
USCA1 Opinion

	




          February 13, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1735        No. 95-1558                          ROGER F. ALEXANDER, ETC., ET AL.,                                     Petitioners,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                                     ERRATA SHEET            The opinion of this Court, issued on  January 31, 1996, should  be        amended as follows:            On cover sheet, line 1 of  attorney listings, replace "William  A.                                                                   ___________        Maganiello" with "William A. Mangiello".        __________        ____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1735        No. 95-1558                          ROGER F. ALEXANDER, ETC., ET AL.,                                     Petitioners,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Michael G. Hillinger with whom William  A. Mangiello was on briefs            ____________________           _____________________        for petitioners.            Carl H.  McIntyre, Jr.,  Office of  Immigration Litigation,  Civil            ______________________        Division, Department of Justice, with whom Stuart M. Gerson, Assistant                                                   ________________        Attorney General, Civil Division,  Frank W. Hunger, Assistant Attorney                                           _______________        General, Civil Division,  and David J. Kline, Assistant Director, were                                      ______________        on briefs for respondent.                                 ____________________                                   January 31, 1996                                 ____________________                 BOUDIN,  Circuit Judge.    Petitioner  Roger  Alexander,                          _____________            named Roger  Alexander  Hobbs at  birth,  was born  in  Great            Britain  on February  13, 1945,  son of  Sarah Hobbs  and, he            alleges, Floyd Alexander, an  American serviceman.  Roger was            unaware of  his true  father until  1968, when  he discovered            that the  man whom he believed  to be his father  had died in            1943.   His mother then told him  that his father was in fact            Floyd Alexander.  Sometime after Floyd's death in 1970, Roger            established contact with his supposed American half-siblings.            In  1984, Roger, his wife Anne, and their three sons moved to            the United States.                   In 1985, Roger filed an application for a certificate of            U.S. citizenship  which was denied the following  year.  Some            months after Roger filed the application, the Immigration and            Naturalization Service ("INS") served  an order to show cause            on Roger and Anne, charging that they were deportable under 8            U.S.C.   1251(a)(2), on the  ground that they had  overstayed            their  non-immigrant visas.   Roger  contested this  order by            presenting a claim to derivative citizenship through Floyd.                   The  INS   held  three  days  of   hearings  on  Roger's            citizenship claim in Boston  in 1987 and 1988.   On September            22,  1988, the  immigration  judge entered  an order  denying            Roger's  claims,  finding  the  Alexanders   deportable,  and            granting their  request for voluntary departure.   That order            was  appealed to the Board of Immigration Appeals; on June 9,                                         -2-                                         -2-            1992 the Board dismissed the Alexanders' appeal, holding that            Roger had  not met the statutory  requirements for derivative            citizenship  under 8 U.S.C.    1401 and 1409.  The Alexanders            filed a  motion for  reconsideration which the  Board denied.            The Alexanders then filed in this court a timely petition for            review, which we now grant.                   8  U.S.C.      1105a(a)(5)  provides  that   whenever  a            petitioner, who seeks review of an order of deportation,                 claims to  be a national  of the United  States and                 makes a  showing that  his claim is  not frivolous,                 the court shall (A)  pass upon the issues presented                 when it  appears from the pleadings  and affidavits                 filed  by  the parties  that  no  genuine issue  of                 material fact is presented;  or (B) where a genuine                 issue  of material  fact  as  to  the  petitioner's                 nationality is presented, transfer  the proceedings                 to a United States district court . . . for hearing                 de novo . . . .            The  government  does not  contest that  Roger has  alleged a            viable  theory of  citizenship.   The  only question  for our            decision is  whether there  is a  "genuine issue  of material            fact"  for determination  by the district  court.   Agosto v.                                                                ______            INS, 436 U.S. 748, 754 (1978).  This standard is analogous to            ___            that  governing motions  for summary  judgment under  Fed. R.            Civ. P. 56.   Anderson v.  Liberty Lobby, 477  U.S. 242,  248                          ________     _____________            (1986).                   If Roger has a  statutory claim to U.S. citizenship,  it                                         -3-                                         -3-            is  by  operation of  8 U.S.C.     1409(b),1 which  states in            relevant part that                 the  provisions of  section  1401(g) of  this title                 shall  apply to a child  born out of  wedlock on or                 after January  13, 1941,  and  before December  24,                 1952, as of the  date of birth if the  paternity of                 such child  is established  at any time  while such                 child  is  under the  age  of  twenty-one years  by                 legitimation.              18  U.S.C. 1401(g)  provides that  the foreign-born  child of            parents, one  of whom is a U.S. citizen and one of whom is an            alien, is  "a citizen  . .  . at birth"  if the  U.S. citizen            parent resided in the United States for a statutorily defined            period prior to the child's birth.                 Thus, to show that he was a U.S. citizen at birth, Roger            must  prove that  (1) Floyd was  his father; (2)  Floyd was a            U.S. citizen who satisfied the physical presence requirements            of section 1401(g); and (3) Floyd's paternity was established            prior to Roger's 21st  birthday.  Enough evidence at  the INS            hearing indicated  that Floyd was  Roger's biological father,            and  Floyd was  admittedly a  U.S. citizen who  satisfied the            physical  presence requirements.    So this  appeal turns  on            whether there is also a genuine factual dispute as to whether            Roger was legitimated prior to his 21st birthday.                                            ____________________                 1Roger argues that he  qualifies for citizenship under 8            U.S.C.     1409(a), but  it  is  clear that  current  section            1409(a) does not apply to individuals  born prior to November            15, 1968.   See 102 Stat.  2619 (1988).   And former  section                        ___            1409(a) applies only to individuals born on or after December            24, 1952.  66 Stat. 238 (1952).                                         -4-                                         -4-                 At  the  hearing  before  the immigration  judge,  Roger            offered the  affidavit of  David Klickstein, now  deceased, a            Maine  attorney   and  notary  public.     According  to  the            affidavit, in 1955 Floyd signed a document acknowledging that            Roger was his son; Klickstein  notarized the document but did            not keep a  copy, nor was  any copy  offered at the  hearing.            Roger also offered testimony by Floyd's first wife that Floyd            had told  her  that he  had executed  the alleged  affidavit.            Floyd's  alleged  document,  if  made  and   acknowledged  as            described  in  Klickstein's affidavit,  legitimated  Roger as            Floyd's son under Maine law in 1955, when Roger was under age            21.   See  8 U.S.C.    1101(c)(1)  (providing that  state law                  ___            governs).2                 To  be sure,  the Board  found the  Klickstein affidavit            unconvincing,  saying  that Roger's  "claim  that  his father            executed a purported document acknowledging paternity  is not            adequately  supported."    But  under  the  unusual statutory            procedure already described, this  court does not review that            finding  under  a  substantial-evidence  or  other  customary            standard.   Once a genuine  material issue of  fact is posed,            the statute entitles Roger to a trial de novo in the district                                                  _______                                            ____________________                 2Under  Maine law in 1955,  "[i]f the father  of a child            born out of  wedlock adopts him or her into  his family or in            writing  acknowledges before  some  justice of  the peace  or            notary public that he is the father, such child is  . . . the            heir and legitimate child of his  or her father."  4 Me. Rev.            Stat. c.  170,   3 (1954), repealed by 1979 Me. Laws ch. 540,                                       ___________              24-C.                                           -5-                                         -5-            court.  8 U.S.C.  1105a(a)(5).                 On  appeal the INS argues that the absence of the actual            document is  fatal to Roger's claim  as a matter of  law.  We            disagree:   there  is nothing  in the  language of  the Maine            statute  to  indicate that  the  continued  existence of  the            document is essential to legitimation, nor does the INS refer            us to  any Maine  case  law to  support this  view.   To  the            contrary,  the statute indicates  that it is  the creation of            the  document, not its preservation, that matters.  Cf. In re                                                                ___ _____            Joyce's Estate, 183 A.2d 513, 514 (Me. 1962).            ______________                 Although it  might  surprise a  lay  person to  see  how            little  importance  we  attach  to the  preservation  of  the            affidavit,  no  lawyer  would  be  surprised.    A  will, for            example, must be made  and executed with startling formality,            but  if lost  or misplaced  may be  proved by  oral evidence.            E.g., In re  Estate of Fuller, 399 A.2d 960, 961 (N.H. 1979).            ____  _______________________            Indeed, the whole tendency of  the law of evidence  governing            documents  is to  demand  the original  if  available but  to            forgive  its absence if explained.   See Fed.  R. Evid. 1004.                                                 ___            Of course,  Roger must  prove that his  legitimation occurred            but this is a matter for the district court.3                                            ____________________                 3The   Board   apparently   considered  the   Klickstein            affidavit at the hearing  but found it insufficient.   As the            issue has  not been raised by the INS, we have no occasion to            consider  whether  the  affidavit  would  be   admissible  in            district court under a hearsay exception, e.g., Fed. R. Evid.                                                      ____            804(b)(5), whether  the rules  of evidence would  be strictly            applied in a proceeding before the district judge, or whether                                         -6-                                         -6-                 The INS argues  in the  alternative that  even if  Roger            became a "citizen . .  . at birth" under section  1401(g), he            lost  his citizenship  under  the retention  requirements  of            former  section 1401(b).   That section  originally provided,            with  a qualification  not  here pertinent,  that anyone  who            became a  citizen under section 1401(g)  lost his citizenship            unless he came to the U.S. before age 23 and  remained for at            least five years.  66 Stat. 235 (1952).  Roger admits that he            does  not  satisfy  this  requirement, nor  a  slightly  less            rigorous version later enacted.  See 92 Stat. 1046 (1972).                                             ___                 Although the retention requirement was repealed entirely            in 1978, the repeal was by its own terms not retroactive.  92            Stat. 1046.  We were therefore initially disposed to conclude            that  Roger's  section  1409(b)   claim  was  barred  by  the            retention requirement.   However, in the  course of preparing            the opinion, the court encountered a 1994 amendment, codified            at 8 U.S.C.   1435, that provides relief as follows:                       A  person  who was  a  citizen  of the  United                 States  at  birth  and  lost such  citizenship  for                 failure  to  meet the  physical  presence retention                 requirements  under section  1401(b) of  this title                 (as in effect before October 10, 1978), shall, from                 and after taking the oath of allegiance required by                 section  1448 of  this title  be a  citizen of  the                 United States and have the  status of a citizen  of                 the  United  States  by  birth, without  filing  an                 application for naturalization . . . .             The effect of this language appeared to allow Roger to escape                                            ____________________            other more  readily admissible  evidence exists to  show that            Floyd's statement was prepared and notarized.                                         -7-                                         -7-            the  retention  requirement  merely  by  filing  an  oath  of            allegiance.  See 8 U.S.C.   1448 (prescribing oath).                         ___                 Confident that the  INS would wish to  see justice done,            we   asked  the   parties  to   address  this   provision  in            supplemental briefs.  Roger replied that he had not yet taken            such an oath but proposed  to do so.  The INS,  in its reply,            did not  deny that  the oath would  erase the  bar of  former            section  1401(b).   But  it argued  that  this court  has "no            jurisdiction"  to consider the  1994 amendment  issue because            that would  require consideration of  evidence not  appearing            "upon  the administrative  record upon which  the deportation            order is based."  8 U.S.C.   1105a(a)(4).                 Section  1105a(a)(4),  like many  counterparts,  e.g., 5                                                                  ____            U.S.C.    706; 29 U.S.C.     160(e)  and (f), is  intended to            prevent  a  reviewing  court  from considering  evidence  not            before an administrative agency,  i.e., to assure that agency                                              ____            findings are reviewed upon the record made before the agency.            Cf. Camp v. Pitts, 411 U.S. 138, 142 (1973).  Nothing in such            ___ ____    _____            provisions prevents a reviewing  court from applying  correct            legal  principles to  a  dispute, whether  or not  previously            _____            identified in the  agency proceeding.  And  if former section            1401(b) is now  a hollow shell, the INS' argument  fails as a            matter of law.                 Of course,  Roger did not  rely upon the  1994 amendment            (nor did the  INS mention it to us in its brief).  Failure to                                         -8-                                         -8-            raise an argument  in timely fashion  means that a  reviewing            court is  free to disregard it.  Thomas v. INS, 976 F.2d 786,                                             ______    ___            789 (1st  Cir. 1992).  But  the law that was  overlooked (the            1994 amendment) is not disputed, Congress' intent to preserve            citizenship on  condition is  apparent, the condition  can be            mechanically satisfied,  and the right  in question--American            citizenship--is one of the most precious imaginable.                 We therefore  transfer this  case to the  district court            for trial de novo.  8 U.S.C.  1105a(a)(5).  We do not at this                      _______            time pass upon any  alternative constitutional claims made by            Roger.   The  district court  may  require Roger  to  present            evidence within  a reasonable time  that he has  executed the            oath prescribed by 8 U.S.C.   1448; if Roger fails  to do so,            the  district  court  may   dismiss  on  that  ground  alone.            Otherwise,  the court  should  proceed to  the merits  of his            claim under section 1409(b).                   It is so ordered.                 _________________                                         -9-                                         -9-
