Immigration Law

Second Circuit on derivative citizenship, custody, appointment of counsel: Garcia v. ICE

"Appeal from judgment of the United States District Court for the Western District of New York (Telesca, J.). The district court denied Petitioner habeas corpus relief after finding that Petitioner did not derive citizenship from his father; the district court ruled that Petitioner was not in his father’s “legal custody” when his father naturalized. We conclude that the district court erred because it relied on an unenforceable custody award. “Legal custody” is a matter of federal law, which looks first to state law to determine whether there is an enforceable judicial determination or statutory grant of custody. If there is not, “actual uncontested custody” of the child controls. Here, there is a genuine factual dispute over which parent (if either) had “actual uncontested custody” of Petitioner when his father naturalized. Therefore, we VACATE and REMAND for a hearing under 8 U.S.C. § 1852(b)(5)(B). In addition, we instruct the district court to appoint Petitioner pro bono counsel. VACATED and REMANDED." - Garcia v. USICS (DHS), Dec. 29, 2011. [Hats way off to pro bono counsel Timothy W. Hoover and Peter C. Obersheimer!]