Duncan v. Barr

• Decision Date: 19 March 2019
• Docket Number: No. 17-2423,17-2423
• Citation: 919 F.3d 209
• Parties: Howard Egba DUNCAN, Jr., a/k/a Duncan Egbaf, a/k/a Howard Duncan, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

919 F.3d 209

Howard Egba DUNCAN, Jr., a/k/a Duncan Egbaf, a/k/a Howard Duncan, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 17-2423

United States Court of Appeals, Fourth Circuit.

Argued: November 1, 2018

Decided: March 19, 2019

Amended: March 20, 2019

Amended March 22, 2019

ARGUED: Michael S. DePrince, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Petitioner. Lindsay Donahue, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Anthony Vale, Kate A. Mahoney, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania; Michelle N. Mendez, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland; Himedes V. Chicas, LAW OFFICES OF JEZIC & MOYSE, LLC, Silver Spring, Maryland, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, DUNCAN and QUATTLEBAUM, Circuit Judges.

Petition for review granted; remanded for further proceedings by published opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Quattlebaum concurred.

DUNCAN, Circuit Judge:

After submitting an unsuccessful application for a certificate of citizenship with the United States Citizenship and Immigration Services (the "USCIS"), Howard Egba Duncan, Jr. was placed in removal proceedings. Duncan applied for relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"), 8 C.F.R. § 1208.16(c), and also moved to terminate the proceedings on the basis that he had derived citizenship from his father under the Child Citizenship Act of 2000 (the "CCA"), 8 U.S.C. §§ 1431 – 33. The immigration judge (the "IJ") determined that Duncan had failed to demonstrate the requisite governmental acquiescence for relief under the CAT and that he had not derived citizenship under the CCA because he was not in the "physical custody" of his father during the requisite time period. The Board of Immigration Appeals (the "BIA") affirmed on both grounds, finding that the IJ did not clearly err in reaching either conclusion.

We are compelled to find that the BIA applied the wrong standard of review as to both determinations. Consistent with precedent established since the BIA’s decision, we hold that whether the government would acquiesce to torture under the CAT is a mixed question of fact and law. Similar analysis persuades us that whether Duncan was in the "physical custody" of his father under the CCA is likewise a mixed question of fact and law. While the IJ’s findings of fact are subject to clear error review, the application of those facts to the relevant legal standards constitute legal judgments subject to de novo review by the BIA. Accordingly, we grant the petition for review and remand to the BIA.

I.

Duncan is a legal permanent resident of the United States who was born in Nigeria to a Nigerian mother and an American father. When Duncan was six years old, he and his grandmother moved from Nigeria to the United States to live with Duncan’s father. Duncan lived with his father and grandmother for three months before his father was incarcerated in April 1998. A few months later, Duncan’s grandmother filed a petition to become Duncan’s guardian, which was granted later that year. Duncan’s father remained incarcerated until 2011, two years after Duncan’s eighteenth birthday.

Throughout his father’s incarceration, Duncan and his father had limited physical contact with one another; Duncan visited his father approximately once a month and the two talked on the phone several times a week. Though Duncan’s father provided some financial support to Duncan and remained involved in certain aspects of his upbringing--e.g., deciding where he went to school, what shoes his grandmother could purchase for him, and whether he would play football--Duncan’s grandmother acted as his primary caretaker, driving him to and from school and providing him shelter, clothing, and consistent financial support.

Prior to the instant removal proceedings and before his eighteenth birthday, Duncan applied for a certificate of citizenship on July 14, 2009. His application was denied in March 2010. Duncan appealed the denial of his application, which the Administrative Appeals Office (the "AAO") affirmed in February 2015, finding that Duncan failed to establish that he was in the "legal custody" or "physical custody" of his father because he did not reside with his father during the relevant period.¹

After Duncan’s appeal was denied, the government initiated removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(2) based on his convictions for four crimes committed between October 2008 and January 2011. The government charged three grounds of removability: (1) his conviction of a crime of violence under 18 U.S.C. § 16, which was an aggravated felony; (2) his conviction of two crimes involving moral turpitude that did not arise from a single scheme; and (3) his conviction for a firearm offense.

Duncan moved to terminate the proceedings on the basis that he was not removable because he had derived citizenship through his father under the CCA. As a citizen, he would not be removable from the United States under § 1227(a)(2), which only applies to aliens. Ojo v. Lynch , 813 F.3d 533, 535 (4th Cir. 2016).

Under the CCA, a child born outside the United States automatically becomes a citizen where (1) the child has at least one parent that is a citizen of the United States, either by birth or naturalization; (2) the child is under eighteen years old; and (3) the child resides in the United States in the legal and physical custody of the citizen parent. 8 U.S.C. § 1431(a). Neither party disputed before the IJ that Duncan satisfies the first two requirements. Rather, they disagreed as to whether Duncan was in the "legal custody" and "physical custody" of his father during the relevant period--from February 27, 2001, when the CCA was enacted, to October 17, 2009, when Duncan turned eighteen years old--given that his father was incarcerated. See 8 C.F.R. § 320.2 (providing that the requirements of the CCA must "have been met after February 26, 2001").

Following an evidentiary hearing at which Duncan and his father testified, the IJ determined that Duncan had not derived citizenship from his father because he was not in the "physical custody" of his father during the relevant period.² In reaching this conclusion, the IJ reasoned that Duncan was not in the physical care of his father and that his father did not personally supervise him or make day-to-day decisions over his welfare. The IJ did not address whether Duncan satisfied the legal custody requirement under § 1431(a). Consequently, the IJ held that Duncan was removable and denied his subsequent motion to reconsider.

In addition to his derivative citizenship claim, Duncan applied for cancellation of removal, which the IJ denied. Namely, the IJ found that because Duncan had been convicted of an aggravated felony, he was disqualified from receiving cancellation of removal.

Duncan also applied for relief under the CAT. Under the CAT’s implementing regulations, relief is authorized when an individual demonstrates that it is more likely than not that "he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). To satisfy this standard, a petitioner is required to make two distinct showings. Turkson v. Holder , 667 F.3d 523, 526 (4th Cir. 2012) (citing 8 C.F.R. § 208.16(c)(2) ). First, the petitioner must demonstrate that it is more likely than not that he will be tortured if removed. Second, the petitioner must show that such mistreatment "will occur at the hands of government or with the consent or acquiescence of government." Id. at 526. While the IJ found Duncan credible, the IJ denied him CAT relief on the basis that he had not met his burden of proving either that it was more likely than not that he would be tortured if removed to Nigeria or that such torture would be by or with the consent or acquiescence of public officials.

Duncan appealed the IJ’s removal order to the BIA. In a single-member decision, the BIA dismissed his appeal. Affirming the IJ’s determination that Duncan is ineligible for CAT relief, the BIA concluded that the IJ "did not clearly err in finding that the torture [Duncan] fears would not come at the hands of a public official or with the acquiescence of those officials."³ J.A. 353. The BIA also found that the IJ "did not clearly err in finding that [Duncan’s] father did not have physical custody of the respondent during the relevant time period" and affirmed the IJ’s determination that Duncan did not derive citizenship from his father under the CCA. J.A. 351. Like the IJ, the BIA did not address whether Duncan was in the "legal custody" of his father during the relevant time period.⁴ This appeal followed.

II.

Duncan challenges the BIA’s denial of his request for relief under the CAT and its rejection of his derivative citizenship claim. Specifically, he argues that the BIA applied the wrong standard of review when it affirmed both of the IJ’s determinations, which the BIA concluded were pure questions of fact and accordingly reviewed for clear error. Whether the BIA has applied the proper standard of review is a question of law for purposes of our jurisdiction under 8 U.S.C. § 1252(a)(2)(D), which we review de novo. Upatcha v. Sessions , 849 F.3d 181, 184 (4th Cir. 2017).

For the reasons that follow, we conclude that the BIA incorrectly reviewed the IJ’s determinations--government acquiescence under the CAT and "physical custody" under the CCA--for clear error. We therefore grant Duncan’s petition for review and remand to the BIA for application of the correct standard of review.⁵ We address Duncan’s claims under the CAT and the CCA in turn.

A.

Duncan first argues that the BIA applied the...