                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2005

Morgan v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3254




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 04-3254


                CARROL MORGAN,
                          Petitioner
                      vs.

              ATTORNEY GENERAL
             OF THE UNITED STATES,
                           Respondent
                  ____________

           ON PETITION FOR REVIEW
        OF AN ORDER OF THE BOARD OF
            IMMIGRATION APPEALS
             (Agency No. A37-332-497)
                  ____________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                September 29, 2005

Before: RENDELL, FUENTES and WEIS, Circuit Judges

             (Filed: December 21, 2005)



                          1
                        ____________

                          OPINION
                        ____________

WEIS, Circuit Judge.

       Petitioner Carrol Morgan is subject to an Order of
Removal pursuant to section 237(a)(2)(A)(iii) of the
Immigration and Naturalization Act, 8 U.S.C. §
1227(a)(2)(A)(iii), as a resident alien who has been convicted of
drug offenses classified as “aggravated” felonies. Petitioner
contends that she is not removable because she obtained
derivative United States citizenship upon her mother’s
naturalization while her parents allegedly were separated.
Because petitioner cannot establish that her parents were legally
separated at the time her mother was naturalized, we will deny
the petition for review.

        Under former section 321(a) of the Immigration and
Naturalization Act, 8 U.S.C. § 1432(a), a child born outside the
United States automatically acquires United States citizenship
if, while the child is under the age of eighteen, the parent with
legal custody of the child is naturalized while that child’s
parents are legally separated. 8 U.S.C. § 1432(a)(3).

      Petitioner was born in Jamaica in 1968. Her parents
married in that country in 1974. Four years later, her mother,
Verna Mae Morgan, entered the United States as a lawful
permanent resident. In 1981, petitioner joined her mother in the

                               2
United States, also entering as a lawful permanent resident. On
July 25, 1984, when petitioner was age sixteen, her mother was
naturalized. Her father, Hopeton Morgan, entered the United
States on December 23, 1984 and lived with her mother in
Philadelphia, Pennsylvania. Neither petitioner nor her father
have ever been naturalized.

        In April 2003, petitioner was charged with being an alien
convicted of an aggravated felony and therefore subject to
removal. She applied for withholding of removal, asylum and
relief under the Convention Against Torture.

       The IJ refused the petitioner’s requests for a continuance
of the proceedings and, after a hearing, denied asylum,
withholding of removal and relief under the Convention Against
Torture. The IJ also rejected the petitioner’s contention that,
because she was born out of wedlock, she was eligible for
derivative citizenship under 8 U.S.C. § 1432 upon her mother’s
naturalization. Petitioner appealed to the Board of Immigration
Appeals (“BIA”), again asserting derivative citizenship, but on
this occasion she contended that she was eligible because her
mother and father were legally separated at the time of the
naturalization.

       The BIA dismissed petitioner’s appeal on July 9, 2004,
finding that she had failed to establish derivative citizenship
because there was no evidence that the petitioner’s mother was
ever legally separated from her father. In reaching this
conclusion, the Board relied on case law that interpreted the
statutory term “legal separation” to mean separation recognized
or achieved through judicial proceedings. The Board noted that

                               3
the petitioner’s request for a writ of habeas corpus in the United
States District Court for the Eastern District of Pennsylvania,
based on the same claim for derivative citizenship, had been
denied. See Hurde-Morgan v. Ashcroft, No. 04-cv-936, 2004
WL 1166588 (E.D. Pa. May 24, 2004). The Board also rejected
the petitioner’s complaint about the IJ’s refusals of continuances
because the motions lacked sufficient articulation of the facts or
evidence that could have demonstrated that actual prejudice or
harm resulted from the denials.

       In this petition for review, petitioner has abandoned her
claims for withholding of removal, asylum and relief under the
Convention Against Torture. She argues only that the IJ erred
in concluding that she had not obtained derivative citizenship
and in denying her motions for continuance of the hearing.

       8 U.S.C. § 1252(b)(5)(A) grants us jurisdiction to review
a claim of nationality if there is no genuine issue of material fact
with respect to that claim. 8 U.S.C. § 1252(a)(2)(C), however,
provides in relevant part, that “except as provided in
subparagraph (D), no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed a criminal offense . . . covered by
section 1227(a)(2)(A)(ii).” Subparagraph (D) provides that we
have jurisdiction to consider any constitutional and legal
questions that may be presented in this petition for review,
notwithstanding anything in subparagraph (C). See 8 U.S.C. §
1252(a)(2)(D).

      Though subparagraph (D), as part of the REAL ID Act,
did not become law until May 11, 2005, the Act applies

                                 4
retroactively to any case, “in which the final administrative
order of removal, deportation, or exclusion was issued before,
on, or after the date of the enactment of this division.” REAL
ID Act of 2005 § 106(b), Pub.L. No. 109-13, 119 Stat. 231. We
have held that the REAL ID Act amendments “restoring our
jurisdiction” apply to all “pending or future petitions for direct
review challenging final orders of removal, except as may
otherwise be provided in § 1252.” Papageorgiou v. Gonzales,
413 F.3d 356, 358 (3d Cir. 2005). Thus, we have jurisdiction to
consider any constitutional or legal claims that may be presented
in this petition for review.

        The issue of derivative citizenship is a purely legal issue
of statutory interpretation. See Jordon v. Attorney General, 424
F.3d 320, 328 (3d Cir. 2005). We also have jurisdiction to
consider the constitutional claim that the IJ violated the
petitioner’s due process rights. See Papageorgiou, 413 F.3d at
358-59.

        The Immigration and Nationality Act confers citizenship
on children born outside of the United States to alien parents
when certain statutory conditions are met. See Miller v.
Albright, 523 U.S. 420, 424 (1998) (citing United States v.
Wong Kim Ark, 169 U.S. 649, 702 (1898), for the proposition
that persons born outside of the United States may acquire
United States citizenship “only as provided by acts of
Congress”); Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th
Cir. 2005) (“Since the enactment of the first naturalization
statute in 1790, our immigration laws have conferred derivative
citizenship on the children of a naturalized citizen, provided
certain statutorily prescribed conditions are met.”).

                                5
       The law applicable is that in effect at the time the critical
events giving rise to the claim for derivative citizenship
occurred. Minasyan, 401 F.3d at 1075. The relevant times are
the date of the child’s birth, the time of the child’s entry into the
United States, and the date of the parent’s naturalization. See
Bagot v. Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005) (listing
“relevant times” for derivative citizenship claims). In this case,
8 U.S.C. § 1432 was in effect when all of the critical events
occurred.

       In relevant part, § 1432(a) provides that a “child born
outside of the United States of alien parents . . . becomes a
citizen of 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 . . . .” 8 U.S.C. § 1432(a). The
child must also be under eighteen years of age at the time of the
parent’s naturalization and be residing in the United States as a
lawful permanent resident.1

       1
        8 U.S.C. § 1432 (a) provides:

       “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:
       (1) The naturalization of both parents; or
       (2) The naturalization of the surviving parent if
       one of the parents is deceased; or
       (3) The naturalization of the parent having legal

                                 6
       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
       (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.”

8 U.S.C. § 1432(a).

        On October 30, 2000, Congress repealed § 1432 by
enacting the Child Citizenship Act of 2000, Pub. L. No. 106-
395, 114 stat. 1631, effective February 27, 2001. Under the new
Act all children born outside of the United States automatically
obtain United States citizenship when,
        “(1) At least one parent of the child is a citizen of
        the United States, whether by birth or
        naturalization.
        (2) The child is under the age of eighteen years.
        (3) The child is residing in the United States in
        the legal and physical custody of the citizen
        parent pursuant to a lawful admission for

                               7
       Here, all of the time requirements have been satisfied and
no dispute exists about “legal custody” of the child. The sole
issue before us is whether the petitioner’s mother was “legally
separated” from her husband at the time of her naturalization.

       In Jordon, we held that derivative citizenship had not
been established because the legal separation in that case, a New
York divorce, occurred after the naturalization proceeding.
Jordon, 424 F.3d at 329-30. Jordon specifically declined to
decide the meaning of “legal separation.” Id. at 330 n.10.

       Although this Court has not yet expressed its views on
the meaning of “legal separation,” we considered the related
concept of “legal custody” in Bagot. There, the panel concluded
that in the absence of a judicial decree awarding custody,
longstanding BIA precedent defining “legal custody” as “actual
uncontested custody” would apply. Bagot, 398 F.3d at 254.



        permanent residence.”
Id. at § 101. The statute no longer includes a reference to legal
separation of the parents. The law, however, does not apply
retroactively to persons, like petitioner, who turned eighteen
before Congress passed the Child Citizenship Act. See Jordon
v. Attorney General, 424 F.3d 320, 328 (3d Cir. 2005)
(“Because all relevant events respecting [petitioner’s] claimed
derivative citizenship occurred prior to the [Child Citizenship
Act’s] effective date, § 1432 controls our analysis.”) (citing
Bagot v. Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005)).

                               8
       Bagot, however, clearly stated that “legal separation” was
distinguishable from “legal custody” in the derivative
citizenship context. See id. at 267. Judge Becker’s opinion
observed that “there is no inconsistency in requiring a court
order for legal separation while allowing legal custody to be
based on the consent of the parties or an undisputed physical
custody.” Id. Judge Rosenn’s concurring opinion, joined by
Judge Nygaard, agreed: “The opinion of the court also rejects
the [r]espondent’s argument that ‘legal custody’ like ‘legal
separation,’ requires a court decree. I fully agree with both
propositions.” Id. at 270 (internal citations omitted).

       Courts of appeals have held that § 1432(a)(3), as part of
the INA, is subject to the constitutional requirement of a
“uniform Rule of Naturalization” provided for in Article I,
section 8 of the Constitution. See, e.g., Brissett v. Ashcroft, 363
F.3d 130, 133-34 (2d Cir. 2004); Nehme v. INS, 252 F.3d 415,
429 (5th Cir. 2001).

       The statute, however, does not contain a definition of the
term “legal separation.” That lacuna has led the courts to
inquire to what degree state laws may provide the rule of
decision to determine whether a couple is legally separated for
purposes of § 1432(a)(3).

        In Nehme, the Court held that “in interpreting a federal
statutory term, a court may devise a federal rule by reference to
state law,” but rejected “any contention that the law of any one
state should govern the determination whether an alien child’s
parents were legally separated.” 252 F.3d at 423-24. The
Nehme Court considered the divorce and separation laws of the

                                9
fifty states and found that “in the United States, the term ‘legal
separation’ is uniformly understood to mean judicial
separation.” Id. at 426.

        After a review of the legislative history, the Court
concluded that Congress intended to grant derivative citizenship
only to children whose “real interests” are located in America
with custodial parents. Id. at 425. The Court reasoned, “It
makes sense . . . that when the child's parents are still married,
the child does not automatically acquire a new citizenship upon
the naturalization of only one parent.” Id. The Court thus held
that when only one parent has been naturalized, § 1432(a)(3)
requires a formal judicial alteration of the marital relationship.
Id. at 425-26.

       Brissett agreed with Nehme that “naturalization laws
must be ‘construed according to a federal, rather than state,
standard.’” 363 F.3d at 133 (quoting Nehme, 252 F.3d at 422).
Brissett, however, took issue with Nehme’s insistence upon a
judicial decree as evidence of a legal separation, reasoning that
“[n]othing in the language of the statute suggests the
requirement of a judicial proceeding.” Id. at 135 n.3. Brissett
declined to articulate exactly what circumstances would control,
but held that at a minimum, “‘legal separation’ is satisfied only
by a formal act which, under the laws of the state or nation
having jurisdiction of the marriage, alters the marital
relationship either by terminating the marriage (as by divorce)
or by mandating or recognizing the separate existence of the
marital parties.” 363 F.3d at 132.




                               10
       Wedderburn v. INS, 215 F.3d 795 (7th Cir. 2000),
adopted the BIA definition of “legal separation”: “a limited or
absolute divorce obtained through judicial proceedings.” Id. at
799 (quoting Matter of H, 3 I&N Dec. 742, 744 (1949)). The
Court also stated that “federal law may point to state (or foreign)
law as a rule of decision . . . .” Id. With respect to the issue of
what law governs, the Court observed that “the INS determines
the existence, validity and dissolution of wedlock using the legal
rules of the place where the marriage was performed (or
dissolved).” Id.

        Minasyan also recognized the requirement of uniformity
in immigration laws, but commented that where the legal
relationship in question is “created by” state or foreign law, a
“court must begin its analysis by looking to that law.” 401 F.3d
at 1076. The Court reasoned that “legal separation” means “a
separation recognized by law,” and “because there is no federal
law of domestic relations, that necessarily means a separation
recognized by state law.” Id. Therefore, the Court held that the
law of the state with jurisdiction over an alien’s parents’
marriage controls the determination of whether a couple is
legally separated. The Court also concluded that because “‘legal
separation’ cannot possibly be limited to orders expressly so
titled, . . . it encompasses other forms of court-ordered
recognition of the final breakup of a marriage.” Id. at 1078.
Because there was a court order of separation, the Court
declined to 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).” Id. at 1079 n.19.



                                11
       Thus, every court of appeals that has considered the
question has concluded that a “legal separation” requires some
formal action. There remains, however, some ambiguity about
what form the action must take.

        Nehme took a rather restrictive view of the use of state
law as a rule of decision. Other case law recognizes that since
there is no federal law of domestic relations, state law should be
consulted when relevant to determine the meaning of a family
law term. De Sylva v. Ballentine, 351 U.S. 570, 580 (1956);
Minasyan, 401 F.3d at 1076. The law of a foreign country may
be applicable in some instances as an alternate or in addition to
state law.

        We are persuaded that in this case we should look to the
laws of both Jamaica and Pennsylvania, the states with potential
jurisdiction over the Morgans’ marriage. In the circumstances
here, only two governmental entities had the authority to
formally modify the petitioner’s parents’ marital relationship.
A general review of the procedures and requirements of various
states, as conducted in Nehme, is inadequate because of the lack
of focus on the forums that actually possess the power to decree
that a separation recognized and enforceable by law has
occurred.

         As the Supreme Court has recognized, “[t]he scope of a
federal right is . . . a federal question, but that does not mean
that its content is not to be determined by state, rather than
federal law.” De Sylva, 351 U.S. at 580. Further, “[T]his is
especially true where a statute deals with a familial relationship
. . . .” Id. In Brea-Garcia v. INS, 531 F.2d 693 (3d Cir. 1976),

                               12
we held that the term “adultery”2 in the Immigration and
Naturalization Act derives it meaning from state law, reasoning
that “in the absence of a federal definition of adultery, [the
provision] must be construed with reference to state civil law.”
Id. at 695. Further, we concluded that “defer[ring] to the state
in which an alien chooses to live” to define adultery is
appropriate. Id. at 697-98. Likewise, in the present case, it is
appropriate to defer to the jurisdictions with authority over the
marriage to determine the meaning of legal separation for
purposes of § 1432(a)(3).

       At the time the parties were married in 1974, Jamaica had
in effect a procedure for obtaining a “decree of judicial
separation.” See Divorce Act §§ 9-13 (1973) (Jamaica),
repealed by Matrimonial Causes Act § 35(1) (1989) (Jamaica).
However, in 1989 Jamaica abolished the practice and did not
replace it with any similar mechanism. See Matrimonial Causes
Act § 35(1). At the time of the petitioner’s mother’s
naturalization in 1984, Jamaica recognized a right to a judicial
separation which Jamaican law distinguished from absolute
divorce; however, Jamaica required a formal court order to
establish a “legal separation” under section 9 of its Divorce Act.




       2
        We recognize that Congress has repealed the provision
of the INA, 8 U.S.C. 1101(f)(2), that provided that adultery was
grounds for removal of an alien. See Pub.L. 97-116, § 2(c)(1),
Dec. 29, 1981, 95 Stat. 1611. This does not affect our analysis
of what law may provide the rule of decision in interpreting a
federal statutory term.

                               13
       There is no evidence that any Jamaican court ever issued
a decree of judicial separation to the petitioner’s parents. In the
absence of such a judicial act, there was no “legal separation”
under Jamaican law, although the mother had lived apart
physically from her husband for four years before naturalization.

        During the period between the petitioner’s mother’s
arrival in the United States and her naturalization, Pennsylvania
had jurisdiction over the marriage. Pennsylvania courts may
issue a decree of divorce “if, at the time the action was filed, [at
least one party] had been a ‘bona fide resident’ of [the]
Commonwealth for a period of at least one year . . . . ‘Bona fide
residence’ means domicile; i.e., actual residence coupled with
the intention to remain there permanently or indefinitely.” Zinn
v. Zinn, 475 A.2d 132, 133 (Pa. Super. Ct. 1984) (internal
citations omitted). The petitioner’s mother, a lawful permanent
resident of the United States residing in Philadelphia, was
clearly a bona fide resident of Pennsylvania.

        A party to a Pennsylvania divorce proceeding need not be
a citizen of the United States, nor is it necessary for the marriage
to have occurred in the United States. Sinha v. Sinha, 834 A.2d
600 (Pa. Super. Ct. 2003) (holding that Pennsylvania courts had
jurisdiction over the dissolution of a marriage that occurred in
India between two Indian citizens).

        At the time the petitioner’s mother came to the United
States, a Pennsylvania statute allowed a woman to seek a limited
divorce, a mensa et thoro, from bed and board. 23 P.S. § 11.
That statute was repealed in 1980 and no similar provision was
enacted. The petitioner’s mother, had not obtained a divorce

                                14
under that statute before the naturalization occurred, nor is there
any evidence that she ever sought a decree.

        The Pennsylvania legislature enacted a “no fault” divorce
law in 1980. 23 Pa.C.S. A. § 3301. It provides that a court may
grant a divorce when the parties “have lived separate and apart
for a period of at least two years” and where the marriage is
“irretrievably broken.” Id. Separate and apart is defined as
“cessation of cohabitation, whether living in the same residence
or not.” 23 Pa.C.S.A. § 3103. For purposes of the Pennsylvania
divorce statute, “Physical separation alone does not satisfy the
separate and apart requirement . . . .” Sinha v. Sinha, 526 A.2d
765, 767 (Pa. 1987). An independent intent to dissolve the
marital union must be “clearly manifested and communicated to
the other spouse.” Id.

       Relying on the “no fault” statute, petitioner argues that
because her parents lived apart for more than two years, they
were legally separated under Pennsylvania law. Petitioner,
however, has not established that her parents were ever living
“separate and apart” because there is no evidence that either
party ever communicated to the other party an intention to
dissolve the marital union. Further, the petitioner’s argument
overlooks the requirement that separation in Pennsylvania is
recognized only by a divorce secured through a judicial order.

        Without the entry of the decree there has been no change
in the legal existence of the marriage here. Petitioner has not
presented any evidence of a divorce between her parents and




                                15
therefore her parents were not legally separated under
Pennsylvania law at the time of the mother’s naturalization.3

        Petitioner has failed to produce any evidence of a court
decree or any other formal government action establishing that
her parents were separated by action of law. Therefore, she has
not established derivative citizenship. As Brissett observed,
“including an informal separation within the provision’s terms
would effectively eviscerate the force of the term ‘legal’ from
the statute.” Brissett, 363 F.3d at 134. Furthermore, the
requirement of a formal action of a competent governmental
authority provides a certainty that is important to administration
of the immigration laws.4

       3
        We need not decide whether a divorce decree within two
years following the petitioner’s mother’s naturalization and
effective before the petitioner’s 18th birthday might have acted
as a nunc pro tunc court order establishing a prior legal
separation. The record establishes that the petitioner’s parents
never sought a divorce.
       4
         The formal action need not necessarily be a judicial
decree. A state or foreign nation, for example, could allow an
administrative agency or other governmental body to issue
orders of separation. There is nothing in the language of the
statute that requires that a court must act for a legal separation
to exist.

       Conceivably, some jurisdictions might consider parties
“legally separated” if they lived apart for a period of time
without seeking any governmental imprimatur. We know of no

                               16
        We hold that a legal separation for purposes of § 1432(a)
occurs only upon a formal governmental action, such as a decree
issued by a court of competent jurisdiction that, under the laws
of a state or nation having jurisdiction over the marriage, alters
the marital relationship of the parties. In this case, the courts in
both Jamaica and Pennsylvania had jurisdiction and neither
decreed a separation.

        Petitioner also complains that the IJ improperly denied
her requests for continuances of her hearing date. Aliens are
entitled to due process protection during removal proceedings.
Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005);
Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).

       To establish that the IJ violated her due process rights,
petitioner must show that the IJ’s decision was an abuse of
discretion which caused her to suffer actual prejudice. Ponce-
Leiva v. Ashcroft, 331 F.3d 369, 374-77 (3d Cir. 2003).

        The motions for continuances requested additional time
for petitioner to obtain documentation, some of which related to
her most recent conviction. Petitioner explained neither the
relevance of those documents nor the reason why they could not
be obtained within a reasonable time. None of the requests
pertained to the alleged legal separation of the petitioner’s
parents, the legal issue that predominates in this case.




jurisdiction that has adopted such a policy and we leave that
issue for another day.

                                17
       Petitioner has not demonstrated how any evidence she
might have found would have affected the outcome of her case.
She did not suffer any actual prejudice as a result of the denials
of her requests for continuances and thus there was not a due
process violation.

      We are not persuaded that the IJ abused her discretion in
denying the motions for continuance.

       The petition for review will be denied.




                               18
