     09-4211-pr
     Garcia v. USICE (Dept. of Homeland Security)

 1                      UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5
 6
 7                              August Term, 2011
 8
 9    (Argued: December 6, 2011              Decided: December 29, 2011)
10
11                            Docket No. 09-4211-pr
12
13
14
15                                  CARLOS GARCIA,
16
17                                                   Petitioner-Appellant,
18
19                                       -v.-
20
21                      USICE (DEPT. OF HOMELAND SECURITY),
22
23                                                    Respondent-Appellee.
24
25
26
27   Before:
28               MINER, WESLEY, and CHIN, Circuit Judges.
29
30        Appeal from judgment of the United States District
31   Court for the Western District of New York (Telesca, J.).
32   The district court denied Petitioner habeas corpus relief
33   after finding that Petitioner did not derive citizenship
34   from his father; the district court ruled that Petitioner
35   was not in his father’s “legal custody” when his father
36   naturalized. We conclude that the district court erred
37   because it relied on an unenforceable custody award.
38
39        “Legal custody” is a matter of federal law, which looks
40   first to state law to determine whether there is an
41   enforceable judicial determination or statutory grant of
42   custody. If there is not, “actual uncontested custody” of
43   the child controls. Here, there is a genuine factual
44   dispute over which parent (if either) had “actual
 1   uncontested custody” of Petitioner when his father
 2   naturalized. Therefore, we VACATE and REMAND for a hearing
 3   under 8 U.S.C. § 1852(b)(5)(B). In addition, we instruct
 4   the district court to appoint Petitioner pro bono counsel.
 5
 6       VACATED and REMANDED.
 7
 8
 9
10       TIMOTHY W. HOOVER (Peter C. Obersheimer, on the brief),
11             Phillips Lytle LLP, Buffalo, NY, for Petitioner-
12             Appellant.
13
14       KATHARINE E. CLARK, Trial Attorney, Office of Immigration
15             Litigation, Civil Division (Tony West, Assistant
16             Attorney General, Shelley R. Goad, Assistant
17             Director, Russell J.E. Verby, Senior Litigation
18             Counsel, on the brief), for Eric H. Holder, Jr.,
19             United States Attorney General, Washington, D.C.,
20             for Respondent-Appellee.
21
22
23
24   WESLEY, Circuit Judge:
25
26                                    I.

27                                    A.

28       Carlos Garcia was born in the Dominican Republic on

29   December 24, 1978.     His family immigrated to the United

30   States in 1984, and shortly thereafter, he became a lawful

31   permanent resident.      When Garcia’s family arrived in the

32   United States, they resided on West 107th Street in

33   Manhattan.

34       In 1988, while his family was vacationing in the

35   Dominican Republic, his mother divorced his father in a

36   Dominican court.     The divorce decree purported to grant

                                      2
 1   Garcia’s mother “guarda personal” (“personal

 2   guardianship”).1   Following the vacation, Garcia’s family

 3   returned to Manhattan and his parents continued living

 4   together on West 107th Street.     In 1989, the entire family

 5   moved to 201 West 109th Street, and in August 1994 (six

 6   years after the divorce), Garcia’s mother finally moved into

 7   her own apartment.

 8       On April 20, 1996, when Garcia was under the age of

 9   eighteen, his father naturalized.     Garcia alleges that at

10   the time, he resided with his father and that his father had

11   “actual uncontested custody” of him.

12                                 B.

13       On January 27, 1998, the former Immigration and

14   Naturalization Service (“INS”) charged Garcia as removable

15   under Immigration and Nationality Act (“INA”) § 237(a)(2)(C)

16   (conviction for a firearm offense).     INS took Garcia into

17   custody until an immigration judge ultimately cancelled his

18   removal.   See Garcia v. U.S. Dep’t of Homeland Sec., 657 F.

19   Supp. 2d 403, 405 (W.D.N.Y. 2009).     Garcia, however, soon

20   found himself back on the wrong side of the law.


         1
             The Dominican Divorce Law is unclear as to what is
     encompassed by the term “guarda personal.” The Divorce Decree
     includes no specific reference to custody.

                                    3
 1        As a result of several convictions in 2001 and 2002,

 2   the Government served Garcia with a Notice to Appear and

 3   ultimately ordered him removed to the Dominican Republic.

 4   Garcia applied for derivative citizenship based on his

 5   father’s 1996 naturalization, but United States Citizenship

 6   and Immigration Services (“CIS”) denied his application,

 7   finding that the Dominican Republic divorce decree granted

 8   Garcia’s mother, and not his father, “legal custody.”      Id.

 9   at 406.   After the CIS Administrative Appeals Office denied

10   his appeal, Garcia filed a petition for a writ of habeas

11   corpus in the district court.2

12        The district court denied Garcia’s petition.     It found

13   the Dominican Republic divorce decree highly probative of

14   which parent had custody (Garcia’s mother) and therefore

15   concluded that Garcia was unable to demonstrate that he was

16   in his father’s sole legal custody when his father




          2
             On June 1, 2005, the district court transferred Garcia’s
     citizenship petition to this court for consideration under the
     REAL ID Act. On September 28, 2006, this court remanded Garcia’s
     case in a one-paragraph order and directed the district court to
     hold further proceedings “regarding petitioner’s claim that he is
     a national of the United States.” Order, Garcia v. Dep’t of
     Homeland Security, No. 05-2818-ag (2d Cir. Sept. 26, 2006); see
     also 8 U.S.C. § 1252(b)(5)(B) (2006).

                                    4
 1   naturalized.3     Garcia, 657 F. Supp. 2d at 407–08.

 2        Throughout the initial proceedings, Garcia proceeded

 3   pro se.   When the case came before us, we appointed Garcia

 4   pro bono counsel and asked for supplemental briefing.

 5                                  II.

 6                                   A.

 7        Prior to its repeal, INA § 321 provided, in pertinent

 8   part:

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

12             . . .

13             (3) The naturalization of the parent having
14        legal custody of the child when there has been a
15        legal separation of the parents . . .; and if

16             (4) Such naturalization takes place while such
17        child is under the age of eighteen years . . . .

18   INA § 321, 8 U.S.C. § 1432(a) (1996) (emphasis added),

19   repealed by Child Citizenship Act Of 2000, Title I,

20   § 103(a), 114 Stat. 1632.

21        The parties agree that when Garcia’s father naturalized

22   on April 20, 1996, (1) there was “a legal separation of the

23   parents” and (2) Garcia was under the age of eighteen.       The

          3
             From the record, it appears that neither Garcia nor the
     Government ever questioned the enforceability of the divorce
     decree’s purported custody award.

                                     5
 1   parties disagree as to whether Garcia was in the “legal

 2   custody” of his father at the time.

 3       “Legal custody” is a matter of federal law.      See Fierro

 4   v. Reno, 217 F.3d 1, 4 (1st Cir. 2000).      Nevertheless, we

 5   often look to state law for a rule of decision

 6   “[w]here . . . there is no extant body of federal common law

 7   in the area of law implicated by the statute.”      Brissett v.

 8   Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004).      For example, in

 9   Brissett, we held that the term “legal separation” contained

10   in the same subsection of the statute requires a formal act,

11   as defined by state law, that alters the marital

12   relationship.   Brissett, 363 F.3d 133-34.     In New York, the

13   qualifying “formal act” is either divorce (termination of

14   the marriage) or a formal written or judicial separation,

15   which recognizes the separate existence of the marital

16   parties.   See id.    We believe a similar reference to state

17   law is appropriate, at least initially, for determining

18   “legal custody,”     as “[l]egal relationships between parents

19   and children are typically governed by state law, there

20   being no federal law of domestic relations.”      Fierro, 217

21   F.3d at 4 (internal quotation marks omitted).

22


                                     6
 1       The first step in deciding whether a naturalizing

 2   parent has “legal custody” of a child for purposes of

 3   derivative citizenship is to determine whether a judicial

 4   decree or statutory grant awards custody to the naturalizing

 5   parent.   Bagot v. Ashcroft, 398 F.3d 252, 268-69 (3d Cir.

 6   2005) (Rosenn & Nygaard, concurring).      But, notwithstanding

 7   a formal termination of the marriage, what if there is no

 8   judicial or authorized determination of custody?      In

 9   Brissett, we indicated that the absence of a formal judicial

10   determination or written separation agreement was fatal to a

11   derivative citizenship claim.       Brissett, 363 F.3d at 134.

12   Is an immigrant child of a naturalizing alien denied

13   citizenship because there is no court order or formalized

14   custody agreement?    We think not; we are not convinced that

15   our reasoning in Brissett equally applies to determinations

16   of “legal custody.”

17       In Matter of M—, 3 I. & N. Dec. 850 (BIA 1950), a child

18   was born in Czechoslovakia to married parents; the mother

19   was German and the father Jewish.      In 1940, the mother

20   “annulled” the marriage and father and daughter immigrated

21   to the United States.    They were lawfully admitted, and the

22   father naturalized in 1947 when the child was under the age


                                     7
 1   of eighteen.     Id. at 850–51.   The “annulment,” which the

 2   Board of Immigration Appeals (“BIA”) treated as a divorce,

 3   made no provision for custody, but the mother had

 4   surrendered custody to the father.      Id. at 851, 854.

 5        The BIA held:

 6        [I]n the absence of judicial determination or
 7        judicial or statutory grant of custody in the case
 8        of legal separation of the parent of a person
 9        claiming citizenship under section 314(c) [INA
10        § 321(a)’s predecessor], the parent having actual
11        uncontested custody is to be regarded as having
12        “legal custody” of the person concerned for the
13        purpose of determining that person’s status under
14        section 314(c).

15   Id. at 856.     We “accord substantial deference to the BIA’s

16   interpretations of the statutes and regulations that it

17   administers.”     Brissett, 363 F.3d at 133.    Moreover, Matter

18   of M— has been the law for sixty-one years without

19   congressional intervention.4      The BIA’s interpretation,

          4
             Indeed, Congress specifically softened the custody
     requirement when it enacted the successor statute to former INA
     § 321:

               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

                                       8
 1   thus, has substantial persuasive weight.     See Zhang v.

 2   Holder, 617 F.3d 650, 662 (2d Cir. 2010) (citing Commodity

 3   Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986))

 4   (other citations omitted).

 5        Decisions about the marital relationship tend to be

 6   final; custody decisions, in contrast, tend to be fluid and

 7   frequently change depending on the parents’ situations and

 8   well-being.    See Bagot, 398 F.3d at 270   (Rosenn & Nygaard,

 9   concurring).   Parents’ “agreement to transfer legal custody

10   [is] within the purview of their authority and . . . it is

11   not necessary for parents to come into court to change or

12   amend a de[c]ree of divorce every time they . . . jointly

13   make a major decision concerning the care and custody of

14   their children.”    Tabucbuc v. Ashcroft, 84 F. App’x 966, 969

15   (9th Cir. 2004) (internal quotation marks omitted)

16   (unpublished memorandum).

17        Requiring a formal act to change custody—something more

18   than mere agreement—is counterintuitive to the attempts that

19   parents make following a divorce to conduct their lives and

20   those of their children with one goal: the children’s best



          pursuant to a lawful admission for permanent residence.

     8 U.S.C. § 1431(a) (2006).

                                    9
 1   interest.   Moreover, in the absence of a judicial

 2   determination giving one parent sole custody of the child,

 3   each parent generally retains the rights and

 4   responsibilities that come with parenthood.    N.Y. Dom. Rel.

 5   Law § 81 (McKinney 2010); see also 45 N.Y. Jur. 2d Dom. Rel.

 6   § 333.

 7       Our holding today is consistent with our decision in

 8   Brissett.   Divorce and judicial separation are inherently

 9   different from custody decisions.    Bagot, 398 F.3d at 267;

10   see also Morgan v. Att’y Gen., 432 F.3d 226, 234 (3d Cir.

11   2005) (recognizing after Bagot that in contrast to “legal

12   custody,” “legal separation” does require a “formal

13   governmental action”).   The BIA itself has recognized as

14   much.    Compare Brissett, 363 F.3d at 133-34 (recognizing

15   that the BIA interprets “legal separation” to require a

16   formal act), with Matter of M-, 3 I. & N. Dec. at 856 (BIA’s

17   interpretation that “actual uncontested custody” can

18   constitute “legal custody”).

19                                  B.

20       In his supplemental brief, Garcia argues that New York

21   would not recognize the Dominican Republic custody award and

22   that if the Dominican custodial decree is unenforceable, the


                                    10
 1   parent with actual uncontested custody is the parent with

 2   “legal custody” for the purpose of evaluating his derivative

 3   citizenship claim.   We agree.

 4        At the time that Garcia’s mother secured the divorce,

 5   Garcia and his family resided in New York and had resided

 6   there for four years; New York was their “home state.”        At

 7   that time, New York had enacted the Uniform Child Custody

 8   Jurisdiction Act (“UCCJA”).5     Pursuant to the UCCJA, New

 9   York would not even consider recognizing a foreign custody

10   award unless the foreign law substantially complied with the

11   UCCJA.6   N.Y. Dom. Rel. Law § 75-n (McKinney 1987); N.Y.

12   Dom. Rel. Law § 75-w (McKinney 1987).     As the New York Court

13   of Appeals explained, the UCCJA required “[m]aximum rather

14   than minimum contacts with the State.”     Vanneck v. Vanneck,

15   49 N.Y.2d 602, 610 (1980).

16


          5
             The UCCJA limited the jurisdictional bases for making a
     custody determination. N.Y. Dom. Rel. Law § 75-d (McKinney
     1987). New York replaced the UCCJA with the Uniform Child
     Custody Jurisdiction and Enforcement Act (UCCJEA) on April 29,
     2002. We include the text of former § 75-d as an appendix to
     this opinion.
          6
             In contrast to the UCCJEA, which mandates recognition of
     a foreign custody award made in substantial accordance with the
     UCCJEA, see N.Y. Dom. Rel. Law § 75-d(1) (McKinney 2010), UCCJA
     merely encouraged recognition and enforcement of such awards, see
     N.Y. Dom. Rel. Law § 75-w (McKinney 1987).

                                      11
 1          It is quite clear that New York had jurisdiction to

 2   determine custody, not the Dominican Republic.     New York was

 3   Garcia’s home state when his mother secured the divorce; his

 4   family had lived in New York for four years prior to the

 5   divorce.    Moreover, the record reflects that no other

 6   jurisdictional basis was present.    Therefore, the Dominican

 7   Republic custodial award was not made in “substantial

 8   accordance” with the UCCJA.    Garcia is correct; New York

 9   would not recognize the award.7

10          This case thus turns then on who had “actual

11   uncontested custody” of Garcia when his father naturalized.

12   Two predominant indicators of “actual uncontested custody”

13   are (i) the child’s physical residence, and (ii) consent to

14   custody by the non-custodial parent.    See Bagot, 398 F.3d at

15   267.

16          In the district court, Garcia, acting as his own

17   counsel, presented largely uncontradicted evidence that he

18   was in his father’s “actual uncontested custody” when his



            7
             Our conclusion that New York would not recognize the
     Dominican Republic custody award is also consistent with the
     United States’ obligations under the Hague Convention. We are
     mindful that district courts must ensure that their
     determinations of “actual uncontested custody” involving a
     foreign person or custody determination comply with the Hague
     Convention. See 42 U.S.C. §§ 11601-11611.

                                    12
 1   father naturalized.     When Garcia’s father became a citizen,

 2   he resided at 201 West 109th Street, Basement Apartment.

 3   The affidavits of Garcia and each of his parents provide

 4   unrebutted evidence that Garcia resided with both parents at

 5   that address from 1989 to at least August 1994.

 6       A middle school abstract (procured by Garcia’s pro bono

 7   counsel and submitted with this appeal) confirms that Garcia

 8   resided at 201 West 109th Street, Basement Apartment, during

 9   the 1993 school year.     The affidavits of Garcia and his

10   mother each discuss her move out of the family residence in

11   August 1994, leaving Garcia with his father at 201 West

12   109th Street, and that Garcia’s father was “legally,

13   financially, [and] physically responsible for him.”     His

14   parents contended that they had agreed that Garcia would

15   remain with his father and not move out with his mother.

16   The affidavits are further corroborated by a 2003 U.S. Alien

17   Change of Address form completed by Garcia, which lists

18   Garcia’s “OLD address”—i.e., up until 2003—as his father’s.

19   Garcia alleges that this piece of evidence connects the

20   dates between the school records from the 1990s through and

21   past 1996 (when his father naturalized).

22


                                     13
 1        Before the district court, the Government pointed out

 2   that Garcia’s father’s 1988 and 1992 tax returns either

 3   listed Garcia as a dependent without providing his address,

 4   or indicated that he had no dependents.8     It also argued

 5   that in 1993, Garcia’s father submitted an affidavit in

 6   support of his second wife’s visa application that listed no

 7   dependents.9   In addition, Garcia’s father’s naturalization

 8   application omitted Garcia’s address, an omission that the

 9   Government argues means that Garcia must have lived with his

10   mother.10

11        In our view, there is a genuine dispute of material

12   fact about which parent (if either) had uncontested custody

13   of Garcia when his father naturalized.     The Government and


          8
             The Government did not place the 1992 tax return into the
     record and Garcia’s appointed counsel suggests that the
     Government does not have a copy; the district court should ensure
     that the tax return is in the record if it chooses to rely on the
     tax return.
          9
             As with the 1992 tax return, the Government did not place
     the affidavit into the record and Garcia’s appointed counsel
     suggests that the Government does not have a copy; if the
     district court relies on the affidavit, it must be part of the
     record.
          10
             We believe that the omission can equally be understood
     as a lack of adequate space on the naturalization form or minimal
     understanding of the English language. The naturalization form
     had seven lines for children. Garcia’s father had eight
     children. He listed Garcia on an additional page, which lacked
     the form blanks to enter Garcia’s date of birth, country of
     birth, citizenship, alien number, and address.

                                    14
 1   district court relied almost entirely upon the Dominican

 2   Republic divorce decree to resolve the matter; without the

 3   divorce decree, the Government has introduced very little

 4   evidence to contradict Garcia’s claim.    It is the district

 5   court, however, that must weigh the probative value of

 6   Garcia’s and the Government’s evidence.    8 U.S.C.

 7   § 1252(b)(5)(B) (2006).

 8       Garcia now has the benefit of appointed counsel, who

 9   has diligently searched for and found additional

10   records—such as Garcia’s school records—that shed further

11   light on the issue of actual uncontested custody.     Further,

12   when acting pro se, Garcia was detained at the Batavia

13   immigration detention center, which severely limited his

14   ability to provide the court with documents and other

15   evidence that might assist it in making its determination of

16   which, if either, of Garcia’s parents had actual uncontested

17   custody of him when his father naturalized.    Thus, we

18   instruct the district court to hold a hearing under 8 U.S.C.

19   § 1252(b)(5)(B) (2006).

20       The district court should conduct this hearing in the

21   same manner that it conducts any other evidentiary hearing.

22   The district court should give Garcia’s appointed counsel


                                  15
 1   (and the Government) a fair opportunity to supplement the

 2   record, if necessary, with any additional evidence,

 3   including witness testimony, that is material to the custody

 4   issue.

 5                                  III.

 6        We appoint Garcia counsel in the district court.      We

 7   may appoint an unrepresented party counsel if we find the

 8   factors set forth in Hodge v. Police Officers, 802 F.2d 58

 9   (2d Cir. 1986), satisfied.     These factors include:

10   (1) whether the party’s claim has substantial merit;

11   (2) whether the nature of the factual issues requires an

12   investigation, and whether the party’s ability to

13   investigate is inhibited; (3) whether the claim’s factual

14   issues turn on credibility, which benefits from the skills

15   of those trained in presentation of evidence and cross-

16   examination; (4) the party’s overall ability to present its

17   case; and (5) whether the legal issues presented are

18   complex.   Hodge, 802 F.2d at 60-61.    We find that all of

19   these factors favor appointing Garcia counsel in the

20   district court.   Therefore, we instruct the district court

21   to appoint Garcia counsel.11    28 U.S.C. § 1915(e) (2006);

          11
             We note that W.D.N.Y. Local Rule 83.1(f) requires
     members of the district court’s bar to be available “upon the

                                     16
 1   Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997);

 2   Hodge, 802 F.2d at 60-61.

 3                                 IV.

 4        We have reviewed Garcia’s other claims on appeal and

 5   find them to be without merit.      To conclude, we VACATE and

 6   REMAND the district court’s order and judgment.      We instruct

 7   the district court to hold a hearing consistent with this

 8   opinion, and we appoint Garcia counsel for the district

 9   court proceedings.   We continue Garcia’s stay of removal

10   pending further proceedings in this court.

11        VACATED and REMANDED.




     Court’s request for appointment to represent or assist in the
     representation of indigent parties.” We take judicial notice
     that Garcia’s appointed counsel before this court, Mr. Timothy W.
     Hoover, is a member of the Western District Bar. We appreciate
     Mr. Hoover’s outstanding representation before us. We recommend
     that the district court ask Mr. Hoover to continue representation
     in the district court, and if he declines, appoint another
     attorney to represent Garcia pro bono.

                                    17
09-4211-pr
Garcia v. USICE

                          APPENDIX

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 this 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 a 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

     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.
2.   Except under paragraphs (c) and (d) of subdivision one
     of this section, physical presence in this state of the
     child, or of the child and one of the contestants, is
     not alone sufficient to confer jurisdiction on a court
     of this state to make a child custody determination.

3.   Physical presence of the child, while desirable, is not
     a prerequisite for jurisdiction to determine his
     custody.

N.Y. Dom. Rel. Law § 75-d (McKinney 1987) (emphasis added).




                          App'x 2
