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


9-26-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-2055




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                                                  PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 03-2055


            MARK ANTHONY HERBERT JORDON

                                 v.

     ATTORNEY GENERAL OF THE UNITED STATES,*

                                  Appellant


            Initially docketed as an Appeal from the
                    United States District Court
             for the Middle District of Pennsylvania
                      (D.C. No. 01-cv-01732)
             District Judge: Honorable Yvette Kane
           Converted to a Petition for Review from the
                  Board of Immigration Appeals
               Pursuant to the Real ID Act of 2005
                          (A 24 003 878)




       *
         Because we have converted the present case into a petition
for direct review, we are required to substitute the Attorney General
for the current respondent (Bureau of Immigration and Customs
Enforcement). 8 U.S.C. § 1252(b)(3)(A).
                      Argued May 9, 2005
        Before: SLOVITER and FISHER, Circuit Judges,
                 and POLLAK,** District Judge.

                   (Filed: September 26, 2005)

Linda S. Wernery
John M. McAdams, Jr. (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
       Attorneys for Appellant

Daniel I. Siegel
Ronald A. Krauss (Argued)
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
       Attorneys for Appellee



                   OPINION OF THE COURT


FISHER, Circuit Judge.




       **
         The Honorable Louis H. Pollak, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                 2
        Appellee Mark Anthony Herbert Jordon filed a petition for
writ of habeas corpus under 28 U.S.C. § 2241 in the United States
District Court for the Middle District of Pennsylvania challenging a
final order to remove him on grounds that he is a non-removable,
derivative United States citizen under the since-repealed 8 U.S.C.
§ 1432(a). The District Court granted Jordon’s petition. Under the
recently enacted REAL ID Act, we will vacate the District Court’s
decision, convert Jordon’s habeas petition into a petition for review,
and deny that petition for review because Jordon cannot establish a
required element of derivative United States citizenship under
§ 1432(a).

                                  I.

                   Facts and Procedural History

        Jordon was born in London, England, on May 7, 1970.
Jordon’s parents, Celeste and Herbert Jordon, were married at the
time of his birth. In 1975, Jordon and his family moved to Jamaica.
Shortly thereafter in 1975, Jordon’s mother and sister moved to New
York, New York, but Jordon stayed in Jamaica with his father. On
March 15, 1979, Jordon came to the United States to live with his
mother in New York. In 1980, Jordon adjusted his immigration status
to that of lawful permanent resident.

       On March 13, 1985, when Jordon was fourteen years old, his
mother became a naturalized United States citizen. At some point in
1988, Jordon’s father moved to New York to live with his wife and
children. On May 7, 1988, Jordon turned eighteen years old. In
1989, Jordon’s mother began divorce proceedings in New York state
court. The divorce court ultimately found that Jordon’s father had
abandoned Jordon’s mother at some time prior to June 30, 1988, but



                                  3
did not specify a precise date of abandonment. In 1991, the divorce
became final and Jordon’s father returned to Jamaica.

        On March 11, 1991, Jordon was convicted in the Supreme
Court of New York, Kings County, for criminal possession of a
loaded pistol and received a one-year prison sentence. As a result of
Jordon’s conviction, an immigration judge found that he was
deportable under 8 U.S.C. § 1231(a)(2)(C) and entered an order of
deportation in absentia on August 16, 1994. Jordon filed a motion to
reopen the order on April 24, 1997, asserting that he had not received
notice of his deportation hearing. The Board of Immigration Appeals
(BIA) denied the motion on May 22, 1997. On June 22, 1997, Jordon
was deported to England.

      In December 1999, Jordon returned to the United States and
was admitted under the Visa Waiver Program.1 On December 21,

       1
          The Visa Waiver Program permits visitors from certain
countries (including England) to enter the United States without a
visa if they satisfy certain requirements, including, for example, that
they do not “represent a threat to the welfare, health, safety, or
security of the United States[,]” 8 U.S.C. § 1187(a)(6), and are “in
possession of a round-trip transportation ticket.” Id. at § 1187(a)(8).
In exchange for admission under the Program, the alien is statutorily
required to execute a waiver of his rights “to review or appeal ... an
immigration officer’s determination as to the admissibility of the
alien at the port of entry into the United States, or to contest, other
than on the basis of an application for asylum, any action for removal
of the alien.” Id. at § 1187(b); Itaeva v. INS, 314 F.3d 1238, 1239
(10th Cir. 2003).

       In his post-argument submission to the Court at the Court’s
request, Jordon’s counsel denies that Jordon was readmitted under the

                                  4
1999, in connection with his readmission under the Visa Waiver
Program, Jordon executed a Nonimmigrant Visa Waiver Arrival /
Departure Form (Form I-94W). On the Form I-94W, Jordon checked
“No” next to the question asking whether he had “ever been arrested
or convicted for an offense or crime involving moral turpitude or a
violation related to a controlled substance; or been arrested or
convicted for two or more offenses for which the aggregate sentence
to confinement was five years or more; or been a controlled substance
trafficker; or are you seeking entry to engage in criminal or immoral
activities.” The Form I-94W Jordon executed includes a “Waiver of
Rights” provision which states that “I hereby waive any rights to
review or appeal of an immigration officer’s determination as to my
admissibility, or to contest, other than on the basis of an application
for asylum, any action in deportation.” The Form also includes a


Visa Waiver Program, stating specifically that:

       Counsel knows of no documentation in the record that
       Mr. Jordon was readmitted through the Visa Waiver
       Program, and, specifically, no documentation that he
       executed the waiver required under 8 U.S.C.
       § 1187(b). Further, Mr. Jordon has no recollection of
       executing such a waiver, nor does he have any
       recollection that he was readmitted through the Visa
       Waiver Program. Thus, Mr. Jordon would deny both
       that he was readmitted through the Visa Waiver
       Program and that he executed a § 1187(b) waiver.

But, as discussed below, the supplemental declaration of Ms.
Richardson includes, as attachments, copies of official documentation
which appear indisputably to establish that Jordon did, in fact, reenter
the United States in 1999 under the Visa Waiver Program, and we
will credit the authenticity of that documentation.

                                   5
“Certification” provision stating that “I certify that I have read and
understand all the questions and statements on this form. The
answers I have furnished are true and correct to the best of my
knowledge and belief.” Jordon signed his name and entered the date
“12/21/99” immediately below the “Waiver of Rights” and
“Certification” provisions.

       Apparently on the same day he executed the Form I-94W,
Jordon was arrested and charged with illegal reentry under 8 U.S.C.
§§ 1326(a) and 1326(b)(2).2 On May 16, 2000, he pleaded guilty to
a one-count information charging illegal reentry under 8 U.S.C.
§§ 1326(a) and 1326(b)(2) and was later sentenced to a prison term
of 57 months. He served his prison term at LSCI-Allenwood,
Pennsylvania, a facility operated by the Federal Bureau of Prisons.

       On October 18, 2000, the Immigration and Naturalization
Service (INS)3 filed an immigration detainer notice with the Bureau
of Prisons.4 On December 13, 2000, the INS issued several


       2
       The record is unclear as to the precise dates of Jordon’s
readmission and subsequent arrest, but the precise dates are
immaterial for our purposes.
       3
        As a result of the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002), the INS has ceased to exist as an
agency within the United States Department of Justice. Its
enforcement functions now reside in the Bureau of Immigration and
Customs Enforcement (BICE) within the Department of Homeland
Security. See also Vente v. Gonzales, 415 F.3d 296, 299 n.1 (3d Cir.
2005).
       4
         This detainer notice indicated that an “[i]nvestigation has
been initiated to determine whether this person [Jordon] is subject to

                                  6
documents relating to Jordon and his impending deportation as a
result of his illegal reentry conviction. First, it issued a “Notice of
Intent to Remove for Violating the Terms of Your Admission Under
Section 217 of the Immigration and Nationality Act,” which stated
that INS had found that Jordon had reentered the United States under
the Visa Waiver Program, executed a waiver in connection with his
reentry of his right “to contest deportability before an Immigration
Judge and the Board of Immigration Appeals, and to any judicial
review of any and all of the above decisions: except for the filing of
an application for political asylum[,]” and violated the terms of his
readmission under the Visa Waiver Program by virtue of his illegal
reentry conviction under 8 U.S.C. § 1326(a) and (b)(2).

        The “Notice of Intent to Remove” also informed Jordon that
the INS had entered an order to deport him from the United States.
This order, also issued on December 13, 2000 and denominated
“Order of Deportation, Section 217 and 241,” stated that Jordon was
not a United States citizen or national, was admitted under the Visa
Waiver Program, and had violated the conditions of his admission
under the Program by illegally reentering the United States under
§§ 1326(a) and (b)(2). It also informed Jordon that he had executed
the waiver set forth in the “Notice of Intent to Remove,” and ordered
that he be deported.

         On September 5, 2001, while still serving his prison term for
illegal reentry, Jordon filed a petition for writ of habeas corpus under


removal from the United States.” The notice stated that it was “for
notification purposes only” and that it did not limit the Allenwood
facility’s discretion with respect to any decision affecting Jordon.
The notice also directed the Allenwood facility to notify the INS at
least 30 days prior to Jordon’s release or in the event of his death or
transfer.

                                   7
28 U.S.C. § 22415 in the United States District Court for the Middle
District of Pennsylvania challenging his impending deportation.
Jordon argued, inter alia, that he was not removable because he was
a derivative United States citizen under 8 U.S.C. § 1432(a) as a result
of his mother’s naturalization as a United States citizen. The
magistrate judge recommended granting the petition and, on
February 12, 2003, the District Court followed that recommendation,
granted the petition and directed Jordon’s immediate release from
INS’s “custody.”6 The District Court found, among other things, that


        5
         The habeas statute provides, in pertinent part, that “[t]he writ
of habeas corpus shall not extend to a prisoner unless ... [h]e is in
custody under or by color of the authority of the United States; or ....
in violation of the Constitution or laws or treaties of the United States
....” 28 U.S.C. § 2241(c).
        6
           At the time the District Court granted his petition, Jordon was
still in the physical custody of the Bureau of Prisons at the Allenwood
facility, not the physical custody of the INS. Nonetheless, physical
detention is not required for a petitioner to meet the “in custody”
requirement of § 2241, see Rumsfeld v. Padilla, 542 U.S. 426, 124 S.
Ct. 2711, 2719 (2004) (“[O]ur understanding of custody has
broadened to include restraints short of physical confinement[.]”);
Jones v. Cunningham, 371 U.S. 236, 239-40 (1963) (noting that
custody may be established by restraints on one’s liberty other than
physical confinement), and there is authority in several of our sister
circuits that one subject to a final deportation order issued by the INS
or its successor agency is thereby “in custody” for § 2241 purposes.
See Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003); Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001); Mustata v. United
States Dep’t of Justice, 179 F.3d 1017, 1021 n.4 (6th Cir. 1999);
Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995).
Thus, there was at least colorable authority to support the INS’s

                                    8
legal separation of one’s parents within the meaning of § 1432(a)(3)
need not occur prior to the naturalization of the custodial parent. In
its view, § 1432(a)(3) requires only that the custodial parent’s
naturalization occur before the child turns eighteen, regardless of
whether the child’s parents legally separated before or after such
naturalization. Thus, the District Court concluded, Jordon did not
need to prove that his parents were legally separated at the time of his
mother’s naturalization.

        BICE7 filed a timely notice of appeal on April 11, 2003. See
Fed. R. App. P. 4(a)(1)(B). In May 2003, BICE filed a Fed. R. Civ.
P. 60(b) motion, arguing that the District Court lacked subject matter
jurisdiction because Jordon was not in immigration custody at the
time he filed his petition as required by § 2241. On December 17,
2003, the District Court denied the Rule 60(b) motion.

                                  II.

            Jurisdiction / Scope and Standard of Review

       We begin, as we must, with jurisdiction. This appeal was
briefed and argued in the pre-REAL ID Act era, and at that time
presented jurisdictional questions regarding exhaustion, the “in


“custody” over Jordon at the time he filed his petition. For reasons
discussed further below, we need not and do not decide whether a
final deportation order issued by INS (or, now, BICE) places one “in
custody” of INS (or BICE) for § 2241 purposes.
       7
        Although, as noted above, we have substituted the Attorney
General of the United States as the appellant in this appeal, we will
refer to the appellant herein as BICE for purposes of historical
accuracy.

                                   9
custody” habeas requirement under § 2241, and the scope of a district
court’s habeas jurisdiction over nationality claims such as Jordon’s
in light of certain provisions of 8 U.S.C. § 1252. For the reasons that
follow, we will convert this appeal into a petition for review and
exercise jurisdiction over it under the REAL ID Act, thus obviating
any need to address the questions relating to habeas jurisdiction.8

       8
         We will assume without deciding that Jordon exhausted his
derivative citizenship claim as required by 8 U.S.C. § 1252(d)(1). It
is true that “the exhaustion requirement of 8 U.S.C. § 1252(d) is
jurisdictional,” Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005),
and that we are generally obligated to address jurisdictional questions.
See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-94
(1998) (rejecting notion of “hypothetical jurisdiction” adopted by
some courts of appeals whereby those courts would assume
jurisdiction and assess the underlying merits); Interfaith Community
Organization v. Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir.
2005) (“we have an obligation to examine our own jurisdiction”)
(citations omitted). However, we have observed that “Steel Co. may
be somewhat limited as it specifically indicated that ‘Article III
jurisdiction is always an antecedent question[,]’” Bowers v. National
Collegiate Athletic Ass’n, 346 F.3d 402, 415 (3d Cir. 2003) (quoting
Steel Co., 523 U.S. at 101), and concluded that Steel Co. therefore
“should not be understood as requiring courts to answer all questions
of ‘jurisdiction,’ broadly understood, before addressing the existence
of the cause of action sued upon.” Id. Thus, in Bowers, we found
that Steel Co. only “requires courts to answer questions concerning
Article III jurisdiction before reaching other questions.” Id.
(emphasis added); see also Marquez-Almanzar v. INS, 418 F.3d 210,
216 n.7 (2d Cir. 2005) (where jurisdictional prerequisites at issue are
statutory, not constitutional, they need not be addressed and exercise
of “hypothetical jurisdiction” is permissible); Restoration
Preservation Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59

                                  10
        Several provisions of 8 U.S.C. § 1252 (both pre- and post-
REAL ID Act) make the courts of appeals, not district courts, the first
and often last judicial arbiter of nationality claims such as Jordon’s.
Section 1252(b)(5) expressly provides for the courts of appeals to
review claims of nationality asserted in the course of agency removal
proceedings, and to resolve them unless they present disputed factual
issues, in which case they should be remanded to a district court for
resolution in the first instance. See 8 U.S.C. § 1252(b)(5)(A) and (B).
Section 1252(b)(5)(C) makes clear that nationality claims may be
“decided only as provided in this paragraph.” Prior to the REAL ID
Act, courts were divided over whether these provisions created the
“exclusive” means by which nationality claims at least initially make
their way to the federal courts, and thus abrogated district courts’
jurisdiction over habeas petitions raising such claims. Compare
Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (concluding
that while § 1252(b)(5) “does not foreclose completely the writ of
habeas corpus[,]” and district courts retain habeas jurisdiction where
the petitioner has no other judicial remedy, there is no habeas
jurisdiction over nationality claims because “§ 1252(b)(5) provides
a specific remedy[,] ... [and] is the exclusive means of determining
U.S. citizenship for aliens in removal proceedings.”); Alvarez-Garcia
v. INS, 234 F. Supp. 2d 283, 289 (S.D.N.Y. 2002) (“[t]he sole and
exclusive avenue for review of a claim of nationality is by direct
petition for review to the [courts of appeals].”) with Dragenice v.
Ridge, 389 F.3d 92, 100 (4th Cir. 2004) (“habeas review [of


(1st Cir. 2003) (“while Article III jurisdictional disputes are subject
to Steel Co., statutory jurisdictional disputes are not.”) (citation
omitted).     Because the question of exhaustion here, while
jurisdictional in nature, has a statutory provenance, the reasoning in
Bowers permits us to avoid addressing it. See also Marquez-
Almanzar, 418 F.3d at 216 n.7 (following same approach in dealing
with exhaustion challenge to nationality claim).

                                  11
nationality claims] must remain available.”) (citations omitted);
Gomez v. BICE, 315 F. Supp. 2d 630, 634-35 (M.D. Pa. 2004)
(rejecting government’s argument that district courts lack jurisdiction
over habeas petition raising nationality claim under § 1252(b)(5) and
concluding “that it has jurisdiction over habeas petitions regarding
nationality.”). Jordon, of course, raised his nationality claim in the
first instance in his habeas petition to the District Court, not in a
petition for review to us, thus appearing to present the question of the
District Court’s habeas jurisdiction over his claim.

         The REAL ID Act, which became law just days after
argument in this case on May 11, 2005, allows us to avoid the dense
thicket of habeas jurisdiction over nationality claims. The REAL ID
Act amended 8 U.S.C. § 1252 in several pertinent respects. First and
foremost, it made petitions for review filed with the court of appeals
the “sole and exclusive means for judicial review of” most orders of
removal, including the order of removal at issue here. See 8 U.S.C.
§ 1252(a)(5) (1999 & Supp. 2005); Bonhometre v. Gonzales, 414
F.3d 442, 445 (3d Cir. 2005). In so doing, the Act expressly
eliminated district courts’ habeas jurisdiction over removal orders.
Id.; see also Kamara v. Attorney General of the United States, 2005
WL 2063873, at *4 (3d Cir. Aug. 29, 2005). At the same time, the
Act also enlarged our jurisdiction, stating that none of its provisions
“which limit[ ] or eliminate[ ] judicial review, shall be construed as
precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals
in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D) (2005);
Bonhometre, 414 F.3d at 445. We have explained that this
amendment evidences Congress’s “intent to restore judicial review of
constitutional claims and questions of law presented in petitions for
review of final removal orders. This now permits all aliens, including
criminal aliens, to obtain review of constitutional claims and
questions of law upon filing of a petition for review with an


                                  12
appropriate court of appeals.” Papageorgiou v. Gonzales, 413 F.3d
356, 358 (3d Cir. 2005).

        We have also acknowledged that Congress left no doubt that
the REAL ID Act’s changes to § 1252(a)(2)(D) would be retroactive.
See REAL ID Act § 106(b) (providing that the new § 1252(a)(2)(D)
“shall take effect upon the date of the enactment of this division and
shall apply to cases in which the final administrative order of removal
... was issued before, on, or after the date of the enactment of this
division.”); Papageorgiou, 413 F.3d at 358 (“Our review of the Act
confirms that Congress expressly intended that the amendments
restoring our jurisdiction be applied retroactively to pending petitions
for review.”).

        The REAL ID Act expressly addresses habeas petitions
pending before district courts as of the date of enactment, providing
that they shall be transferred to

        the court of appeals for the circuit in which a petition
        for review could have been properly filed under
        section 242(b)(2) of the Immigration and Nationality
        Act (8 U.S.C. § 1252), as amended by this section. . . .
        The court of appeals shall treat the transferred case as
        if it had been filed pursuant to a petition for review
        under such section 242, except that subsection (b)(1)
        of such section [relating to the 30-day filing deadline]
        shall not apply.

REAL ID Act § 106(c). The Act is silent as to the procedural posture
here – an appeal from a district court’s grant of a habeas petition
pending before the court of appeals as of the date of the Act’s
enactment. But we have nonetheless concluded that “[d]espite this
silence, it is readily apparent, given Congress’ clear intent to have all


                                   13
challenges to removal orders heard in a single forum (the court of
appeals) [H.R. Conf. Rep. No. 109-72] at 174 [(2005)], that those
habeas petitions that were pending before this Court on the effective
date of the REAL ID Act are properly converted to petitions for
review and retained by this Court.” Bonhometre, 414 F.3d at 446.
Thus, in Bonhometre, we converted an appeal from a district court’s
grant of a habeas petition raising a Fifth Amendment due process
claim into a petition for review, disregarded the District Court’s
disposition, and reviewed the merits of the due process claim. Id. at
446-47. And in Kamara, we likewise converted an appeal from a
district court’s grant of a habeas petition raising a Fifth Amendment
due process claim into a petition for review, vacated the District
Court’s disposition, and examined the merits of the due process
claim. Kamara, 2005 WL 2063873, at *5-6. Following the lead of
Bonhometre and Kamara, we will convert the instant appeal from the
District Court’s grant of Jordon’s habeas petition into a petition for
review, vacate the District Court’s decision, and address the merits of
Jordon’s derivative citizenship claim as if it had been raised in a
petition for review before us in the first instance. See also Marquez-
Almanzar v. INS, 418 F.3d 210, 215-16 (2d Cir. 2005) (treating a
§ 2241 petition raising a nationality claim, which was dismissed for
lack of jurisdiction by the district court and then transferred to the
Second Circuit via 28 U.S.C. § 1631, as a petition for review under
the REAL ID Act, and proceeding to merits).

        This approach not only obviates the need to address the
question of district courts’ habeas jurisdiction over nationality claims
discussed above, but also obviates the question of whether Jordon
was “in custody” for purposes of § 2241. As noted, we have vacated
the District Court’s decision and have converted BICE’s appeal from
the District Court’s grant of Jordon’s habeas petition into a petition
for review. Accordingly, whether the District Court had subject
matter jurisdiction over Jordon’s petition challenging BICE’s


                                  14
custody, i.e., whether Jordon was “in custody” under § 2241, is a
jurisdictional inquiry no longer relevant to our analysis here.

        Despite the conversion of this appeal from a grant of a habeas
petition into a petition for review, our scope of review remains the
same, and we may thus examine claims of constitutional or legal
error, including Jordon’s derivative citizenship claim.            See
Bonhometre, 414 F.3d at 446; Kamara, 2005 WL 2063873, at *6
(quoting Bakhtriger v. Elwood, 360 F.3d 414, 425 (3d Cir. 2004))
(“In the wake of [INS v. St. Cyr, 533 U.S. 289 (2001)], we are not
aware of any cases that have upheld habeas review of factual findings
or discretionary determinations in criminal alien removal cases.
Rather, all circuits to decide the issue have limited criminal alien
habeas petitions to constitutional challenges or errors of law.”). We
exercise plenary review over Jordon’s derivative citizenship claim, as
it presents a pure question of statutory interpretation. See Tavarez v.
Klingensmith, 372 F.3d 188, 189 n.2 (3d Cir. 2004) (citation omitted).

                                 III.

                 The Derivative Citizenship Claim

        We turn, finally, to the merits of Jordon’s derivative United
States citizenship claim. Jordon presents his derivative citizenship
claim under the former 8 U.S.C. § 1432(a). Congress repealed
§ 1432(a) with its enactment of the Child Citizenship Act of 2000
(“CCA”), § 103, Pub. L. No. 106-395, 114 Stat. 1631. The CCA had
an effective date of February 27, 2001, 120 days following its
enactment. Because all relevant events respecting Jordon’s claimed
derivative citizenship occurred prior to the CCA’s effective date,




                                  15
§ 1432(a) controls our analysis.9 See Bagot v. Ashcroft, 398 F.3d 252,
257 n.3 (3d Cir. 2005) (citation omitted); see also Minasyan v.
Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005) (“derivative
citizenship is determined under the law in effect at the time the
critical events giving rise to eligibility occurred.”) (citations omitted).

        Section 1432(a) provides that

        A child born outside of the United States of alien
        parents, or of an alien parent and a citizen parent who
        has subsequently lost citizenship of the United States,
        becomes a citizen of the United States upon
        fulfillment of the following conditions:

                (1) The naturalization of both parents;
                or
                (2) The naturalization of the surviving
                parent if one of the parents is
                deceased; or
                (3) The naturalization of the parent
                having legal custody of the child when
                there has been a legal separation of the
                parents or the naturalization of the
                mother if the child was born out of
                wedlock and the paternity of the child
                has not been established by
                legitimation; and if




        9
         The most recent relevant date is the year 1991, when the New
York divorce court issued its final divorce decree for Jordon’s
parents.

                                    16
                (4) Such naturalization takes place
                while such child is under the age of
                eighteen years; and
                (5) Such child is residing in the United
                States pursuant to a lawful admission
                for permanent residence at the time of
                the naturalization of the parent last
                naturalized under clause (1) of this
                subsection, or the parent naturalized
                under clause (2) or (3) of this
                subsection, or thereafter begins to
                reside permanently in the United
                States while under the age of eighteen
                years.

8 U.S.C. §1432(a) (1999), repealed by CCA, § 103, Pub. L. No.
106-395, 114 Stat. 1631.

         Section 1432(a) thus provides several avenues by which a
child born outside of the United States to alien parents can become a
United States citizen. The parties agree that two of these avenues –
“[t]he naturalization of both parents,” § 1432(a)(1), or “[t]he
naturalization of the surviving parent if one of the parents is
deceased,” § 1432(a)(2) – are inapplicable. Subsections (3), (4) and
(5) set forth, in combination, a third avenue for establishing
derivative citizenship: If the child can establish (1) “[t]he
naturalization of the parent having legal custody of the child when
there has been a legal separation of the parents”; and (2) that “[s]uch
naturalization takes place while such child is under the age of
eighteen years”; and (3) that “[s]uch child is residing in the United
States pursuant to a lawful admission for permanent residence at the
time of the naturalization of the parent last naturalized under clause
(1) of this subsection, or the parent naturalized under clause (2) or (3)


                                   17
of this subsection, or thereafter begins to reside permanently in the
United States while under the age of eighteen years[,]” the child is a
United States citizen under § 1432(a). See 8 U.S.C. § 1432(a)(3)-(5).

        There is no dispute that subsection (5) has been satisfied here,
and because the facts clearly establish that Jordon’s mother was
naturalized before Jordon turned 18, subsection (4) has also been
satisfied. The disagreement between the parties centers on whether
subsection (3) – specifically the first clause of subsection (3),
requiring “[t]he naturalization of the parent having legal custody of
the child when there has been a legal separation of the parents” – has
been satisfied. Jordon frames two issues under § 1432(a)(3):
“1) whether § 1432(a) requires that Jordon’s mother already be
‘legally separated’ at the time she is naturalized; and 2) whether
Jordon’s parents’ marital separation was a sufficiently ‘legal’
separation for § 1432(a) purposes.” He argues that the District Court
properly answered these questions “no” and “yes,” respectively, and
therefore properly found that he was a derivative citizen under
§ 1432(a). For the reasons that follow, we disagree as to Jordon’s
suggested answer to the first inquiry he frames, and must therefore
reject his claim of derivative citizenship.

        In Jordon’s view, the critical term in the first clause of
§ 1432(a)(3) is “when.” He contends that “when” should not
necessarily be read in its temporal sense (i.e., “after”), suggests it
could be read in its conditional sense (i.e., “if”), and in any event
argues that “when” modifies “having legal custody of the child,” not
“naturalization.” We need not labor over the proper construction of
§ 1432(a)(3)’s first clause or its use of “when,” however, because a
decision of this Court issued post-briefing in this case sets forth the
controlling interpretation of § 1432(a)(3)’s first clause. See Bagot v.
Ashcroft, 398 F.3d 252 (3d Cir. 2005). In Bagot, we made crystal



                                  18
clear that a child seeking to establish derivative citizenship under
§ 1432(a) must prove four essential facts under § 1432(a)(3):

        (1) that his [parent] was naturalized after a legal
        separation from his [other parent]; (2) that his
        [parent] was naturalized before [the child] 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 [parent] had legal
        custody at the time of [the parent’s] naturalization.

398 F.3d at 257 (emphasis added). As such, Bagot conclusively
rejects Jordon’s (and the District Court’s) view that the custodial
parent need not be legally separated from his or her spouse prior to
the custodial parent’s naturalization for purposes of § 1432(a)(3). See
also Minasyan, 401 F.3d at 1076 (stating that in order to satisfy the
first clause of subsection (3), the petitioner must establish that “at the
time of his mother’s naturalization, ‘there ha[d] been a legal
separation of the parents.’”) (citing § 1432(a)(3)) (brackets in
original).

        Bagot’s conclusion that legal separation must occur prior to
naturalization in order to satisfy the first clause of § 1432(a)(3)
compels us to reject Jordon’s derivative citizenship claim because the
evidence conclusively demonstrates that Jordon’s mother was
naturalized long before his parents’ legal separation. The evidence is
undisputed that Jordon’s mother was naturalized on March 13, 1985,
and that any “legal separation” occurred no earlier than some time in
1988 (by virtue of Jordon’s father’s abandonment), and possibly as
late as July 11, 1991 (by virtue of the issuance of a final divorce




                                   19
decree).10 Accordingly, Jordon cannot establish an essential element
of his derivative citizenship claim under § 1432(a), and we will
therefore deny Jordon’s petition for review.11




       10
         In light of these facts, we need not and do not decide in this
case the precise meaning of “legal separation” under § 1432(a)(3).
       11
          We note that there may be some question whether the waiver
Jordon executed in connection with his readmission under the Visa
Waiver Program precludes his derivative citizenship claim here.
BICE does not suggest as much, and given our view of the merits of
the derivative citizenship claim, we need not and do not address the
effect of a Visa Waiver Program waiver on a derivative citizenship
claim.

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