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I U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk

5107 Leesburg Pike, Suue 2000
Falls Church, Virginia 22041

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Newman, Thomas Rubin OHS/ICE Office of Chief Counsel - SIN
Duane Morris LLP 15 Governor Drive
1540 Broadway Newburgh, NY 12550
New York, NY 10036

Name: PAYNE, DAVID ANDERSON A 035-187-615

Date of this notice: 10/22/2018

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John
Grant, Edward R.
Kendall Clark, Molly

Userteam: Docket

For more unpublished decisions, visit
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Cite as: David Anderson Payne, A035 187 615 (BIA Oct. 22, 2018) () ()
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A035-187-615 - Fishkill, NY Date:
OCT 2 2 2018
In re: David Anderson PAYNE a.k.a. David Pain

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IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Thomas R. Newman, Esquire

APPLICATION: Reconsideration

The proceedings in this matter were last before the Board on March 22, 2004. By a decision of
that date, the Board affirmed without opinion the decision of the Immigration Judge of
December 5, 2003. The Immigration Judge denied the respondent's motion to terminate based
upon his claim to United States citizenship and ordered him removed from the United States. On
August 6, 2018, the respondent filed the motion for reconsideration now before the Board. The
Department of Homeland Security has not responded to the motion.

By the motion, the respondent seeks to have the Board's March 22, 2004, decision vacated. He
also seeks the termination of the proceedings on the basis of his acquisition of United States
citizenship under former section 32l(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1432(a). In respect of the respondent's assertion of United States citizenship, reconsideration is
appropriate and warranted and the motion is duly granted. Poole v. Mukasey, 522 F.3d 259, 264
(2d Cir. 2008); Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004).

The respondent was born on March 24, 1971, in Barbados. On August 27, 1978, the respondent
entered the United States as a lawful permanent resident. On July 17, 1981, his parents, both
natives and citizens of Barbados, residing in the state of New York, obtained a divorce in New
York. The divorce decree acknowledged the respondent as an issue of the marriage but did not
address custody or support arrangements. On November 23, 1982, the respondent's father was
naturalized.

At issue in these proceedings is whether the respondent attained derivative citizenship through
his father's naturalization. Prior to its repeal, Section 32l(a) of the Act, 8 U.S.C. § 1432(a),
provided, in pertinent part:

A child born outside of the United States of alien parents ... becomes a citizen of the United
States upon fulfillment of 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) Such naturalization takes place while such child is under the age of eighteen years ...

Cite as: David Anderson Payne, A035 187 615 (BIA Oct. 22, 2018) () ()
A035-187-615

Section 32l(a), 8 U.S.C. § 1432(a) (1996) (emphasis added), repealed by Child Citizenship Act
Of 2000, Title I, § 103(a), 114 Stat. 1632; Garcia v. US/CE (Dep't of Homeland Sec.), 669 F.3d
91, 94-95 (2d Cir. 2011). In order to determine whether the respondent attained derivative
citizenship, it is necessary to determine whether, in light of the legal separation of the respondent's

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parents, by way of divorce, absent language in the decree addressing custody, his father, the parent
who naturalized, had legal custody of the him at the time of the naturalization which occurred
when the respondent was 11 years old.

The United States Court of Appeals for the Second Circuit has made clear that "an immigrant
child of a naturalizing alien [not be] denied citizenship because there is not a court order or
formalized custody agreement" (italics in original). Garcia v. US/CE at 95 citing Matter of M-,
3 I&N Dec. 850, 856 (BIA 1950) ("actual uncontested custody" can constitute "legal custody").
The inquiry to assess a derivative citizenship claim is intended to ensure that a child becomes a
United States citizen where the naturalizing parent has a true connection to and control of the child,
and to deny the child citizenship if the child has little actual relationship with the naturalizing
parent. Khalid v. Sessions, No. 16-3480-AG, 2018 WL 4353877, at *7 (2d Cir. Sept. 13, 2018)
citing Garcia v. USCJS, 669 F.3d at 96; see also Matter of M-, 3 I&N Dec. 850 (BIA 1950). Further
the inquiry seeks to ensure that children acquiring derivative citizenship have their "real interests"
in the United States. Duarte-Ceri v. Holder, 630 F.3d 83, 90 (2d Cir. 2010). In Duarte-Ceri the
Court stated that "Congress enacted the derivative citizenship statute to ensure that 'alien children
whose real interests were located in America with their custodial parent, and not abroad, should
be automatically naturalized.' " Duarte-Ceri v. Holder, 630 F.3d at 89-90 (emphasis added)
(quoting Bustamante-Barrera, 447 F.3d at 397).

Thus, the history of the derivative citizenship statute supports reading the statute to ensure that
a child's "real interests" are in the United States through a genuine connection between the United
States citizen parent and that parent's child. Khalid v. Sessions, No. 16-3480-AG, 2018 WL
4353877, at 7. Addressing the circumstance of children of legally separated parents, the Second
Circuit has recognized that in the absence of a judicial determination giving one parent sole
custody of the child, each parent generally retains the rights and responsibilities that come with
parenthood. Garcia v. US/CE (Dep't of Homeland Sec.), 669 F.3d 91, 96, citing Matter of M-,
3 l&N. Dec. at 856 (BIA's interpretation that "actual uncontested custody" can constitute "legal
custody"); N.Y. Dom. Rel. Law§ 81 (McKinney 2010); see also 45 N.Y. Jur.2d Dom. Rel.§ 333.

The record of divorce in this matter makes clear that there was no judicial determination giving
one parent sole legal custody of the respondent. The decision of the Immigration Judge
acknowledged that both parents shared legal custody (IJ at 6). However, having reached that
conclusion, the Immigration Judge appears to have focused on with which parent the respondent
resided (IJ at 6-7, Tr. at 37). In light of subsequent Second Circuit rulings, it is clear that the
Immigration Judge's findings in this regard are not a proper basis to make a negative determination
of citizenship in this case under former section 321(a) of the Immigration and Nationality Act,
8 U.S.C. § 1432(a).

The respondent's father testified and provided a letter attesting to his active involvement in his
son's life, to include co-parenting with the respondent's mother and financial support, and neither

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Cite as: David Anderson Payne, A035 187 615 (BIA Oct. 22, 2018) () ()
A035-187-615

his testimony nor the letter he submitted to the record were discredited or called into question by
the Immigration Judge (Tr. at 50; Exh. 7). It is our determination that this arrangement constituted
actual uncontested legal custody.

We find that on the record before us, the respondent fulfilled each of the qualifying conditions

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of section 32l(a) of the Act before he reached the age of 18. We hold, therefore, that the respondent
is a citizen of the United States as defined by the statute and properly interpreted by the agencies
which are charged with interpreting and administering the statute. Under the law in effect today,
the respondent acquired citizenship at age 11 when his father was naturalized in 1982, and he has
been a citizen of the United States since that time.

The Immigration and Nationality Act applies only to noncitizens. The Department of Homeland
Security has no jurisdiction over the respondent, who is a citizen, either to detain him or to seek to
remove him, and we do not have jurisdiction either to find him removable or to order him removed.

ORDER: The decision of the Board of March 22, 2004, is, hereby, vacated.

FURTHER ORDER: The proceedings are terminated.

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Cite as: David Anderson Payne, A035 187 615 (BIA Oct. 22, 2018) () ()