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


9-20-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-2885




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                           AMENDED PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No: 04-2885

                      ____________

                MARC HILAIRE JOSEPH,

                             Petitioner

                              v.

       ALBERTO GONZALES,* Attorney General
           of the United States of America,

                                          Respondent

*Substituted pursuant to Federal Rule of Appellate Procedure
                          43(c)(2)

        ___________________________________

                  On Petition for Review
          from the Board of Immigration Appeals
                    (No. A40-135-340)


                   Argued July 14, 2005
  Before: SLOVITER, McKEE, and WEIS, Circuit Judges


                (Filed September 20, 2005)


Jennifer H. Kim, Esq. (Argued)
Association of the Bar of the City of New York
Refugee Assistance Program
42 W. 44 th Street
New York, NY 10036
Attorney for Petitioner


Peter D. Keisler, Esq.
Assistant Attorney General

Linda S. Wernery, Esq.
Senior Litigation Counsel

William C. Minick, Esq. (Argued)
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent



                             2
                  OPINION OF THE COURT




McKEE, Circuit Judge:

       Marc Hilaire Joseph petitions for review of an order of
the Board of Immigration Appeals dismissing his appeal from
the Immigration Judge’s determination that he is deportable as
charged, and denying his claim of derivative citizenship. Joseph
contends that he is not subject to deportation because he is a
United States national. Alternately, he asks us to transfer this
matter to the District Court for a de novo determination of his
claim of United States citizenship pursuant to INA §
242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B). For the reasons that
follow we will grant Joseph’s petition for review, vacate the
order of the BIA, and transfer the case to the appropriate District
Court for adjudication.

  I. FACTUAL AND PROCEDURAL BACKGROUND.

       Joseph was born in Haiti on July 5, 1973. He alleges that
his mother was Rosemane Joseph.1 According to Joseph,
Rosemane became pregnant with him when she was 12 years old
as a result of being raped by an unknown assailant. Joseph
alleges that, due to the circumstances surrounding his birth, he


        1
       Rosemane died before the commencement of the
immigration proceedings at issue here.

                                3
was raised in Haiti by his grandparents – Rosemane’s father,
Hermann Joseph (“Hermann”) and her mother, Lolita Clergé
Joseph (“Lolita”). Hermann and Lolita are now deceased. He
also claims that he grew up believing that Hermann and Lolita
were his father and mother, and that Rosemane was his older
sister. He maintains that he did not learn that Rosemane was
actually his mother until he was 13 years old.

       It is undisputed that Rosemane came to the United States
in 1981 and settled in New Jersey. She married Angelo
Morales, a United States citizen, in 1983. Morales filed a
spouse petition for Rosemane, and she was admitted to the
United States as an immigrant on March 23, 1985. On
September 5, 1985, Morales filed a petition identifying Joseph
as Rosemane’s son, and his stepson. The Immigration and
Naturalization Service (“INS”) 2 approved the petition on
October 7, 1985, and on February 15, 1986, Joseph was
admitted to the United States; he was then 13 years old. Joseph
maintains that he learned the truth about his mother some point




  2
   On March 1, 2003, the INS ceased to exist as an independent
agency within the Department of Justice and its functions were
transferred to the newly formed Department of Homeland
Security. See Homeland Security Act, 116 Stat. 2135, Pub. L.
107-296 (2002). The former INS was divided into three
separate agencies: United States Immigration and Customs
Enforcement; Bureau of Customs and Border Protection; and the
United States Citizenship and Immigration Services.

                              4
after his arrival in the United States.3 Rosemane was naturalized
as a United States citizen when Joseph was 16 years old. Joseph
now maintains that, as Rosemane’s son, he derived citizenship
through her.

       Joseph’s contact with the INS began after his 1995 and
1996 convictions in New Jersey for state criminal offenses,
including crimes considered “aggravated felonies” under the
INA. On January 2, 1997, the INS served Joseph with an Order
to Show Cause charging him with being deportable under INA
§ 241(a)(2)(A)(iii) for his aggravated felony convictions, and
under INA § 241(a)(2)(B)(I) for his conviction for a crime
involving a controlled substance. At his initial deportation
hearing on March 6, 1997, Joseph asserted that he had derived
U.S. citizenship through his mother and was therefore not
subject to deportation under the Act. His claim was rejected,
and he was ordered deported to Haiti.

       On January 31, 2001, Joseph filed a pro se motion to
reopen, recounting his out-of-wedlock birth in Haiti and
asserting that he obtained derivative citizenship, under INA §
321(a)(3), upon his mother’s naturalization prior to his 18 th
birthday. On November 21, 2001, the IJ denied Joseph’s motion
to reopen, concluding that Haitian law precluded Joseph from
benefitting from the out-of-wedlock provision of § 321(a)(3).
The BIA dismissed Joseph’s appeal of that decision because


    3
    Rosemane’s brother, Garry Joseph, testified at Joseph’s
immigration hearing that Joseph learned that Rosemane was his
mother while he was still living in Haiti.

                               5
Haiti had eliminated all distinctions between legitimate and
illegitimate children. In the BIA’s view, it was therefore
irrelevant under the Act whether his natural father
acknowledged him since Joseph had been legitimated at birth
and could therefore not derive U.S. citizenship pursuant to §
321(a)(3).
        Thereafter, pro bono counsel filed a petition for review
on Joseph’s behalf. The petition alleged that the Civil Code of
Haiti only legitimized children born out of wedlock who had
been acknowledged by their natural father. Since Joseph’s
mother had been raped and his natural father was unknown,
Joseph contended that he was never acknowledged by his
natural father and could therefore not be considered legitimated
under Haitian law. The government agreed.

       On December 12, 2002, the U.S. Department of Justice,
Office of Immigration Litigation, filed a motion for remand with
this court. After additional filings with this court and the BIA
that we need not detail for purposes of our decision, newly-
reopened proceedings began in front of the IJ. One month later,
the government issued a new charge of deportability against
Joseph, charging him with deportability under INA §
241(a)(1)(A). The government now asserted that Joseph was
excludable at the time of entry because Rosemane was not
actually his mother. Rather, according to the government, she
was really his elder sister, and Joseph was therefore Morales’s
brother-in-law rather than his stepson. Thus, the government
claimed that Joseph’s immigrant visa was invalid and
introduced a series of documents and reports from Haiti to
support this claim.


                               6
       On December 29, 2003, in a written decision, the IJ
agreed with the INS’s position and ordered Joseph deported to
Haiti based upon the judge’s finding that Joseph was a
deportable alien, and not a U.S. citizen. The BIA affirmed, and
this petition for review followed.

                     II. DISCUSSION.

                   A. The IJ’s Decision.4

       The IJ reviewed the government’s evidence including
reports of an investigation into the circumstances surrounding
Joseph’s birth in Haiti. The IJ then recounted the testimony of
each of the witnesses at the removal hearing including Joseph,
Rosemane’s brother Garry Joseph (“Garry”) and Morales.

       The IJ ruled that Joseph failed to prove derivative
citizenship by a preponderance of the evidence. First, the IJ
noted that Joseph did not submit any police or medical reports
to confirm that Rosemane had been raped, nor had he submitted
any evidence to establish that Rosemane had failed to attend
school or that she had received medical care during her
pregnancy. The IJ also commented on the fact that, although
Garry had testified that Rosemane’s rape and pregnancy were


  4
    Although we are reviewing the decision of the BIA, not that
of the IJ, the BIA’s ruling cannot be understood in a vacuum,
given its analysis. Thus, we must refer to the IJ’s analysis in
order to provide the proper context and background for our
analysis of the BIA’s ruling.

                              7
common knowledge in the neighborhood, no affidavits had been
submitted from any neighbors.

        The IJ gave little weight to Rosemane’s spouse petition,
concluding that, while the petition listed Joseph as Rosemane’s
child, this petition and the other U.S. immigration documents
that named Joseph as Rosemane’s child were not primary
evidence of a mother-child relationship. Moreover, the IJ
concluded that, because the documents were prepared by
Joseph’s family, they were self-serving. The IJ also questioned
the validity of the September 1985 birth certificate Joseph
submitted because the certificate named Rosemane as the
mother and Hermann as the father, and Joseph failed to submit
the civil judgment required for a delayed birth certificate to be
issued in Haiti.5



   5
       Under Haitian law:

         declarations of birth must be made to an official
         of the civil status of the locality where the birth
         occurred within one month of delivery, and the
         birth certificate must be drawn up immediately.
         If the birth has not been declared within two years
         after this legal deadline has run out, the birth
         certificate cannot be drawn up by an official of
         the civil status, except pursuant to a declaratory
         judgment pronounced by the civil court (Tribunal
         Civil) of the child’s birthplace or, if this place is
         unknown, of the child’s domicile.

                                  8
        In the IJ’s view, Morales’ testimony was not persuasive
since Rosemane had not informed him of her “baby” in Haiti for
several years, and Morales only knew of the circumstances of
Joseph’s birth through his conversations with Rosemane.
Moreover, while the IJ thought Garry’s testimony was generally
consistent with Joseph’s, the IJ noted that the testimony of the
two was in conflict as to when Joseph learned that Rosemane
was his mother and that she had conceived him as a result of
being raped.6 Additionally, the IJ noted that Garry was unable
to give details about Joseph’s birth, including whether Joseph
was born at home or in the hospital. The IJ also found
inconsistencies between Garry’s affidavit and his testimony. In
his affidavit, Garry explained that Hermann’s name appeared as
the natural father on Joseph’s birth certificate “as a
convenience” and “to expedite the request for a birth
certificate.” However, during his testimony, Garry said that
Hermann put his name down as Joseph’s father out of
embarrassment because Joseph was “a child of violation or
rape.” Garry later explained that, due to his father’s lack of
education, he erred and should have attempted to get a birth of
recognition instead of a birth certificate.7 The IJ thought


   6
     Joseph testified that he discovered that Rosemane was his
mother after his arrival in the United States. Garry testified that
Joseph was still living in Haiti when he learned of his
relationship with Rosemane.
       7
       According to Garry’s testimony, a birth of recognition
acknowledges an adopted or recognized child while a birth
certificate indicates the existence of a natural father of the child.

                                 9
Garry’s testimony was vague and seemed rehearsed.

        Conversely, the IJ found the government’s evidence
persuasive. He was particularly impressed with the
government’s overseas investigation report. That report
contained: (1) a patients’ record book from the Haiti University
General Hospital of State dated July, 1973, stating that a patient
named Janita Clergé gave birth to her fifth child on July 5, 1973;
(2) comments from the investigator, Mrs. Lucienne D. Brutus,
explaining that the Financial and Administrative Director of the
Maternity Hospital of the University of Haiti concluded that the
birth certificate submitted by Joseph, which purportedly came
from the Hospital, did not in fact come from the Hospital; and
(3) additional reports from Mrs. Brutus explaining that Dr.
Edouard Viala, a prominent ob-gyn physician in Haiti, denied
signing Joseph’s submitted birth certificate and offered a sample
of his own signature for comparison.

       Joseph tried to have at least some of the documents in
these reports excluded as “unsworn, uncorroborated, and
unreliable” hearsay, arguing that any reliance on them would
deny him due process and a fair hearing because he had no
opportunity to cross-examine the witnesses. He based his
argument on Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir.
2003). However, the IJ admitted the reports into evidence citing
8 C.F.R. § 1240.46.8 The IJ ruled that the strict rules of


   8
       This section states, in relevant part:

          Use of prior statements. The immigration judge

                                   10
evidence are not applicable in deportation proceedings, and that
Joseph’s due process rights were not infringed because the
reports offered by the government were relevant and probative
as required by Ezeaguwana. The IJ explained that the reports
were expeditiously served on Joseph; Mrs. Brutus’s experience
and credentials had been documented; Mrs. Brutus personally
directed the investigation and provided a detailed account of it
including a sample of authentic Haitian birth certificates; and
Joseph had adequate time to make his own follow-up inquiries,
submit written interrogatories and offer rebuttal evidence.

       The IJ concluded:
       Upon a careful review of the entire record, and
       after fully evaluating and weighing the evidence
       and arguments presented, the Court determines,
       on balance, that Joseph’s evidence is insufficient
       to meet his burden of proof. Joseph has failed to
       establish that he derived United States citizenship
       by a preponderance of credible evidence. I
       conclude that Joseph is the child of Hermann
       Joseph and Zalita Clerge and the sister of
       Rosemane Joseph Morales. Joseph has failed to
       satisfy the requirements set forth in INA §
       321(a)(3). Therefore, he has not derived United


       may receive in evidence any oral or written
       statement that is material and relevant to any issue
       in the case previously made by the respondent or
       any other person during any investigation,
       examination, hearing, or trial.

                               11
       States citizenship. I further find that deportability
       has been established by clear, convincing, and
       unequivocal evidence under each of the four
       charges brought by the Department.

                    B. The BIA’s Decision.

       In his appeal to the BIA, Joseph argued that (1) the IJ
improperly considered the reports submitted by the government
and (2) the IJ’s adverse credibility findings were not supported
by the record. With respect to the latter, the BIA found:

       the [IJ] did not make an explicit adverse
       credibility determination. Instead, the [IJ] found
       that the testimony presented by each witness was
       either insufficient to prove the respondent’s claim
       or undermined by the documentary evidence in
       the record. Thus, as a matter of proof, not
       credibility, the [IJ] found that the testimony of
       [Joseph], his alleged uncle, and his alleged
       stepfather, was insufficient to meet his burden.

        The BIA also rejected Joseph’s argument that the IJ erred
in relying upon the investigative report from Haiti. The BIA
explained: “even absent reliance on the information contained
in the hospital records, [Joseph’s] claim is still undermined by
other evidence in the record which suggests that Rosemane
Joseph was his sister, not his mother.” This “other evidence”
included a portion of one of the investigator’s reports that
Joseph had not objected to. That portion of the report asserted
that the birth certificate Joseph submitted was fraudulent. The

                                12
BIA noted that Joseph had not offered any evidence to rebut that
assertion, nor had he submitted an authentic birth certificate or
evidence that Rosemane Joseph gave birth on July 5, 1973. The
BIA discredited the 1985 birth certificate Joseph submitted. The
Board believed that the birth certificate was undermined by
Hermann and Lolita’s marriage certificate, which listed Joseph
and Rosemane as brother and sister. The BIA concluded: “the
record does not contain any reliable, consistent, or accurate
evidence to prove that [Joseph] is the son of Rosemane Joseph
through whom he claims to have derived United States
citizenship.” 9 This petition for review followed.10




  9
    The BIA also denied Joseph’s motion to remand to apply for
deferral of removal under the Convention Against Torture,
finding that Joseph could not establish a prima facie case for
such relief. Joseph had argued that, due to his criminal
conviction in the United States, he would be indefinitely
detained once removed to Haiti, and it is more likely than not
that he would be tortured once detained. Joseph does not appeal
this part of the BIA’s decision.
  10
     On March 7, 2005, we denied Joseph’s motion for a stay of
removal, and on May 16, 2005 Joseph was removed from the
United States to Haiti. The parties dispute whether, prior to the
enactment of the REAL ID Act, which we discuss infra, we
would have retained jurisdiction over Joseph despite his
departure from the United States. This dispute is no longer
relevant, however, since both parties agree that under § 242, we
retain jurisdiction over Joseph’s petition for review.

                               13
   III. JURISDICTION & STANDARD OF REVIEW.

After Joseph filed this petition for review, Congress enacted the
Real ID Act. REAL ID Act of 2005, Pub. L. No. 109-13, Div.
B, § 106, 119 Stat. 231. Although the impact of that Act here is
minimal, it does affect our jurisdiction.

        Prior to the enactment of the REAL ID Act, our
jurisdiction was controlled by the “transitional rules” for judicial
review set forth in § 309 of IIRIRA, and those provisions of the
former § 106 of the INA, 8 U.S.C. § 1105a (repealed 1996).
However, pursuant to § 106(d) of the REAL ID Act, a petition
for review filed under former § 106(a) of the INA is treated as
if it had been filed as a petition for review under § 242 of the
INA, 8 U.S.C. § 1252. We must treat Joseph’s petition for
review accordingly.

      Thus, Joseph’s citizenship claim is now governed by 8
U.S.C. § 1252(b)(5). That section provides:

               Treatment of nationality claims

               (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 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

                                14
       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, United States
       Code.

        In determining whether a genuine issue of material fact
is presented, our inquiry is the same as that which we employ in
reviewing grants of summary judgment. See Agosto v. INS, 436
U.S. 748, 754-57 (1978). Thus, “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 756; see
also Baeta v. Sonchik, 273 F.3d 1261, 1265 (9th Cir. 2001)
(same). 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.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61
(2d Cir. 1995). Under this standard, we draw all factual
inferences in favor of Joseph, the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).


                                15
                       IV. ANALYSIS.

      Given the aforementioned scope of review, we must
determine if there is a genuine issue of material fact as to
Joseph’s claim of United States citizenship so as to warrant a de
novo determination of that issue in the District Court.

       Section 1432(a) of Title 8 sets forth the requirements for
obtaining derivative United States citizenship. The relevant
provision provides in part as follows:
              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 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 last naturalized under clause (1) of this

                               16
       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), INA § 321(a) (repealed and superceded
2000).11

        As we noted at the outset, Joseph maintains that he was
born out-of-wedlock in Haiti and derived United States
citizenship through his mother – Rosemane – who was
naturalized before his eighteenth birthday. Joseph presented
documentary evidence that included: (1) the spouse petition filed
by Morales for Rosemane listing Joseph as Rosemane’s son; (2)
Joseph’s birth certificate issued in 1985 listing Rosemane as his
mother; (3) Rosemane’s visa application from 1985 listing
Joseph as her son; (4) the alien relative visa petition Morales
filed for Joseph listing Joseph as his step-son; (5) Joseph’s visa
application from Haiti, listing Rosemane as his mother; (6)
Joseph’s immigrant visa and alien registration; (7) Rosemane’s
petition for naturalization listing Joseph as her son; (8)
Rosemane’s petition for alien relative for Lolita Joseph, which
does not list Joseph as Lolita Joseph’s child; and (9) Lolita
Joseph’s Haitian visa application, which does not list Joseph as


  11
     Section 321(a) was repealed and superceded in 2000 by the
Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat.
1631 (2000).       However, Joseph claims to have derived
citizenship in 1989, before § 321(a) was repealed. Consequently,
the repeal has no bearing on our discussion.

                               17
her child.

        Joseph’s testimonial evidence included: (1) Garry’s
testimony explaining that he was home the night his family
learned of Rosemane’s rape, how he subsequently observed
Rosemane’s developing pregnancy, and how Joseph was raised
by Hermann and Lolita as their own son; (2) Morales’s
testimony that he was sure that Joseph and Rosemane were
mother and son; and (3) Joseph’s testimony explaining
Rosemane’s rape, his understanding of his family structure as a
child, and how, at the age of 13, he learned that Rosemane was
his mother. Joseph also argues that the fact that he submitted to
a blood test at the government’s request is evidence that
supports his contentions.

      The government maintains that Joseph has not raised a
genuine issue of material fact because his evidence is from
secondary sources,12 the testimonial evidence does not


    12
        In its brief, the government, like the IJ and the BIA,
focused much of its attention on the fact that Joseph did not
present “primary” evidence to support his claim. Such evidence,
according to the government, includes police or medical reports
that could confirm that Rosemane was raped in 1972, school
records demonstrating Rosemane’s failure to attend school
during or after her pregnancy, and medical records indicating
that Rosemane received medical care during her pregnancy. To
his credit, counsel for the government stated at oral argument
that he would not rely on that argument as he did not think it
particularly probative. We agree. Regrettably, emphasis on such

                               18
“primary” evidence is yet another example of the cultural
parochialism that sometimes creeps into the immigration
proceedings we review.
       Rosemane was allegedly raped in 1972, during the brutal
dictatorship of Jean-Claude (“Baby-Doc”) Duvalier. Common
sense suggests that, during this period in Haiti’s history,
Haitians would have been most reluctant to get involved with
police and report crimes, and this may especially have applied
to rape. See Inter-American Commission on Human Rights,
Organization of American States, Report on the Situation of
H u m a n           R i g h t s         i n     H a i t i ,       a t
http://www.cidh.oas.org/countryrep/Haiti88eng/chap.3.htm
(Sept. 7, 1988); http://www.womenwarpeace.org/haiti/haiti.htm
(last viewed Aug. 11, 2005).
          Moreover, Haiti was, and continues to be, the poorest
country in the Western Hemisphere and it is certainly fair to
assume that only an extremely small number of Haitian
adolescents attended school when Rosemane is alleged to have
been raped. UC Atlas of Global Inequality, Haiti, Education, at
http://ucatlas.ucsc.edu/country/84/education (last visited Aug.
11, 2005). Worse yet, given the reality that teachers and
administrators must have had to confront in Haitian schools in
1972 - a reality that did not include compulsory education - it
is totally unrealistic to think that the schools that did exist would
maintain the kind of detailed attendance records that might
reflect the absence or pregnancy of a young student. See Irwin
P. Stotzky, Symposium on the Role of a Free Press and Freedom
of Expression in the Development and Consolidation of
Democracies in Latin America, 56 U. Miami L. Rev. 255, 283

                                 19
support his theory, and the birth certificate he produced is
unreliable. We disagree. We think this case is controlled by
the Supreme Court’s decision in Agosto v. INS, 436 U.S. 748
(1978). We think Agosto establishes that Joseph is clearly
entitled to a de novo hearing in the District Court.

       In Agosto, the Court evaluated a derivative citizenship




(Jan. 2002). Although that is not outside the realm of
possibility, the government’s reliance on the absence of school
records is neither logical, appropriate, nor realistic absent some
proof that it would be appropriate to expect such evidence to be
available.
      Similarly, if Rosemane was in fact pregnant in 1972, there
is no reason to assume that she received prenatal care that might
generate the kind of medical records that Joseph was expected
to produce. Haiti, like many other developing countries, has a
very high infant mortality rate, which, common sense suggests
is directly related to the fact that so few women receive prenatal
and postnatal care. See UC Atlas of Global Inequality, Haiti,
Health, at http://ucatlas.ucsc.edu/country/84/health (last visited
A u g .                   1 1 ,              2 0 0 5 ) ;
http://www.nationmaster.com/country/ha/Health (last visited
Aug. 11, 2005).




                               20
claim under former INA § 106(a)(5).13 Before the IJ, Agosto
provided testimonial evidence from himself and several other
witnesses, including his adoptive parents, Crocifessa and Pietro
Pianetti, and his half-brother. They testified in support of his
claim that he had been born to an unmarried Italian mother in
Ohio, and sent to Italy at a young age to reside with an Italian
couple.14 Id. at 758. The government presented documentary


   13
        Former INA 106(a)(5) stated:

whenever any petitioner, who seeks review of an order under
this section, claims to be a national of the United States and
makes a showing that his claim is not frivolous, the court shall
(A) pass upon the issues presented when it appears from the
pleadings and affidavits filed by the parties that no genuine issue
of material fact is presented; or (B) where a genuine issue of
material fact as to the petitioner's nationality is presented,
transfer the proceedings to a United States district court for the
district where the petitioner has his residence for hearing de
novo of the nationality claim and determination as if such
proceedings were originally initiated in the district court under
the provisions of section 2201 of title 28. Any such petitioner
shall not be entitled to have such issue determined under section
1503(a) of this title or otherwise . . . .


   14
     This testimony explained that Agosto was the illegitimate
son of Crocifessa Pianetti’s sister – Angela Porello – who left
her Italian husband and two daughters in 1921 to move to the
United States with her cousin. Through correspondence with

                                21
evidence that undermined Agosto’s evidence and tended to
establish that he had instead been born in Italy to unknown
parents in 1927, placed in a foundling home there, and
ultimately adopted by an Italian couple.15 Id. at 757.

       The IJ rejected Agosto’s claim and the BIA affirmed. In
deciding the subsequent petition for review, the Court of



Angela, the Pianettis learned that petitioner had been born in
Ohio, that his father was Salvatore Agosto, and that Angela
could not care for him on her own. Angela therefore sent
petitioner to Italy to be raised by the Pianettis. Id. at 758.
  15
     The government’s evidence included an entry from the City
of Agrigento registry of births for 1927 relating that a 75-year-
old handywoman appeared before the registrar and declared that
“at 4:00 a.m. on the 17 th day of [July] in a house situated in Via
Oblati, of a woman who does not want to be named, a male
child was born, which she presents to me and to whom she gives
the first name of Vincenzo and the surname of Di Paola.” The
registry also indicated that this child was sent to a foundling
home. The government also introduced a registry from the
foundling home, which indicated that a Vincenzo Di Paola was
born on July 16, 1927 and was consigned to Crocifessa and
Pietro Pianetti on August 26, 1927. Id. at 757.
        The Pianettis testified that petitioner was never in the
foundling home, but that the documents presented by the
government concerning petitioner’s birth in Italy were created
by Angela’s father to hide the fact that petitioner was his
illegitimate grandson. Id. at 758.

                                22
Appeals for the Ninth Circuit refused to transfer the case to the
District Court for a de novo hearing on petitioner’s citizenship
claim and upheld the deportation order. Id. at 752. The court
held that, because “[t]he evidence presented to the [IJ] does not
disclose a colorable claim to United States nationality,” Agosto
had not presented “substantial evidence” in support of his
citizenship claim. Id.

       The Supreme Court reversed, holding:

       The Service’s proof that petitioner is not a United
       States citizen would certainly be sufficient, if
       uncontradicted, to establish his birth in Agrigento,
       Italy, in July 1927. However, the evidence
       adduced by petitioner to support his claim of
       American citizenship creates genuine issues of
       material fact that can only be resolved in a de
       novo hearing in the District Court.

Id. at 757.

       The Court acknowledged that Agosto had told conflicting
stories about his upbringing during the course of his
immigration proceedings; however, the Court found that, given
the obvious confusion and uncertainty surrounding the
circumstances of Agosto’s birth under either Agosto’s or the
government’s theory, “it is hardly surprising that petitioner
cannot say with any degree of certainty who his true parents
might have been.” Id. at 759-60. The Court found that the
events, as recounted by Agosto and the witnesses who testified
on his behalf, “while out of the ordinary, are not so

                               23
extraordinary as to compel disbelief in their occurrence,”
therefore the record established a genuine issue of material fact
regarding Agosto’s citizenship, which the District Court had to
resolve. Id. at 760-61. The Court explained:

         Although as the trier of fact the District Court
         might reject the testimony of these witnesses
         because of their interest in the outcome, that
         determination has been committed by Congress to
         the district courts by § 106(a)(5)(B) of the Act
         and not to the courts of appeals.

Id. at 761.

       That is precisely the situation here. Moreover, Joseph
and his witnesses have told one consistent version of his story
throughout the lengthy procedural history of this case, and the
documentary evidence introduced by Joseph supports his
account.     Although the government’s account contradicts
Joseph’s evidence, the evidence Joseph submitted is “not so
extraordinary as to compel disbelief in their occurrence.” 16
Indeed, it is certainly possible that the documentary evidence
submitted by the government would be refuted by the testimony


    16
      Of course, the District Court, as the trier of fact, might
reject the testimony of Joseph and his supporting witnesses
because of their interest in the outcome. However, “that
determination has been committed by Congress to the district
courts by [§ 242] of the Act,” and is not for this court to decide.
See id. at 761.

                                24
of Joseph’s witnesses if that testimony were accepted by the trier
of fact. We therefore cannot reject Joseph’s evidence as a
matter of law. Accordingly, we conclude that the evidence
adduced by Joseph in support of his claim of American
citizenship creates genuine issues of material fact that can only
be resolved in a de novo hearing in the District Court.17
Anything less risks depriving Joseph of “one of the most
precious [rights] imaginable” – his right to United States
citizenship. See Alexander v. INS, 74 F.3d 367, 370 (1st Cir.
1996). “To deport one who . . . claims to be a citizen, obviously
deprives him of liberty, . . . [and] may result also in loss of both
property and life; or of all that makes life worth living.” Ng
Fung Ho v. White, 259 U.S. 276 (1922).18


   17
      Indeed, “where the evidence consists of the testimony of
live witnesses concerning material factual issues, it will seldom
if ever be appropriate to deny a de novo hearing, since ‘[i]t is
only when the witnesses are present and subject to cross-
examination that their credibility and the weight to be given
their testimony can be appraised.’" Id. at 757(quoting Poller v.
Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962)).
   18
      As noted above, Joseph also argues that his due process
rights were violated when the government was permitted to
introduce certain documents from the Haitian investigator’s
report. We need not decide that issue here as Joseph will
receive a de novo hearing on his claim in the District Court. If
the government chooses to introduce these documents again
during those proceedings, and if Joseph objects, the District
Court can resolve that issue in the proper context.

                                25
                       V. CONCLUSION.
       For the reasons set forth above, we believe a genuine
issue of material fact exists as to Joseph’s derivative citizenship
claim, and we will therefore grant his petition for review, vacate
the order of the BIA and remand the case to the United States
District Court for the District of New Jersey for further
proceedings.




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