NIJC - 1st Cir. Holds Informal Agreement Between Parents Can Establish Legal Custody for Purposes of CCA

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1st Cir. Holds Informal Agreement Between Parents Can Establish Legal Custody for Purposes of CCA

Monday, 15 September 2008

Pina v. Mukasey (9/12/08)

Boudin, Selya, DYK Pina was born to unmarried parents in the Republic of Cape Verde in 1983. His father signed his birth certificate thereby, legitimizing Pina under the Civil Code of Cape Verde. Subsequently, Pina’s father moved to the United States and became a lawful permanent resident. He continued to stay involve din Pina’s life by financially supporting him and visiting regularly. In 1994, Pina and his mother also came to the Unites States as Lawful Permanent Residents and moved close by to Pina’s father. As stated by the IJ, his parents had an informal agreement “arrangement similar to that of shared custody” and “akin to shared custody” under Massachusetts law. As Pina’s father naturalized in 1996 when Pina was 13 years old, the IJ found that Pina had derived citizenship under the CCA, 8 U.S.C. § 1431(a), and terminated proceedings. The BIA determined that Pina had not shown that his father had “legal custody” as required by the CCA and remanded the case to the IJ who then entered an order of removal.

The Court disagreed with the BIA, finding that as CCA does not define “legal custody” and the INS regulation defines the terms as “responsibility for and authority over a child”, 8 C.F.R. § 320.1, the appropriate authority to look to is state law. In looking at the Massachusetts General Laws and relevant cases, the Court concluded that the government was incorrect in stating that a court order or a filing of a joint parenting agreement was required under Massachusetts law to show joint legal custody. The arrangement between Pina’s parents demonstrated shared legal custody under Massachusetts law, therefore the Court vacated the removal order and remanded the case back to the IJ “for further proceedings not inconsistent with this opinion.”

Read Opinion Here

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