18-3028
Allen v. Barr

                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 3rd day of January, two thousand twenty.

PRESENT:        JOSÉ A. CABRANES,
                JOSEPH F. BIANCO,
                              Circuit Judges,
                CHRISTINA REISS,
                              District Judge.*



ROGER GAIRY CHRISTOPHER ALLEN, AKA ROGER ALLEYNE,
AKA RONALD ALLEN, AKA RAYAN KOWLESSEAR,
AKA RONALD WALTERS, AKA ROGER GAIRY ALLEN,

                        Petitioner,                                    18-3028

                        v.

WILLIAM P. BARR, UNITED STATES ATTORNEY
GENERAL,

                        Respondent.




     *
     Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by
designation.

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FOR PETITIONER:                                              TIMOTHY W. HOOVER, Hodgson Russ
                                                             LLP, Buffalo, NY.

FOR RESPONDENT:                                              JOHN F. STANTON (Joseph H. Hunt and
                                                             Keith McManus, on the brief), Trial
                                                             Attorney, for William P. Barr, United
                                                             States Attorney General, Washington,
                                                             D.C.

        Appeal from a September 19, 2018 order of the Board of Immigration Appeals.

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review be GRANTED, the order of the
Board of Immigration Appeals be VACATED, and removal proceedings against petitioner be
TERMINATED.

        Petitioner Roger Allen (“Allen”) challenges the Board of Immigration Appeals’ (“BIA”)
affirmance of removal proceedings against him, initiated by order of the Department of Homeland
Security (“DHS”). Specifically, Allen argues that such proceedings should be halted because he is a
United States citizen. He argues that the BIA wrongly concluded he was not a citizen because they
erred in finding that his mother—a non-citizen who divorced his father in 1976—had legal custody
of him in 1983, when Allen’s father naturalized. He contends that, in fact, his father had legal
custody of him at that time and that, as a result, he derived United States citizenship from his
father—as the Government has since concluded his sister did—under then-applicable immigration
law. We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.

        “We apply de novo review to questions of law raised in petitions for review of removal
orders.” Phong Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007). “To determine whether an
alien obtained derivative citizenship through a parent’s naturalization, we look to the law in effect
when [petitioner] fulfilled the last requirement for derivative citizenship.” Gil v. Sessions, 851 F.3d
184, 186 (2d Cir. 2017) (internal quotation marks omitted).

        In this case, the law in effect when Allen allegedly fulfilled the last requirement for derivative
citizenship was the law in effect in 1983—the year in which his father naturalized. Under the
relevant portion of the Immigration and Nationality Act (“INA”) then in force, “[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” so long as the child is also “under the age of eighteen years” and “is
residing in the United States pursuant to a lawful admission for permanent residence at the time of
naturalization.” INA § 321(a)(3)-(5). Since it is uncontested that Allen was under the age of eighteen



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in 1983 and that he was lawfully residing in the United States then, the only question is whether his
father, as opposed to his non-citizen mother, had “legal custody” over him.

         “‘Legal custody’ is a matter of federal law.” Garcia v. USICE (Dept. of Homeland Sec.), 669 F.3d
91, 95 (2d Cir. 2011). We have previously noted that decisions about legal custody, “in contrast” to
“[d]ecisions about the marital relationship [which] tend to be final” are instead “fluid and frequently
change depending on the parents’ situations and well-being.” Id. at 96. Although we still look first at
any relevant state judicial determinations of legal custody in a given case, we are not bound by those
initial determinations. Indeed, we have stated that state judicial determinations of custody may be
modified even without going to state court. In determining legal custody for INA purposes, we do
not “[r]equir[e] a formal act to change custody.” Id. Instead, we look to the circumstances—
including “mere agreement[s]”—at the time that the alleged custodial parent naturalized. Id.

        We rely on several “indicators” in order to make custody determinations. Id. at 97. “Two
predominant indicators of actual uncontested custody are (i) the child’s physical residence, and (ii)
consent to custody by the non-custodial parent.” Id. (internal quotation marks omitted). Additional
indicators of custody are derived from the state law in existence at the time of naturalization. Id. at
95 (noting that “we often look to state law for a rule of decision”).

        Applying these indicators to the instant case, we conclude that Allen’s father did, in fact,
have legal custody over Allen in 1983.

        First, as the Government does not contest, Allen began physically residing with his father in
1983, within weeks of his father’s naturalization. Allen relocated to Brooklyn in June and enrolled in
high school there while still under the age of eighteen.

        Second, Allen moved in with his father with the “consent” of his “non-custodial parent”—his
mother. Such consent was made explicit in a 1979 agreement between Allen’s mother and father in
which they transferred custody to Allen’s father. That agreement, notarized in New York County,
effectively abrogated any earlier custody order (including the 1976 divorce decree which had initially
given Allen’s mother custody). It was precisely the kind of agreement we said would be sufficient in
Garcia to transfer custody between parents.

        Third, that very agreement would have been recognized as sufficient under New York law in
1983 had New York courts been asked to determine the custody of Allen at that time. As the First
Department noted in 1964, courts in New York “will, as a general rule, enforce an agreement
between a husband and wife regarding custody of children so long as the agreement is in the best
interests and welfare of the children.” Sheets v. Sheets, 22 A.D.2d 176, 178 (N.Y. App. Div. 1964). In
1982, the New York Court of Appeals further noted that “an agreement as to which parent should
have custody” would have “[p]riority . . . as a weighty factor” in considering which parent should


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retain custody. Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (N.Y. 1982). There is much reason to
believe, as a result, that the 1979 agreement would have been enforced in Allen’s home courts in
New York at the time of his father’s naturalization.

       Accordingly, given the existence of these factors indicating that Allen’s father had legal
custody, we conclude that Allen derived citizenship from his father in 1983, under the terms of the
INA. Allen is a United States citizen by operation of law.

                                         CONCLUSION

       For the foregoing reasons, we GRANT the petition for review, VACATE the order of the
Board of Immigration Appeals, and TERMINATE removal proceedings against petitioner.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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