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


12-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2176




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 06-2176
                                     ____________

                            KEVIN AUGUSTUS LESLIE,
                                          Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                          ______________________

                        On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A39-745-397
                     Immigration Judge: Honorable Henry S. Dogin
                            _________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 13, 2006

        Before: RENDELL, COWEN and VAN ANTWERPEN, Circuit Judges

                               (Filed December 8, 2006)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

PER CURIAM

      Petitioner Kevin Leslie, a native and citizen of Jamaica, was admitted to the

United States as a lawful permanent resident on or about September 28, 1985. His father,

Robert C. Leslie, with whom he lived in New Jersey, naturalized on September 27, 1989

when Leslie was 12 years old. In September 1999, Leslie pleaded guilty in the New
Jersey Superior Court to endangering the welfare of a child in violation of N.J. Stat. Ann.

§ 2C:24-4a. In June 2004, he pleaded guilty to aggravated assault with a deadly weapon

in violation of N.J. Stat. Ann. § 2C:12-1b(2). As a result of these convictions, Leslie is

removable under Immigration & Nationality Act (“INA”) § 237(a)(2)(A)(ii), 8 U.S.C. §

1227(a)(2)(A)(ii), as an alien who has been convicted of two crimes involving moral

turpitude not arising out of a single scheme of criminal misconduct, and § 237(a)(2)(E)(i),

8 U.S.C. § 1227(a)(2)(E)(i), as an alien who has been convicted of a crime of domestic

violence, child abuse or child neglect.

       Leslie moved to terminate the proceedings on the ground that he acquired

citizenship through his father when his father naturalized. The Immigration Judge denied

relief, reasoning that, because Leslie’s mother was alive and had not naturalized (she lives

in Jamaica), then, under former INA § 321(a), which applied to his case, he could only

claim derivative citizenship if his father had legal custody of him and his parents were

legally separated. The IJ assumed that Leslie’s father had actual physical custody of him

and thus legal custody, see Bagot v. Ashcroft, 398 F.3d 252, 254 (3d Cir. 2005), but he

found no evidence that Leslie’s parents had ever been married, and there also was no

evidence of a divorce decree or legal separation. See, e.g., Brissett v. Ashcroft, 363 F.3d

130, 133-34 (2d Cir. 2004) (“legal separation under INA § 321(a) requires formal act

which, under laws of state or nation having jurisdiction over parents’ marriage, alters

marital relationship either by terminating marriage, or by mandating or recognizing

separate existence of marital parties).

                                             2
       Leslie also applied for cancellation of removal under INA § 240A(a), 8 U.S.C. §

1229b(a). The Immigration Judge heard from Leslie and his father, and reviewed letters

in support of his application for relief. The IJ agreed that Leslie was statutorily eligible

for cancellation of removal. Furthermore, applying the guidelines set forth in In re:

Marin, 16 I. & N. Dec. 581 (BIA 1978), and In re: Roberts, 20 I. & N. Dec. 294 (BIA

1991), he had many equities weighing in his favor, including family ties, a work history,

and long residence in the United States. However, the IJ declined to exercise his

discretion in Leslie’s favor, because he also had a significant history of criminal offenses,

some serious, and he did not seem to accept responsibility for his actions. Moreover,

some of the charges were fairly recent. The IJ ordered that Leslie be removed to Jamaica.

       Leslie appealed to the Board of Immigration Appeals, contending that Jamaica

recognizes common law marriages, and his parents were considered married at the time of

his birth. At the time of his father’s naturalization, they were “legally separated,” because

they clearly had no binding relationship at that time. Leslie also contended that the IJ

erred in weighing the factors relevant to cancellation of removal. On March 21, 2006, the

BIA affirmed without opinion, 8 C.F.R. § 1003.1(e)(4).

       Leslie petitioned for review.1 He contends in his brief that his testimony and

written declarations establish his parents as legally married under Jamaican common law,


  1
     The Attorney General moved to dismiss for lack of subject matter jurisdiction. A
motions panel of this Court referred the motion to a merits panel in view of the
citizenship claim, Morgan v. U.S. Attorney General, 432 F.3d 226, 229 (3d Cir. 2005)
(citing 8 U.S.C. § 1252(a)(2)(D), (b)(5)), and denied Leslie a stay of removal.

                                              3
and evidence showing his mother’s complete relinquishment of custodial rights

constitutes a genuine issue of material fact concerning whether his parents were “legally

separated,” such that a new hearing on his nationality claim in the district court is

warranted under 28 U.S.C. § 1252(b)(5). The Attorney General does not contest that

Leslie resided in the United States with his father, but does contend that he failed to show

that his parents were legally married; therefore, they cannot be legally separated. In the

absence of marriage, no legal separation can be established. In re: H-, 3 I. & N. Dec. 742

(BIA 1949).

       We will deny in part and dismiss in part the petition for review. As a threshold

matter, Leslie does not challenge the qualifying convictions. Ordinarily, we would lack

subject matter jurisdiction over this petition for review, 8 U.S.C. §§ 1252(a)(2)(C),

(a)(2)(B)(i). Leslie raises no constitutional or legal issues with respect to the qualifying

convictions that subject him to removal or the decision denying him cancellation of

removal that would give us jurisdiction under the Real ID Act, 8 U.S.C. § 1252(a)(2)(D).

We do, however, have jurisdiction to review the citizenship claim, 8 U.S.C. §

1252(a)(2)(D), (b)(5)(A), unless we determine that there is a genuine issue of material

fact, in which case the district court would do the fact-finding and decision-making, 8

U.S.C. § 1252(b)(5)(B). See Morgan, 432 F.3d at 229. If Leslie is a United States citizen

by derivation, he is not subject to removal.

       Former INA § 321(a), 8 U.S.C. § 1432(a), generally provided for derivative

citizenship of alien children upon their alien parents’ naturalization if certain statutory

                                               4
conditions were met. Morgan, 432 F.3d at 229-30. This statute was in effect when Leslie

was born, when he entered the United States, and when his father naturalized, and it thus

controls his claim for derivative citizenship. Id. at 230.2

       Section 321(a) provided in relevant part that:

              A child born outside of the United States of alien parents ... 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 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 (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) (repealed).

       Subparagraphs (a)(1) and (a)(2) are not relevant to Leslie’s case, as his mother is



  2
    Section 321(a) was repealed by the Child Citizenship Act of 2000 (“CCA”), Pub. L.
No. 106-395, 8 U.S.C. § 1431, which took effect on February 27, 2001. The CCA
liberalized the conditions for derivative citizenship of alien children of naturalized
parents, but it is not retroactive, and does not apply to individuals like Leslie who turned
18 before it went into effect. Morgan, 432 F.3d at 230 n.1.

                                              5
alive and never naturalized, and the conditions of subparagraphs (a)(4) and (a)(5)

indisputably are met. The conditions of subparagraph (a)(3) are either irrelevant or met,

save one. Subparagraph (a)(3) provides for citizenship in the event of the “naturalization

of the parent having legal custody of the child when there has been a legal separation of

the parents” or in the event of “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.” As to

the latter circumstance, Leslie was born out of wedlock on July 14, 1977 to Sylvia

Graham, but, again, his mother did not naturalize, and his paternity appears to have been

established by legitimation, see 8 U.S.C. § 1409(a), when, on November 10, 1983, Robert

Leslie added his name to Leslie’s birth certificate. This part of subparagraph (a)(3) thus

is not relevant.

       No dispute exists concerning the “legal custody” requirement, so the sole contested

issue is whether there has been a “legal separation” of Leslie’s parents. As an initial

matter, whether Leslie’s parents had a marriage recognized by common law is contested.

If Leslie’s parents were not legally married, they cannot be legally separated. The IJ

correctly noted the absence of evidence, other than Leslie’s uncorroborated assertions,

that the couple ever married. Leslie’s father, for example, could have provided testimony

on that issue and did not. On the other hand, there was undisputed testimony that the

couple had three children together. Even if we assume, arguendo, that the couple had a

legal marriage recognized at common law, Leslie has not shown a “legal separation” for

purposes of the derivative citizenship statute. We conclude that this issue is purely legal

                                             6
and does not require a hearing under 8 U.S.C. § 1252(b)(5)(B).

       Morgan, 432 F.3d 226, addressed a similar citizenship claim under INA §

321(a)(3) by a native and citizen of Jamaica, and held that “a legal separation for

purposes of INA § 321(a)(3) 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.” Id. at

234. The petitioner’s parents were married in 1974, and her mother had naturalized in

1984. During that time period, Jamaican law provided for a decree of judicial separation,

id. at 233 (citing Divorce Act §§ 9-13 (1973)), which the petitioner’s parents had never

obtained. Pennsylvania, where the petitioner’s mother resided and where jurisdiction

over the marriage also would lie, did not similarly provide for a decree of judicial

separation in 1984, but we rejected the argument that, because her parents had lived apart

for more than two years, they were legally separated under Pennsylvania law. We

reasoned that “there was no evidence that either party ever communicated to the other

party an intention to dissolve the marital union.” In addition, “separation in Pennsylvania

is recognized only by a divorce secured through a judicial order.” Id. at 234.

       Two things distinguish Leslie’s case from Morgan. The Jamaican Matrimonial

Causes Act § 35(1), went into effect on February 1, 1989, prior to Leslie’s father’s

naturalization in September 1989, and it abolished the decree of judicial separation.

Thus, Leslie’s parents cannot be faulted for failing to obtain one. Also, the law of New

Jersey, which also had jurisdiction over the marriage, would apply here and not the law of

                                              7
Pennsylvania. Nevertheless, the result would be the same, because there is evidence here

only of an informal separation. The “requirement of a formal action of a competent

governmental authority” which provides the certainty “that is important to administration

of the immigration laws,” 432 F.3d at 234, has not been satisfied here, and the record is

devoid of any evidence that Leslie’s parents ever sought a decree of divorce, id. at 234

n.3.

       If an informal separation sufficed, the statute’s express specification that the

separation be “legal” would be rendered superfluous. Id. at 234 (citing Brissett, 363 F.3d

at 134). Perhaps in recognition of this requirement, Leslie has argued that his mother’s

complete relinquishment of custodial rights constitutes a genuine issue of material fact

with respect to whether his parents were legally separated. We do not agree. In the

context of immigration, where one parent has emigrated to the United States, where

economic opportunities are superior, relinquishment of physical custody of a child by the

parent who remains behind, without more, has no special bearing on whether either party

ever communicated to the other an intention to dissolve the marital union. Cf. Brissett,

363 F.3d at 136 (rejecting argument that New York state orders of support and protection

constituted an acknowledgment by the state that a marriage was broken, because orders

did not mandate separation nor acknowledge separate existences).

       We will deny in part and dismiss in part the petition for review.




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