09-4211-pr Garcia v. USICE Dept. of Homeland Security UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND…

09-4211-pr
Garcia v. USICE (Dept. of Homeland Security)
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2011 7
8
(Argued: December 6, 2011 Decided: December 29, 2011) 9
10
Docket No. 09-4211-pr 11
12
13
14
C ARLOS G ARCIA , 15
16
Petitioner-Appellant, 17
18
-v.- 19
20
USICE (D EPT . OF H OMELAND S ECURITY ), 21
22
Respondent-Appellee. 23
24
25
26
Before: 27
M INER , W ESLEY , and C HIN , Circuit Judges. 28
29
Appeal from judgment of the United States District 30
Court for the Western District of New York (Telesca, J.). 31
The district court denied Petitioner habeas corpus relief 32
after finding that Petitioner did not derive citizenship 33
from his father; the district court ruled that Petitioner 34
was not in his father’s “legal custody” when his father 35
naturalized. We conclude that the district court erred 36
because it relied on an unenforceable custody award. 37
38
“Legal custody” is a matter of federal law, which looks 39
first to state law to determine whether there is an 40
enforceable judicial determination or statutory grant of 41
custody. If there is not, “actual uncontested custody” of 42
the child controls. Here, there is a genuine factual 43
dispute over which parent (if either) had “actual 44

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2
uncontested custody” of Petitioner when his father 1
naturalized. Therefore, we VACATE and REMAND for a hearing 2
under 8 U.S.C. § 1852(b)(5)(B). In addition, we instruct 3
the district court to appoint Petitioner pro bono counsel. 4
5
VACATED and REMANDED. 6
7
8
9
T IMOTHY W. H OOVER (Peter C. Obersheimer, on the brief), 10
Phillips Lytle LLP, Buffalo, NY, for Petitioner- 11
Appellant. 12
13
K ATHARINE E. C LARK , Trial Attorney, Office of Immigration 14
Litigation, Civil Division (Tony West, Assistant 15
Attorney General, Shelley R. Goad, Assistant 16
Director, Russell J.E. Verby, Senior Litigation 17
Counsel, on the brief), for Eric H. Holder, Jr., 18
United States Attorney General, Washington, D.C., 19
for Respondent-Appellee. 20
21
22
23
W ESLEY , Circuit Judge: 24
25
I. 26
A. 27
Carlos Garcia was born in the Dominican Republic on 28
December 24, 1978. His family immigrated to the United 29
States in 1984, and shortly thereafter, he became a lawful 30
permanent resident. When Garcia’s family arrived in the 31
United States, they resided on West 107th Street in 32
Manhattan. 33
In 1988, while his family was vacationing in the 34
Dominican Republic, his mother divorced his father in a 35
Dominican court. The divorce decree purported to grant 36

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1 The Dominican Divorce Law is unclear as to what is
encompassed by the term “guarda personal.” The Divorce Decree
includes no specific reference to custody.
3
Garcia’s mother “guarda personal” (“personal 1
guardianship”). 1 Following the vacation, Garcia’s family 2
returned to Manhattan and his parents continued living 3
together on West 107th Street. In 1989, the entire family 4
moved to 201 West 109th Street, and in August 1994 (six 5
years after the divorce), Garcia’s mother finally moved into 6
her own apartment. 7
On April 20, 1996, when Garcia was under the age of 8
eighteen, his father naturalized. Garcia alleges that at 9
the time, he resided with his father and that his father had 10
“actual uncontested custody” of him. 11
B. 12
On January 27, 1998, the former Immigration and 13
Naturalization Service (“INS”) charged Garcia as removable 14
under Immigration and Nationality Act (“INA”) § 237(a)(2)(C) 15
(conviction for a firearm offense). INS took Garcia into 16
custody until an immigration judge ultimately cancelled his 17
removal. See Garcia v. U.S. Dep’t of Homeland Sec., 657 F. 18
Supp. 2d 403, 405 (W.D.N.Y. 2009). Garcia, however, soon 19
found himself back on the wrong side of the law. 20

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2 On June 1, 2005, the district court transferred Garcia’s
citizenship petition to this court for consideration under the
REAL ID Act. On September 28, 2006, this court remanded Garcia’s
case in a one-paragraph order and directed the district court to
hold further proceedings “regarding petitioner’s claim that he is
a national of the United States.” Order, Garcia v. Dep’t of
Homeland Security, No. 05-2818-ag (2d Cir. Sept. 26, 2006); see
also 8 U.S.C. § 1252(b)(5)(B) (2006).
4
As a result of several convictions in 2001 and 2002, 1
the Government served Garcia with a Notice to Appear and 2
ultimately ordered him removed to the Dominican Republic. 3
Garcia applied for derivative citizenship based on his 4
father’s 1996 naturalization, but United States Citizenship 5
and Immigration Services (“CIS”) denied his application, 6
finding that the Dominican Republic divorce decree granted 7
Garcia’s mother, and not his father, “legal custody.” Id. 8
at 406. After the CIS Administrative Appeals Office denied 9
his appeal, Garcia filed a petition for a writ of habeas 10
corpus in the district court. 2
11
The district court denied Garcia’s petition. It found 12
the Dominican Republic divorce decree highly probative of 13
which parent had custody (Garcia’s mother) and therefore 14
concluded that Garcia was unable to demonstrate that he was 15
in his father’s sole legal custody when his father 16

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3 From the record, it appears that neither Garcia nor the
Government ever questioned the enforceability of the divorce
decree’s purported custody award.
5
naturalized. 3 Garcia, 657 F. Supp. 2d at 407–08. 1
Throughout the initial proceedings, Garcia proceeded 2
pro se. When the case came before us, we appointed Garcia 3
pro bono counsel and asked for supplemental briefing. 4
II. 5
A. 6
Prior to its repeal, INA § 321 provided, in pertinent 7
part: 8
A child born outside of the United States of 9
alien parents . . . becomes a citizen of the United 10
States upon fulfillment of the following conditions: 11
. . . 12
(3) The naturalization of the parent having 13
legal custody of the child when there has been a 14
legal separation of the parents . . .; and if 15
(4) Such naturalization takes place while such 16
child is under the age of eighteen years . . . . 17
INA § 321, 8 U.S.C. § 1432(a) (1996) (emphasis added), 18
repealed by Child Citizenship Act Of 2000, Title I, 19
§ 103(a), 114 Stat. 1632. 20
The parties agree that when Garcia’s father naturalized 21
on April 20, 1996, (1) there was “a legal separation of the 22
parents” and (2) Garcia was under the age of eighteen. The 23

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6
parties disagree as to whether Garcia was in the “legal 1
custody” of his father at the time. 2
“Legal custody” is a matter of federal law. See Fierro 3
v. Reno, 217 F.3d 1, 4 (1st Cir. 2000). Nevertheless, we 4
often look to state law for a rule of decision 5
“[w]here . . . there is no extant body of federal common law 6
in the area of law implicated by the statute.” Brissett v. 7
Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004). For example, in 8
Brissett, we held that the term “legal separation” contained 9
in the same subsection of the statute requires a formal act, 10
as defined by state law, that alters the marital 11
relationship. Brissett, 363 F.3d 133-34. In New York, the 12
qualifying “formal act” is either divorce (termination of 13
the marriage) or a formal written or judicial separation, 14
which recognizes the separate existence of the marital 15
parties. See id. We believe a similar reference to state 16
law is appropriate, at least initially, for determining 17
“legal custody,” as “[l]egal relationships between parents 18
and children are typically governed by state law, there 19
being no federal law of domestic relations.” Fierro, 217 20
F.3d at 4 (internal quotation marks omitted). 21
22

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7
The first step in deciding whether a naturalizing 1
parent has “legal custody” of a child for purposes of 2
derivative citizenship is to determine whether a judicial 3
decree or statutory grant awards custody to the naturalizing 4
parent. Bagot v. Ashcroft, 398 F.3d 252, 268-69 (3d Cir. 5
2005) (Rosenn & Nygaard, concurring). But, notwithstanding 6
a formal termination of the marriage, what if there is no 7
judicial or authorized determination of custody? In 8
Brissett, we indicated that the absence of a formal judicial 9
determination or written separation agreement was fatal to a 10
derivative citizenship claim. Brissett, 363 F.3d at 134. 11
Is an immigrant child of a naturalizing alien denied 12
citizenship because there is no court order or formalized 13
custody agreement? We think not; we are not convinced that 14
our reasoning in Brissett equally applies to determinations 15
of “legal custody.” 16
In Matter of M—, 3 I. & N. Dec. 850 (BIA 1950), a child 17
was born in Czechoslovakia to married parents; the mother 18
was German and the father Jewish. In 1940, the mother 19
“annulled” the marriage and father and daughter immigrated 20
to the United States. They were lawfully admitted, and the 21
father naturalized in 1947 when the child was under the age 22

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4 Indeed, Congress specifically softened the custody
requirement when it enacted the successor statute to former INA
§ 321:
A child born outside of the United States
automatically becomes a citizen of the United States when
all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of
the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in
the legal and physical custody of the citizen parent
8
of eighteen. Id. at 850–51. The “annulment,” which the 1
Board of Immigration Appeals (“BIA”) treated as a divorce, 2
made no provision for custody, but the mother had 3
surrendered custody to the father. Id. at 851, 854. 4
The BIA held: 5
[I]n the absence of judicial determination or 6
judicial or statutory grant of custody in the case 7
of legal separation of the parent of a person 8
claiming citizenship under section 314(c) [INA 9
§ 321(a)’s predecessor], the parent having actual 10
uncontested custody is to be regarded as having 11
“legal custody” of the person concerned for the 12
purpose of determining that person’s status under 13
section 314(c). 14
Id. at 856. We “accord substantial deference to the BIA’s 15
interpretations of the statutes and regulations that it 16
administers.” Brissett, 363 F.3d at 133. Moreover, Matter 17
of M— has been the law for sixty-one years without 18
congressional intervention. 4 The BIA’s interpretation, 19

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pursuant to a lawful admission for permanent residence.
8 U.S.C. § 1431(a) (2006).
9
thus, has substantial persuasive weight. See Zhang v. 1
Holder, 617 F.3d 650, 662 (2d Cir. 2010) (citing Commodity 2
Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986)) 3
(other citations omitted). 4
Decisions about the marital relationship tend to be 5
final; custody decisions, in contrast, tend to be fluid and 6
frequently change depending on the parents’ situations and 7
well-being. See Bagot, 398 F.3d at 270 (Rosenn & Nygaard, 8
concurring). Parents’ “agreement to transfer legal custody 9
[is] within the purview of their authority and . . . it is 10
not necessary for parents to come into court to change or 11
amend a de[c]ree of divorce every time they . . . jointly 12
make a major decision concerning the care and custody of 13
their children.” Tabucbuc v. Ashcroft, 84 F. App’x 966, 969 14
(9th Cir. 2004) (internal quotation marks omitted) 15
(unpublished memorandum). 16
Requiring a formal act to change custody—something more 17
than mere agreement—is counterintuitive to the attempts that 18
parents make following a divorce to conduct their lives and 19
those of their children with one goal: the children’s best 20

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10
interest. Moreover, in the absence of a judicial 1
determination giving one parent sole custody of the child, 2
each parent generally retains the rights and 3
responsibilities that come with parenthood. N.Y. Dom. Rel. 4
Law § 81 (McKinney 2010); see also 45 N.Y. Jur. 2d Dom. Rel. 5
§ 333. 6
Our holding today is consistent with our decision in 7
Brissett. Divorce and judicial separation are inherently 8
different from custody decisions. Bagot, 398 F.3d at 267; 9
see also Morgan v. Att’y Gen., 432 F.3d 226, 234 (3d Cir. 10
2005) (recognizing after Bagot that in contrast to “legal 11
custody,” “legal separation” does require a “formal 12
governmental action”). The BIA itself has recognized as 13
much. Compare Brissett, 363 F.3d at 133-34 (recognizing 14
that the BIA interprets “legal separation” to require a 15
formal act), with Matter of M-, 3 I. & N. Dec. at 856 (BIA’s 16
interpretation that “actual uncontested custody” can 17
constitute “legal custody”). 18
B. 19
In his supplemental brief, Garcia argues that New York 20
would not recognize the Dominican Republic custody award and 21
that if the Dominican custodial decree is unenforceable, the 22

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5 The UCCJA limited the jurisdictional bases for making a
custody determination. N.Y. Dom. Rel. Law § 75-d (McKinney
1987). New York replaced the UCCJA with the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) on April 29,
2002. We include the text of former § 75-d as an appendix to
this opinion.
6 In contrast to the UCCJEA, which mandates recognition of
a foreign custody award made in substantial accordance with the
UCCJEA, see N.Y. Dom. Rel. Law § 75-d(1) (McKinney 2010), UCCJA
merely encouraged recognition and enforcement of such awards, see
N.Y. Dom. Rel. Law § 75-w (McKinney 1987).
11
parent with actual uncontested custody is the parent with 1
“legal custody” for the purpose of evaluating his derivative 2
citizenship claim. We agree. 3
At the time that Garcia’s mother secured the divorce, 4
Garcia and his family resided in New York and had resided 5
there for four years; New York was their “home state.” At 6
that time, New York had enacted the Uniform Child Custody 7
Jurisdiction Act (“UCCJA”). 5 Pursuant to the UCCJA, New 8
York would not even consider recognizing a foreign custody 9
award unless the foreign law substantially complied with the 10
UCCJA. 6 N.Y. Dom. Rel. Law § 75-n (McKinney 1987); N.Y. 11
Dom. Rel. Law § 75-w (McKinney 1987). As the New York Court 12
of Appeals explained, the UCCJA required “[m]aximum rather 13
than minimum contacts with the State.” Vanneck v. Vanneck, 14
49 N.Y.2d 602, 610 (1980). 15
16

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7 Our conclusion that New York would not recognize the
Dominican Republic custody award is also consistent with the
United States’ obligations under the Hague Convention. We are
mindful that district courts must ensure that their
determinations of “actual uncontested custody” involving a
foreign person or custody determination comply with the Hague
Convention. See 42 U.S.C. §§ 11601-11611.
12
It is quite clear that New York had jurisdiction to 1
determine custody, not the Dominican Republic. New York was 2
Garcia’s home state when his mother secured the divorce; his 3
family had lived in New York for four years prior to the 4
divorce. Moreover, the record reflects that no other 5
jurisdictional basis was present. Therefore, the Dominican 6
Republic custodial award was not made in “substantial 7
accordance” with the UCCJA. Garcia is correct; New York 8
would not recognize the award. 7
9
This case thus turns then on who had “actual 10
uncontested custody” of Garcia when his father naturalized. 11
Two predominant indicators of “actual uncontested custody” 12
are (i) the child’s physical residence, and (ii) consent to 13
custody by the non-custodial parent. See Bagot, 398 F.3d at 14
267. 15
In the district court, Garcia, acting as his own 16
counsel, presented largely uncontradicted evidence that he 17
was in his father’s “actual uncontested custody” when his 18

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13
father naturalized. When Garcia’s father became a citizen, 1
he resided at 201 West 109th Street, Basement Apartment. 2
The affidavits of Garcia and each of his parents provide 3
unrebutted evidence that Garcia resided with both parents at 4
that address from 1989 to at least August 1994. 5
A middle school abstract (procured by Garcia’s pro bono 6
counsel and submitted with this appeal) confirms that Garcia 7
resided at 201 West 109th Street, Basement Apartment, during 8
the 1993 school year. The affidavits of Garcia and his 9
mother each discuss her move out of the family residence in 10
August 1994, leaving Garcia with his father at 201 West 11
109th Street, and that Garcia’s father was “legally, 12
financially, [and] physically responsible for him.” His 13
parents contended that they had agreed that Garcia would 14
remain with his father and not move out with his mother. 15
The affidavits are further corroborated by a 2003 U.S. Alien 16
Change of Address form completed by Garcia, which lists 17
Garcia’s “OLD address”—i.e., up until 2003—as his father’s. 18
Garcia alleges that this piece of evidence connects the 19
dates between the school records from the 1990s through and 20
past 1996 (when his father naturalized). 21
22

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8 The Government did not place the 1992 tax return into the
record and Garcia’s appointed counsel suggests that the
Government does not have a copy; the district court should ensure
that the tax return is in the record if it chooses to rely on the
tax return.
9 As with the 1992 tax return, the Government did not place
the affidavit into the record and Garcia’s appointed counsel
suggests that the Government does not have a copy; if the
district court relies on the affidavit, it must be part of the
record.
10 We believe that the omission can equally be understood
as a lack of adequate space on the naturalization form or minimal
understanding of the English language. The naturalization form
had seven lines for children. Garcia’s father had eight
children. He listed Garcia on an additional page, which lacked
the form blanks to enter Garcia’s date of birth, country of
birth, citizenship, alien number, and address.
14
Before the district court, the Government pointed out 1
that Garcia’s father’s 1988 and 1992 tax returns either 2
listed Garcia as a dependent without providing his address, 3
or indicated that he had no dependents. 8 It also argued 4
that in 1993, Garcia’s father submitted an affidavit in 5
support of his second wife’s visa application that listed no 6
dependents. 9 In addition, Garcia’s father’s naturalization 7
application omitted Garcia’s address, an omission that the 8
Government argues means that Garcia must have lived with his 9
mother. 10
10
In our view, there is a genuine dispute of material 11
fact about which parent (if either) had uncontested custody 12
of Garcia when his father naturalized. The Government and 13

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15
district court relied almost entirely upon the Dominican 1
Republic divorce decree to resolve the matter; without the 2
divorce decree, the Government has introduced very little 3
evidence to contradict Garcia’s claim. It is the district 4
court, however, that must weigh the probative value of 5
Garcia’s and the Government’s evidence. 8 U.S.C. 6
§ 1252(b)(5)(B) (2006). 7
Garcia now has the benefit of appointed counsel, who 8
has diligently searched for and found additional 9
records—such as Garcia’s school records—that shed further 10
light on the issue of actual uncontested custody. Further, 11
when acting pro se, Garcia was detained at the Batavia 12
immigration detention center, which severely limited his 13
ability to provide the court with documents and other 14
evidence that might assist it in making its determination of 15
which, if either, of Garcia’s parents had actual uncontested 16
custody of him when his father naturalized. Thus, we 17
instruct the district court to hold a hearing under 8 U.S.C. 18
§ 1252(b)(5)(B) (2006). 19
The district court should conduct this hearing in the 20
same manner that it conducts any other evidentiary hearing. 21
The district court should give Garcia’s appointed counsel 22

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11 We note that W.D.N.Y. Local Rule 83.1(f) requires
members of the district court’s bar to be available “upon the
16
(and the Government) a fair opportunity to supplement the 1
record, if necessary, with any additional evidence, 2
including witness testimony, that is material to the custody 3
issue. 4
III. 5
We appoint Garcia counsel in the district court. We 6
may appoint an unrepresented party counsel if we find the 7
factors set forth in Hodge v. Police Officers, 802 F.2d 58 8
(2d Cir. 1986), satisfied. These factors include: 9
(1) whether the party’s claim has substantial merit; 10
(2) whether the nature of the factual issues requires an 11
investigation, and whether the party’s ability to 12
investigate is inhibited; (3) whether the claim’s factual 13
issues turn on credibility, which benefits from the skills 14
of those trained in presentation of evidence and cross- 15
examination; (4) the party’s overall ability to present its 16
case; and (5) whether the legal issues presented are 17
complex. Hodge, 802 F.2d at 60-61. We find that all of 18
these factors favor appointing Garcia counsel in the 19
district court. Therefore, we instruct the district court 20
to appoint Garcia counsel. 11 28 U.S.C. § 1915(e) (2006); 21

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Court’s request for appointment to represent or assist in the
representation of indigent parties.” We take judicial notice
that Garcia’s appointed counsel before this court, Mr. Timothy W.
Hoover, is a member of the Western District Bar. We appreciate
Mr. Hoover’s outstanding representation before us. We recommend
that the district court ask Mr. Hoover to continue representation
in the district court, and if he declines, appoint another
attorney to represent Garcia pro bono.
17
Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997); 1
Hodge, 802 F.2d at 60-61. 2
IV. 3
We have reviewed Garcia’s other claims on appeal and 4
find them to be without merit. To conclude, we VACATE and 5
REMAND the district court’s order and judgment. We instruct 6
the district court to hold a hearing consistent with this 7
opinion, and we appoint Garcia counsel for the district 8
court proceedings. We continue Garcia’s stay of removal 9
pending further proceedings in this court. 10
VACATED and REMANDED. 11

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09-4211-pr
Garcia v. USICE
APPENDIX
1. A court of this state which is competent to decide
child custody matters has jurisdiction to make a child
custody determination by initial or modification decree
only when:
a. this state (i) is the home state of the child at
the time of commencement of the custody
proceeding, or (ii) had been this child’s home
state within six months before commencement of
such proceeding and the child is absent from this
state because of his removal or retention by a
person claiming his custody or for other reasons,
and a parent or person acting as a parent
continues to live in this state; or
b. it is in the best interest of the child that a
court of this state assume jurisdiction because
(i) the child and his parents, or the child and at
least one contestant, have a significant
connection with this state, and (ii) there is
within the jurisdiction of the court substantial
evidence concerning the child’s present or future
care, protection, training, and personal
relationships; or
c. the child is physically present in this state and
(i) the child has been abandoned or (ii) it is
necessary in an emergency to protect the child; or
d. (i) it appears that no other state would have
jurisdiction under prerequisites substantially in
accordance with paragraph (a), (b), or (c), or
another state has declined to exercise
jurisdiction on the ground that this state is the
more appropriate forum to determine the custody of
the child, and (ii) it is in the best interest of
the child that this court assume jurisdiction.

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App'x 2
2. Except under paragraphs (c) and (d) of subdivision one
of this section, physical presence in this state of the
child, or of the child and one of the contestants, is
not alone sufficient to confer jurisdiction on a court
of this state to make a child custody determination.
3. Physical presence of the child, while desirable, is not
a prerequisite for jurisdiction to determine his
custody.
N.Y. Dom. Rel. Law § 75-d (McKinney 1987) (emphasis added).

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