GARCIA V. DHS

2nd Circuit

Garcia v. DHS (2nd Circuit, December 29, 2011)
WESLEY, Miner, Chin

Summary: The Petitioner was born in the Dominican Republic and immigrated to the US as a minor where he became a legal permanent resident. Several years later, the petitioner’s parents divorced in a Dominican court and the divorce decree granted his mother “personal guardianship” over him. When his family returned to the US, and while the petitioner was a minor, his father naturalized. The INS later took the petitioner into custody and charged him with removal. The petitioner applied for derivative citizenship based on his father’s naturalization, alleging that he resided with his father at the time of the naturalization and his father had actual uncontested custody of him.

USCIS denied his application stating that the Dominican Republic divorce decree granted the petitioner’s mother legal custody. The petitioner filed a petition for a writ of habeas corpus. The district court denied the petition finding that the Dominican Republic divorce decree indicated that the petitioner’s mother had custody.

The Second Circuit disagreed with the district court. It cited Matter of M-, 3 I. & N. Dec. 850 (BIA 1950) stating that when there is no judicial or statutory grant of custody, the parent having actual uncontested custody is to be regarded as having legal custody for immigration purposes. Since the Second Circuit found a genuine dispute of material fact about which parent had uncontested custody over the petitioner when his father naturalized, the case is remanded to the district court.

On remand, the Second Circuit instructed that petitioner shall be appointed counsel. Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986)

Read the opinion here.