          United States Court of Appeals
                      For the First Circuit

No. 14-1858

                     RICHARD MARVIN THOMPSON,

                           Petitioner,

                                v.

                        LORETTA E. LYNCH,*
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                              Before
                       Howard, Chief Judge,
               Torruella and Lipez, Circuit Judges.


     Thomas S. Rome, on brief for petitioner.
     Joseph D. Hardy, Trial Attorney, Office of Immigration
Litigation,   Civil   Division,   U.S.   Department   of   Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Blair T. O'Connor, Assistant Director, on brief
for respondent.


                        December 29, 2015




*   Pursuant to Fed. R. App. P. 43(c)(2),        Attorney   General
Loretta E. Lynch is substituted for former       Attorney   General
Eric H. Holder, Jr. as respondent.
             TORRUELLA, Circuit Judge.         Petitioner Richard Marvin

Thompson ("Thompson") is a lawful permanent resident who was

convicted of a deportable offense.          Thompson contends that he has

derivative     citizenship   from    his    father's   naturalization   and

therefore cannot be deported.              Former section 321(a) of the

Immigration and Nationality Act provides that a child derives

citizenship from the naturalization of one parent if (1) the

naturalized parent has "legal custody of the child when there has

been a legal separation of the parents"; (2) the naturalization

occurs before the child turns eighteen years old; and (3) the child

is a lawful permanent resident either at the time of or after the

naturalization.     8 U.S.C. § 1432(a) (repealed 2000).

             In his petition for review, Thompson argues the Board of

Immigration Appeals ("BIA") incorrectly rejected his argument that

his parents were in a common-law marriage and legally separated

within the meaning of former section 321(a)(3) when they ceased

cohabitation.      But Thompson has not proven that his parents'

relationship or separation was legally recognized.           As a result,

we deny Thompson's petition.

                                I.    Facts

             Thompson was born in 1982 to Jamaican parents in Jamaica.

Sometime after Thompson's birth, Thompson's father moved to the

United States and, in 1992, became a naturalized citizen.               In


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1997, Thompson's father petitioned for Thompson to immigrate to

the United States.           Later that year, at the age of fourteen,

Thompson was admitted as a lawful permanent resident and moved to

the United States to live with his father.                Thompson remained in

the custody of his father until he reached adulthood.

          In 2001, Thompson pleaded guilty to one count of second-

degree   assault      in   violation     of    section    53a-60a(2)       of   the

Connecticut General Statutes and received a sentence of five years'

imprisonment, suspended, and three years' probation.                 The parties

do not dispute that this qualified as a removable offense under

either 8 U.S.C. § 1227(a)(2)(A)(iii) (an aggravated felony) or                   8

U.S.C. § 1227(a)(2)(A)(i) (a crime of moral turpitude committed

within five years after admission and for which a sentence of one

year or more of imprisonment could be imposed).

          By    2012,      the    government    had   detained     Thompson     and

initiated deportation proceedings against him.                     Thompson then

filed an N-600 application for citizenship with U.S. Customs and

Immigration    Services          ("USCIS"),    claiming     that    he     derived

citizenship    from    his    father's    naturalization.          USCIS    denied

Thompson's application, explaining that because Thompson's parents

were never legally married, they could not have legally separated

as required by section 321(a)(3).              An immigration judge adopted

USCIS's reasoning fully and ordered Thompson be removed to Jamaica.


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          Thompson appealed the removal order to the BIA.   In his

appeal, Thompson asserted that his parents "were common law spouses

in Jamaica" who legally separated when they ceased cohabitation.

The BIA rejected this argument on the grounds that Thompson had

not proven that Jamaica recognized common-law marriage at the time

of his birth and that the cessation of cohabitation did not qualify

as a "legal separation."      Based on these conclusions, the BIA

affirmed the removal order.

                         II.   Discussion

          Thompson's citizenship claim depends on former section

321(a), which reads:

          A child born outside of the United States of
          alien parents becomes a citizen of the United
          States upon fulfillment of the following
          conditions:
          . . . .

          (3) The naturalization of the parent having
          legal custody of the child when there has been
          a legal separation of the parents . . .; 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 . . . or thereafter begins to
          reside permanently in the United States while
          under the age of eighteen years.




                                -4-
8 U.S.C. § 1432(a) (repealed 2000).1    The parties do not dispute

that Thompson meets subsections (4) and (5)'s requirements.   What

the parties do dispute is whether Thompson meets subsection (3)'s

requirement that his father had legal custody of Thompson following

a "legal separation" from Thompson's mother.

             We have previously held that the term "having legal

custody" as used in former section 321(a)(3) is "a question of

federal statutory interpretation."     Fierro v. Reno, 217 F.3d 1,

3-4 (1st Cir. 2000).    But because "[l]egal relationships between

parents and children are typically governed by state law, there

being 'no federal law of domestic relations,'" the term "legal

custody" as used in former section 321(a)(3) "should be taken

presumptively to mean legal custody under the law of the state in

question."     Id. at 4 (quoting De Sylva v. Ballentine, 351 U.S.

570, 580 (1956)).    Based on the same reasoning, we believe "legal

separation" as used in former section 321(a)(3) presumptively

incorporates the wedlock rules of the state (or, in Thompson's



1  The Child Citizenship Act of 2000, Pub. L. No. 106-395, 114
Stat. 1631, repealed this provision. The BIA has interpreted the
Child Citizenship Act as applying only to individuals who turned
eighteen after its effective date. In re Rodríguez-Tejedor, 23
I. & N. Dec. 153, 162, 2001 WL 865412 (BIA 2001). Thompson turned
eighteen before the Child Citizenship Act's effective date and
never argued (either at the administrative level or in his petition
to this Court) that the Child Citizenship Act's new provisions
should apply to his case.


                                 -5-
case, country) in which the legal relationship originated and

terminated.       See also Wedderburn v. INS, 215 F.3d 795, 799 (7th

Cir. 2000) (looking to Jamaican law to determine marital status of

petitioner's parents).

            Simply put, Thompson's claim of citizenship under former

section 321(a)(3) fails because he cannot prove his parents were

in a legally recognized relationship from which they could legally

separate.     As Thompson points out, Jamaica's Property (Rights of

Spouses)    Act    ("Property   Act"),   defines   the   term   "spouse"   as

including persons who cohabitated together "as if [they] were in

law [husband and wife] for a period of not less than five years."

Property (Rights of Spouses) Act, pt. I, § 2(1) (Act No. 4/2004)

(Jam.).    But Thompson fails to explain how a law enacted in 2004,

and with an operational date of 2006, id., helps us understand

whether a relationship that must have ended by 1992 (the year

Thompson's father became a United States citizen) was legally

recognized.       Cf. Wedderburn, 215 F.3d at 799 (recognizing the

petitioners' "diligent search" did not find any Jamaican law

proving that Jamaica recognized common-law marriages as of 2000).

In fact, Part V of the Property Act states that it does not affect

"any legal proceeding in respect of property. . . instituted" or

"any remedy in respect of any such legal proceeding . . . acquired,

accrued or incurred" prior to its enactment -- in other words, by


                                    -6-
its terms, it is not retroactive.         Property (Rights of Spouses)

Act, pt. 5, § 24 (Act No. 4/2004).        Without a legally recognized

relationship, Thompson's parents could not have legally separated

as required by section 321(a)(3).

           Thompson's failure to prove that Jamaica recognized

common-law marriages while his parents were in a relationship is

dispositive of his claim.     But even if the Property Act applied

retroactively, we note that Thomson has adduced no evidence showing

his   parents   were   common-law   spouses   within   its   definition.

Because the Government proved that Thompson was born abroad,

Thompson had the burden of proving "by a fair preponderance of the

evidence" his derivative citizenship.       Leal Santos v. Mukasey, 516

F.3d 1, 4 (1st Cir. 2008).    The only evidence of this fact in the

administrative record is Thompson's bare assertion in his BIA

appeal.2   Although this Court may consider evidence outside of the

administrative record, Batista v. Ashcroft, 270 F.3d 8, 14-15 (1st

Cir. 2001), Thompson has not provided any additional evidence on



2  In his BIA brief, Thompson directs the BIA to look at a "[c]opy
of submission evidencing Common Law Marriage Relationship
previously submitted to DHS on June 27, 2012." This submission
was not included in the administrative record nor separately
submitted to this Court. Moreover, USCIS's denial of Thompson's
citizenship application states it requested Thompson's attorney to
"provide legal authority for the theory that she represented as
the basis of [Thompson's] derivative citizenship" but she did not
respond.


                                    -7-
appeal.   For example, there are no affidavits from either of

Thompson's parents stating that they lived together at the time of

his birth.    Thompson himself only provided this assertion through

filings by his counsel.3     Thus the factual basis for Thompson's

claim is also suspect.

             Finally, even if Thompson's parents were in a common-

law marriage, Thompson has failed to provide any details (factual

or legal) showing that they "legally separated."         Thompson's

argument is entirely premised on the idea that common-law spouses

legally separate when they cease cohabitation.        Thompson has

failed to cite any authority, federal or Jamaican, that supports

his purported definition of "legal separation" and we have not

found any.

                           III.   Conclusion

             For the reasons stated above, Thompson's petition for

review is Denied.




3   When a petitioner makes a citizenship claim, we have
jurisdiction under 8 U.S.C. § 1252(b)(5)(A) and (B) "to determine
whether there is a 'genuine issue of material fact' as to the
citizenship claim" and if so, we must transfer the case to district
court for fact-finding proceedings.     Batista, 270 F.3d at 12.
Because we have equated this to summary judgment review, id., we
conclude Thompson could not rely solely on unsupported statements
in his pleadings to prove his parents' relationship.


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