warrant transfer to a district

court for a factual hearing.

                                             III.

       For the reasons set forth above, we will deny the petition for review.




                                              9
