Espichan v. Attorney General United States, No. 19-1049 (3d Cir. 2019)
Annotate this CaseIn 1975, Espichan was born in Peru. His father came to the U.S. as a lawful permanent resident in 1979. He got custody of Espichan in 1986 by a power of attorney signed by Espichan’s mother. In 1990, at the Callao, Peru police headquarters, Espichan’s mother filed a public declaration that she and Espichan’s father, having lived together since 1970, separated in 1979. Espichan’s father petitioned for him to come to the U.S. as a lawful permanent resident. Espichan, 14, arrived in 1990. That month, his father became a U.S. citizen. In 2016, Espichan was charged as an alien convicted of an aggravated felony, subject to removal under 8 U.S.C. 1227(a)(2)(A)(iii). Espichan argued that he had acquired derivative citizenship through his father under 8 U.S.C. 1432(a)(3), the applicable law at the time, because his parents were legally separated at the time of his father’s naturalization. The IJ and BIA rejected this claim, finding “unequivocal evidence” that Espichan’s father “never held himself out to be married” to Espichan’s mother. The Third Circuit vacated and transferred the case to the district court. Espichan’s nationality claim presents a genuine issue of material fact: whether his parents were married. If the court finds that they were married, Espichan has satisfied section 1432(a)(3)–(5), has derivative citizenship, and may not be removed.
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