                                       PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                           _

                    No. 19-1049
                                   _


         ARTURO NICOLA ESPICHAN,
         AKA Arturo Espichan Izaguirre,

                                           Petitioner

                         v.

ATTORNEY GENERAL OF THE UNITED STATES OF
               AMERICA

                                  _

       On Petition for Review of a Final Order
        of the Board of Immigration Appeals
           Immigration Judge: Leo Finston
                 (No. A042-288-321)
                                   _
            Argued September 24, 2019

 Before: McKEE, AMBRO, and ROTH, Circuit Judges

        (Opinion filed: December 27, 2019)
Kristina C. Ivtindzioski (Argued)
161 Madison Avenue
Third Floor
Morristown, NJ 07960

       Counsel for Petitioner

Joseph H. Hunt
  Assistant Attorney General, Civil Division
Stephen J. Flynn
  Assistant Director, Office of Immigration Litigation
Arthur L. Rabin (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

       Counsel for Respondent
                                        _

                OPINION OF THE COURT
                                _

AMBRO, Circuit Judge

                     INTRODUCTION
       Arturo Nicola Espichan came to the United States from
Peru as a 14-year-old to live with his father, who shortly after
became a U.S. citizen. When the Government later sought to
deport Espichan for having committed an aggravated felony,
he claimed he was not an alien but a U.S. citizen, having




                                2
derived citizenship from his father under a then-existing
statute—§ 321(a) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1432(a) (repealed 2000). To meet that
provision’s requirements, Espichan needs to show that his
parents had a “legal separation.” The Government claims he
cannot do so because, to be separated legally, you must first be
married, and it asserts Espichan’s parents were not.
       Because Espichan’s nationality claim presents a
genuine issue of material fact—whether his parents were
married—we transfer the case to a U.S. district court for a
hearing and decision on that issue. If the court finds that
Espichan’s parents were married, then we hold as a matter of
law that Espichan has satisfied all requirements under
§ 1432(a)(3)–(5) for derivative citizenship and so may not be
removed.
                     I. BACKGROUND
       The following facts are not in dispute. Espichan is a
native and citizen of Peru born in May 1975 to German
Espichan and Margarita Izaguirre. His father came to the U.S.
as a lawful permanent resident in 1979. He got custody of
Espichan in August 1986 per a power of attorney signed by
Espichan’s mother at the U.S. consulate in Peru. In February
1990, Espichan’s mother filed a complaint at the police
headquarters in Callao, Peru, declaring as a matter of public
record that she and Espichan’s father, having lived together
since 1970, separated in 1979.
       Espichan’s father petitioned for him to come to the U.S.
as a lawful permanent resident, and Espichan, then 14, arrived
in March 1990. Later that month, his father became a U.S.
citizen.




                               3
       Fast forward to 2016, when the Department of
Homeland Security (“DHS”) charged Espichan with being an
alien convicted of an aggravated felony, hence subject to
removal under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii).
        Espichan contested his removability before the IJ at his
removal hearing, arguing that he had acquired derivative
citizenship through his father under 8 U.S.C. § 1432(a)(3), the
applicable law at the time of his alleged naturalization, see
Morgan v. Att’y Gen., 432 F.3d 226, 230 (3d Cir. 2005),
because his parents were legally separated at the time of his
father’s naturalization. The IJ rejected this claim, finding there
could be no legal separation because DHS came forward with
“unequivocal evidence” that Espichan’s father “never held
himself out to be married” to Espichan’s mother. Accordingly,
he concluded that Espichan had not established U.S.
citizenship and ordered him removed to Peru. The Board of
Immigration Appeals (“BIA”) affirmed, and Espichan petitions
us for review.
  II. JURISDICTION AND STANDARD OF REVIEW
       8 U.S.C. § 1252(b)(5) allows judicial review of removal
orders in the appropriate court of appeals when the nationality
of the petitioner is uncertain and gives us jurisdiction over that
issue. See Dessouki v. Att’y Gen., 915 F.3d 964, 966 (3d Cir.
2019). If “from the pleadings and affidavits” we believe that
“no genuine issue of material fact about the petitioner’s
nationality is presented,” then we “shall decide the nationality
claim.” 8 U.S.C. § 1252(b)(5)(A). If, however, there is a
genuine issue of material fact about the petitioner’s nationality,
per 8 U.S.C. § 1252(b)(5)(B) we “transfer the proceeding to
the district court of the United States for the judicial district in
which the petitioner resides for a new hearing.”




                                 4
        While our review of the nationality claim is
unrestricted, it is limited to questions of law. See Morgan, 432
F.3d at 229. Where the “ʻBIA’s opinion directly states that the
BIA is deferring to the IJ, or invokes specific aspects of the IJ’s
analysis and factfinding in support of the BIA’s conclusions,’
we review both decisions.” Uddin v. Att’y Gen., 870 F.3d 282,
289 (3d Cir. 2017) (internal citation omitted). Here the BIA
invoked specific aspects of the IJ’s decision, so we review both
decisions to determine whether a genuine issue of material fact
exists as to Espichan’s nationality.
                        III. ANALYSIS

       On his petition for review, Espichan asks us to decide
his nationality claim as a matter of law, as he contends he has
proven that his parents had a de facto marriage and,
subsequently, a legal separation under Peruvian law. In the
alternative, he argues that he has presented at the least a
genuine issue of material fact as to his nationality that should
be decided by a district court. Before turning to the claim itself,
we address the appropriate standard to determine whether a
genuine issue of material fact exists.
   A. We Use the Summary Judgment Standard When
      Determining Whether a Genuine Issue of Material
      Fact Exists.

    Joseph v. Att’y Gen., 421 F.3d 224, 229 (3d Cir. 2005),
points the path to determine whether there is a genuine issue of
material fact about Espichan’s nationality. It adopts our typical
summary judgment standard: the moving party “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;” and “all factual inferences [flow]
in favor of . . . the nonmoving party.” Id. at 230 (internal
citation omitted). Here the Government is the moving party




                                5
because it is seeking “what amounts to summary judgment” in
terms of having Espichan declared removable. Id.
        The Government, however, contends that our case
Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005), controls on
whom the burden rests because we are making a citizenship
determination. According to Bagot, the “burden of proof of
eligibility for citizenship is on the applicant,” and so “[a]ll
doubts ‘should be resolved in favor of the United States and
against the claimant.” Id. at 256–57 (internal citation omitted).
The Government attempts to distinguish Joseph on the ground
that it is “on weaker footing than Bagot when it comes to
inferences” because Joseph fails “to acknowledge or account
for the Supreme Court’s admonition in United States v.
MacIntosh that ‘[c]itzenship is a high privilege, and when
doubts exist concerning a grant of it, generally at least, they
should be resolved in favor of the United States and against the
claimant.’” Gov. Br. at 17 n.7 (quoting United States v.
MacIntosh, 283 U.S. 605, 626 (1931)).
       This argument fails for two reasons.
        First, in Joseph we were determining under
§ 1252(b)(5)(B) whether a genuine dispute of material fact
existed as to that petitioner’s nationality, making it appropriate
to transfer the case to a district court. 421 F.3d at 229-230. In
Bagot, by contrast, we were determining the merits of a
nationality claim itself that came to us on a habeas petition.
398 F.3d at 253-54. Thus, while it is appropriate to place the
burden of proving citizenship on the applicant when deciding
the merits of a nationality claim, the case directly on point here,
Joseph, tells us that the burden is on the Government to show
there is no genuine dispute of material fact that requires
resolution by the factfinder.




                                6
        Second, Joseph is on no weaker footing than Bagot
when it comes to Supreme Court precedent. The former relied
on the Supreme Court’s decision in Agosto v. INS, 436 U.S.
748 (1978), which interpreted § 106(a)(5)(B) of the INA
(repealed 1996) 1—the predecessor to our current jurisdictional
statute that uses language almost identical to that in
§ 1252(b)(5). Agosto determined that because the “statutory
language [in § 106(a)(5)(B)] is virtually identical to that
embodied in Fed. Rule Civ. Proc. 56, which governs summary
judgment motions,” it is reasonable to “assume that, in using
the language from Rule 56 as the standard for granting de novo
district court hearings on citizenship claims, Congress intended
the language to be interpreted similarly to that in Rule 56.” Id.
at 754. When Agosto was decided, it was well established that,
on Rule 56 motions for summary judgment, the burden to show

1
    § 106(a)(5)(B) of the INA (repealed 1996) provided that

         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. . . .




                                  7
the absence of a genuine issue of fact was on the moving party
and all inferences were in favor of the nonmoving party. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Additionally, Agosto, which was decided long after MacIntosh,
made no mention of the earlier case’s admonition regarding the
high burden of proving citizenship when considering whether
we should use the summary judgment standard and draw all
inferences in favor of the nonmoving party.
        Accordingly, in determining whether a petitioner’s
nationality presents a genuine issue of material fact, we follow
Joseph’s directive and require the Government to demonstrate
that there is a lack of such an issue while drawing all inferences
in favor of the petitioner. When deciding the merits of such a
claim, however, Bagot controls and the burden of proving
citizenship is on the petitioner.
    B. Espichan’s Nationality Claim
       We now come to the heart of the case: whether
Espichan’s nationality claim presents a genuine issue of
material fact to warrant a fresh hearing by a district court.
Espichan claims that he derived citizenship through his father
under 8 U.S.C. § 1432(a)(3). It provides in relevant part that
citizenship is automatically acquired by a child born outside
the U.S. to alien parents on “[t]he naturalization of the parent
having legal custody of the child when there has been a legal
separation of the parents.” 2

2
  The child must also be under the age of 18 at the time of the
naturalization and have been residing in the United States
“pursuant to a lawful admission for permanent residence” at
the time of the parent’s naturalization. 8 U.S.C. § 1432(a)(4)–
(5). Neither party disputes that Espichan has satisfied these
conditions.




                                8
       While § 1432(a) refers only to a “legal separation”
between an alien’s parents for derivative citizenship, we have
interpreted the statute, no doubt out of logic, to require a
marriage as the requisite antecedent to a “legal separation.”
See, e.g., Dessouki, 915 F.3d at 967 (“Dessouki bases his
citizenship claim on his father’s naturalization [under
§ 1432(a)]. But the relevant law requires his parents to have
once been married.”). Accordingly, our first step is to
determine whether the evidence in the record presents a
genuine issue of material fact as to the marriage of Espichan’s
parents. If so, we may turn to whether there was a legal
separation.
    1. The Record Presents a Genuine Issue of Material Fact
       Whether Espichan’s Parents Were Married.

    At the time Espichan’s parents were allegedly married, they
both lived in Peru, so Peruvian law controls. Morgan, 432 F.3d
at 234. That law expressly recognizes de facto marital unions.
The Peruvian Civil Code of 1936, the law in effect when
Espichan claims his parents were married, provided for and
defined marital union in fact as “[t]he stable union of a man
and a woman, free from any impediment to marry, who make
up a de facto household in compliance with the time and
conditions foreseen by the law, resulting in a community
property subject to the regime of conjugal partnership where
applicable.” J.A. 91. Similarly, Article 326 of the Peruvian
Civil Code of 1984, the law in force at the time of Espichan’s
father’s U.S. naturalization in 1990,3 provides that a “union in

3
  Under Morgan the applicable law is that “in effect at the time
the critical events giving rise to the claim for derivative
citizenship occurred.” 432 F.3d at 230. Thus, while the Civil
Code of 1936 governed the actual marriage itself, the Civil
Code of 1984 governed at the time Espichan’s father sought to




                               9
fact, voluntarily made between a man and a woman, free of
matrimonial impediment, to achieve purposes and fulfill duties
similar to those of marriage, originates a society of assets
subject to the regime of community of acquisitions.” J.A. 79.
Article 9 of the Peruvian Constitution of 1979 also explicitly
recognizes a de facto marriage—a “union of a man and a
woman, free from any impediment to marriage, who form a de
facto family . . . leads to a property system subject to the marital
property system.” J.A. 75.
       Espichan presented documentary evidence in the form
of affidavits signed in 2018, a 1990 police report, and a legal
memorandum prepared by a Peruvian law firm, tending to
show that his parents had a de facto marriage under Peruvian
law. He presented his mother’s affidavit attesting that in 1970
she “got married in Pusacocha Lagoon, according to the Pashas
Culture [part of the Incan Indian community], with a simple
ceremony,” and that “[a]long with Mr. German Espichan, we
accepted to be married under the tradition of the Pashas.” She
also declared that “I started a married life with Mr. German
Espichan, making then a legal coexistence.” J.A. 56. Espichan
then introduced his father’s affidavit attesting that “[i]n Peru, I
maintained a convivial relationship with Ms. Margarita
Izaguirre, which we initiated since September 23, 1970,” and
“we accepted to having a traditional matrimony . . . at the
Pusacocha Lagoon, according to the traditions of the Pashas
culture, with a simple ceremony.” J.A. 60. Further, he
declared that “[s]ince that September 23, 1970, [I] started a
married life with Mrs. Margarita Izaguirre, making a legal


naturalize. Both, however, recognize a de facto marriage. See
also Minasyan v. Gonzales, 401 F.3d 1069, 1077 (9th Cir.
2005) (looking at the marital law in place in California, the
relevant jurisdiction, at both the time of naturalization and
marriage).




                                10
coexistence.” J.A. 60. Espichan also submitted his aunt’s
affidavit attesting that she attended his parents’ traditional
marital ceremony. J.A. 63.
        That was not all. Espichan presented a police complaint
filed by his mother in February 1990 declaring that “German
Nicolas Espichan Bondani [and] . . . Margarita Justina
Izaguirre Soto . . . lived together from 1970 to 1979” and
“during the years of living together [] had three children.” J.A.
49. Finally, Espichan introduced a legal memorandum from a
law firm in Peru summarizing the provisions of Peruvian law
that recognize de facto marital unions, explaining that they are
a “deep-rooted custom,” and concluding that Espichan’s
parents had formed a “de facto marital union” under Peruvian
law. J.A. 91, 94.

        The Government, on the other hand, argues that, as a
matter of law, Espichan’s parents were never married because
DHS presented evidence to the IJ tending to show that there
was no marriage. It points to three items: First, Espichan’s
father’s Application to File Petition for Naturalization did not
list a marriage to Espichan’s mother despite listing three other
marriages. J.A. 51. Second, Espichan’s mother’s Application
for Naturalization indicated that she was “Single, Never
Married.” A.R. 624. And finally, a 1989 affidavit signed by
Espichan’s father (submitted as part of his efforts to obtain
legal status for his son) declared that he had never been married
to Espichan’s mother. J.A. 53.

       The Government disputes the credibility of Espichan’s
evidence in an attempt to show there is not a genuine dispute
of material fact. But under Joseph we refrain from making
credibility determinations and draw all inferences in favor of
Espichan. 421 F.3d at 231–32. He offers plausible
explanations for why his parents failed to state that they were
married—for example, they may not have understood that




                               11
“marriage” as written on their official immigration forms
included de facto marriages. See Pet’r Br. at 12–13. But that
is not for us to decide. Thus there is a genuine dispute of
material fact whether Espichan’s parents were married under
Peruvian law.
   2. If Espichan’s Parents Were Married, Then Their
      Separation Is a “Legal Separation” Under § 1432(a)(3)
      as a Matter of Law.
       Even if Espichan’s parents were married (and we
assume so in this Section), we must still decide the issue of
legal separation that occurs “only upon a formal governmental
action . . . that[,] under the laws of a state or nation having
jurisdiction over the marriage, alters the marital relationship of
the parties.” Morgan, 432 F.3d at 234. In Morgan the laws of
the relevant jurisdictions—Jamaica and Pennsylvania—both
required a formal judicial decree for legal separation. Id. at
233–34. But we expressly acknowledged that there may be a
case where the relevant jurisdiction does not require any
“governmental imprimatur” for parties to become “legally
separated.” Id. at 234 n.4. This is that case.

       Article 326 of the Peruvian Civil Code of 1984 provides
that “[a] union in fact ends by death, absence, mutual
agreement, or unilateral decision.” J.A. 79. And here Espichan
gave evidence showing that his parents dissolved their de facto
marital union under Peruvian law. He introduced the police
complaint filed with the Callao Police Headquarters in
February 1990 stating that “German Nicolas Espichan
Bondani” and “Margarita Justina Izaguirre Soto” “let it be
known having lived together from 1970 to 1979 and by mutual
agreement have made the decision to separate.” J.A. 49.
       The Government disputes this characterization of the
police complaint. But its arguments come up short. First, it




                               12
contends the police complaint is more akin to a child custody
determination because the complaint includes a reference to
the couple’s children (“likewise it is known that during the
years of living together they had three children . . .”). J.A. 49.
But this overlooks that, several years prior to filing the
complaint, Espichan’s mother signed a power of attorney
granting full custody of Espichan to his father. J.A. 47.
Second, the Government casts doubt on the mutual nature of
the separation, arguing that it is not clear that Espichan’s father
was a party to the police complaint. Yet this does not show
that the complaint was not mutual, especially in light of the
2018 affidavit in which Espichan’s father declared that “I have
true knowledge that my ex-wife, Ms. Margarita Izaguirre[,]
presented to the Commissary of Callao, on February 19, 1990,
a document with the purpose of giving validity to the
separation by mutual agreement.” J.A. 61. Moreover,
Peruvian law does not require separations to be mutual—a de
facto marriage may end by “unilateral decision.” J.A. 79.
       Because the Government has failed to rebut Espichan’s
evidence tending to show that his parents had a legal
separation, there is no genuine issue of material fact, and we
may decide the issue as a matter of law. 8 U.S.C.
§ 1252(b)(5)(A).
        Espichan now bears the burden of proving the merits of
his citizenship claim by a preponderance of the evidence. See
Bagot, 398 F.3d at 256; In re Rodriguez-Tejedor, 23 I. & N.
Dec. 153, 164 (BIA 2001). He has met his burden insofar as
the legal separation issue is concerned. The police complaint,
an official record with a clear declaration of separation,
demonstrates by a preponderance of the evidence that his
parents had a legal separation under Peruvian law in 1979, 11
years before his father naturalized.




                                13
       Accordingly, if the District Court finds that the parents
of Espichan were married, then he would have fully satisfied
§ 1432(a)(3)’s requirement for a legal separation. And because
there is no dispute as to the other requirements for § 1432(a)
derivative citizenship, Espichan would have met his burden of
proving that he derived U.S. citizenship through his father.
                        * * * * *
        Whether the parents of Espichan were married is a
genuine issue of material fact, and he has demonstrated that a
legal separation occurred in the event his parents are found to
have been married. We therefore vacate the BIA’s decision
affirming the IJ’s denial of Espichan’s citizenship claim and
transfer this petition for review to the District of New Jersey
(where Espichan is currently detained) for a de novo hearing.
The sole issue is whether his mother and father were married
under Peruvian law. See Rosales v. Lynch, 821 F.3d 625, 631–
32 (5th Cir. 2016). If not, he loses. But if the District Court
finds that they were married, then, as a matter of law, Espichan
has satisfied 8 U.S.C. § 1432(a)(3)’s “legal separation”
requirement, and he will have met his burden of proving
derivative U.S. citizenship. Because an American citizen is not
removable under 8 U.S.C. § 1227(a)(2), the District Court
should then enter a final judgment terminating removal
proceedings. See 28 U.S.C. § 2201(a) (granting district courts
the authority to create a remedy with the force of a final
judgment).
       We retain jurisdiction over this case if there is a further
appeal.




                               14
