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


2-11-2005

Bagot v. Atty Gen
Precedential or Non-Precedential: Precedential

Docket No. 04-2127




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                                              PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-2127


                  ODIRI NKOFI BAGOT,

                              Appellant


                              v.

                    JOHN ASHCROFT;
                     JAMES ZIGLAR;
                   KENNETH ELWOOD




       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                   (D.C. No. 03-cv-00309)
           District Judge: Honorable Yvette Kane


             Argued: December 14, 2004
Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.

                  (Filed February 11, 2005)

JAMES V. WADE
Federal Public Defender
RONALD A. KRAUSS (ARGUED)
Assistant Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Attorneys for Appellant

THOMAS A. MARINO
United States Attorney
DARYL F. BLOOM (ARGUED)
Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108
Attorney for Appellees

                              _____

                     OPINION OF THE COURT


BECKER, Circuit Judge.

        This appeal by Odiri Nkofi Bagot (“Bagot”) from the
District Court’s order denying his petition for a writ of habeas
corpus in a deportation case requires us to inquire into the matter
of “legal custody.” That inquiry will inform our determination as
to whether Bagot is correct that Respondents deported him to
Guyana illegally, because, having been in his father’s legal custody
at the time the father was naturalized, he is derivatively a United
States citizen. Respondents maintain that, although Bagot lived
with his father in New York, a previous New York state divorce
decree and form custody order left him in the legal custody of his
mother, who was in Guyana at the time and had never been to the
United States.
        The District Court was confronted, as we are here, with the
difficult question of how to define “legal custody”—but the
relevant law is almost silent on that definition. Judge Becker, the
author of the Opinion of the Court, believes that, as there is “no
federal law of domestic relations,” De Sylva v. Ballentine, 351 U.S.
570, 580 (1956), legal custody depends on state law in the first
instance. Having reviewed the New York precedents, he concludes
that Bagot was not in his mother’s legal custody under state law.
Judges Rosenn and Nygaard would not delve into state law, but
would find that no valid decree awarded custody of Bagot to his
mother. The panel is unanimous, however, that under the fallback
“actual uncontested custody” standard of the immigration laws, see

                                 2
Matter of M—, 3 I. & N. Dec. 850 (BIA 1950), Bagot was in the
legal custody of his father and thus obtained derivative citizenship.
We will therefore reverse the order of the District Court and
remand with directions to issue the writ.
        The Opinion of the Court in this case consists of Parts I, II,
III.A, III.B.2, IV, and V of this Opinion. In the remainder of Part
III.B, and in Part III.C, Judge Becker, writing only for himself,
explores New York’s law of legal custody. Although, as will
appear, he finds that law inconclusive, he believes that this
threshold exercise is compelled both by the reasoning of our sister
Courts of Appeals and by basic principles of federalism.

                  I. Facts and Procedural History

                       A. Background Facts

        The essential facts are not in dispute. Petitioner Odiri Nkofi
Bagot was born on March 6, 1974, in Guyana. His parents, Brian
Bagot and Frances Wright, were natives and citizens of Guyana,
and had married there in 1971. In 1982, Brian Bagot left his wife
and three children in Guyana and emigrated to the United States,
settling in Brooklyn, New York.
        In 1984, Brian Bagot, acting pro se, sued Frances Wright for
divorce in New York City. On August 28, 1984, Justice Jack Turret
of the New York County Supreme Court granted the divorce in a
two-page form order. The form contained a child custody
provision, in which Frances W right’s name was typed. The custody
provision read: “Frances Bagot shall have custody of the child(ren)
of the marriage,” and then listed the three children, including Odiri
Bagot. The words “shall have custody of the child(ren) of the
marriage” were pre-printed on the form; the names of Frances
Bagot and the children were filled in. In addition, typed onto the
form was the statement “That the Family Court shall be granted
concurrent jurisdiction with the Supreme Court with respect to the
issues of; support, custody and visitation.” Frances Wright and all
three Bagot children were still living in Guyana at that time; it does
not appear that they had ever been in the United States at the time
of the divorce.
        Life in Guyana was apparently difficult for the children, and
in 1988 Frances Wright and Brian Bagot agreed that the children

                                  3
would be better off living in New York. Wright therefore agreed to
give Brian Bagot custody of, and responsibility for, the children,
and to send them to live with him in New York. Frances Wright
herself remained in Guyana until October 1995. She then went to
New York to live with one of her daughters, and became a
naturalized U.S. citizen on February 26, 2001.
       Brian Bagot, meanwhile, had made arrangements to bring
his children to New York. Odiri Bagot arrived in New York on
November 16, 1988, as a lawful permanent resident. He was
fourteen years old. Odiri Bagot was raised by his father from that
time on. He lived with his father in Brooklyn, and attended
Erasmus High School there. On December 13, 1991, Brian Bagot
became a naturalized United States citizen. At the time, Odiri
Bagot was seventeen years old.

                    B. The Removal Proceedings

      On May 14, 1999, in the County Court for Broome County,
New York, Odiri Bagot pled guilty to third-degree attempted
criminal sale of a controlled substance (cocaine). Cf. N.Y. Penal
Law § 220.39. He received a sentence of three to six years.
      On January 24, 2000, while Odiri Bagot was in prison, the
Immigration and Naturalization Service (INS) initiated removal
proceedings.1 The INS claimed that Bagot, as a non-citizen lawful
permanent resident, was removable under § 237 of the Immigration
and Nationality Act (INA) because he had been convicted of an
aggravated felony and of a controlled-substance violation.2 An
Immigration Judge ordered Bagot removed to the Bahamas or


       1
        The Department of Homeland Security has taken over the
responsibilities of the former INS. See Ambartsoumian v. Ashcroft, 388
F.3d 85, app. at 95 n.6 (3d Cir. 2004). The Bureau of Immigration and
Customs Enforcement, within the Department of Homeland Security, has
assumed some of those functions.
       2
         The INA classifies as deportable any alien who commits an
aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), or who violates any law
relating to controlled substances, 8 U.S.C. § 1227(a)(2)(B)(i). Illicit
trafficking in a controlled substance qualifies as an aggravated felony.
8 U.S.C. § 1101(a)(43)(B).

                                   4
Guyana. Appeal to the Board of Immigration Appeals (BIA) was
waived. Bagot was paroled from the New York prison system on
November 19, 2002, and was taken into Bureau of Immigration and
Customs Enforcement (BICE) custody.
        On February 19, 2003, Bagot filed the present petition for
habeas corpus in the United States District Court for the Middle
District of Pennsylvania, which entered a temporary stay of
deportation. Two days after filing his petition, Bagot filed an
application for a Certificate of Citizenship, claiming that he was
entitled to derivative citizenship based on his father’s
naturalization. The INS denied this application on February 26,
2003. The Administrative Appeals Unit denied an appeal. On
February 25, 2004, the District Court denied the petition for habeas
corpus. Bagot filed a timely notice of appeal on April 23, 2004.
        In its February 2004 decision, the District Court lifted its
stay of deportation. Prior to briefing in this appeal, Bagot was
apparently removed to Guyana.

              II. Jurisdiction and Standard of Review

        The District Court had jurisdiction in this habeas action
pursuant to 28 U.S.C. § 2241. We have appellate jurisdiction to
review the District Court’s denial of habeas corpus under 28 U.S.C.
§§ 1291 and 2253. See Gerbier v. Holmes, 280 F.3d 297, 302 (3d
Cir. 2002). Although Bagot has been removed to Guyana, the
removal does not moot his appeal. See Chong v. Quarantillo, 264
F.3d 378, 385 (3d Cir. 2001). As the facts are not disputed, we
review only the legal question whether Bagot was in the “legal
custody” of his father at the time when his father became a
naturalized U.S. citizen. This is a question of law subject to plenary
review. See Gerbier, 280 F.3d at 302.
        Several of the arguments that Bagot now presses were not
raised, in specific terms, before the District Court. In particular,
much turns on Bagot’s contention that the custody award in the
1984 New York divorce judgment was invalid under New York
law, a contention that was raised for the first time on appeal.
Respondents claim that this argument is waived, and urge us not to
consider it now, pointing out that “[i]t is well established that
failure to raise an issue in the district court constitutes a waiver of
the argument” in this Court. Brenner v. Local 514, United Bhd. of

                                  5
Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991).
         At oral argument, Bagot’s counsel asserted that certain other
arguments in the briefing before the District Court, especially the
contention that Bagot’s father never lost his parental rights,
implicated the question whether the divorce judgment was valid
and therefore put that question fairly before the District Court. We
are skeptical. “[T]he crucial question regarding waiver is whether
[petitioner] presented the argument with sufficient specificity to
alert the district court,” Brennan v. Norton, 350 F.3d 399, 418 (3d
Cir. 2003) (quoting Keenan v. City of Philadelphia, 983 F.2d 459,
471 (3d Cir. 1993)), and it is questionable whether Bagot’s general
statement that his father retained custody was enough to inform the
District Court of his present argument that the 1984 New York
divorce judgment was entered without subject-matter jurisdiction.
         However, this conclusion need not be fatal to Bagot’s
appeal. This Court has discretionary power to address issues that
have been waived. See Keenan, 983 F.2d at 471; id. at 477
(Higginbotham, J., dissenting in part); Loretangeli v. Critelli, 853
F.2d 186, 189-90 n.5 (3d Cir. 1988) (“This court may consider a
pure question of law even if not raised below where refusal to
reach the issue would result in a miscarriage of justice or where the
issue’s resolution is of public importance.”); Selected Risks Ins. Co.
v. Bruno, 718 F.2d 67, 69 (3d Cir. 1983) (“[I]n the past we have
heard issues not raised in the district court when prompted by
exceptional circumstances.” (citations omitted)).
         We think that this is just such an exceptional case, and that
it is therefore appropriate to consider Bagot’s waived arguments on
appeal. The argument omitted in the District Court is a pure
question of law, and one that is closely related to arguments that
Bagot did raise in that court. No additional fact-finding is
necessary. As w ill appear, the proper resolution of the legal
question, though not exactly simple, is reasonably certain. And
failing to consider Bagot’s arguments would result in the
substantial injustice of deporting an American citizen.

                        III. Legal Standards

       Bagot does not dispute that he has committed a removable
offense under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i).
He argues only that he is in fact an American citizen, and therefore

                                  6
not subject to deportation under 8 U.S.C. § 1227. See Acosta v.
Gaffney, 558 F.2d 1153, 1158 (3d Cir. 1977). This argument is
based on the provisions of the INA that allow children of citizens,
in some circumstances, to claim derivative citizenship.

                    A. Derivative Citizenship

       Bagot was not born in the United States and has never been
formally naturalized; his citizenship claim is derivative upon his
father’s naturalization. The burden of proof of eligibility for
citizenship is on the applicant. Berenyi v. District Director, INS,
385 U.S. 630, 637 (1967). All doubts “should be resolved in favor
of the United States and against the claimant.” Id. (quoting United
States v. Macintosh, 283 U.S. 605, 626 (1931)).
       At the times relevant to this case, the INA’s requirements
for derivative citizenship were as follows:

       (a) A child born outside of the United States of alien
       parents . . . becomes a citizen of the United States
       upon the fulfillment of the following conditions:
              (1) The naturalization of both parents; or
              (2) The naturalization of the surviving
              parents 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
              naturalized under clause (2) or (3) of

                                 7
                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) (1999) (emphasis added), repealed by Child
Citizenship Act of 2000 (“CCA”), § 103, Pub. L. No. 106-395, 114
Stat. 1631.3 Thus Bagot must prove four essential facts: (1) that his
father was naturalized after a legal separation from his mother; (2)
that his father was naturalized before he (Odiri Bagot) turned
eighteen; (3) that he was residing in the United States as a
permanent legal resident at the time of his father’s naturalization;
and (4) that his father had legal custody at the time of his (Brian
Bagot’s) naturalization. Respondents concede the first three facts.
This case therefore turns on whether Brian Bagot had legal custody
of Odiri Bagot in December 1991, when he was naturalized.




        3
         The current provision relevant to children born abroad to later-
naturalized parents is 8 U.S.C. § 1431(a), which provides that:

        (a) A child born outside of the United States
        automatically becomes a citizen of the United States
        when all of the following conditions have been fulfilled:
        (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 permanent residence.

Former § 1432(a), however, controls this case. The CCA went into effect
on February 27, 2001, 120 days after it was signed. See CCA § 104. At
all relevant times—Bagot’s birth, his move to the New York, his father’s
naturalization, and his eighteenth birthday—former § 1432(a) was in
effect. Cf. Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990) (“The
applicable law for transmitting citizenship to a child born abroad when
one parent is a U.S. citizen is the statute that was in effect at the time of
the child’s birth.”).

                                     8
                 B. Legal Custody Under the INA 4

         The natural starting point for defining legal custody as used
in § 1432(a) is the INA itself, as “[w]hat is meant by the phrase
‘having legal custody of the child’ is, of course, a question of
federal statutory interpretation.” Fierro v. Reno, 217 F.3d 1, 3-4
(1st Cir. 2000). But the INA does not define the term “legal
custody,” and its legislative history is similarly unhelpful on the
question. See id. at 4.
         There exist two partially competing paradigms of INA legal
custody. The first is that adopted by several other Courts of
Appeals, which have looked to state law to decide who has legal
custody of a minor for derivative citizenship purposes. The second
is that employed by the BIA, which involves a more-or-less unitary
national standard for determining who has such legal custody.

                     1. The State-Law Paradigm

        The leading Court of Appeals case discussing legal custody
for § 1432(a) purposes is Fierro v. Reno, supra. The First Circuit,
after recognizing that the issue is one of federal law, nonetheless
looked to state law to determine who had legal custody:

       Legal relationships between parents and children are
       typically governed by state law, there being “no
       federal law of domestic relations.” 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. . . . [T]his
       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.

217 F.3d at 4 (citations omitted) (quoting De Sylva v. Ballentine,
351 U.S. 570, 580 (1956)). Other courts have found this analysis


       4
         Judges Rosenn and Nygaard do not join Parts III.B (except Part
III.B.2) or III.C of this Opinion, which represent only the view of Judge
Becker.

                                   9
persuasive. See Tabucbuc v. Ashcroft, 84 Fed. Appx. 966, 969 (9th
Cir. Jan. 2, 2004) (unpublished opinion) (“To determine whether
[petitioner] was in the legal custody of his father when he
immigrated to the United States in 1984, we look presumptively to
Hawai’i law.” (citing Fierro)); Bucknor v. Zemski, No. 01-3757,
2002 WL 221540, *4 (E.D. Pa. Feb. 12, 2002) (“This Court agrees
[with Fierro], and to determine whether [petitioner’s] father had
legal custody over [him], this Court will apply Pennsylvania state
law.”); cf. In re Bulfa-Dadulo, No. A44 273 047, 2004 WL
1059577 (BIA Mar. 16, 2004) (unpublished decision) (citing
Fierro approvingly, and looking to state law to determine whether
parents were “legally separated”).
        The Seventh Circuit has come to the same conclusion
independently, noting that the INS has regularly referred to state
law in deciding legal custody. Wedderburn v. INS, 215 F.3d 795,
799 (7th Cir. 2000) (“‘Legal custody’ and ‘legal separation of the
parents,’ as words in a federal statute, must take their meaning
from federal law. . . . But federal law may point to state (or foreign)
law as a rule of decision, and this is how the INS has consistently
understood these terms.”).
        On the other hand, the Fifth Circuit has declined to defer to
state law in defining the analogous term “legal separation” for
§ 1432(a)(3) purposes. In Nehme v. INS, 252 F.3d 415, 422 (5th
Cir. 2001), that court held that “in the absence of plain language to
the contrary, Congress does not make the application of a federal
act dependent on state law.” Nehme cited Fierro and Wedderburn
approvingly for the proposition that the definition of “legal
separation” is an issue of federal law, but refused to follow their
lead in looking to state law to help decide the issue. Finding that
the linchpin of the analysis was the need for uniformity across the
nation, the Fifth Circuit determined that the question of legal
separation was one of federal law, and “reject[ed] any contention
that the law of any one state should govern the determination
whether an alien child’s parents were ‘legally separated.’” Id. at
423-24.
        The Fifth Circuit therefore arrived at a unitary definition of
legal separation. In so doing, it looked to the laws of several states,
and to the legislative history of the INA, which “indicates that
Congress wanted to ensure that only alien children whose ‘real
interests’ were located in America with their custodial parent, and

                                  10
not abroad, should be automatically naturalized.” 252 F.3d at 425.
The court therefore concluded that legal separation requires a
judicial act to create separation: mere living apart, without a formal
separation, does not qualify as legal separation under the INA. See
id. at 425-26; see also Brissett v. Ashcroft, 363 F.3d 130, 133-34
(2d Cir. 2004) (approving the INS interpretation, following Nehme,
that “an informal separation is not sufficient to render the parties
legally separated” under § 1432(a)(3)).
        Because Nehme is concerned with the concept of legal
separation, not legal custody, it is of limited relevance to this case.
The policy goal that the Fifth Circuit drew from the INA’s
legislative history—ensuring that the child’s “real interests” were
with the custodial parent in the United States—is unlikely to be
hindered by applying state law definitions of child custody, as those
standards typically make reference to the child’s interests. And,
because there is “no federal law of domestic relations,” DeSylva,
351 U.S. at 580, I think that it is most appropriate to turn, in the
first instance, to state-law definitions of legal custody. I therefore
would not extend Nehme to this case; instead, I agree with Fierro
and Wedderburn that it is appropriate to look to state law to define
“legal custody” for the purposes of 8 U.S.C. § 1432(a)(3).
                         2. The BIA Paradigm

       The BIA, however, has made its own attempts at defining
“legal custody” under the INA. The BIA’s longstanding
interpretation of the “legal custody” requirement is set out in
Matter of M—, 3 I. & N. Dec. 850 (BIA 1950). In that case, the
BIA interpreted a predecessor statute of § 1432(a)(3), and stated:

       It is the view of the [Immigration and Naturalization]
       Service that, in the absence of judicial determination
       or judicial or statutory grant of custody in the case of
       legal separation of the parent [sic] of a person
       claiming citizenship under section 314(c), the parent
       having actual uncontested custody is to be regarded
       as having “legal custody” of the person concerned
       for the purpose of determining that person’s status
       under section 314(c).

3 I. & N. Dec. at 856. Thus, Matter of M — provides a two-step test

                                  11
of legal custody. First, if there is a “judicial determination or
judicial or statutory grant of custody,” then the parent to whom
custody has been granted has legal custody for INA purposes.
Second, if no such determination or grant exists, then the parent in
“actual uncontested custody” is deemed to have legal custody.
        The Matter of M— test has been cited approvingly by the
Seventh Circuit in Wedderburn, supra, 215 F.3d at 797 (citing
Matter of M— for the proposition that “one parent’s permanent
physical custody with the other’s consent is ‘legal custody’”), by a
recent unpublished BIA decision, In re Kwe, No. A37 385 667,
2003 WL 23508701 (BIA Dec. 17, 2003) (unpublished decision)
(“In the absence of a judicial determination or judicial or statutory
grant of custody in a case of a legal separation of the naturalized
parent, the parent having actual, uncontested custody is to be
regarded as having ‘legal custody’ of the child.”), and by a District
Court in this Circuit, Charles v. Reno, 117 F. Supp. 2d 412, 417
(D.N.J. 2000). See also Am. Jur. 2d Aliens & Citizens § 2883
(2004) (“‘Legal custody’ of the child, for purposes of the statute,
resides in the parent who has been granted custody of the child by
court order or statutory grant, or, in the absence thereof, in the
parent having actual uncontested custody of the child.” (footnotes
omitted) (citing Matter of M—)).
        Matter of M— appears to represent the position of the
agencies charged with interpreting the INA. Respondents thus
argue that we are bound to give it deference under Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). This
proposition is subject to some debate. See Hughes v. Ashcroft, 255
F.3d 752, 757-758 (9th Cir. 2001) (finding Chevron deference to
the INS inappropriate in determining United States citizenship,
because the INA leaves that determination in the hands of the
courts). It is not necessary to decide, however, whether the Matter
of M— standard is entitled to Chevron deference, both because it
is helpful in understanding the meaning of “legal custody,” and
because the parties appear to accept its application here.

            3. A Framework for INA Legal Custody:
              Reconciling Fierro and Matter of M—

      This leaves a surfeit of standards, as both the Fierro
approach (looking to state law to define legal custody) and the

                                 12
Matter of M— test (looking for a decree of custody or, failing that,
for “actual uncontested custody”) are helpful. I conclude, however,
that these two standards can be reconciled in a straightforward
way. 5
        The BIA position in Matter of M— is that a “judicial
determination or judicial or statutory grant of custody” creates legal
custody. These are all matters of state law, as no federal courts or
statutes grant child custody. Thus, the first stage of the Matter of
M— determination is a matter of state law, consistent with Fierro.
If state law provides no answer as to child custody, then federal
courts cannot follow Fierro to determine who has legal custody. 6
Rather than simply inventing state law, however, the courts can fall
back on the second part of the Matter of M— test: if state law does
not fix “legal custody,” then the federal standard of “actual
uncontested custody” applies.
        Thus, if, for example, a state court has entered a valid decree
granting custody of a child to the child’s father, then the father has
“legal custody” of the child. This result follows naturally from both
Fierro and Matter of M— (as it is a “judicial determination or
judicial . . . grant of custody”). Similarly, if (again, for example)
there has been no decree, but a state statute provides that “in the
absence of a decree, a child of divorced parents is in the legal


        5
        Judge Rosenn, in his concurrence joined by Judge Nygaard,
concludes that Matter of M— is dispositive in this case, and therefore
would not delve into state law. I think that Fierro correctly held that we
must look to state law, in the first instance, to decide matters of legal
custody, as there is no federal law of domestic relations. I view this as an
important principle of federalism. Fierro may be factually
distinguishable—there, unlike here, there was a valid state-court
decree—but I think it clear that the underlying principle of Fierro
requires an inquiry into state law.
        6
        One could read Fierro’s reliance on state law to indicate that,
where state law does not fix custody, neither parent has legal custody for
§ 1432(a)(3) purposes, and the child cannot claim derivative citizenship
through either parent. But this reading comports with neither the intent
of Fierro nor the purposes of the INA, which attempts to find the parent
with whom the child’s interest lies. Therefore, I do not take Fierro to
mean that, where state law is silent, no parent has legal custody under the
INA, and I would instead follow Matter of M— in such a situation.

                                    13
custody of whichever parent he resides with,” then courts should
follow the state law under both Fierro and Matter of M—
(“statutory grant of custody”). And, if state law is silent about legal
custody, Fierro is of no help, and we must rely on the Matter of
M— fallback of “actual uncontested custody.”7
       In this case, then, I look first at the New York law defining
legal custody. Only because that law does not determine who had
legal custody of Odiri Bagot do I turn to the Matter of M—
standard of actual uncontested custody.

              C. Legal Custody Under New York Law

       I believe that our first obligation under Fierro is to examine
New York law to see whether it clearly determines legal custody.
Unfortunately, New York law, like the INA, does not define the
term “legal custody.” The New York Domestic Relations Law uses
the term repeatedly, but never defines it. Nor does any case from
the Court of Appeals, New York’s highest court, define or
explicate the phrase. I have found only three cases in which New
York courts have given some clues to the state’s definition of
“legal custody,” albeit not clear direction. See Otero ex rel. Otero


        7
         This reconciliation of Matter of M— and Fierro is not seamless.
One can imagine, for example, a state in which there is no statutory
definition of legal custody, but whose common law has consistently held
that a child of divorced parents is always in the legal custody of his
mother. In this state, a child of divorced parents as to whom there has
been no custody decree would be, as a matter of state law, in the custody
of his mother, even if he in fact lived with his father. Fierro leads to the
conclusion that such a child would be in the custody of his mother. On
the other hand, under Matter of M—, since his status was not determined
by a “judicial determination or judicial or statutory grant of custody”
(unless the common-law rule can be treated as a “judicial grant of
custody”), this child would be in the custody of whoever has “actual
uncontested custody”—in that case, presumably, his father.
        This is probably a far-fetched example. In most normal cases,
either state law will determine custody by statute or judicial
determination, or else state law will be silent and the court will be left to
fall back on “actual uncontested custody.” It may be that some
theoretical tension remains between Fierro and Matter of M—, but that
tension is unlikely to assert itself often.

                                     14
v. State, 602 N.Y.S.2d 501 (N.Y. Ct. Cl. 1993); Villafane v.
Banner, 387 N.Y.S.2d 183 (N.Y. Sup. Ct. 1976)); Coveleski v.
Coveleski, 93 A.D.2d 924 (N.Y. App. Div. 1983). The first two
cases were decided in the context of New York Civil Practice Law
and Rules (CPLR) 1201, which allows a parent or other person
with “legal custody” to bring a suit on behalf of an infant. The
Otero and Villafane courts determined legal custody only for the
purpose of allowing the alleged custodian to sue on the child’s
behalf.
        In Otero, the New York Court of Claims, which adjudicates
civil suits against state government agencies, refused to allow an
incarcerated father to bring a CPLR 1201 suit on behalf of his
infant daughter, who was injured while visiting him in prison. The
court noted that there was “very little discussion of the term ‘legal
custody’ as used in this context. It apparently incorporates both
physical custody and, where someone other than a parent has
physical custody, a judicial decree awarding custody to that
person.” 602 N.Y.S.2d at 502 (citing Villafane, supra, 387
N.Y.S.2d at 184). Finding that an incarcerated parent could not
have physical custody, the court ordered the case dismissed unless
the daughter’s legal custodian was substituted as plaintiff within
sixty days. Id.
        In Villafane, the Supreme Court of New York County
refused to allow a grandmother to bring a CPLR 1201 action on
behalf of her infant grandchild. The grandmother had long had
“informal custody” of the infant, but the child had never formally
been placed in her care. The court determined that, under CPLR
1201, married parents share legal custody, while, if the parents are
separated, “[i]t would appear . . . that ‘having legal custody’ was
intended to designate a person whose custody was formally
determined by judicial decree.” 387 N.Y.S.2d at 184. As no such
decree gave the grandmother custody, the court stayed the suit
pending appointment of a guardian ad litem to litigate on behalf of
the infant.
        The CPLR 1201 context is tangential here, and I am none
too confident in drawing lessons about New York’s law of legal
custody from these two cases. I do so only because there are so few
relevant sources for that law, and because Otero and Villafane, like
the INA, seem motivated by a desire to fix legal custody on the
person who represents the real interests of the child, in order to

                                 15
insure that litigation on behalf of the child is actually in his or her
interests.8
        On the other hand, the third New York case, Coveleski,
supra, 93 A.D.2d 924, is more clearly a domestic relations case.
Pursuant to a separation agreement, an earlier court order had
granted custody of a child to the mother, and required the father to
pay child support. The father ended up having physical custody of
the child for a significant period, and did not pay child support
during that time. The mother sued for the arrearages, and the father
“argue[d] that he had physical custody of the child during the
period in question and not plaintiff and, therefore, he was not
required to pay plaintiff child support pursuant to the agreement.”
Id. at 924. The Appellate Division disagreed, noting that the
separation agreement and judgment of divorce had never been
modified, and “consequently legal custody of the child continued
throughout in plaintiff.” Id. (emphasis added).
        Coveleski is clearly in some tension with Otero’s suggestion
that physical custody is a necessary element of legal custody. Given
this tension, I think it best to avoid determining whether New York
legal custody law actually requires physical custody, as Bagot urges
us to do.
        On the other hand, each of these New York cases places
some emphasis on deriving legal custody from a judicial decree.
While Otero at least suggests that a parent in physical custody may
not need a decree to obtain legal custody, Villafane and Coveleski
seem to require a judicial decree of custody in essentially all cases.

       8
         I note also that no court seems to have questioned these cases’
definitions of legal custody. Villafane’s method of defining custody has
been cited approvingly by another New York Supreme Court case,
Matter of Meyers, 528 N.Y.S.2d 778, 779 (N.Y. Sup. Ct. 1988) (finding
that an infant’s mother cannot sue on his behalf where his grandmother
has been granted custody by legal decree), and Otero’s method has been
cited by two federal district courts in New York, Bailey v. Tricolla, No.
CV-94-4597 (CPS), 1995 WL 548714, *7 (E.D.N.Y. Sep. 12, 1995)
(finding physical custody to be a necessary element of legal custody);
DeBruyne v. Clay, No. 94 Civ. 4704 (JSM), 1995 WL 51134, *2
(S.D.N.Y. Feb. 8, 1995) (same); see also Ellis v. Hamilton, 669 F.2d
510, 514 (7th Cir. 1982) (citing Villafane for the proposition that
custodial grandparents might have the right to sue on behalf of their
grandchildren).

                                   16
        I thus draw only the most limited conclusions from New
York law. Taken together Otero, Villafane, and Coveleski make
clear that, at a minimum, a valid judicial decree plus physical
custody will create legal custody under New York law. Under
Coveleski, it is quite likely that a valid judicial decree alone will
create legal custody in at least some cases, though we need not
decide that issue here. However, in the absence of a valid judicial
decree of legal custody, matters are much murkier. No New York
case appears to find legal custody in a divorced parent who does
not have a custody order from a court.
        It is not necessary to decide that New York law requires a
valid judicial decree to create legal custody. Rather, I conclude
only that New York law is not sufficiently clear to fix INA legal
custody in the absence of such a decree. Therefore, under Fierro,
I look to New York law to see if any court has issued a valid order
determining legal custody. In the absence of such an order, and
there is none here, I will not attempt to divine what New York
courts would do; rather, I will fall back on the “actual uncontested
custody” prong of Matter of M—.9

                IV. Legal Custody of Bagot in 1991

       We now apply the law to the facts of Bagot’s case. We first
examine the 1984 divorce judgment that purportedly granted
custody of Bagot to his mother. Finding that this decree did not
create legal custody, we address the Matter of M— standard of
“actual uncontested custody.”

                    A. New York Legal Custody

      The 1984 judgment, on its face, granted a divorce between
Brian Bagot and Frances Wright, and granted custody of the


       9
        Thus I essentially adopt the entire test of Matter of M— in this
case, requiring a judicial decree or, failing that, actual uncontested
custody. However, under the Fierro/Matter of M— test set forth above,
see supra Part III.B.3, this is not an inevitability; another state’s law
might more clearly fix custody even in the absence of a decree, and
under Fierro I would look to that law in preference to the “actual
uncontested custody” fallback.

                                   17
children of their marriage to Frances Wright. Bagot argues that this
grant of custody was invalid, because the New York court lacked
jurisdiction to decide his custody.

                     1. The Validity of the Decree

       There is no question that the New York County Supreme
Court had jurisdiction to enter a judgment of divorce between
Brian Bagot and Frances Wright. In New York, the Supreme Court
can obtain in rem jurisdiction over a marriage if (among other
possibilities) either party to the marriage has resided in New York
for two years. N.Y. Dom. Rel. Law § 230(5) (2004). But the New
York courts have jurisdiction over child custody determinations
only if they can meet the higher standards of the Uniform Child
Custody Jurisdiction Act (UCCJA), N.Y. Dom. Rel. Law § 75-d(1)
(1999), which we set forth in the margin (and rely upon infra).10


       10
            New York’s version of the UCCJA provided:

       1. A court of this state which is competent to decide child
       custody matters has jurisdiction to make a child custody
       determination by initial or modification decree only
       when:
       (a) this state (i) is the home state of the child at the time
       of commencement of the custody proceeding, or (ii) had
       been the child’s home state within six months before
       commencement of such proceeding and the child is
       absent from this state because of his removal or retention
       by a person claiming his custody or for other reasons, and
       a parent or person acting as parent continues to live in
       this state; or
       (b) it is in the best interest of the child that a court of this
       state assume jurisdiction because (i) the child and his
       parents, or the child and at least one contestant, have a
       significant connection with this state, and (ii) there is
       within the jurisdiction of the court substantial evidence
       concerning the child’s present or future care, protection,
       training, and personal relationships; or
       (c) the child is physically present in this state and (i) the
       child has been abandoned or (ii) it is necessary in an
       emergency to protect the child; or

                                     18
The mere fact of divorce jurisdiction does not create child-custody
jurisdiction; the requisites for the two types of jurisdiction are
different and must be separately satisfied. See, e.g., Foley v. Foley,
649 N.Y.S.2d 999 (N.Y. Sup. Ct. 1996); see generally Merril
Sobie, Practice Commentary to N.Y. Dom. Rel. Law § 76, section
2 (2002).
        At the time of his parents’ divorce, Bagot had never set foot
in New York, so paragraph (a) of § 75-d(1), which applies where
New York is the child’s “home state,” could not have created
jurisdiction. Paragraph (b), which requires a “significant
connection” with New York and “substantial evidence” within the
state, was similarly inapplicable, again because there is no
contention that Bagot had ever been to New York to establish such
a connection. “Maximum rather than minimum contacts are
required,” Vanneck v. Vanneck, 404 N.E.2d 1278, 1282 (N.Y.
1980), and the legislative intent behind paragraph (b) was “to limit
jurisdiction rather than to proliferate it,” id. Paragraph (c), which
creates emergency jurisdiction where the child is physically present
in New York, was inapplicable because Bagot was not in the state
at the time of the disputed custody grant.
        This leaves us with paragraph (d), a fallback provision
allowing New York to take jurisdiction where no other state has
done so and such an exercise of jurisdiction is in the best interests




       (d)(i) it appears that no other state would have
       jurisdiction under prerequisites substantially in
       accordance with paragraph (a), (b), or (c), or another state
       has declined to exercise jurisdiction on the ground that
       this state is the more appropriate forum to determine the
       custody of the child, and (ii) it is in the best interest of
       the child that this court assume jurisdiction.

N.Y. Dom Rel. Law § 75-d(1) (1999), repealed by 2001 N.Y. Laws c.
386. The 2001 legislation, which took effect on April 28, 2002, enacted
the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). The jurisdictional provision replacing § 75-d is at N.Y.
Dom. Rel. Law § 76 (2004). The earlier UCCJA was effective from 1978
until 2002, see 1977 N.Y. Laws c. 493, § 2, and was thus New York law
at all times relevant to this appeal.

                                   19
of the child.11 However, we doubt that a New York court would
have assumed jurisdiction over a child who had never set foot in
the state, and who lived with his mother in Guyana, on the basis of
§ 75-d(1)(d). Cf. Sobie, Practice Commentary to N.Y. Dom. Rel.
§ 75-d, section 4 (1988) (“The possibility of using the [§ 75-
d(1)(d)] provision is fairly remote; examples might include migrant
workers, hobos or perhaps members of a circus troop.”). As long
as it was not manifestly against Bagot’s best interests to leave
Guyana in control of his custody, a New York court would not
have taken jurisdiction over his custody under paragraph (d). See
Nesa v. Baten, 290 A.D.2d 663, 664 (N.Y. App. Div. 2002) (“[I]t
is difficult to see how the [Bangladeshi] children’s best interests
would be served by having a New York court litigate issues of
custody.”).
        Even if there was some conceivable way that the New York
court could have taken jurisdiction under paragraph (d), such
jurisdiction would require findings that it was in the best interests
of the child. See People ex rel. Bruzzesse v. Bruzzese, 70 A.D.2d
957, 958 (N.Y. App. Div. 1979). The two-page form order lacks
such findings, and provides no reason to believe that the New York
court believed that it had § 75-d(d) jurisdiction over the child
custody determination.
        Thus there is no real doubt that the New York County
Supreme Court lacked jurisdiction to determine Bagot’s custody.
The divorce decree appears to have been simply a form order,
normally used for in-state divorce cases where custody over the
children is easily established; the presiding justice presumably did
not notice that he was exceeding his jurisdiction, and no one
pointed out this error at the time.12


        11
         The definition of “state” in the UCCJA did not include foreign
countries, see N.Y. Dom. Rel. Law § 75-c(10) (1999) (repealed), so, as
required by paragraph (d), no “state” had jurisdiction over Bagot;
however, the UCCJA was intended to follow general principles of
comity in respecting foreign jurisdiction. See N.Y. Dom. Rel. Law § 75-
w (1999) (repealed).
        12
         The failure to alert the New York court to its lack of jurisdiction
did not waive the issue, as custody jurisdiction under § 75-d was not
waiveable. Gomez v. Gomez, 86 A.D.2d 594, 595 (N.Y. App. Div.),

                                    20
    2. The Appropriateness of Reviewing State Judgments in
                   Immigration Proceedings

       Respondents contend, however, that this Court should refuse
to examine the validity of the New York custody decree now,
almost twenty years after that decree was issued. They argue
forcefully that the INS’s successor agency should be able to rely on
the finality of state custody orders, and that, if immigration
petitioners were allowed to mount collateral attacks on such orders,
the result would be a heavy burden on the courts and the INS’s
successor agency. Courts might, the argument continues, have to
look into whether there was proper service of the custody order,
whether there was personal jurisdiction over the parties, and
whether the custody decision was proper on its merits. Such
inquiries would be costly and time-consuming, and might be
susceptible to fraud and manipulation.
       We share Respondents’ concern for the finality of state-
court judgments in immigration proceedings, and we confine our
review of the New York court’s custody order to the purely legal
question whether, on the undisputed facts presented by this case,
that court had subject-matter jurisdiction to issue a custody
decree.13 Such a narrow review does not implicate the concerns
raised by the Respondents: we need not look into service of
process, personal jurisdiction, or the merits of the custody
determination; nor must we engage in any fact-finding that could
be undermined by a petitioner’s fraud. In this case, however, the
predicate facts—that the divorce decree granted custody of Bagot,
who had never been in the United States, to his mother—are
undisputed, and they lead inevitably to the legal conclusion that the
New York Supreme Court lacked subject matter jurisdiction over
the custody determination under § 75-d. We feel confident that we
can reach this conclusion without entering the thicket that


aff’d, 437 N.E.2d 272 (N.Y. 1982).
       13
        Although it speaks in terms of the location of the parties, N.Y.
Dom. Rel. Law § 75-d creates subject-matter, not personal, jurisdiction.
See Gomez, supra note 10, 86 A.D.2d at 595; Bruzzese, supra, 70
A.D.2d at 958; Schaeffer v. Schaeffer, 101 Misc. 2d 118, 120 (N.Y. Fam.
Ct. 1979).

                                  21
Respondents conjure.
        Basic principles of conflict of laws, including New York’s
jurisprudence in the area, support our refusal to recognize custody
decrees not properly based on subject matter jurisdiction. Under
New York law, and the UCCJA as adopted by most states,14 one
state need not recognize the custody decree of another state “where
the decree was not made under factual circumstances meeting the
jurisdictional standards of the [UCCJA].” N.Y. Jur. Domestic
Relations § 457 & n.21 (citing Wilber v. Buelow, 136 A.D.2d 786
(N.Y. App. Div. 1988) (refusing to give full faith and credit to
Texas custody decree where Texas court lacked UCCJA
jurisdiction)). No state following the UCCJA—including New
York—would enforce the custody decree at issue here; we do not
believe that a federal court should be bound by a decree that no
state would consider binding.
        Respondents correctly note that federal courts in
immigration cases disfavor collateral attacks on the state
convictions that give rise to aggravated-felony removals. See, e.g.,
Drakes v. INS, 330 F.3d 600 (3d Cir. 2003); Giammario v. Hurney,
311 F.2d 285, 287 (3d Cir. 1962). But a collateral attack on the
merits of a criminal conviction is much more susceptible to the
problems posited by the Respondents than is an attack on a custody
decree’s subject-matter jurisdiction.
        Child custody is a much more fluid affair than is an
aggravated felony conviction. Indeed, few things in the law are as
ephemeral as a child custody adjudication. To be sure, a state
court’s judgment of conviction renders an immigrant a removable
aggravated felon; in the normal case, that status is unlikely to
change. But see 8 U.S.C. § 1227(a)(2)(A)(v) (authorizing waiver
of deportation for certain felons granted a full pardon by the
President or a Governor). But a court’s order granting child custody
is rarely the final word on the subject; family circumstances
constantly change, and family courts throughout the land frequently
modify orders for full or partial custody (visititation) to better


       14
         The UCCJA continues in force in sixteen states and the U.S.
Virgin Islands. Thirty-four other states, and the District of Columbia, had
enacted the UCCJA, but have repealed it and adopted the UCCJEA. See
generally Unif. Child Custody Jurisdiction Act Refs. & Annos., 9 U.L.A.
261-62 & supp. 25-27 (1999 & Supp. 2004).

                                    22
accommodate the (changing) best interests of the child. See 45
N.Y. Jur. 2d Domestic Relations § 501.
       Indeed, at oral argument in this case, Respondents conceded
that Brian Bagot could have arranged to have the 1984 custody
order modified to comport with the reality that he had undisputed
physical custody over Odiri Bagot. Our deference to the finality of
state criminal convictions is due in part to the fact that they are
intended to be final; such deference to the finality of frequently and
easily modified state custody determinations would, we think, be
misplaced.
       We therefore cannot find that Frances Wright had legal
custody of Odiri Bagot under New York law. The decree that
granted her custody was facially invalid, and no court in New York
or anywhere else would defer to it.

                  B. Actual Uncontested Custody

        If no one had legal custody of Bagot under a New York
decree, then were are left to the fallback “actual uncontested
custody” prong of Matter of M— . That decision makes clear that,
where legal custody has not been determined by decree or statute,
“the parent having actual uncontested custody is to be regarded as
having ‘legal custody’ of the person concerned for the purpose of
determining that person’s status under [§ 1432(a)].” 3 I. & N. Dec.
at 856. See Part III.B.2, supra. Therefore, if New York law did not
fix Bagot’s legal custody, his father had “legal custody” of him for
derivative-citizenship purposes if, but only if, he had “actual
uncontested custody.”
        We think it is clear that he did. Brian Bagot had actual
physical custody of Odiri Bagot, who lived with him and attended
high school in Brooklyn; Frances Wright approved of the
arrangement; and no one else seems to have disputed his father’s
custody of Bagot at any time. In Matter of M—, a father who took
care of his daughter was found to have “legal custody,” based on
his “actual uncontested custody,” where he lived with the child and
undertook to provide for her, and where the mother consented to
his custody. 3 I. & N. Dec. at 851, 856. Similarly, in Charles,
supra, 117 F. Supp. 2d at 418, the court found “actual, uncontested
custody” where the father had been responsible for the child’s
upbringing and the mother had consented to that custody.

                                 23
        In their brief, Respondents suggest that legal custody under
the INA requires a court decree, and that, since no decree granted
custody to Bagot’s father, he could not have had legal custody.
Respondents base this argument on the Fifth Circuit’s conclusion
in Nehme, supra, 252 F.3d at 427, that the term “legal separation”
in § 1432(a)(3) requires a judicial decree of separation, not just
living apart under legal circumstances. See also Brissett v.
Ashcroft, 363 F.3d 130, 133-34 (2d Cir. 2004). By analogy to
Nehme and Brissett, Respondents conclude that a child of divorced
parents whose custody has not been determined by a valid court
decree is in the joint custody of both of his parents, and therefore
cannot meet the requirement of § 1432(a)(3) unless both parents
naturalize. Cf. Wedderburn, 215 F.3d at 800 (where parents share
custody, both must naturalize to create derivative citizenship).
        Respondents cite no authority for the proposition that legal
custody, like legal separation, requires a court decree. We think
that the two concepts are easily distinguishable, and 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
on undisputed physical custody. In fact, at oral argument, counsel
for Respondents conceded that Matter of M— forecloses the
argument that a decree is required to create legal custody: the
BIA’s longstanding position is that, in the absence of a decree, the
parent with actual uncontested custody has legal custody for INA
purposes. See also Bucknor v. Zemski, No. 01-3757, 2002 WL
442861, *2 (E.D. Pa. Mar. 21, 2002) (rejecting the argument that
a court decree is required to establish “legal custody” for
derivative-citizenship purposes).
        Under the Matter of M— standard, Brian Bagot had “actual
uncontested custody” of Odiri Bagot after the latter arrived in the
United States in 1988. For INA purposes, therefore, he also had
legal custody.

                           V. Conclusion

      We conclude that, when he was naturalized in 1991, Brian
Bagot had “legal custody” of Odiri Bagot for the purposes of 8
U.S.C. § 1432(a)(3), because he had actual uncontested custody
under Matter of M—. Because the other requisites of § 1432(a)
were also met, Odiri Bagot gained derivative United States

                                 24
citizenship when his father was naturalized. As an American
citizen, Bagot was not deportable, and we will therefore reverse the
order of the District Court and remand the matter with directions
to issue a writ of habeas corpus.




                                25
Bagot v. Attorney General of the United States
No. 04-2127

Rosenn, Circuit Judge, concurring, in which Nygaard, Circuit
Judge, joins.

       I concur and join in the opinion of the Court, with the
exception of Parts III.B.1, III.B.3, and III.C. I write separately
because I believe it is unnecessary in this case to grapple with the
nuances of “legal custody” under New York law.
       The threshold question that must be decided, as I see it, is
the validity of the custody decree entered by the New York
Supreme Court in the 1984 judgment of divorce granted to Brian
Bagot, Odiri Bagot’s father. The New York proceedings were
essentially in divorce. The divorce proceedings were instituted by
Brian Bagot. At the time of these proceedings, Frances Wright, his
wife, and their children, including Odiri, a minor, resided in
Guyana. They did not appear in these proceedings. As for Brian
Bagot, he had emigrated to the United States in 1982, and settled
in Brooklyn, New York.
       The divorce decree consisted of a brief printed form order
dissolving the marriage. As an ancillary measure, the decree stated
that “Frances Bagot shall have custody of the children of the
marriage.” At the time, the children were in Guyana, a foreign
country, and in the physical custody of their mother. They did not
reside with their father and had not set foot in New York. Thus,
although the New York Supreme Court had in rem jurisdiction to
enter the judgment of divorce, because Brian Bagot had been
residing in New York continuously for more than two years, see
N.Y. Dom. Rel. Law § 230(5) (2004), the court had no in personam
or subject matter jurisdiction to determine the legal status of Brian
Bagot’s children. See Vernon v. Vernon, 296 A.D.2d 186, 191
(N.Y. App. Div. 2002); Zwerling v. Zwerling, 636 N.Y.S.2d 595,
598 (N.Y. Sup. Ct. 1995); Pavlo v. Pavlo, 520 N.Y.S.2d 991, 993
(N.Y. Sup. Ct. 1987).
       As Judge Becker points out, the New York courts had
jurisdiction to make “child custody determinations only if they can
meet the higher standards of the Uniform Child Custody
Jurisdiction Act (UCCJA), N.Y. Dom. Rel. Law § 75-d(1) (1999),”
repealed by 2001 N.Y. Laws ch. 386. Ante, at 28-29 & n.10. The

                                 26
UCCJA was in effect when the New York Supreme Court entered
the divorce decree and fixed the status of the children, and was the
governing New York law at all times relevant to this appeal.
        Under the UCCJA, much more was required before the
court could exercise child custody jurisdiction than in rem
jurisdiction over one parent for divorce. The New York court
could have exercised jurisdiction over Brian Bagot’s minor son
only if New York were the home state of the child at the time of the
custody proceeding, or if New York had been his home state within
six months before the commencement of the proceedings and the
child had been absent from the state because of his removal or
retention by a person claiming custody or for other reasons. See
N.Y. Dom. Rel. Law § 75-d(1)(a). The court also could have had
jurisdiction under the UCCJA if it was in the best interest of the
child that the court assume jurisdiction because the child and his
parents, or the child and at least one parent, had a significant
connection with the state and there was within the jurisdiction of
the court substantial evidence concerning the child’s present or
future care, training, and relationships. See id. § 75-d(1)(b). The
court might also have had jurisdiction in the event the child had
been abandoned or in certain other situations, none of which are
relevant here. See id. § 75-d(1)(c)-(d).
        Thus, for the reasons set forth in Judge Becker’s analysis of
the foregoing New York jurisdiction statute, we are in agreement
that the undisputed facts of this case “lead inevitably to the legal
conclusion that the New York Supreme Court lacked subject matter
jurisdiction over the custody determination under § 75-d.” Ante, at
34. See, e.g., Weyant v. Barnett, 302 A.D.2d 801, 802 (N.Y. App.
Div. 2003) (approving the dismissal of child custody proceeding
for lack of jurisdiction under the UCCJA where “substantial
evidence concerning the children’s care, protection, training and
relationships does not exist in New York,” the “allegations of
emergency [were] insufficient,” and “the children had resided with
their mother in North Carolina for more than six years . . .”); see
also McBride v. McBride, 688 So. 2d 856, 859 (Ala. Civ. App.
1997).
        Because there was no valid decree of the New York
Supreme Court, or as far as this record shows, any other court,
giving custody of Odiri Bagot to Frances Wright, his mother, he
was not subject to any decree of court fixing his legal custody when

                                 27
he emigrated to the United States in 1988 and when his father
applied for United States citizenship in 1991. I therefore disagree
with the Judge Becker that we need to examine the law of New
York with regard to parental rights in minor children prior to Brian
Bagot’s application for naturalization.
        Turning to Odiri Bagot’s legal status in New York in 1991,
when his father applied for naturalization, we are informed that, in
1988, when he was fourteen years old, he and his siblings came to
live with their father in New York. Due to poor conditions in
Guyana, their mother had agreed that it was in the best interests of
the children to transfer physical custody of them to their father,
while she remained behind in their home country. Odiri’s father
provided him with a home, enrolled him in a public school, and
otherwise supported him. In 1991, when his father became a
naturalized citizen, Odiri Bagot was still a minor, seventeen years
old, and still living with his father. As the opinion of the Court
concludes, it is clear that his father had actual, consensual physical
custody of the boy for derivative citizenship purposes.
        Because Odiri Bagot was not born in the United States and
had never been naturalized, it is undisputed that his claim of
citizenship is derivative upon his father’s naturalization.
Citizenship in the United States and naturalization proceedings are
federal matters and are governed by the federal Constitution and
federal statutes. At the time of that naturalization, the Immigration
and Nationality Act provided for derivative citizenship of a child
permanently residing in the United States while under the age of
eighteen upon the “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)(3), repealed by Child Citizenship Act of 2000,
Pub. L. No. 106-395, § 103(a), 114 Stat. 1631. Former §
1432(a)(3) was in effect when Brian Bagot was naturalized and
controls this case. See ante, at 11-12 & n.3.
        In the absence of a judicial decree determining the legal
status of a minor child or some other judicial grant of custody, the
remaining question in the instant case is whether Brian Bagot’s
custody of his son satisfies the “legal custody” requirement of §
1432(a)(3) for derivative citizenship purposes. The Bureau of
Immigration Appeals considered this precise question in making a
status determination in Matter of M—, 3 I. & N. Dec. 850, 1950
WL 6650 (BIA 1950). In that case, a child born in Czechoslovakia

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in 1929 of alien parents was admitted to the United States as a
permanent resident in August 1947. The marriage of her parents
had been annulled in 1940 and, as in this case, the child remained
abroad with her mother until August 1947. The father came to the
United States in 1941 and became a naturalized citizen in 1946.
The decree of annulment made no provision for the custody of the
child. As in this case, the child’s mother orally agreed in 1947 to
the father’s assumption of custody of the child. In April 1948, the
mother stated in an affidavit that the father had obligated himself
since August 1947 to educate and support the child to which the
mother consented, and that the daughter would remain with her
father.
        The BIA held that:
        [I]n the absence of judicial determination or judicial
        or statutory grant of custody in the case of legal
        separation of the parent[s] of a person claiming
        citizenship under section 314(c), the parent having
        actual uncontested custody is to be regarded as
        having ‘legal custody’ of the person concerned for
        the purpose of determining that person’s status under
        section 314(c).
Matter of M—, 3 I. & N. Dec. at 856. Although Matter of M— is
only a decision of a federal agency, it has not been rejected for over
a half-century, and has been the subject of approval of the federal
courts. See Barthelemy v. Ashcroft, 329 F.3d 1062, 1067 n.4 (9th
Cir. 2003) (Where “neither natural parent . . . [has] been awarded
legal custody of the child by a court . . ., the parent with physical
control of the child will have a claim to ‘legal custody’ over the
child.”); Wedderburn v. INS, 215 F.3d 795, 797 (7th Cir. 2000)
(citing Matter of M—, approvingly); Charles v. Reno, 117 F. Supp.
2d 412, 417-18 (D.N.J. 2000) (applying “actual uncontested
custody” standard of Matter of M— where no court order or
statutory grant of custody existed).
        In the absence of a legal custody decree for a minor child,
as we have here, an analysis of child custody law in the State of
New York is unnecessary and irrelevant. Indeed, Judge Becker also
concludes that “we essentially adopt the entire test of Matter of
M— in this case, requiring a judicial decree or, failing that, actual
uncontested custody.” Ante, at 27 n.9.
        Judge Becker believes that he is compelled to explore New

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York law concerning legal custody of a minor child, even in the
absence of a legal decree, based on his understanding of Fierro v.
Reno, 217 F.3d 1(1st Cir. 2000). However, unlike our situation
here, a state probate court in Fierro had issued a valid custody
decree. See Fierro, 217 F.3d at 4. Here, there is none. By
contrast, in 1991when Brian Bagot applied for naturalization, the
not-uncommon relationship existed where parents consensually
agreed upon the physical, uncontested custody of a minor child.
        The opinion of the Court ultimately concludes that “it is
clear” that Brian Bagot had “legal custody” of his son, Odiri, for
derivative citizenship purposes. Ante, at 37-38. The opinion of the
Court also rejects the Respondents’ argument that “legal custody,”
like “legal separation,” requires a court decree. Ante, at 39. I fully
agree with both propositions.
        Accordingly, we agree that when he was naturalized in
1991, Brian Bagot had legal custody of his son, Odiri, for
derivative citizenship purposes. Because all other requisites of §
1432(a) were also met, Odiri obtained derivative United States
citizenship when his father was naturalized. Odiri Bagot, therefore,
is not deportable and the Order of the District Court should be
reversed and the case remanded to the District Court with
instructions to issue a writ of habeas corpus.




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