Mamush Afeta v.  ALBERTO R. GONZALES, Attorney General of the United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MAMUSH AFETA,
Petitioner,
v. No. 05-1174 
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A27-971-695)
Argued: November 29, 2005
Decided: October 26, 2006
Before WIDENER and SHEDD, Circuit Judges, and
Walter D. KELLEY, Jr., United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Kelley wrote the opinion.
Judge Shedd wrote a concurring opinion. Judge Widener wrote a dis-
senting opinion.
COUNSEL
ARGUED: David Goren, Silver Spring, Maryland, for Petitioner.
Michelle Gorden Latour, Senior Litigation Counsel, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-
gation, Civil Division, Washington, D.C., for Respondent. ON

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BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division,
M. Jocelyn Lopez Wright, Assistant Director, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Civil Division, Washington, D.C., for Respondent.
OPINION
KELLEY, District Judge:
Resident aliens who commit aggravated felonies typically are
removed from the United States. 8 U.S.C. § 1227(a)(iii)("Any alien
who is convicted of an aggravated felony at any time after admission
is deportable."). Petitioner Mamush Afeta ("Afeta") is an Ethiopian
national whose most recent convictions were for two counts of felony
theft, two counts of attempted car theft, and two counts of destruction
of property. He seeks to evade the natural consequence of his crimes
(deportation) by claiming that he automatically became a citizen as a
minor when his mother was naturalized. See 8 U.S.C. § 1432(a)(3)
(1999) (repealed 2000). Finding no error in the Board of Immigration
Appeals’ ("BIA") interpretation of the relevant statute, we deny the
petition.
I.
In 1987, the United States admitted petitioner Afeta (10 years old
at the time) and his parents into this country as refugees. His parents
ceased living together in December 1987, and petitioner Afeta’s
father returned to Ethiopia soon thereafter. Petitioner Afeta’s mother
became a naturalized United States Citizen in 1994. Petitioner Afeta
was 17 years old at the time.
In 1997, the Circuit Court of Montgomery County, Maryland con-
victed petitioner Afeta of auto theft, possession of marijuana, and
unauthorized use of a motor vehicle. Two years later, in August 1999,
the Circuit Court of Montgomery County, Maryland convicted peti-
tioner Afeta of two counts of felony theft, two counts of attempted
auto theft, and two counts of destruction of property. He was sen-
tenced to ten years in prison (with five years suspended).
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In 2000, the United States Immigration and Naturalization Service1
("INS") ordered petitioner Afeta removed from the United States. As
grounds for removal, the INS relied on 8 U.S.C. § 1227(a)(2)(A)(iii)
(alien convicted of an aggravated felony) and 8 U.S.C. § 1227(a)(2)
(A)(ii) (alien convicted of two crimes involving moral turpitude).
Petitioner Afeta appealed his removal to the Board of Immigration
Appeals ("BIA"), asserting that he became a United States citizen by
operation of law when his mother was naturalized in 1994. The BIA
disagreed and denied his appeal by Order dated January 24, 2005.
This Petition followed.
II.
This Court may conduct only a limited review of final orders of
removal issued by the BIA. While Congress has prohibited direct
review of a BIA removal order, 8 U.S.C. § 1252(a)(2)(C),2 Courts of
Appeal "possess limited ‘jurisdiction to review factual determinations
that trigger the jurisdiction-stripping provision’ - specifically, (1)
whether [petitioner] is an alien, and (2) whether [he] has been con-
victed of an aggravated felony." Soliman v. Gonzales, 419 F.3d 276,
280 (4th Cir. 2005) (quoting Rumtulla v. Ashcroft, 301 F.3d 202, 203
(4th Cir. 2002)). Since there is no dispute over petitioner Afeta’s his-
tory of convictions, the only issue for review is whether petitioner
became a United States citizen by virtue of his mother’s naturalization
in 1994.
As discussed in greater detail below, the BIA answered this ques-
tion by applying the derivative citizenship provisions of 8 U.S.C.
§ 1432(a)(3) (1999) (repealed 2000), which apply when only one of
two living parents becomes naturalized. The BIA interpreted the stat-
ute as requiring that the minor alien’s parents have taken formal judi-
1The Immigration and Naturalization Service no longer exists as an
independent agency within the Department of Justice. Its functions trans-
ferred to the newly formed Department of Homeland Security on March
1, 2003.
2"[N]o court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having commit-
ted a criminal offense . . . ." 8 U.S.C. § 1252(a)(2)(C).
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cial steps to end their marriage at the time of naturalization. We must
give this interpretation deference. Because section 1432(a)(3) "does
not speak unambiguously to the precise question at issue, our inquiry
under Chevron is simply to ask whether the [BIA]’s position ‘is based
on a permissible construction of the statute.’" Asika v. Ashcroft, 362
F.3d 264, 270 (4th Cir. 2004) (quoting Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). Courts of Appeal
must apply Chevron principles of deference when confronted with
questions about "‘an agency’s construction of the statute which it
administers.’" INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)
(quoting Chevron, 467 U.S. at 842.). "[W]e are bound by Chevron to
defer to the [BIA]’s construction . . . so long as it is reasonable."
Asika, 362 F.3d at 270.
III.
Before its repeal, Section 1432(a) specified certain situations that
conveyed automatic citizenship on children born outside of the United
States to alien parents. They are:
(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 par-
ents 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 subsection, or the parent naturalized under clause
(2) or (3) of this subsection, or thereafter begins to reside
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permanently in the United States while under the age of
eighteen years.
8 U.S.C. § 1432(a) (1999) (repealed 2000) (emphasis added). Section
1432 does not define the term "legal separation."
In administrative hearings before the BIA, petitioner Afeta argued
that 8 U.S.C. § 1432(a)(3) conveyed automatic citizenship upon him
because his parents were "legally separated" when his mother was
naturalized in 1994. He relied then (and now) on a written Separation
Agreement that first appeared in 2003.
This written Separation Agreement was incorporated into his par-
ents’ 2003 Maryland Judgment of Absolute Divorce. (J.A. 345-47).
The Separation Agreement is dated December 7, 1987 and is signed
by Bizunesh Shibeshi (petitioner’s mother) and Merga Afeta (peti-
tioner’s father). The agreement provides that "[t]he parties mutually
and voluntarily separated on December 7, 1987 with the intent and
purpose of ending the marriage . . . [and] to live separate and apart
without cohabitation and in separate abodes." (J.A. 346). The written
agreement states that upon separation, petitioner’s father agreed to
transfer his ownership interest in the house and provide petitioner’s
mother with sole legal custody of the children. In return, petitioner’s
mother agreed to refinance the home in her name only. The agreement
was not notarized and does not reflect the presence of any witnesses.
It was not filed with or adopted by any court prior to the parents’
divorce in 2003.3
The BIA concluded that petitioner did not receive derivative citi-
zenship upon his mother’s naturalization in 1994 because only judi-
3Respondent raises concern over the authenticity of the separation
agreement and whether it actually existed in 1994 when petitioner
Afeta’s mother naturalized. Apparently, petitioner Afeta’s mother was
unaware that the agreement existed when she testified in 2002 that she
had no recollection of such an agreement; however, she later discovered
the agreement and incorporated it into the 2003 Maryland Judgment of
Absolute Divorce. It is unnecessary to test the authenticity of the docu-
ment or question its 1994 existence as it does not satisfy the "legal sepa-
ration" requirement of 8 U.S.C. § 1432(a)(3).
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cially recognized marital separations are considered "legal" for the
purposes of section 1432(a). The BIA based its decision on its previ-
ous construction of the statute as well as the decisions of two Courts
of Appeal. See infra pp. 7-9. Out of an abundance of caution, the BIA
also reviewed Maryland law and concluded that it did not suggest a
contrary construction of the statute. Because the voluntary Separation
Agreement produced by petitioner Afeta was not a formal judicial
document, the BIA held that it did not constitute a "legal separation"
as that term was used in 8 U.S.C. § 1432(a)(3).
IV.
Petitioner contends that the BIA’s interpretation of the statutory
term "legal separation" is incorrect because Maryland law does not
require a judicial order in order for a separation agreement to become
"legal." Petitioner reasons that because Maryland courts will enforce
voluntary separation agreements as a species of contract, the BIA
must recognize his parents as "legally separated" as of the purported
date of their agreement (i.e., December 7, 1987).
Petitioner’s reliance on Maryland law is misplaced. Congress did
not incorporate state substantive law into section 1432(a)(3). When
Congress chooses to make such an incorporation, its language is quite
clear. For example, the federal government controls certain properties
that lie within the boundaries of various states yet fall under the sole
legal jurisdiction of the United States (e.g. military bases). In gover-
nance of these properties, Congress has clearly stated that:
[w]hoever . . . is guilty of any act or omission which,
although not made punishable by any enactment of Con-
gress, would be punishable if committed or omitted within
the jurisdiction of the State . . . in which such place is situ-
ated, . . . shall be guilty of a like offense and subject to a
like punishment.
18 U.S.C. § 13(a). No such inclusive language appears in section
1432(a)(3). By contrast, section 1432(a)(3) merely speaks of "legal
separation" without any reference to the state in which the alien
resides.
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The definition of the statutory term "legal separation" is well rec-
ognized in United States jurisprudence. See Nehme, 252 F.3d at 425-
26 (performing review of states and territories that define or provide
"legal separation" provisions that "contemplate a judicial decree").
With the exception of one easily distinguishable case discussed
below, the BIA’s decision in this case concurs with the Board’s prior
construction of section 1432(a)(3). See Matter of H, 3 I. & N. Dec.
742, 744 (B.I.A. 1949) (defining "legal separation" as it applies to
rules of naturalization to mean "either a limited or absolute divorce
obtained through judicial proceedings").
The single BIA decision upon which petitioner relies is Matter of
Lenning, 17 I. & N. Dec. 476 (B.I.A. 1980). In that case, a wife peti-
tioned for beneficiary immigrant status after separating from her hus-
band. The petitioner entered a written separation agreement with her
husband approximately one month before submitting her visa petition.
The BIA construed the applicable statute to determine that Congress
created section 201(b) of the Immigration and Nationality Act, 8
U.S.C. 1151(b), for the purpose of retaining family unity. The peti-
tioner argued that the ALJ should have approved her visa petition
because she was only separated, and her marriage was not yet "legally
terminated." The BIA concluded that the statute’s purpose would not
be advanced when a petitioner enters a separation agreement to live
separate and apart from the citizen through whom she seeks to gain
citizenship.
Petitioner Afeta argues that the BIA’s holding in Matter of Lenning
should be interpreted as a recognition that the separation agreement
was evidence "legally sufficient" to establish "termination" of the
immigrant’s marital relationship. (Petr.’s Br. 14). We do not agree
with such an interpretation. The BIA viewed the voluntary separation
agreement as evidence sufficient to establish that the married couple
had no intent to retain family unity. Thus, the legal effect of the sepa-
ration agreement on the immigrant’s marital status was irrelevant.
Additionally, the BIA’s decision in Matter of Lenning is not bind-
ing in the instant case because the decision does not interpret section
1432. 17 I. & N. Dec. at 476. Even if we were to conclude that the
BIA’s current analysis is inconsistent with Matter of Lenning, it
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would only establish that the BIA’s definition of "legal separation"
changes depending on the statute in which the term is used.
Our sister circuits have adopted the BIA’s interpretation of section
1432(a)(3). In Nehme, the Fifth Circuit held that "Congress clearly
intended that the naturalization of only one parent would result in the
automatic naturalization of an alien child only when there has been a
formal, judicial alteration of the marital relationship." 252 F.3d at
425-26 (emphasis added).4 Similarly, the Third Circuit has held that:
[L]egal separation for purposes of § 1432(a) occurs only
upon a formal governmental action, such as a decree issued
by a court of competent jurisdiction that, under the laws of
a state or nation having jurisdiction over the marriage, alters
the marital relationship of the parties.
Morgan v. Att’y Gen., 432 F.3d 226, 234 (3d Cir. 2005) (emphasis
added).
The Second Circuit construed section 1432(a)(3) with slightly
broader but not inconsistent language in Brissett v. Ashcroft, 363 F.3d
130, 132 (2d Cir. 2004). In that case, petitioner Brissett sought to
avoid removal by establishing derivative citizenship through his
mother’s 1977 naturalization. Brissett claimed that his parents’ mari-
tal sparring satisfied section 1432(a)(3)’s "legal separation" require-
ment because they lived separate and apart and he had lived solely
with his mother since 1972. Petitioner Brissett bolstered his argument
by pointing out that the Family Court for the State of New York
ordered his father to pay child support in 1972. That Court also
entered temporary protective orders in 1972 and 1974 that com-
manded petitioner’s father not to assault, threaten, or harass his
mother. Id. at 131-32. Without defining a threshold, the Second Cir-
cuit held that "a minimum more is required" to satisfy the "legal sepa-
ration" requirement. Id. at 132. Then, the Court stated:
4The Nehme Court performed a review of the states and determined
that "state laws make it clear that in the United States, the term ‘legal
separation’ is uniformly understood to mean judicial separation." 252
F.3d at 426.
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§ 1432(a)(3)’s requirement of a "legal separation" is satis-
fied only by a formal act which, under the laws of the state
or nation having jurisdiction of the marriage, alters the mari-
tal relationship either by terminating the marriage (as by
divorce), or by mandating or recognizing the separate exis-
tence of the marital parties.
Brissett, 363 F.3d at 132 (emphasis added).
The Tenth Circuit relied on Nehme’s definition of "legal separa-
tion" to analyze the term as used in the Consolidated Omnibus Budget
Reconciliation Act, 29 U.S.C. §§ 1161-68 ("COBRA"). That Act
identifies "legal separation" as a "qualifying event" for health plan
coverage. Simpson v. T.D. Williamson Inc., 414 F.3d 1203, 1204
(10th Cir. 2005). The Tenth Circuit held that:
[A] divorce court’s interlocutory protective order pending a
divorce does not constitute a "legal separation" under
[COBRA] § 1163(3) . . . . [Instead,] [w]e conclude a "legal
separation," and thus a "qualifying event," occurs within the
meaning of COBRA . . . only upon entry of a final court
decree adjudicating the parties legal rights and obligations
but preserving the marriage bond.
Id. at 1206 (first emphasis added).
V.
Maryland law provides for only two types of judicially sanctioned
marital dissolutions — an absolute divorce (a vinculo), Md. Code
Ann., Fam. Law § 7-103 (2006), and a limited divorce (a mensa et
thoro), Md. Code Ann., Fam. Law § 7-102 (2006). Each statute
requires that the plaintiff satisfy certain grounds before the judicial
decree will issue. For example, the grounds for a limited divorce are
cruelty, excessively vicious conduct, desertion and certain voluntary
separations. See Md. Code Ann., Fam. Law § 7-102 (2006).
A limited divorce is tantamount to a separation; it "is practically
nothing more than judicial permission to live separate and apart."
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Thomas v. Thomas, 451 A.2d 1215, 1222, 294 Md. 605, 618 (1982).
While Maryland courts will enforce a private separation agreement as
between the parties, that fact does not transform such an agreement
into a limited divorce.5 Only Maryland’s General Assembly can spec-
ify the grounds upon which a married couple can receive judicial
sanction to live separate and apart. Stewart v. Stewart, 66 A. 16, 17,
105 Md. 297, 300 (1907). The Maryland legislature has not enacted
a statute delegating to married couples in Maryland the right to make
up their own grounds for a limited divorce; decide between them-
selves that those grounds are satisfied; and then, in effect, write their
own judicial order. The BIA therefore correctly concluded that Mary-
land law did not affect the application of § 1432(a)(3) to the facts of
this case.
VI.
Based on the above analysis, we conclude that the BIA’s definition
of "legal separation" is a reasonable interpretation of 8 U.S.C.
§ 1432(a)(3). It is impossible to conclude otherwise since no contrary
law exists. Accordingly, we find that petitioner Afeta is an alien and
that further review of the BIA’s removal decision is beyond the juris-
diction of this Court.
AFFIRMED
SHEDD, Circuit Judge, concurring:
The "special deference rules" of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), apply to the
Board of Immigration Appeals’ ("BIA") interpretations of the Immi-
gration and Nationality Act ("INA"). Soliman v. Gonzales, 419 F.3d
276, 281 (4th Cir. 2005). Because we are reviewing the BIA’s inter-
5Nothing in this opinion suggests that states do not have complete
domain over marital rights. The only thing at issue in this case is whether
each state’s definition of "legal separation" becomes binding on the BIA
when applying 8 U.S.C. § 1432(a)(3). By giving the term "legal separa-
tion" a uniform federal construction, we do not purport to specify the
requirements for a valid separation under state law. The two are separate
and distinct issues.
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pretation of the INA — specifically, its interpretation of the meaning
of the term "legal separation" as used in 8 U.S.C. § 1432(a)(3) —
Chevron requires us to conduct a two-step analysis. We must first
determine "whether Congress has directly spoken to the precise ques-
tion at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress." Chevron, 467 U.S. at
842-43. However, if we determine that "Congress has not directly
addressed the precise question at issue," we must determine whether
the agency’s interpretation "is based on a permissible construction of
the statute." Id. at 843.
I believe that a proper application of Chevron to this case requires
us to proceed to the second step of the analysis. On this point, I agree
that the BIA’s interpretation of the term "legal separation" is a per-
missible construction of § 1432(a)(3). Accordingly, I concur in the
denial of the petition for review.
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
According to section 8-101(a) of the Maryland Family Code, "[a]
husband and wife may make a valid and enforceable deed or agree-
ment that relates to alimony, support, property rights, or personal
rights." Moreover, a separation agreement between man and wife
under Maryland law is a contract between the parties, subject to the
same general rules governing other contracts. Pumphrey v. Pumphrey,
273 A.2d 637, 639 (Md. Ct. Spec. App. 1971).
In my opinion, Maryland courts would consider the written Separa-
tion Agreement in this case a federal "legal separation" under Mary-
land law.
Other jurisdictions have held, as we hold, that a parent can
legally bind himself by separation agreement to support a
child after emancipation, and such an agreement will be
enforceable as any other contract. Pumphrey, 276 A.2d at
640 (emphasis added).
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I am thus of opinion Maryland state law should govern this matter of
family law.
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