Virginia Lawyers Weekly//April 10, 2019
Virginia Lawyers Weekly//April 10, 2019//
Where an immigration judge determined that an imprisoned father did not have physical custody of his child for purposes of the Child Citizenship Act, that decision should have been reviewed de novo by the Board of Immigration Appeals.
Howard Egba Duncan Jr. is a legal permanent resident of the United States who was born in Nigeria to a Nigerian mother and an American father. Duncan and his grandmother moved to the United States to live with his father when he was six years old. They all lived together for three months until his father was incarcerated in April 1998. Duncan’s grandmother’s petition to become Duncan’s guardian was granted later that year.
Duncan’s father remained incarcerated until 2011, two years after Duncan’s 18th birthday. Throughout his incarceration, Duncan spoke with him on the phone several times a week and visited him about once a month. Duncan’s father provided limited financial support and guidance during this time, but Duncan’s grandmother remained his primary caretaker.
On July 14, 2009, prior to his 18th birthday and before removal proceedings were commenced, Duncan applied for a certificate of citizenship. The application was denied in March 2010. The Administration Appeals Office affirmed the denial in February 2015, finding that Duncan failed to establish that he was in the legal or physical custody of his father during the relevant time period.
The government then initiated removal proceedings pursuant to 8 U.S.C. § 1227(a)(2) based on Duncan’s commission of four crimes between October 2008 and January 2011. Duncan moved to terminate the proceedings on the ground that he derived citizenship from his father under the CCA and, as such, was not removable under §1227(a)(2).
Following an evidentiary hearing, the immigration judge 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 but did not address whether Duncan satisfied the legal custody requirement under the CCA. The judge also denied Duncan’s application for relief from removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, finding that Duncan’s testimony, while credible, was insufficient to demonstrate 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.
The Board of Immigration Appeals dismissed Duncan’s appeal, concluding that the immigration judge did not clearly err in finding that Duncan was not in the physical custody of his father for purposes of the CCA and had not established that the torture he feared would be done at the hands of a public official or with the acquiescence of such officials for relief under the convention. The board also failed to address whether Duncan satisfied the legal custody requirement of the CCA. This petition followed.
The government acquiescence determination under the convention is a mixed question of fact and law and an immigration judge’s determination that the evidence did not meet the relevant standard is a legal judgment subject to de novo review by the board. As it is undisputed that the board reviewed the immigration judge’s determination that Duncan did not establish a likelihood of government acquiescence for clear error, Duncan’s convention claim is remanded so that the board can apply the correct standard.
Guided by our precedent in similar contexts, we conclude that whether an individual was in the physical custody of a parent under the CCA is also a mixed question of fact and law. The analytical steps that the immigration judge must take in determining whether a child was in the physical custody of her parent under the CCA underscore this conclusion.
Notably, because there is no federal definition of physical custody, the immigration judge must determine the meaning of physical custody based on state law. As states have adopted different approaches to determining physical custody, the same set of facts may result in different legal outcomes depending upon where they occur.
Thus, while the immigration judge’s findings of fact are subject to clear error review, the application of those facts to the relevant state law in determining whether an individual satisfies the physical custody requirement under the CCA is a legal judgement subject to de novo review by the board.
As such, the board erred in reviewing the immigration judge’s determination that Duncan failed to satisfy the CCA’s physical custody requirement under Maryland law for clear error. Should that determination be resolved in Duncan’s favor, the board must also address whether Duncan was in his father’s legal custody as required under the statute.
Duncan v. Barr, Case No. 17-2423, March 19, 2019. 4th Cir. (Duncan), Petition from Board of Immigration Appeals. Michael S. DePrince for Petitioner; Lindsay Donahue for Respondent. VLW 019-2-092. 16 pp.