Martinho Tavares Rodrigues v. Attorney General of the United States.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1041
___________
MARTINHO TAVARES RODRIGUES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES.,
Respondent
___________
On Petition for Review of an Order
of the Board of Immigration Appeals
(A40-194-858)
Immigration Judge: Hon. Walter A. Durling
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 9, 2009
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges.
(Opinion Filed: April 14, 2009)
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OPINION OF THE COURT
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FUENTES, Circuit Judge.
Petitioner Martinho Tavares Rodrigues seeks review of a decision by the Board of
Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”)
order of removal. Rodrigues’s challenge to the BIA’s decision is based on a former
version of 8 U.S.C. § 1432(a), under which Rodrigues claims to have automatically
derived United States citizenship when his father became a naturalized citizen in 1993.
For the reasons detailed below, we find no merit to his argument and deny his petition for
review.
I.
Rodrigues was born in 1982 in Cape Verde. When he was two years old, his
parents divorced and his father emigrated to the United States. Although there was no
formal custody agreement, Rodrigues stayed with his mother in Cape Verde. Three years
later, in 1987, Rodrigues and his mother also emigrated to the United States.
From 1987 to 1991, Rodrigues lived with his mother in Roxbury section of Boston.
In 1991, motivated by a lack of space in his mother’s home, Rodrigues moved in with his
father, who lived only a few blocks away. This living arrangement continued for eight
years, until 1999. During this period of time, on October 21, 1993, Rodrigues’s father
became a naturalized United States citizen. His mother never became a citizen – she was,
and still remains, a legal permanent resident.
Between 1991 and 1999, Rodrigues’s father provided Rodrigues with shelter,

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clothing, and food. Rodrigues, however, listed his mother’s address as his legal address
on official forms and documents. In addition, his mother attended all school conferences,
youth offender appearances, and listed him as a dependent on her tax returns.
Rodrigues’s father did not list him as a dependent on his tax returns, and did not mention
him as a dependent on various immigration forms filled out during this time period. As a
result, the IJ and BIA both determined that while Rodrigues lived with his father, the two
parents had an informal arrangement sharing parental duties.
In 2004, Rodrigues was convicted of selling crack cocaine within 1000 feet of a
school and was sentenced to a term of 51 months in prison. In 2006, the INS charged him
with removability. Rodrigues in turn filed a motion to terminate the proceedings,
asserting that he had derivatively obtained United States citizenship when his father was
naturalized. On July 31, 2007, the IJ rejected the derivative citizenship claim and ordered
Rodrigues removed to Cape Verde. He appealed to the BIA, which dismissed his appeal
on December 13, 2007. Rodrigues then filed this petition for review and a motion for
stay of removal. We granted his stay and now consider the merits of his appeal.
II.
In cases concerning the removability of an aggravated felon, we do not review the
BIA’s factual or discretionary decisions. Jordan v. Att’y Gen. U.S., 424 F.3d 320, 328
(3d Cir. 2005). However, to the extent that the petitioner’s arguments present pure
questions of statutory interpretation, we exercise plenary review. Id. “The burden of

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As noted in Jordan, Congress repealed § 1432(a) with its enactment of the Child1
Citizenship Act of 2000 (“CCA”), § 103, Pub. L. No. 106-395, 114 Stat. 1631, which had
an effective date of February 27, 2001. See Jordan, 424 F.3d at 328. As in Jordan, all of
the relevant events in this case took place prior to the CCA’s effective date, so § 1432(a)
controls our analysis. For the purposes of this Opinion, when we refer to “§ 1432(a),” we
are referring to the repealed version.
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proof of eligibility for citizenship is on the applicant.” Bagot v. Ashcroft, 398 F.3d 252,
256-57 (3d Cir. 2005) (citing Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)). “All
doubts should be resolved in favor of the United States and against the claimant.” Id.
(internal quotation marks omitted).
Rodrigues presents his claim for derivative citizenship under the former 8 U.S.C. §
1432(a), the law in effect during the relevant events in this case. Jordan v. Att’y Gen.1
U.S., 424 F.3d 320, 328 (3d Cir. 2005); Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th
Cir. 2005) (“[D]erivative citizenship is determined under the law in effect at the time the
critical events giving rise to eligibility occurred.”). Pursuant to § 1432(a), a child born
outside of the United States to alien parents automatically becomes a citizen of the United
States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the
parents is deceased; or
(3) The naturalization of the parent having legal custody of
the child when there has been a legal separation of the parents
or the naturalization of the mother if the child was born out of
wedlock and the paternity of the child has not been
established by legitimation; and if
(4) Such naturalization takes place while such child is under
the age of eighteen years; and

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(5) Such child is residing in the United States pursuant to a
lawful admission for permanent residence at the time of the
naturalization of the parent last naturalized under clause (1) of
this subsection, or the parent naturalized under clause (2) or
(3) of this subsection, or thereafter begins to reside
permanently in the United States while under the age of
eighteen years.
§ 1432(a). Rodrigues argues that he achieved derivative citizenship under § 1432(a)(3).
To establish derivative citizenship under § 1432(a)(3), Rodrigues must prove four
essential facts: “(1) that his father was naturalized after a legal separation from his
mother; (2) that his father was naturalized before [Rodrigues] turned eighteen; (3) that he
was residing in the United States as a permanent legal resident at the time of his father’s
naturalization; and (4) that his father had legal custody at the time of [Rodrigues’s]
naturalization.” Bagot, 398 F.3d at 257. The Government concedes the first three facts.
Accordingly, this case turns on whether Rodrigues’s father had “legal custody” of
Rodrigues in October 1993, when Rodrigues’s father was naturalized.
Under BIA precedent, we engage in a two-step test to assess legal custody. First,
we look to see if there is a “judicial determination or judicial or statutory grant of
custody” to the parent in question. Id. at 259 (citing Matter of M –, 3 I. & N. Dec. 850,
856 (B.I.A. 1950)). If there has been no formal grant of custody, judicial or otherwise,
“the parent in ‘actual uncontested custody’ is deemed to have legal custody.” Id. (citing
Matter of M –, 3 I. & N. Dec. at 856). Here, it is uncontested that Rodrigues’s mother
and father separated without a formal custody arrangement. Accordingly, our focus will

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be on whether Rodrigues’s father satisfies the standard for “actual uncontested custody.”
As noted above, the IJ and BIA both determined that Rodrigues’s parents shared
parental custody: Rodrigues lived with his father, but his mother provided a legal
address, listed him as dependent on her tax returns, and handled school visits and court
appearances. In light of these factual findings, both tribunals held that joint custody of
the sort exhibited by Rodrigues’s parents could not amount to actual uncontested custody.
This interpretation – that joint custody by one citizen-parent and one non-citizen-parent
cannot support a finding of actual uncontested custody by the citizen parent – is amply
supported by the text and overarching purposes of § 1432(a).
Under § 1432(a), a child born outside the United States can become an citizen
automatically under the following scenarios: (1) both his/her parents become naturalized;
(2) his/her one surviving parent becomes naturalized (if the other parent is dead); or (3)
the parent with legal custody becomes naturalized. See 8 U.S.C. § 1432(a). These
scenarios have a basic condition in common: in all three scenarios, each living parent
with a custodial interest in the child must be a United States citizen. The purpose of this
rule was quite clear: it was structured to respect the rights of custodial parents who were
not citizens of the United States by ensuring that derivative citizenship could not be
automatically applied to their children. Bustamante-Barrera, 477 F.3d 388, 397 (5th Cir.
2006) (“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.”); Barthelemy v. Ashcroft, 329 F.3d

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1062, 1066 (9th Cir. 2003) (“[W]e think that Congress generally intended to provide
automatic citizenship to children born abroad of alien parents only after the naturalization
of both biological parents. This policy is rational for at least a few reasons, but we need
only discuss one rationale here: the protection of parental rights. If United States
citizenship were conferred to a child where one parent naturalized, but the other parent
remained an alien, the alien’s parental rights could be effectively extinguished.”). Under
this framework, § 1432(a) thus limits automatic changes in derivative citizenship to
situations in which the non-citizen parent has been “removed from the picture – either by
death or by ‘legal separation.’” Cf. Wedderburn v. INS, 215 F.3d 795, 800 (7th Cir.
2000).
In this case, the BIA determined that Rodrigues’s mother shared custodial rights
with Rodrigues’s father during the time that Rodrigues’ father became naturalized. We
do not review this factual determination. Jordan, 424 F.3d at 328. Because Rodrigues’s
father did not have sole legal custody over Rodrigues at the moment he was naturalized,
Rodrigues’s father did not have “actual uncontested custody” over Rodrigues.
Bustamante-Barrera, 447 F.3d at 398 (“We hold 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.”).
Accordingly, without a showing of “actual uncontested custody,” Rodrigues was not

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The fact that both of Rodrigues’s parents wanted Rodrigues to achieve this2
derivative citizenship is, unfortunately, not relevant to our inquiry: the structure of the
rule forbids Rodrigues from automatically becoming a citizen of the United States when
only one of his custodial parents is a United States citizen.
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eligible to obtain derivative citizenship upon the naturalization of his father.2
For the foregoing reasons, we will affirm the judgment of the BIA and dismiss
Rodrigues’s petition.

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