Fierro v. Reno

• Decision Date: 09 March 2000
• Docket Number: 00-1037,Nos. 99-8018,s. 99-8018
• Citation: 217 F.3d 1
• Parties: (1st Cir. 2000) MIGUEL NOEL FIERRO, Petitioner, v. JANET RENO, ATTORNEY GENERAL, Respondent. MIGUEL NOEL FIERRO, Petitioner, v. JANET RENO, ATTORNEY GENERAL, Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

217 F.3d 1 (1st Cir. 2000)

MIGUEL NOEL FIERRO, Petitioner, v. JANET RENO, ATTORNEY GENERAL, Respondent.

MIGUEL NOEL FIERRO, Petitioner, v. JANET RENO, ATTORNEY GENERAL, Respondent.

Nos. 99-8018, 00-1037

United States Court of Appeals For the First Circuit

Heard March 9, 2000

Decided June 5, 2000

Rehearing and Suggestion for Rehearing En Banc Denied August 25, 2000

Matthew S. Robinowitz for petitioner.

Brenda M. O'Malley, Office of Immigration Litigation, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on consolidated brief for respondent.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

BOUDIN, Circuit Judge.

On this appeal, Miguel Noel Fierro seeks review of a final order of removal, and a denial of reconsideration, from the Board of Immigration Appeals ("the Board"). The removal order is based on a statutory provision providing for the removal from the United States of "[a]ny alien who is convicted of an aggravated felony at any time after admission." 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996). Fierro concedes that he has been convicted of such a crime but says that he is not an alien but rather a citizen of the United States.

The critical background facts are not in dispute. Fierro was born in Cuba on October 25, 1962. He and both of his parents were admitted to the United States as refugees in 1970. On October 19, 1973, Fierro's parents were divorced pursuant to a decree from a Massachusetts probate court, and the decree awarded Fierro's mother custody of both Fierro and his sister. On March 25, 1976, Fierro's immigration status was changed to that of lawful permanent resident.

On March 21, 1978, when Fierro was 15 years old, his father became a naturalized citizen. Had Fierro then been in the "legal custody" of his father, he would automatically have become an American citizen under 8 U.S.C. § 1432(a) (1994), which in defined circumstances provides automatic citizenship for alien children whose parents are naturalized. Pertinent language in the statute, reprinted in full in an appendix to this decision, grants such citizenship to a child born outside the United States upon "[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents," assuming that this occurs while the child is under age 18 and that the child is a lawful permanent resident. Id. The last two conditions are satisfied here, and the case thus turns on whether the first condition ("legal custody") can also be met.

On February 15, 1996, Fierro was convicted in Massachusetts of larceny and sentenced to a term of four years in prison. It is undisputed that this conviction makes him an aggravated felon subject to removal. 8 U.S.C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii) (Supp. II 1996). Fierro's criminal record is fairly long and it includes drug offenses, breaking and entering with intent to commit a felony, assault and battery, larceny, uttering and forgery. However, it was the 1996 larceny conviction that triggered an INS proceeding to remove Fierro from the country.

In the removal proceeding, Fierro argued inter alia that he became a United States citizen when his father was naturalized in 1978. On January 5, 1998, the immigration judge rejected Fierro's citizenship claim because his mother had been awarded legal custody of him in 1973 and had never become a naturalized citizen. The judge ordered Fierro removed to Cuba. Fierro then appealed to the Board and on appeal he submitted an amended custody judgment secured from the Massachusetts probate court dated May 18, 1998, four months after the immigration judge's removal order. Although Fierro was now 35 years old, this decree purported to award custody to Fierro's father "nunc pro tunc to September 1, 1977."

On March 29, 1999, the Board issued a decision holding that Fierro should be given an opportunity to pursue a different avenue to avoid removal but it dismissed Fierro's claim of citizenship, concluding that the state court's 1998 modification of the custody decree had no effect on Fierro's citizenship status. After correcting a factual error on reconsideration, the Board adhered to its ultimate conclusion. Fierro then abandoned his alternative avenue for seeking to avoid removal and sought review of the Board's rejection of his citizenship claim.

The procedural path by which Fierro arrived in this court is complicated, see Fierro v. INS, 81 F. Supp. 2d 167 (D. Mass. 1999); Fierro v. INS, 66 F. Supp.2d 229 (D. Mass. 1999), but the intricacies are of no importance on this appeal, which the government concedes is properly before this court. This court's authority to review removal orders based on an alien's commission of an aggravated felony has recently been restricted, 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996), but this does not bar Fierro's claim on review that he is a citizen rather than an alien, 8 U.S.C. § 1252(b)(5); Maghsoudi v. INS, 181 F.3d 8, 13 n.12 (1st Cir. 1999); Hall v. INS, 167 F.3d 852, 855-56 (4th Cir. 1999).

It is common ground that Fierro was not subject to removal as an alien convicted of an aggravated felony if he is presently an American citizen. Whether Fierro is an American citizen turns, in this case, entirely on issues of law, including the meaning of the automatic citizenship statute in question, 8 U.S.C. § 1432(a) (1994), and the legal effect to be accorded to the nunc pro tunc ruling of the Massachusetts probate court. Accordingly, our review is de novo and there is no occasion to transfer the case to a district court to resolve factual disputes pursuant to 8 U.S.C. § 1252(b)(5)(B) (Supp. II 1996).

Citizenship for one not born in the United States may be acquired "only as provided by Acts of Congress." Miller v. Albright, 523 U.S. 420, 423 (1998). Here, Fierro's claim of citizenship requires that there have occurred, while he was under 18 and a permanent resident, "the naturalization of the parent having legal custody of the child." 8 U.S.C. § 1432(a) (1994). What is meant by the phrase "having legal custody of the child" is, of course, a question of federal statutory interpretation. But the Immigration and Naturalization Act provides no definition nor does the legislative history illuminate the concept. See H.R. Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1740.

Legal relationships between parents and children are typically governed by state law, there being "no federal law of domestic relations." De Sylva v. Ballentine, 351 U.S. 570, 580 (1956); see also Ex parte Burrus, 136 U.S. 586, 593-94 (1890). Accordingly, subject to possible limitations, we think that the requirement of "legal custody" in section 1432 should be taken presumptively to mean legal custody under the law of the state in question. Although there is no decision directly on point, this view is consistent with the approach taken in other cases in which a federal statute depends upon relations that are primarily governed by state law. E.g., De Sylva, 351 U.S. at 580.

On the premise that state law presumptively governs such relationships, Fierro reasons that the matter is controlled by the state probate court judgment entered in May 1998. In that judgment, the court purported to decree that "as of September 1, 1977 custody of the minor child [Fierro] . . . is to be awarded" to the father and that "said order granting custody [of Fierro to his father] . . . be entered nunc pro tunc to September 1, 1977." There is authority under Massachusetts law, as in other jurisdictions, that a "judgment entered nunc pro tunc is respected and enforced as if it had been entered at the proper time." 43 Flanagan, Massachusetts Practice § 406 (1993 & Supp. 1999).

Fierro's argument is not without a certain surface plausibility, but we do not accept it. It is, as will become apparent, quite doubtful whether the nunc pro tunc decree is correct even as a matter of Massachusetts law; but while the reasons for suspecting a possible infirmity are pertinent to our ultimate holding, we do not rely upon this ground. Rather, even assuming arguendo that the nunc pro tunc order accords with Massachusetts law, it reflects an approach to defining legal custody that is not consistent with section 1432.

It is useful to begin by explaining in somewhat more detail (there is not a lot of detail available) the origin and substance of the state decree-modification proceeding. In December 1997, after the removal proceedings against Fierro had begun but before the immigration judge rejected Fierro's claim of citizenship, his parents filed a "complaint for modification" in the probate court which asserted that on or about September 1, 1977, Fierro had moved to Florida to live with his father. Accompanying affidavits from Fierro's parents indicated that Fierro had at that date moved to Florida to live with his father in order to enroll in a school in Miami, Florida, and that Fierro was thus living with his father when in early 1978 his father became an American citizen.

The complaint for modification expressed the joint request of the parents that the order be entered "nunc pro tunc to . . . September 1, 1977," explaining that "[t]his modification is necessary for Miguel Noel Fierro to derive citizenship through his father and avoid being deported to Cuba." There is no indication of what proceedings, if any, followed, but by order dated May 18, 1998, the probate court granted the judgment modifying the earlier divorce and custody decree in terms already described--awarding custody to the father and providing that the custody order be entered nunc pro tunc to September 1, 1977.

Whether this is a proper nunc pro tunc order under state law is open to question. Like many other concepts in the law wrongly assumed to have a fixed...