Tuesday, September 20, 2005

Joseph: fact-finding for derivative citizenship claims done by district courts

Filed 08/29/05, No. 04-2885 [note: amended 09/20/05 to direct the fact-finding hearing to be held in the district court in the District of New Jersey.]
Joseph v. Atty Gen USA
Joseph v. Gonzales

After the passage of the Real ID Act, what is the process for reviewing a factually viable claim that someone derived U.S. citizenship? First, the immigration judge rules on the claim. Next, you need to appeal to the BIA (Board of Immigration Appeals) within 30 days. Finally, within 30 days of the BIA decision, you need to file a petition for review with the circuit court.

But, circuit courts usually do not gather the facts and develop the record. So, under the Real ID Act, if there is a colorable claim (not just any implausible assertion), the circuit court needs to tell the BIA to send the case temporarily to a district court to develop the facts and ship the case back to the circuit court. [Note, the Third Circuit amended its decision to send the fact-finding to a court in the District of New Jersey.]

Here, the dispute was whether someone was the child of a woman who naturalized (giving him a claim of derivative citizenship) or whether he was merely the sister of that woman (ruining his factual claim of derivative citizenship). The government argued that the immigrant's claim was implausible and did not deserve a factual hearing, but the Third Circuit disagreed and set it down for a factual hearing at a location near the immigrant's residence to be determined by the BIA.

An interesting sidelight is:
[P]ro bono counsel filed a petition for review on Joseph’s behalf. The petition alleged that the Civil Code of Haiti only legitimized children born out of wedlock who had been acknowledged by their natural father. Since Joseph’s mother had been raped and his natural father was unknown, Joseph contended that he was never acknowledged by his natural father and could therefore not be considered legitimatedunder Haitian law. The government agreed.
This is interesting -- the government appropriately agreed that being born out of wedlock does not mean your father automatically established paternity by legitimation, even if the laws of the country make no distinction between those born in wedlock and out of wedlock. This is a developing theory that a number of courts have adopted. It's great to see that the government agreed with the theory in a prior appeal in this case. Sadly, the government might dispute this issue in a future appeal. Let's hope that they similarly change their view and agree that a father needs to establish paternity by legitimation to destroy a derivative citizenship claim under the particular wording of the derivative citizenship statute for those born between the 1950s and 1983. (The statute was reworded in 2001, but the government argues that the new statute is only available to those who were under 18 in 2001).


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