217 F.3d 1 (1st Cir. 2000)
MIGUEL NOEL FIERRO, Petitioner,v.JANET RENO, ATTORNEY GENERAL, Respondent.MIGUEL NOEL FIERRO, Petitioner,v.JANET RENO, ATTORNEY GENERAL, Respondent.
Nos. 99-8018, 00-1037
United States Court of Appeals For the First Circuit
Heard March 9, 2000Decided June 5, 2000Rehearing and Suggestion for Rehearing En Banc Denied August 25, 2000

Matthew S. Robinowitz for petitioner.
Brenda M. O'Malley, Office of Immigration Litigation, Civil  Division, Department of Justice, with whom David W. Ogden,  Acting Assistant Attorney General, Civil Division, and Terri J.  Scadron, Senior Litigation Counsel, Office of Immigration  Litigation, were on consolidated brief for respondent.
Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.
BOUDIN, Circuit Judge.


1
On this appeal, Miguel Noel  Fierro seeks review of a final order of removal, and a denial of  reconsideration, from the Board of Immigration Appeals ("the  Board").  The removal order is based on a statutory provision  providing for the removal from the United States of "[a]ny alien  who is convicted of an aggravated felony at any time after  admission."  8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996). Fierro concedes that he has been convicted of such a crime but  says that he is not an alien but rather a citizen of the United  States.


2
The critical background facts are not in dispute. Fierro was born in Cuba on October 25, 1962.  He and both of his  parents were admitted to the United States as refugees in 1970. On October 19, 1973, Fierro's parents were divorced pursuant to  a decree from a Massachusetts probate court, and the decree  awarded Fierro's mother custody of both Fierro and his sister. On March 25, 1976, Fierro's immigration status was changed to  that of lawful permanent resident.


3
On March 21, 1978, when Fierro was 15 years old, his  father became a naturalized citizen.  Had Fierro then been in  the "legal custody" of his father, he would automatically have  become an American citizen under 8 U.S.C. § 1432(a) (1994),  which in defined circumstances provides automatic citizenship  for alien children whose parents are naturalized.  Pertinent  language in the statute, reprinted in full in an appendix to  this decision, grants such citizenship to a child born outside  the United States upon "[t]he naturalization of the parent  having legal custody of the child when there has been a legal  separation of the parents," assuming that this occurs while the  child is under age 18 and that the child is a lawful permanent  resident.  Id.  The last two conditions are satisfied here, and  the case thus turns on whether the first condition ("legal  custody") can also be met.


4
On February 15, 1996, Fierro was convicted in  Massachusetts of larceny and sentenced to a term of four years  in prison.  It is undisputed that this conviction makes him an  aggravated felon subject to removal.  8 U.S.C. §§  1101(a)(43)(G), 1227(a)(2)(A)(iii) (Supp. II 1996).  Fierro's  criminal record is fairly long and it includes drug offenses,  breaking and entering with intent to commit a felony, assault  and battery, larceny, uttering and forgery.  However, it was the  1996 larceny conviction that triggered an INS proceeding to  remove Fierro from the country.


5
In the removal proceeding, Fierro argued inter alia that he became a United States citizen when his father was  naturalized in 1978.  On January 5, 1998, the immigration judge  rejected Fierro's citizenship claim because his mother had been  awarded legal custody of him in 1973 and had never become a  naturalized citizen.  The judge ordered Fierro removed to Cuba. Fierro then appealed to the Board and on appeal he submitted an  amended custody judgment secured from the Massachusetts probate  court dated May 18, 1998, four months after the immigration  judge's removal order.  Although Fierro was now 35 years old,  this decree purported to award custody to Fierro's father "nunc  pro tunc to September 1, 1977."


6
On March 29, 1999, the Board issued a decision holding  that Fierro should be given an opportunity to pursue a different  avenue to avoid removal but it dismissed Fierro's claim of  citizenship, concluding that the state court's 1998 modification  of the custody decree had no effect on Fierro's citizenship  status.  After correcting a factual error on reconsideration,  the Board adhered to its ultimate conclusion.  Fierro then  abandoned his alternative avenue for seeking to avoid removal  and sought review of the Board's rejection of his citizenship  claim.


7
The procedural path by which Fierro arrived in this  court is complicated, see Fierro v. INS, 81 F. Supp. 2d 167 (D.  Mass. 1999); Fierro v. INS, 66 F. Supp.2d 229 (D. Mass. 1999),  but the intricacies are of no importance on this appeal, which  the government concedes is properly before this court.  This  court's authority to review removal orders based on an alien's  commission of an aggravated felony has recently been restricted,  8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996), but this does not bar  Fierro's claim on review that he is a citizen rather than an  alien, 8 U.S.C. § 1252(b)(5); Maghsoudi v. INS, 181 F.3d 8, 13  n.12 (1st Cir. 1999); Hall v. INS, 167 F.3d 852, 855-56 (4th  Cir. 1999).


8
It is common ground that Fierro was not subject to  removal as an alien convicted of an aggravated felony if he is  presently an American citizen.  Whether Fierro is an American  citizen turns, in this case, entirely on issues of law,  including the meaning of the automatic citizenship statute in  question, 8 U.S.C. § 1432(a) (1994), and the legal effect to be  accorded to the nunc pro tunc ruling of the Massachusetts  probate court.  Accordingly, our review is de novo and there is  no occasion to transfer the case to a district court to resolve  factual disputes pursuant to 8 U.S.C. § 1252(b)(5)(B) (Supp. II  1996).


9
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, 423 (1998).  Here, Fierro's claim of  citizenship requires that there have occurred, while he was  under 18 and a permanent resident, "the naturalization of the  parent having legal custody of the child."  8 U.S.C. § 1432(a)  (1994).  What is meant by the phrase "having legal custody of  the child" is, of course, a question of federal statutory  interpretation.  But the Immigration and Naturalization Act  provides no definition nor does the legislative history  illuminate the concept.  See H.R. Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1740.


10
Legal relationships between parents and children are  typically governed by state law, there being "no federal law of  domestic relations."  De Sylva v. Ballentine, 351 U.S. 570, 580  (1956); see also Ex parte Burrus, 136 U.S. 586, 593-94 (1890). Accordingly, subject to possible limitations, 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.  Although there is no decision directly on point,  this view is consistent with the approach taken in other cases  in which a federal statute depends upon relations that are  primarily governed by state law.  E.g., De Sylva, 351 U.S. at  580.


11
On the premise that state law presumptively governs  such relationships, Fierro reasons that the matter is controlled  by the state probate court judgment entered in May 1998.  In  that judgment, the court purported to decree that "as of  September 1, 1977 custody of the minor child [Fierro] . . . is  to be awarded" to the father and that "said order granting  custody [of Fierro to his father] . . . be entered nunc pro tunc  to September 1, 1977."  There is authority under Massachusetts  law, as in other jurisdictions, that a "judgment entered nunc  pro tunc is respected and enforced as if it had been entered at  the proper time."  43 Flanagan, Massachusetts Practice § 406  (1993 & Supp. 1999).


12
Fierro's argument is not without a certain surface  plausibility, but we do not accept it.  It is, as will become  apparent, quite doubtful whether the nunc pro tunc decree is  correct even as a matter of Massachusetts law; but while the  reasons for suspecting a possible infirmity are pertinent to our  ultimate holding, we do not rely upon this ground.  Rather, even  assuming arguendo that the nunc pro tunc order accords with  Massachusetts law, it reflects an approach to defining legal  custody that is not consistent with section 1432.


13
It is useful to begin by explaining in somewhat more  detail (there is not a lot of detail available) the origin and  substance of the state decree-modification proceeding.  In  December 1997, after the removal proceedings against Fierro had  begun but before the immigration judge rejected Fierro's claim  of citizenship, his parents filed a "complaint for modification"  in the probate court which asserted that on or about September  1, 1977, Fierro had moved to Florida to live with his father. Accompanying affidavits from Fierro's parents indicated that  Fierro had at that date moved to Florida to live with his father  in order to enroll in a school in Miami, Florida, and that  Fierro was thus living with his father when in early 1978 his  father became an American citizen.


14
The complaint for modification expressed the joint  request of the parents that the order be entered "nunc pro tunc  to . . . September 1, 1977," explaining that "[t]his  modification is necessary for Miguel Noel Fierro to derive  citizenship through his father and avoid being deported to  Cuba."  There is no indication of what proceedings, if any,  followed, but by order dated May 18, 1998, the probate court  granted the judgment modifying the earlier divorce and custody  decree in terms already described--awarding custody to the  father and providing that the custody order be entered nunc pro  tunc to September 1, 1977.


15
Whether this is a proper nunc pro tunc order under  state law is open to question.  Like many other concepts in the  law wrongly assumed to have a fixed meaning, nunc pro tunc is a  somewhat loose concept, like "jurisdiction" or "waiver," used  somewhat differently by different courts in different contexts. Literally meaning "now for then" (in Latin) see Black's Law  Dictionary 1097 (7th ed. 1999), it is a phrase typically used by  courts to specify that an order entered at a later date should  be given effect retroactive to an earlier date--that is, that it  should be treated for legal purposes as if entered on the  earlier date.  Id.  The critical question here is not the  intended effect of the phrase but in what circumstances a court  may properly order that a new judgment be given effect nunc pro  tunc.


16
The core notion, in Massachusetts as in many other  jurisdictions, is that a nunc pro tunc order is appropriate  primarily to correct the record at a later date to make the  record reflect what the court or other body actually intended to  do at an earlier date but did not sufficiently express or did  not get around to doing through some error or inadvertence. Thus, a clerical mistake in a judgment might be corrected nunc  pro tunc when discovered later or a franchise sought as of  October 1 might be backdated to that date where the application  was timely made.


17
These concepts are embodied in a widely cited  Massachusetts case explaining the scope of a court's nunc pro  tunc authority as follows:


18
The function of a nunc pro tunc order in  general is to put upon the record and to  render efficacious some finding, direction  or adjudication of the court made actually  or inferentially at an earlier time, which  by accident, mistake or oversight was not  made [a] matter of record, or to validate  some proceeding actually taken but by  oversight or mistake not authorized, or to  prevent a failure of justice resulting,  directly or indirectly from delay in court  proceedings subsequent to a time when a  judgment, order or decree ought to and would  have been entered, save that the cause was  pending under advisement.


19
Perkins v. Perkins, 114 N.E. 713, 713-14 (Mass. 1917).  However,  it is clear that there are limits on the court's authority to  make retroactive revisions to prior orders.  In Perkins itself,  the court said that "a defect in a judgment, order or decree  which expressed exactly the intention of the court at the time  when it was made cannot be remedied by a nunc pro tunc entry." Id. at 714.1


20
Under the then-prevailing decree, Fierro on September  1, 1977, was--and was intended by the probate court to be--in  the "legal custody" of his mother.  Fierro had moved in with his  father and perhaps the probate court might, if requested at the  time, have ordered a transfer of legal custody.  But nothing  prevented his mother from retaining legal custody while Fierro  was living (apparently for about a year) with his father in  Florida.  There is no indication of error, inadvertence or any  of the conventional preconditions under Massachusetts law for a  revision of the original decree nunc pro tunc.


21
The Supreme Court has held that where federal law  incorporates a state characterization, a state trial court's  construction of state law is not binding on a federal court. See Commissioner v. Estate of Bosch, 387 U.S. 456, 457 (1967)  (federal estate tax liability turning on character of property  interest).  Several circuit courts have applied the Bosch rule  in the context of probate court nunc pro tunc orders, holding  that these orders are controlling for purposes of federal tax  liability only when the federal court determines that they are  proper under state law.  E.g., Estate of Goldstein v. Commissioner, 479 F.2d 813, 816-20 (10th Cir. 1973).  Seemingly,  we could choose to disregard the probate court's modification  order here as a misapplication of Massachusetts law.


22
Instead, we are more comfortable leaving the state law  issue undecided and resting instead on a strictly federal  ground.  We do not think that Congress can be taken as intending  to give effect, for purposes of section 1432, to the kind of ex  post modification of a custody decree reflected in this record--even if we assume that for purposes of Massachusetts law (e.g.,  inheritance, taxation), the probate court's modification decree  could properly reclassify Fierro's status nunc pro tunc as of  September 1977.  This is so for two different reasons.


23
First, both the language of the automatic citizenship  provision and its apparent underlying rationale suggest that  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.  See 8 U.S.C. § 1432(a)(4)-(5) (1994). Congress clearly intended that the child's citizenship should  follow that of the parent who then had legal custody and it is  rather easy to imagine the reasons for this choice:  presumably  Congress wanted the child to be protected against separation  from the parent having legal custody during the child's  minority.


24
Here, viewing matters at the time that Fierro's father  became naturalized (and indeed through the time that Fierro  turned 18), Fierro was under Massachusetts law in the legal  custody of his mother, and any Massachusetts court asked in 1978  would certainly have identified his mother as the legal  custodian under the 1973 decree.  It is thus hard to see how it  could be said that in 1978 there occurred the "naturalization of  the parent having legal custody of the child," as section 1432  requires.  Similarly, the apparent rationale of the statute  would hardly be served by conferring citizenship on Fierro for  the first time at age 35.


25
Second, recognizing the nunc pro tunc order in the  present case would in substance allow the state court to create  loopholes in the immigration laws on grounds of perceived equity  or fairness.  There is no suggestion that the original custody  decree was entered by mistake, was contrary to law, or otherwise  did not reflect the true legal relationship between Fierro and  his parents at any time during his minority.  Congress' rules  for naturalization must be applied as they are written, and a  state court has no more power to modify them on equitable  grounds than does a federal court or agency.  See generally INS v. Pangilinan, 486 U.S. 875, 883-85 (1988); Examining Bd. of  Engineers, Architects & Surveyors v. de Otero, 426 U.S. 572, 605  (1976).


26
Obviously there are equitable arguments against  separating Fierro even as an adult from his parents, one of whom  is a naturalized citizen and the other a permanent resident. But Congress did not view these as compelling enough to provide  for automatic citizenship for a "child" who is over 18 at the  time one or more of his parents becomes naturalized.  And  Congress' fierce intention to deport aggravated felons, despite  their entry into this country as children and their long-standing residence in the United States, has only been  strengthened by recent legislation.  E.g., Illegal Immigration  Reform and Immigrant Responsibility Act of 1996, Pub. L. No.  104-208, Div. C., tit. III, 110 Stat. 3009-575.


27
The closest precedent on point is Miller v. Christopher, 96 F.3d 1467 (D.C. Cir. 1996), aff'd sub nom.Miller v. Albright, 523 U.S. 420 (1998).  There, an alien born  out of wedlock sought to gain citizenship through his father  under an immigration-law provision providing for citizenship if  the child was legitimated prior to reaching age 21.  The D.C.  Circuit rejected an effort to achieve this result through a  state-court paternity decree obtained after the alien had  reached age 21, holding that to give retroactive effect to the  state court decree would undercut Congress' intent.  Id. At1472-73.  The approach of Miller is not dissimilar to our own.


28
Conversely, we think Fierro gets little help from a  Board doctrine, which he urges us to follow, that "[i]n the  absence of judicial determination or judicial or statutory grant  of custody in the case of legal separation . . . the parent  having actual uncontested custody is to be regarded as having  'legal custody.'"  In re M-----, 3 I & N Dec. 850, 856 (BIA  1950); see also In re Yoon,  Axp-evc-yxo (BIA, Dec. 30, 1999)  (same).  In our case there was a judicial decree granting  custody to, and only to, Fierro's mother.  Neither the letter  nor the policy of the default rule expressed in In re M----- has  any application to the present case.


29
However, In re M----- does illustrate how careful one  must be about categorical pronouncements in this area.  There  are too many possible variations to say in the abstract, as the  government urges, that a later state court decree must always be  disregarded in applying section 1432.  Suppose the original 1973  decree in Fierro's case had through a clerical error named his  mother as legal custodian when the judge had ruled orally, and  the parties had understood at the time, that custody had been  awarded to his father.  Our own decision is limited to the  circumstances before us.


30
There is one loose end.  In a pro se motion for  bail/bond or in the alternative for supervised release, Fierro  says that Cuba is not accepting deportees and that he is  potentially subject to indefinite detention by the INS, which he  claims would be unlawful.  Compare Ma v. Reno, 208 F.3d 815 (9th  Cir. 2000), with Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000). At this point there is nothing in the record to indicate whether  Cuba refuses all deportees or has refused or will refuse to  accept Fierro, nor do we know whether in that event the INS  would release Fierro under some form of supervision.  See 8  U.S.C. § 1231(a)(3), -(6) (Supp. II 1996); 8 C.F.R. § 241.4,  241.5 (2000).  Our affirmance is without prejudice to any future  assertion of such claims by Fierro if and when they become ripe.


31
The petitions for review of the order of removal and  denial of reconsideration are denied.

APPENDIX

32
8 U.S.C. § 1432 (1994) provides as follows:


33
(a)  A child born outside of the United States of alien  parents, or of an alien parent and a citizen parent who has  subsequently lost citizenship of the United States, becomes a  citizen of the United States upon fulfillment of the following  conditions:


34
(1)  The naturalization of both parents; or


35
(2)  The naturalization of the surviving parent if one of  the parents is deceased; or


36
(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


37
(4)  Such naturalization takes place while such child is  under the age of eighteen years; and


38
(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 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.


39
(b) Subsection (a) of this section shall apply to an adopted  child only if the child is residing in the United States at the  time of naturalization of such adoptive parent or parents, in  the custody of his adoptive parent or parents, pursuant to a  lawful admission for permanent residence.



Notes:


1
 Many other jurisdictions have said much the same thing. E.g., Murry v. State Farm Mut. Auto. Ins. Co., 725 S.W.2d 571,  572 (Ark. 1987); Jones v. Jones, 442 P.2d 319, 322-23 (Okla.  1968); 46 Am. Jur. 2d, Judgments § 157 (1994).


