Bustamante-Barrera v. Gonzales

United States Court of Appeals
Fifth Circuit

FILED
REVISED MAY 8, 2005 April 20, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 05-60247

JAVIER OTONIEL BUSTAMANTE-BARRERA,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------
On Petition for Review of an Order of the
Board of Immigration Appeals
--------------------

Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.

WIENER, Circuit Judge:

Javier Otoniel Bustamante-Barrera (“Petitioner”) seeks review

of the Board of Immigration Appeal’s (“BIA”) dismissal of his

appeal from an Immigration Judge’s (“IJ”) order of removal.

Petitioner’s challenge to the BIA’s decision is based on a former

version of 8 U.S.C. § 1432(a), under which Petitioner claims to

have automatically derived U.S. citizenship when his mother became

a naturalized citizen in 1994. Prior to its amendment in 2000,

§ 1432(a) granted derivative citizenship to a child born outside

the United States to alien parents if, before that child’s

eighteenth birthday, (1) he became a legal permanent resident

(“LPR”) of the United States, (2) his two living parents “legal[ly]

separat[ed],” (3) one (but not both) of his parents became a
naturalized U.S. citizen, and (4) that naturalized parent had

“legal custody” of the child.1 We are concerned today with only

the last of these conditions: We must construe § 1432(a)(3)’s

“legal custody” requirement to determine whether a child seeking

derivative naturalization must have been under the sole (as

distinguished from joint) legal custody of his one naturalized

parent. This is a question of first impression in this Circuit,

and, because we answer it in the affirmative and perceive no merit

in any of Petitioner’s other arguments, we deny his Petition for

Review.

I. FACTS AND PROCEEDINGS

The facts of this case are not in dispute. Born in Mexico in

1979 to Mexican nationals, Petitioner immigrated here with them in

1983. All three became LPRs of this country that same year. In

1991, Petitioner’s parents divorced in California. Their divorce

decree awarded his mother “sole physical custody” of Petitioner,

but awarded both his parents “joint legal custody.”2 Following his

parents’ divorce, Petitioner resided exclusively with his mother.

By virtue of his parents’ joint legal custody, however,

1
8 U.S.C. § 1432(a) (2000), repealed by Child Citizenship Act
of 2000 § 103, Pub. L. No. 106-395, 114 Stat. 1631 (emphasis
added). All citations to § 1432(a) herein are to the 2000 version
of the U.S. Code. We interpret the pre-Child Citizenship Act
version of § 1432(a) because that version was in effect at all
times relevant to Petitioner’s citizenship claim. See Bagot v.
Ashcroft, 398 F.3d 252, 257 & n.3 (3d Cir. 2005).
2
Emphasis added.

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Petitioner’s father retained visitation rights.3 In 1994, while

Petitioner was still a minor under the age of 18, his mother became

a naturalized citizen of the United States. His father never did.

Petitioner’s tenure in the United States has not been without

legal mishaps. In 2000, he was convicted in a Texas state court of

assault causing bodily injury to a family member. In 2002, a Texas

court again convicted him of assault crimes, this time of

aggravated assault with a deadly weapon and assault resulting in a

bodily injury, repeat offender. These latter convictions led not

only to a sentence of ten years’ imprisonment, but also to the

initiation of removal proceedings by the Department of Homeland

Security (“DHS”) in August 2002.

In those immigration proceedings, DHS asserted two bases for

Petitioner’s removal: (1) He had been convicted of two crimes

involving moral turpitude and not arising out of a single scheme of

criminal misconduct4; and (2) he had been convicted of an

aggravated felony.5 Petitioner admitted his convictions but

defended against removal by arguing that the IJ lacked jurisdiction

3
The record indicates that Petitioner’s mother claimed him as
a dependent for tax purposes in 1991, the year that she and
Petitioner’s father divorced. Her tax returns for the years 1992-
2000 are also in the record, however, and she did not claim
Petitioner as a dependent for those years. Petitioner’s father’s
tax returns are not part of the record, so we do not know whether
he claimed Petitioner as a dependent for any year between 1992 and
2000.
4
See 8 U.S.C. § 1227(a)(2)(A)(ii).
5
See id. § 1227(a)(2)(A)(iii).

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to order Petitioner removed because he is a U.S. citizen. His

citizenship, Petitioner insisted, flowed from his meeting the

requirements for derivative citizenship under the pre-2000 version

of § 1432(a), which automatically granted derivative citizenship to

specified classes of children born outside of the United States to

alien parents.6 Before the IJ, Petitioner contended that he

satisfied § 1432(a)’s requirements because, at the time of his

mother’s naturalization, he was (1) under the age of 18, (2) under

her legal custody, and (3) residing in the United States as a LPR.

Petitioner appears to have recognized a possible problem with

his claim to derivative citizenship, however. As noted earlier,

his parents’ 1991 divorce decree had granted them joint legal

custody; it did not grant his mother sole legal custody. Thus,

when Petitioner’s mother was naturalized in 1994, his non-citizen

father was a legal custodian as well, sharing some parental rights

with his ex-wife.

In 2002 —— after the initiation of Petitioner’s removal

proceedings at a time when he was 23 years old —— his mother sought

to eliminate this problem by having his legal custody status

changed retroactively. At her request, and without any objection

from Petitioner’s father, a California court issued a nunc pro tunc

amended divorce decree (“amended decree”) which purported to award

Petitioner’s mother sole legal custody retroactively effective to

6
8 U.S.C. § 1432(a).

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February 4, 1991. In support of his mother’s request for the

amended decree, her lawyer filed a declaration candidly stating

that “[t]he purpose” for seeking the order was “to satisfy

requirements of the Department of Immigration and Naturalization”

in regards to Petitioner. In other words, Petitioner’s mother

expressly sought the amended decree for the sole purpose of

affecting the outcome of her major son’s removal proceeding.

Faced with the amended decree, the IJ concluded that

Petitioner met the requirements for derivative citizenship under

§ 1432(a). Reasoning that DHS had not carried its burden of

proving that Petitioner was an alien, the IJ terminated the removal

proceedings.

DHS appealed the IJ’s decision to the BIA, which, in October

2003, reversed in favor of DHS. The BIA interpreted § 1432(a)(3)

as requiring that a LPR with two living parents, only one of whom

is a naturalized citizen, does not automatically derive citizenship

from his naturalized parent unless that parent had sole legal

custody over the LPR prior to his eighteenth birthday. Because

Petitioner’s mother had not been his sole legal custodial parent

before his eighteenth birthday, the BIA sustained DHS’s appeal. In

so doing, the BIA refused to credit the retroactive effect of the

California court’s amended decree for purposes of removal.

The BIA viewed the amended decree as nothing more than a legal

fiction created for the express purpose of manipulating federal

immigration and naturalization law. “To allow courts to circumvent

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the clear language of the naturalization requirements . . . is

contrary to public policy and decades of Supreme Court

jurisprudence requiring strict compliance with . . . statutory

requirements to obtain citizenship.”7 The BIA remanded the case to

the IJ with instructions to order Petitioner removed, and the IJ

did so on remand.

Petitioner appealed the IJ’s removal order to the BIA, arguing

that by ignoring the amended decree, the BIA (1) overstepped its

legal authority; (2) violated the Full Faith and Credit Act8; and

(3) violated the Equal Protection component of the Fifth

Amendment’s Due Process Clause. In March 2005, the BIA rejected

each of these arguments “for the reasons stated” in its October

2003 decision.9 Petitioner then filed the instant Petition for

Review.10

7
In re: Bustamante-Barrera, No. A38-097-162, at 3 (BIA Oct.
3, 2003) (“Bustamante-Barrera I”).
8
28 U.S.C. § 1738.
9
In re: Bustamante-Barrera, No. A38-097-162, at 1 (BIA Mar.
2, 2005).
10
Before the BIA, Petitioner did “not contest the argument
that” § 1432(a)(3)’s reference to “legal custody” requires sole
legal custody. Bustamante-Barrera I at 2. Instead, it appears
that Petitioner raised the argument for the first time in his
Petition for Review filed with us. Ordinarily, we will not
consider an argument raised for the first time on appeal, but we do
have discretion to do so. See In re HECI Exploration Co., 862 F.2d
513, 521-22 (5th Cir. 1988) (stating that we have discretion to
“consider an argument advanced for the first time on appeal,” but,
“ordinarily[,] only if the issue is a purely legal one and if
consideration of the argument is necessary to avoid a miscarriage
of justice”). The issue whether § 1432(a)(3)’s reference to “legal

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 II. ANALYSIS

A. Jurisdiction

As a general rule, we have jurisdiction to review the BIA’s

removal orders.11 Congress created an exception, however, that

deprives us of jurisdiction to review removal orders issued against

aliens convicted of, inter alia, an aggravated felony or a crime

involving moral turpitude.12 Congress has curtailed this

jurisdiction strip, though, by making clear that we retain

jurisdiction to review “constitutional claims or questions of law”

raised in a petition for review filed by a criminal alien.13 All

four of Petitioner’s claims fall within one or the other of these

two categories: Three of his arguments are legal14 and the fourth

custody” requires sole legal custody is purely a legal one. And,
considering the grave consequence facing Petitioner if he fails ——
removal from the country in which he grew up —— we consider HECI
Exploration Co.’s “miscarriage of justice” requirement to be
satisfied. Moreover, Respondent has not argued that Petitioner
waived the argument that § 1432(a)(3) is satisfied by joint legal
custody; indeed, Respondent has significantly briefed the question.
We thus proceed to consider it.
11
See 8 U.S.C. § 1252(a)(1).
12
See id. § 1252(a)(2)(C).
13
Id. § 1252(a)(2)(D).
14
Petitioner argues that he derivatively obtained citizenship
under § 1432(a) because (1) that provision is satisfied by a grant
of joint legal custody over an alien child; (2) despite the
California court’s grant to his parents of joint legal custody, his
mother had effective sole legal custody of him; and (3) the amended
decree proves that his mother had sole legal custody of him.

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is constitutional.15 We thus have jurisdiction to review each of

them, even if it turns out that Petitioner is indeed an alien.

B. Bustamante-Barrera’s citizenship status under § 1432(a)

1. Standard of review

We review each of Petitioner’s claims de novo. Under the

plain words of 8 U.S.C. § 1252(b)(5)(A), we are empowered to

“decide [a putative citizen’s] nationality claim” if we “find[]

from the pleadings and affidavits that no genuine issue of material

fact about [his] nationality is presented.” We agree with the

parties that this case presents no material fact issues, so our

review of the three legal arguments and one constitutional argument

that comprise Petitioner’s claim to U.S. citizenship is de novo.16

That our review is de novo does not, however, answer whether

we must defer to the BIA’s interpretation of § 1432(a). Usually,

the BIA’s reasonable interpretation of an ambiguous provision of

the INA (which, in general, it administers) is entitled to Chevron

15
Petitioner argues that the BIA’s application of § 1432(a)
violated the equal protection component of the Fifth Amendment’s
Due Process Clause.
16
See 8 U.S.C. § 1252(b)(5)(A) (“If the petitioner claims to
be a national of the United States and the court of appeals finds
from the pleadings and affidavits that no genuine issue of material
fact about the petitioner’s nationality is presented, the court
shall decide the nationality claim.”); see also Singh v. Gonzales,
436 F.3d 484, 487 (5th Cir. 2006) (stating that we decide legal
claims made in a petition for review de novo); Soadjede v.
Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003) (stating that we decide
constitutional claims made in a petition for review de novo).

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deference.17 But Chevron deference will apply here only if Congress

has delegated authority to the BIA to clarify a statutory

ambiguity.18 If Congress has not done so, then we are not required

to defer to the BIA’s interpretation.

There is disagreement among the circuits as to whether the

BIA’s interpretation of § 1432(a) is entitled to Chevron deference.

The Ninth Circuit insists that it is not, reasoning that Congress

has delegated responsibility for deciding nationality claims to the

federal courts.19 That circuit makes the point that 8 U.S.C.

§§ 1252(b)(5)(A) and (B) expressly provide that the federal courts

“shall decide [a] nationality claim” presented in a petition for

review. The Second Circuit appears to be unconvinced. It recently

accorded Chevron deference to the BIA’s interpretation of

§ 1432(a), albeit without ever questioning whether such deference

was warranted.20

We have not weighed in on this precise issue, and neither

party has briefed it. In Nehme v. INS, however, we addressed a

very similar issue and held that the BIA’s interpretation of

17
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-44 (1984); see Singh, 436 F.3d at 487.
18
See 467 U.S. at 843-44.
19
See Minasyan v. Gonzales, 401 F.3d 1069, 1974 (9th Cir.
2005).
20
See Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004).

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§ 1432(a) is not entitled to Chevron deference.21 Nehme was decided

in the context of determining whether we had jurisdiction to review

a removal order issued against a criminal alien.22 As we stated

there, the question whether we have jurisdiction in a particular

case is subject to plenary review. In other words, we interpret

statutes that operate to deprive us of jurisdiction de novo,

without regard to an administrative agencies preferred

interpretation of the statute.23

Nehme’s holding, however, does not control our interpretation

of § 1432(a)(3). After all, our inquiry today is not

jurisdictional: It was after we decided Nehme that Congress amended

the judicial review provisions of the INA to clarify that we retain

jurisdiction over constitutional and legal claims made by a

criminal alien in a petition for review.24 At the time that we

decided Nehme, the INA merely deprived us of jurisdiction to

entertain petitions for review filed by specific sub-classes of

criminal aliens. The question whether the petitioner in Nehme was

in fact an alien went straight to our jurisdiction: If he was, we

did not have jurisdiction; if he was not, we did. Here, in

contrast, § 1252(a)(2)(D) grants us jurisdiction to hear

21
252 F.3d 415, 420 (5th Cir. 2001).
22
See id.
23
Id.
24
See 8 U.S.C. § 1252(a)(2)(D).

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Petitioner’s legal and constitutional claims, regardless of whether

he is an alien. Nehme’s holding that we must interpret § 1432(a)

de novo to determine our jurisdiction is thus not controlling.

For today’s purposes, however, the question of Chevron’s

applicability is beside the point: As we agree with the BIA’s

interpretation of § 1432(a), our conclusion in this case would be

the same whether we were to interpret the statute de novo or,

instead, within Chevron’s framework. If we were operating under

Chevron, we would defer to the BIA’s interpretation of § 1432(a) as

reasonable; and when we interpret the statute de novo, we reach the

same conclusion as did the BIA. As we thus would affirm the BIA’s

interpretation as the appropriate one under either standard of

review, we need not determine whether the BIA’s interpretation is

entitled to Chevron deference.

2. Bustamante-Barrera’s claim to U.S. citizenship

“There are ‘two sources of citizenship, and two only: birth

and naturalization.’”25 As Petitioner was not born in the United

States, naturalization is his sole source for a claim of

citizenship. Naturalization is available “only as provided by Acts

of Congress”26 and, even then, only “in strict compliance with the

terms of” such acts.27 Petitioner has the burden of proving that

25
Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United
States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)).
26
Id. at 424.
27
INS v. Pangilinan, 486 U.S. 875, 884 (1988).

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he qualifies for naturalization, and he must do so in the face of

the Supreme Court’s mandate that we resolve all doubts “in favor of

the United States and against” those seeking citizenship.28

In his claim to derivative naturalization, Petitioner contends

that he automatically became a citizen in 1994 when his mother was

naturalized. His argument tracks the version of § 1432(a) that was

in effect in 1994. It granted derivative citizenship to

child[ren] born outside of the United States [to] alien
parents . . . upon fulfillment of[, inter alia,] the
following conditions: . . .

(3) The naturalization of the parent having legal
custody of the child when there has been a legal
separation of the parents . . . ; and if

(4) [s]uch naturalization takes place while such
child is under the age of eighteen years; and

(5) [s]uch child is residing in the United States
pursuant to a lawful admission for permanent
residence at the time of the

custodial parent’s naturalization.29 None dispute that Petitioner

satisfies all but one of these conditions: (1) He was born outside

of the United States to alien parents; (2) his parents’ 1991

divorce (which occurred while he was under the age of 18) qualifies

as a “legal separation”; (3) his mother was naturalized while he

was under the age of 18; and (4) at the time of his mother’s

naturalization, Petitioner was residing in the United States as a

LPR. Thus, Petitioner’s status as a derivatively naturalized

28
Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).
29
8 U.S.C. § 1432(a)(3)-(5) (emphasis added).

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citizen turns entirely on § 1432(a)’s fifth condition, viz.,

whether, before he reached the age of 18, his parents’ joint

custody regime satisfied § 1432(a)(3)’s requirement that “the”

naturalized parent be “the” parent having legal custody.

This case, then, is one of federal statutory interpretation.

We must construe the one of § 1432(a)(3)’s express conditions that

requires “the parent having legal custody of the child” to have

been naturalized and determine whether this condition requires that

parent to have had sole, as opposed to joint, legal custody. This

issue is one of first impression, not only in this Circuit but

also, it appears, in all of the federal circuits.30 In the end, we

30
Respondent disagrees, contending that all “[t]he courts that
have addressed this issue have reached the” conclusion that
§ 1432(a)(3) requires sole legal custody. In support of this
assertion, Respondent cites Minasyan, 401 F.3d at 1069, Batista v.
Ashcroft, 270 F.3d 8 (1st Cir. 2001), and Espindola v. Barber, 152
F. Supp. 829 (N.D. Cal. 1957). None of these cases, however,
addressed the precise issue we face today. The Minasyan court
interpreted a different term from § 1432(a)(3) —— “legal
separation” —— not the phrase at issue today. See 401 F.3d at
1076. The Batista court merely assumed that sole custody is
required, but did not engage in an analysis of the issue. See 270
F.3d at 15-16. And in Espindola, it was conceded that the “legal
custody” requirement was met. See 152 F. Supp. at 831.
To be sure, other courts have faced similar issues, but none
that we have found has faced this precise one. The Third Circuit,
for example, interpreted “legal custody” in § 1432(a)(3) to be
satisfied when no formal decree has granted either parent legal
custody of the child, but the child nonetheless resides in the
“actual uncontested custody” of the naturalized parent. See Bagot,
398 F.3d at 266. The First and Ninth circuits have also
interpreted “legal custody,” but neither court has considered
whether § 1432(a)(3) requires sole legal custody. See Fierro v.
Reno, 217 F.3d 1 (1st Cir. 2000); Tabucbuc v. Ashcroft, 84 Fed.
Appx. 966 (9th Cir. 2004) (unpublished per curiam opinion). And
we, along with at least three other circuits, have interpreted the
term “legal separation” in § 1432(a)(3). See Minasyan, 401 F.3d
at 1069; Brissett, 363 F.3d at 130; Nehme, 252 F.3d at 415;
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hold that only sole legal custody satisfies § 1432(a)(3). Two

factors lead us to this conclusion: (1) the text of § 1432(a)(3)

and its relation to the overall scheme of the INA; and (2)

§ 1432(a)’s purpose, as demonstrated by its legislative history.

As Petitioner cannot meet his burden of proving that he was in the

sole legal custody of his naturalized mother prior to his

eighteenth birthday, he cannot obtain derivative citizenship. We

must, therefore, deny his petition for review.

3. Obtaining derivative citizenship under 8 U.S.C. § 1432(a)

We start with the statute’s text. As earlier explained,

§ 1432(a)(3) grants derivative citizenship to a child born outside

of the United States to alien parents only if, inter alia, “the

parent having legal custody of the child” has been naturalized. To

determine whether these words require sole legal custody, we must

construe the entire phrase.

Petitioner would have us frame the issue more narrowly,

restricting our interpretation to but two words of this eight-word

phrase, “legal custody.” Indeed, Petitioner’s core argument ——

that reading “legal custody” to require “sole legal custody” would

be to amend § 1432(a)(3) judicially —— might have more force if

“legal custody” were indeed the only words that we must construe.

But the words “legal custody” do not stand alone in § 1432(a)(3);

rather, they immediately follow, and must be read in pari materia

Wedderburn v. INS, 215 F.3d 795 (7th Cir. 2000). Each of these
decisions informs our analysis, but none controls it.
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with, the whole descriptive phrase, which begins with and includes

“the parent having.” Stated another way, “the parent having legal

custody” cannot be parsed to consider, in a vacuum, just “the

parent” or “legal custody.” The who is “the parent”; but, being

singular, more must be known, viz., whether “the” parent in

question is the one with “legal custody.” The words “the parent”

are thus modified by the words “having legal custody.” Only

together do these words describe who must have “the” legal custody

of a child if that child is to derive citizenship.

As noted, Congress chose to identify which progenitor must

have legal custody by using the singular form of “parent”: A child

derives citizenship under § 1432(a)(3) only if “the parent having

legal custody of the child” was himself or herself naturalized.31

Congress’s use of the singular form is telling. It leaves no room

to dispute that, when only one of two legally separated parents is

a naturalized U.S. citizen, that parent is the one who must have

legal custody. Had Congress meant that § 1432(a)(3)’s requirements

could be met when two legally separated parents shared joint legal

custody of a child and only one of those two parents was

naturalized, it could have used more inclusive language to signify

as much. For example, Congress could easily have specified “the

parent or parents having legal custody of the child.”

Not surprisingly, Congress has used just such more inclusive

language in other parts of the INA where the term “legal custody”

31
8 U.S.C. § 1432(a)(3) (emphasis added).
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is employed. For example, 8 U.S.C. § 1101(b)(1)(C)32 defines

“child” as used in specified portions of the INA to include, among

others, “a child legitimated under the law of the child’s residence

or domicile, . . . if such legitimation takes place before the

child reaches the age of eighteen years and the child is in the

legal custody of the legitimating parent or parents at the time of

such legitimation.”33 And, in § 1101(b)(1)(E)(i), Congress defined

“child” to include “a child adopted while under the age of sixteen

years if the child has been in the legal custody of, and has

resided with, the adopting parent or parents for at least two

years.”34 Finally, 8 U.S.C. § 1101(c)(1), which also defines

“child” (but for other portions of the INA), requires that “the

child [be] in the legal custody of the legitimating or adopting

parent or parents.”35

By their plain language, these three INA provisions are

expressly satisfied either if one of two parents has sole legal

custody or if the two parents share joint legal custody.

Congress’s use of “parent or parents” in these provisions contrasts

sharply with its exclusive use of the singular form of “parent” in

§ 1432(a)(3). We cannot ignore this distinction between different

32
For consistency’s sake, all references in this part of the
opinion to provisions in title 8 of the U.S. Code are to the 2000
version of the Code.
33
8 U.S.C. § 1101(b)(1)(C) (emphasis added).
34
8 U.S.C. § 1101(b)(1)(E)(i) (emphasis added).
35
8 U.S.C. § 1101(c)(1) (emphasis added).
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provisions in the same statute without violating a well-established

canon of statutory construction: We must read the statute as a

whole, so as to give effect to each of its provisions without

rendering any language superfluous.36 Were we to read

§ 1432(a)(3)’s use of “the parent” (singular) as also permitting

joint legal custody, we would effectively read the words “or

parents” out of §§ 1101(b) and (c)’s definitions of “child.” This

we may not —— and will not —— do. Given Congress’s use of “parent

or parents” in §§ 1101(b) and (c), we are confident that, had

Congress intended § 1432(a)(3) to be satisfied by either sole or

joint legal custody, it would have used the same words or at least

very similar ones. That it did not do so confirms to us that joint

legal custody does not meet § 1432(a)(3)’s requirements. Only sole

legal custody will suffice.

As demonstrated by its legislative history, § 1432(a)’s

purpose bolsters our conclusion that the statute requires sole

legal custody. Congress enacted the provision “to ensure that only

those alien children whose ‘real interests’ were located in America

with their custodial parent [singular], and not abroad, should be

automatically naturalized.”37 This provision was adopted to

“promote marital and family harmony and . . . prevent the child

from being separated from an alien parent who has a legal right to

36
See Beck v. Prupis, 529 U.S. 494, 506-07 (2000).
37
Nehme, 252 F.3d at 425; see also S. Rep. No. 2150, at 4
(1940); 86 Cong. Rec. 11,945-53 (1940); H.R. Rep. No. 82-1365,
reprinted in 1952 U.S.C.C.A.N. 1653, 1680.
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custody.”38 In other words, Congress meant for § 1432(a) to protect

the rights of both parents for as long as each one of them has

legal rights over the child. This is why, when we were asked in

Nehme to determine whether an informal separation of a married

couple satisfied § 1432(a)(3)’s “legal separation” requirement, we

answered in the negative:

It makes sense . . . that when the child’s parents are
still married, the child does not automatically acquire
a new citizenship upon the naturalization of only one
parent. . . . [W]e think 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.39

After all, only when there has been a “formal . . . alteration of

the marital relationship” could the federal courts be confident

that the non-custodial, non-naturalized parent truly has no rights

over the child.40

Other circuits have also interpreted § 1432(a) as serving the

purpose of protecting parental rights. The Ninth Circuit, for

example, views § 1432(a) as a measure meant to “prevent[] the

naturalizing parent from usurping the parental rights of the alien

parent.”41 And, in dicta, the Seventh Circuit reasoned that

§ 1432(a) protects parents’ rights by “limit[ing] automatic changes

38
Nehme, 252 F.3d at 425.
39
Id. at 425-26 (emphasis in original).
40
See id.
41
Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003).
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[in citizenship] to situations in which the other parent has been

removed from the picture —— either by death or by ‘legal

separation.’”42 A legally separated parent with joint legal custody

—— such as Petitioner’s father —— has not “been removed from the

picture”43 to such a degree that he has no legal rights over his

child. Thus, the naturalization of such a parent’s ex-spouse

should not lead to an automatic change in his child’s citizenship.

That kind of change could seriously interfere with the non-

naturalized parent’s rights, and thereby undermine § 1432(a)’s

purpose.

In addition, interpreting § 1432(a)(3) as amenable to being

satisfied by a decree of joint legal custody would lead to an

absurd result: (1) not recognizing derivative citizenship when an

alien child’s parents are married and only one parent is

naturalized,44 while (2) recognizing derivative citizenship when an

alien child’s parents are legally separated, continue to share

legal custody (and thus legal rights) over the child, and only one

parent is naturalized. Inasmuch as, in each example, both parents

share rights over the child, we can conceive of no non-absurd

reason —— and Petitioner has furnished us none —— why Congress

42
Wedderburn, 215 F.3d at 800 (emphasis added); see also
Minasyan, 401 F.3d at 1079; Fierro, 217 F.3d at 6.
43
Wedderburn, 215 F.3d at 800.
44
Under 8 U.S.C. § 1432(a)(1), if a child’s parents are both
living and are not “legal[ly] separat[ed],” then derivative
citizenship is available only on “[t]he naturalization of both
parents.” (Emphasis added).
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would grant derivative citizenship to the child of the legally

separated parents but not to the child of the married parents. We

decline Petitioner’s invitation to read § 1432(a)(3) in a way that

reaches such an incongruous result. We hold instead that

§ 1432(a)(3)’s requirement that “the parent having legal custody of

the child” be a naturalized citizen of the United States is

satisfied only when but one of two living and legally separated

parents is a naturalized U.S. citizen and that parent is vested

with the sole legal custody of the child.

4. Whether, prior to his eighteenth birthday, Bustamante-
Barrera was in the sole legal custody of his mother

Petitioner concedes that the 1991 divorce decree granted his

parents joint legal custody. This decree is the only evidence in

the record relevant to his custodial status prior to his eighteenth

birthday. In the absence of evidence contradicting the 1991

divorce decree, we must conclude that Petitioner did not derive

citizenship ipso facto at the time of his mother’s subsequent

naturalization in 1994.

Petitioner nevertheless advances three arguments to support

his derivative citizenship claim. First, he contends that he

automatically derived citizenship under § 1432(a) when his mother

was naturalized because, even if we disregard the original divorce

decree’s plain language and meaning under California law, he was,

for purposes of federal immigration law, effectively in the sole

legal custody of his mother prior to his eighteenth birthday.

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Second, Petitioner insists that under the Full Faith and Credit

Act,45 we must apply the amended decree to his naturalization claim

under § 1432(a). He notes that the amended decree retroactively

grants his mother sole legal custody as of the date of the original

judgment of divorce, which was rendered before his eighteenth

birthday. Finally, Petitioner contends that our failure to

recognize his derivative naturalization would violate the Equal

Protection component of the Fifth Amendment’s Due Process Clause.

a. Whether Bustamante-Barrera was effectively in the
sole legal custody of his mother prior to his
eighteenth birthday

On a purely theoretical level, Petitioner’s first argument has

some appeal —— but not enough to carry the day. Interpretation of

§ 1432(a)(3) is a matter of federal law.46 And, because of the

overarching constitutional interest in uniformity of federal

immigration and naturalization laws,47 we have previously “reject[ed

the] contention that the law of any one state should govern the

determination” under § 1432(a)(3) “whether an alien child’s parents

were ‘legally separated.’”48 Especially given Nehme’s firm

45
28 U.S.C. § 1738.
46
Nehme, 252 F.3d at 422-23.
47
See U.S. Const. art. I, § 8, cl. 4 (granting Congress the
power “[t]o establish an uniform Rule of Naturalization”).
48
Nehme, 252 F.3d at 424 (emphasis added); see also 8 U.S.C.
§ 1432(a)(3) (granting derivative citizenship to a minor child of
alien parents upon “[t]he naturalization of the parent having legal
custody of the child when there has been a legal separation of the
parents”) (emphasis added).
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rejection of the contention that the meaning of the term “legal

separation” in § 1432(a)(3) is controlled by any given state’s

domestic relations law, we are satisfied that neither may a child’s

“legal custody” status be controlled by any one state’s law. It is

true, at least in theory, that a LPR child seeking derivative

citizenship under § 1432(a) might prove that, despite a state’s

explicit grant of joint legal custody to his parents, he must be

regarded as being (or having been) in the sole legal custody of his

naturalized parent as a matter of federal law.49 In this case,

however, Petitioner has failed to prove that, for federal

naturalization purposes, he should be regarded as having

effectively been in the sole legal custody of his mother at the

time of her naturalization. In fact, he has offered us no evidence

to that effect; he merely asserts as much conclusionally in his

brief. Such a bald assertion is not sufficient to meet his burden

of proving his claim to citizenship; neither is it enough to create

an issue of material fact that would require a hearing before a

district court.50

49
Cf. Nehme, 252 F.3d at 427 (reasoning that the petitioner
could have attempted to prove that, despite his parents’ lack of a
formal legal separation under state law, they should be regarded as
legally separated under federal law).
50
See 8 U.S.C. § 1252(b)(5)(B) (“If the petitioner claims to
be a national of the United States and the court of appeals finds
that a genuine issue of material fact about the petitioner’s
nationality is presented, the court shall transfer the proceeding
to the district court of the United States for the judicial
district in which the petitioner resides for a new hearing on the
nationality claim . . . .”); Agosto v. INS, 436 U.S. 748, 754-57
(1978) (holding that traditional summary judgment principles govern
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 b. The effect of the amended decree

Likewise without merit is Petitioner’s second contention,

i.e., that, at the time of his mother’s naturalization, he met

§ 1432(a)(3)’s sole legal custody requirement because the 2002

amended decree expressly and retroactively grants her sole legal

custody as of the date of her 1991 divorce. Petitioner insists

that we are bound by the Full Faith and Credit Act51 to recognize

California’s amended decree as having such retroactive effect. We

disagree.

Our refusal to credit the amended decree for purposes of

federal immigration law does not even implicate the Full Faith and

Credit Act. For purposes of § 1432(a), Petitioner’s custody status

prior to his eighteenth birthday is determined by federal law; it

is not dependent on the law of any particular state. True, his

custody status under state law might provide evidence of his such

status for federal naturalization purposes; yet, even for these

purposes, we are not bound by California’s determination of his

legal relationship with his mother. Stated differently, even

assuming arguendo that the state’s amended decree retroactively

altered Petitioner’s relationship with his mother for some

the determination whether a petitioner claiming nationality has
created an issue of material fact warranting a hearing in the
district court).
51
28 U.S.C. § 1738. The Full Faith and Credit Act mandates
that federal courts accord the same “full faith and credit” to
state “judicial proceedings” as other courts of the state from
which the state court judgment comes would accord the judgment.
Id.
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legitimate state purpose, we would not be bound to follow the

amended decree in determining Petitioner’s custody status for

purposes of the subject section of the INA. Federal naturalization

law exists independent of state family law. Here, we do not

question the amended decree’s validity —— a question that, in other

circumstances, the Full Faith and Credit Act might prohibit our

asking. But the Full Faith and Credit Act certainly does not

require us to accord that state decree conclusive effect in U.S.

naturalization proceedings.

We are not the first court to address the effect of a nunc pro

tunc order on a § 1432(a)(3) analysis. Facing similar

circumstances in Fierro, the First Circuit rejected the assertion

that a nunc pro tunc amended custody decree obtained for the

express purpose of affecting the outcome of federal immigration

proceedings satisfied § 1432(a)(3)’s “legal custody” requirement.52

Born in Cuba, Fierro and his parents immigrated to the United

States in 1970. When his parents divorced in 1973, his mother was

granted custody in the divorce decree.53 In 1976, Fierro became a

LPR, and in 1978, when Fierro was still under the age of 18, his

non-custodial father became a naturalized U.S. citizen. Twenty

years later, while a middle-aged Fierro was facing removal

proceedings, a Massachusetts court entered a nunc pro tunc order

that granted his father legal custody effective retroactively to

52
217 F.3d at 1.
53
Id. at 2.
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1977.54 To obtain that court order, both of Fierro’s parents had

expressly averred that the post-hoc “modification [of his custody

status] is necessary for [him] to derive citizenship through his

father and avoid being deported to Cuba.”

The Massachusetts court acquiesced and entered the nunc pro

tunc order, after which Fierro insisted that he was not removable

because he had derived citizenship when his father was naturalized

in 1978. As evidenced by the nunc pro tunc order, argued Fierro,

he was in his father’s legal custody at that time. The First

Circuit rejected this argument, reasoning, inter alia, that

reliance on such an order as the basis of derivative citizenship

would open the floodgates for abuse, “allow[ing] . . . state

court[s] to create loopholes in the immigration laws on grounds of

perceived equity or fairness.”55

The instant case is strikingly similar to Fierro. After

Petitioner’s removal proceeding had been initiated —— which was

years after he had reached the age of 18 —— Petitioner’s mother was

successful in having her 11 year-old divorce decree amended

retroactively for the sole purpose of blocking her son’s removal

from the United States. We agree with the First Circuit that

relying on such a nunc pro tunc order to recognize derivative

citizenship would create the potential for significant abuse and

manipulation of federal immigration and naturalization law. We

54
Id.
55
Id. at 6.
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therefore decline to credit it.

We should not, though, be seen as foreclosing any possibility

that there could be a situation in which such a nunc pro tunc

amended decree could enhance an alien’s claim of derivative

citizenship under § 1432(a). It is at least possible that

circumstances could exist in which such a decree would legitimately

demonstrate that an alien child had in fact been in the sole legal

custody of his one naturalized parent prior to his eighteenth

birthday. This, however, is not such a case. The record here

confirms that Petitioner’s mother sought the amended decree solely

for the purpose of controlling immigration and naturalization law.

We refuse to reward such blatant manipulation of federal law.

c. Bustamante-Barrera’s Equal Protection claim

In a last-ditch effort to avoid removal, Petitioner asserts

that our refusal to recognize the amended decree as sufficient to

satisfy § 1432(a)(3)’s sole legal custody requirement would violate

the Equal Protection component of the Fifth Amendment’s Due Process

Clause. He argues that he is similarly situated to an alien child

whose parents’ original separation decree placed the child in the

sole legal custody of his one naturalized parent. This is so,

argues Petitioner, because his “status, as determined by the

California court, is legally the same as if he were originally

placed in the sole legal custody of his mother at the time of the

[original] custody” decree. It would be irrational, he contends,

to treat him differently only because a retroactive nunc pro tunc
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order —— distinct from an original decree —— dictates his custody

status.

This argument too is meritless. As we explained earlier, we

need not —— and therefore do not —— rule out the possibility that

some set of circumstances might exist in which we would recognize

a nunc pro tunc amended divorce decree as sufficient to prove sole

legal custody under § 1432(a)(3). In such a hypothetical case,

there would be no differential treatment between, on the one hand,

a minor child who was unquestionably in the sole legal custody of

his naturalized parent from the outset, and, on the other hand, one

whose parents’ original custody decree placed him in the joint

legal custody of both of his parents but who, in actuality, was in

the sole legal custody of his one naturalized parent. Petitioner

argues that he falls within the latter category and that it would

be irrational to treat him differently than children in the former

one. But Petitioner does not fall within the latter group: He has

shown us no evidence that the amended decree is effective for

purposes of federal immigration and naturalization law. On the

contrary, the uncontradicted evidence confirms that the amended

decree was brazenly obtained for the sole purpose of manipulating

federal immigration law and had no legitimate state purpose

whatsoever. Petitioner’s equal protection claim cannot prevail

under such circumstances.

CONCLUSION

Having failed to prove that, prior to his eighteenth birthday,
-27-
he was in the sole legal custody of his mother, Petitioner has not

carried his burden of proving his derivative naturalization under

§ 1432(a). His petition for review is, therefore,

DENIED.

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