                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-4012
                                    _____________

                             KWAME BOATENG SAKYI,

                                                      Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent.
                                    _____________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A045-161-469)
                         Immigration Judge: Andrew Arthur
                                    _____________

                                 Argued July 13, 2012

              Before: FUENTES, HARDIMAN, and ROTH Circuit Judges

                          (Opinion Filed: September 5, 2012)

Robert A. Arhin, Esq. [ARGUED]
Arhin and Associates
1003 K Street, N.W., Suite 670
Washington, DC 20001

Yedidya Cohen, Esq. [ARGUED]
Jennifer P. Williams, Esq.
Office of Immigration Litigation
United States Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
                                       _____________

                               OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge:

       Kwame Boateng Sakyi petitions this Court for review of the Board of Immigration

Appeals’ final order of removal. We conclude that this case presents a genuine issue of

material fact regarding Sakyi’s nationality. Therefore, we will transfer the proceeding for

a new hearing before a district court pursuant to 8 U.S.C. § 1252(b)(5)(B).

                                              I

       Because we write primarily for the parties, who are well acquainted with the case,

we recite only the facts essential to our disposition of this petition. Sakyi was born in

Ghana in October 1982 and immigrated to the United States as a lawful permanent

resident in August 1995. In February 1996, Sakyi’s parents were divorced by decree of

the Superior Court of the District of Columbia. In a two-page form order, the Superior

Court awarded custody of Sakyi to his maternal grandmother in Ghana—apparently on

the mistaken belief that he was living with her there. In September 1999, when Sakyi

was 16 years old, his mother became a naturalized U.S. citizen. There is no evidence that

Sakyi’s father has ever naturalized.

       In April 2007, Sakyi pleaded guilty to charges of conspiracy to possess heroin

with the intent to distribute and was sentenced to 70 months’ imprisonment. While Sakyi

was serving his sentence at the Allenwood Federal Correctional Complex in White Deer,

Pennsylvania, the Department of Homeland Security (“DHS”) initiated removal



                                              2
proceedings against him on the ground that this heroin conviction constituted an

aggravated felony and a controlled substance violation. Sakyi contested his removability

on the basis that he was a U.S. citizen, having derived citizenship through his mother. To

prove that he was in his mother’s legal custody at the time of her naturalization, Sakyi

and his sister gave testimony at a hearing before the Immigration Judge (the “IJ”) and

Sakyi submitted documentary evidence and affidavits from his mother and his aunt. DHS

presented documentary evidence suggesting that Sakyi lived with his nearby aunt at the

time. The IJ found that Sakyi had failed to carry his burden of demonstrating by a

preponderance that his mother had legal custody of him at the time of her naturalization.

Since Sakyi had not raised any other defenses to removal or applications for relief, the IJ

ordered Sakyi removed. The Board of Immigration Appeals (the “BIA”) affirmed on

September 14, 2011, and Sakyi filed this petition for review. 1

                                             II

       We have jurisdiction over Sakyi’s petition for review of the BIA’s final order of

removal pursuant to 8 U.S.C. § 1252. See Papageorgiou v. Gonzalez, 413 F.3d 356, 357

(3d Cir. 2005) (observing that we have jurisdiction to determine whether the petitioner is

in fact an alien). Our review of Sakyi’s citizenship claim is governed by 8 U.S.C.

§ 1252(b)(5), which provides:

       (A) Court determination if no issue of fact. If the petitioner claims to be a
       national of the United States and the court of appeals finds from the

1
  We denied Sakyi’s motion for a stay of removal on December 15, 2011, and Sakyi was
removed to Ghana on March 14, 2012. Prior to his removal, Sakyi was detained by DHS
at the Clinton County Correctional Facility in McElhattan, Pennsylvania, and in the York
County Prison in York, Pennsylvania.

                                             3
       pleadings and affidavits that no genuine issue of material fact about the
       petitioner’s nationality is presented, the court shall decide the nationality
       claim.

       (B) Transfer if issue of fact. If the petitioner claims to be a national of the
       United States and the court of appeals finds that a genuine issue of material
       fact about the petitioner’s nationality is presented, the court shall transfer
       the proceeding to the district court of the United States for the judicial
       district in which the petitioner resides for a new hearing on the nationality
       claim and a decision on that claim as if an action had been brought in the
       district court under section 2201 of Title 28.

       (C) Limitation on determination. The petitioner may have such nationality
       claim decided only as provided in this paragraph.

8 U.S.C. § 1252(b)(5) (underlining added).

       Under this section, we must determine whether Sakyi’s citizenship claim presents

a genuine issue of material fact. Our standard for making this determination is identical

to the standard we use for reviewing a district court’s grant of summary judgment.

Joseph v. Att’y Gen., 421 F.3d 224, 229 (3d Cir. 2005). “[A] court of appeals cannot

refuse to allow a de novo review of a citizenship claim if the evidence presented in

support of the claim would be sufficient to entitle a litigant to trial were such evidence

presented in opposition to a motion for summary judgment.” Id. at 229-30 (quoting

Agosto v. INS, 436 U.S. 748, 756 (1978)). “Accordingly, the government, as the party

seeking what amounts to summary judgment, bears the burden of establishing that no

genuine issue of material fact exists and that the undisputed facts establish its right to

judgment as a matter of law.” Id. at 230 (internal quotation marks omitted). Thus, the

sole issue before us is whether the Government is entitled to what amounts to summary

judgment on Sakyi’s derivative citizenship claim.



                                              4
                                              III

       At all times relevant to this case, the statute on derivative citizenship provided that

“[a] child born outside the United States of alien parents . . . becomes a citizen of the

United States” upon “[t]he naturalization of the parent having legal custody of the child

when there has been a legal separation of the parents.” INA § 321(a), 8 U.S.C. § 1432(a)

(1995), repealed and superseded by Child Citizenship Act of 2000, Pub. L. No. 106-395,

114 Stat. 1631 (2000). 2 Under former INA § 321(a)(3), Sakyi must prove four essential

facts to establish his U.S. citizenship: (i) that his mother was naturalized after a legal

separation from his father; (ii) that his mother was naturalized before he turned eighteen;

(iii) that he was residing in the United States as a legal permanent resident at the time of

his mother’s naturalization; and (iv) that his mother had legal custody of him at the time

of her naturalization. See Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005). The

government concedes the first three of these facts. This case therefore turns on whether

Sakyi was in the legal custody of his mother at the time of her naturalization.

       The leading case in this Circuit on “legal custody” for the purpose of derivative

citizenship is Bagot v. Ashcroft, 398 F.3d 252. Under the majority opinion in that case,

legal custody is resolved in the first instance by a valid judicial determination of custody

in the specific case. Id. at 254. If there is no such determination, legal custody means

“actual uncontested custody.” Id.; see also id. at 270 (Nygaard and Rosenn, JJ.,



2
 Former INA § 321(a), 8 U.S.C. § 1432(a), controls this case notwithstanding the Child
Citizenship Act of 2000 because Sakyi’s mother was naturalized in 1999, before § 321(a)
was repealed. See Joseph, 421 F.3d at 230 n.11.

                                               5
concluding therefore that an analysis of state custody law is “unnecessary and irrelevant”

in the absence of a valid custody decree).

                                             A

       We first consider, as a matter of law, whether the D.C. divorce decree purporting

to award custody of Sakyi to his grandmother in Ghana was a valid judicial determination

of custody. The IJ determined that the D.C. Superior Court lacked authority under Bagot

to enter the custody award in this case, and the BIA assumed the same. Before this

Court, however, the Government argues that the D.C. Superior Court’s divorce decree is

valid and that, therefore, Sakyi’s grandmother, not his mother, had legal custody of him

at the relevant time. We disagree.

       The Government contends that that Court could have exercised subject-matter

jurisdiction to determine custody if (1) Sakyi was living in D.C. at the time of the

commencement of his parents’ divorce proceedings, or (2) Sakyi and at least one parent

had a significant connection with the District of Columbia and there was substantial

evidence available in the District concerning his future care, protection, training, and

personal relationships. See D.C. Code § 16-4503(a)(1)-(2) (1981) (repealed 2001).

       We conclude, however, that the D.C. Superior Court lacked authority to invoke

jurisdiction on grounds of residency or “significant connection” given that it believed that

Sakyi was residing in Ghana and the court made no findings of fact as to the

appropriateness of the forum to determine custody. Cf. Bagot, 398 F.3d at 264-65. In

addition, D.C. law did not authorize the Superior Court to award custody to a non-party

in divorce proceedings. See T.S. v. M.C.S., 747 A.2d 159, 163 (D.C. 2000) (holding that


                                              6
“the divorce statutes do not authorize the trial judge to award custody of the children to

their grandmother, especially where the grandmother has not consented”); see also W.D.

v. C.S.M., 906 A.2d 317, 321 (D.C. 2006) (reaffirming that the D.C. divorce statutes

contemplate an award of custody only between parents).

                                              B

       Because the D.C. Superior Court’s custody award was invalid, we must consider

whether Sakyi’s mother could have had actual uncontested custody of him at the time that

she naturalized. As the Government candidly concedes, any inquiry into actual

uncontested custody in this case “raises a material question of fact because there is

conflicting evidence in the record.” (Respondent’s Br. at 33). Sakyi has introduced

testimony and affidavits that he was in his mother’s custody at the time of her

naturalization. In addition, while other evidence suggests that he may have resided

instead with his aunt, that is not necessarily inconsistent with his mother having “actual

uncontested custody” of him.

       Because this issue presents a genuine issues of material fact, we will transfer this

proceeding to “the district court of the United States for the judicial district in which the

petitioner resides for a new hearing on the nationality claim and a decision on that claim

as if an action had been brought in the district court [for a declaratory judgment] under

section 2201 of Title 28.” 8 U.S.C. § 1252(b)(5)(B). Although, since his removal, Sakyi

no longer resides in any United States judicial district, all of his places of incarceration

and detention during the removal proceedings in this case were located in the Middle




                                               7
District of Pennsylvania. Both parties therefore agree that that district is the proper venue

of any transfer under 8 U.S.C. § 1252(b)(5)(B), and we also agree.

                                              IV

       Accordingly, we will vacate the order of the BIA and transfer the proceeding to

the United States District Court for the Middle District of Pennsylvania for a de novo

hearing and declaratory judgment on Sakyi’s nationality claim. Should this matter be

returned to this Court, it shall be assigned to this Panel for disposition on the merits.




                                              8
