Brissett v. Ashcroft

Decision Date02 April 2004
Docket NumberDocket No. 01-4168.
Citation363 F.3d 130
PartiesCalvin Anthony BRISSETT, Petitioner, v. John ASHCROFT, Attorney General of the United States, and Immigration and Naturalization Service, Respondents.
CourtU.S. Court of Appeals — Second Circuit

Mark T. Kenmore, Buffalo, NY, for petitioner.

Megan L. Brackney, Assistant United States Attorney for the Southern District of New York (James B. Comey, United States Attorney for the Southern District of New York, on the brief; Sara L. Shudofsky, Assistant United States Attorney, of counsel), New York, NY, for respondent.

Before: LEVAL, SOTOMAYOR, and WESLEY, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Petitioner Calvin Brissett ("Brissett") appeals from an order of the Board of Immigration Appeals ("BIA"), finding him removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i), as an alien convicted of an aggravated felony and a controlled substance offense. Brissett argues that, because his parents, who were Jamaican nationals living in New York, separated in 1972, he acquired citizenship automatically upon his mother's naturalization in 1977, and that he is therefore not a removable alien. Brissett relies on 8 U.S.C. § 1432(a)(3) (repealed 2000), which provides that an alien child automatically acquires citizenship upon the naturalization of his or her custodial parent if "there has been a legal separation of the parents."

In support of his contention that his parents were legally separated within the meaning of § 1432(a)(3) at the time of his mother's naturalization, Brissett relies on the following: (1) in 1972, when Brissett was eleven years old, his parents began living apart from each other, although they remained married, and thereafter Brissett lived solely with his mother; (2) also in 1972, the Family Court for the State of New York issued an order requiring Brissett's father to make support payments to his mother and the children; and (3) in 1972 and 1974, the Family Court issued two temporary orders of protection that ordered Brissett's father not to assault, threaten, or harass Brissett's mother.

We disagree with Brissett's assertion that these facts are sufficient to establish that his parents were legally separated within the meaning of § 1432(a)(3) at the time of his mother's naturalization. While we need not (and do not) decide exactly what circumstances will constitute a legal separation, we rule that at a minimum more is required. In our view § 1432(a)(3)'s requirement of a "legal separation" is satisfied only by a formal act which, under the laws of the state or nation having jurisdiction of the marriage, alters the marital relationship either by terminating the marriage (as by divorce), or by mandating or recognizing the separate existence of the marital parties. The only formal acts on which Brissett relies were the Family Court orders. These orders, however, enforced marital duties; they did not terminate the marriage, nor did they require Brissett's father to stay away from his wife or otherwise mandate or recognize the separate existence of the spouses.

BACKGROUND

Brissett was born in Jamaica in 1961. He was formally admitted as an immigrant in 1973, but had apparently resided in the United States with his mother for some time previously. Although Brissett's mother became a United States citizen in 1977, when Brissett was 16 years old, his father never naturalized. Brissett's parents separated sometime after they immigrated to the United States and before Brissett's mother was naturalized, but they never obtained a divorce or a judicial decree of separation.

Between 1989 and 1996, Brissett was convicted of a series of controlled substance offenses in New York State. In 1998, the Immigration and Naturalization Service ("INS")1 instituted removal proceedings against him, charging that Brissett was an alien convicted of an aggravated felony and a controlled substance offense, and was therefore removable pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i), respectively. Brissett did not dispute that if he were an alien, he could be removed for the offenses of which he was convicted. Instead, he contended that he was not an alien because he had derivatively acquired United States citizenship, pursuant to 8 U.S.C. § 1432(a)(3), upon his mother's naturalization in 1977.

Section 1432(a)(3) provides that "[a] child born outside of the United States of alien parents ... becomes a citizen of the United States" if "there has been a legal separation of the parents" and the "parent having legal custody of the child" is naturalized while the child is under 18 years of age. It is undisputed that Brissett's mother became a citizen while Brissett was still a minor, and that Brissett lived with her at the time. Brissett's claim of citizenship therefore turns on whether his parents were legally separated in 1977, when his mother was naturalized.

The BIA held that Brissett's parents were not legally separated within the meaning of § 1432(a)(3) because they never obtained a decree of separation or signed a legally recognized separation agreement. In so holding, the agency rejected Brissett's contention that the Family Court's support order recognized the dissolution of the Brissetts' marriage and should therefore be considered the equivalent of a decree of separation under New York law. The BIA reasoned that the order could not effect a legal separation, because the New York Family Court does not have jurisdiction to enter divorce or separation agreements, and therefore found that Brissett's parents never legally separated, and that Brissett did not acquire United States citizenship when his mother was naturalized. While we agree with the BIA's conclusions and affirm its order, we reject some elements of its reasoning, as detailed below.

DISCUSSION

This Court has no jurisdiction to adjudicate petitions for review challenging a final order of removal against an alien who is subject to removal because he or she committed an aggravated felony or controlled substance offense. See 8 U.S.C. § 1252(a)(2)(C) (2000). We retain jurisdiction, however, to determine whether Brissett's petition for review falls within the statutory prohibition. The question of whether Brissett is an alien whose petition is unreviewable under § 1252(a)(2)(C) is co-extensive with the sole argument that Brissett presents in his petition, that he is a citizen and therefore not removable. We therefore have jurisdiction to consider Brissett's contention. See Drakes v. Ashcroft, 323 F.3d 189, 190 (2d Cir.2003).

We accord substantial deference to the BIA's interpretations of the statutes and regulations that it administers. See Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Diallo v. INS, 232 F.3d 279, 285 (2d Cir.2000). "In such circumstances, where the relevant statutory provision is silent or ambiguous, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir.2000) (internal quotation marks omitted). In contrast, we review the agency's construction of state laws, and federal statutes that it does not administer, de novo. See Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000) (Sotomayor, J.); Mugalli v. Ashcroft, 258 F.3d 52, 55 (2d Cir.2001); Sutherland, 228 F.3d at 174.

Although domestic relations law is almost exclusively the province of the states, the meaning of the term "legal separation" within § 1432(a)(3) is a question of federal law. See Nehme v. INS, 252 F.3d 415, 422-23 (5th Cir.2001); Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir.2000). Because the Constitution gives Congress the power to "establish an uniform Rule of Naturalization," U.S. Const. art. I., § 8, cl. 4, naturalization laws must "be construed according to a federal, rather than state, standard." Nehme, 252 F.3d at 422. Where, as here, there is no extant body of federal common law in the area of law implicated by the statute, we may use state law to inform our interpretation of the statutory language. See id. at 423-24.

The INS interprets the term "legal separation," as it is used in § 1432(a)(3), to require that the separation be pursuant to "proceedings ...which terminate the marriage completely, as by absolute divorce, or which merely separate the parties without destroying the marital status." INS Interp. 320.1(6). Thus, an informal separation2 is not sufficient to render the parties legally separated, and children of informally separated parents do not automatically acquire citizenship when their custodial parent is naturalized. We find that the INS's reading is a permissible construction of § 1432(a)(3). See Nehme, 252 F.3d at 422-23; Wedderburn, 215 F.3d at 799.

Section 1432 distinguishes between the children of still-married parents, who automatically acquire citizenship only if both parents are naturalized, and the children of legally separated, widowed, and unmarried parents, who automatically acquire citizenship if the custodial parent is naturalized. See 8 U.S.C. § 1432(a)(1)-(3). Because parents who are informally separated, but who have not altered their spousal relationship and rights through legal means, are legally indistinguishable from married parents who live together, the structure of § 1432 indicates that Congress intended that the children of informally separated parents be treated like the children of married parents. A contrary interpretation would render superfluous the provision's specification that the separation must be "legal." Because couples can informally separate without legally altering their relationship, including an informal separation within the provision's terms would effectively eviscerate the force of the term "legal" from the statute. See Nehme, 252 F.3d at 426. Moreover, such a broad definition would render any number of...

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