Padilla Carino v. Garland, No. 18-72985 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the Board's final order denying petitioner's request to reconsider the Board's November 14, 2016, denial of his derivative citizenship claim. The panel concluded that petitioner does not meet the third condition of 8 U.S.C. 1432(a) and does not automatically derive U.S. citizenship from his father. The panel explained that Congress did not intend for this type of nunc pro tunc order, one untethered from the facts as they were during petitioner's childhood, to give rise to automatic derivative citizenship under section 1432(a). The panel rejected the expansive view of nunc pro tunc power; agreed with the First and the Fifth Circuits that a strictly federal ground provides a basis for rejecting petitioner's argument; and also agreed with the First and the Fifth Circuits that "recognizing the nunc pro tunc order in the present case would in substance allow the state court to create loopholes in the immigration laws on grounds of perceived equity or fairness."
Therefore, the panel held that where it has not been proven that a custody order was entered in error, was contrary to law, or otherwise did not reflect the true legal relationship between a petitioner's parents, a nunc pro tunc order cannot retroactively establish a naturalized parent's sole legal custody for the purposes of section 1432(a). The panel concluded that the 2013 state court order that purportedly nunc pro tunc modified petitioner's parents' 1990 custody arrangement did not retroactively transfer sole legal custody to petitioner's father for the purposes of section 1432(a).
Court Description: Immigration. Denying Herbert Padilla Carino’s petition for review of a decision of the Board of Immigration Appeals, the panel held that where it has not been proven that a custody order was entered in error, was contrary to law, or otherwise did not reflect the true legal relationship between a petitioner’s parents, a nunc pro tunc order cannot retroactively establish a naturalized parent’s sole legal custody for the purposes of derivative citizenship under former 8 U.S.C. § 1432(a). Carino was born in 1981 in the Philippines to Philippine citizen parents, who married after his birth. Carino’s father immigrated to the United States in 1982 and naturalized in 1988. In 1990, while living in Hawaii, Carino’s father filed for divorce, and the Hawaii family court awarded joint legal custody to the parents. In 1991, Carino was admitted to the United States as a lawful permanent resident. In 2013, after Carino was placed in immigration proceedings due to a drug- related conviction, his parents signed a stipulation that his father was to have sole legal and physical custody of Carino since his arrival in the United States. The Hawaii family court issued a nunc pro tunc order granting physical custody of Carino to his father retroactively to 1991. In pertinent part, the applicable derivative citizenship statute, former 8 U.S.C. § 1432(a), provides that a child derives citizenship upon the “naturalization of the parent PADILLA CARINO V. GARLAND 3 having legal custody of the child when there has been a legal separation of the parents.” With respect to the legal custody element, this court has held that it refers to sole legal custody. Here, the Board concluded that Carino was ineligible for derivative citizenship because there was no evidence that his parents entered into a legal agreement in 1991 that transferred sole legal custody to his father. However, the Board affirmed the immigration judge’s grant of protection under the Convention Against Torture. The panel held that Congress did not intend for this type of nunc pro tunc order, one untethered from the facts as they were during Carino’s childhood, to give rise to automatic derivative citizenship under section 1432(a). First, the panel explained that this court has rejected the expansive view of nunc pro tunc power on which Carino relied. Next, the panel agreed with the First and Fifth Circuits that a strictly federal ground provides a basis for rejecting Carino’s argument, explaining that recognizing this nunc pro tunc order for the purposes of section 1432(a) would not serve the statute’s purpose of protecting the parental rights of a non-citizen parent. Also agreeing with the First and Fifth Circuits, the panel concluded that allowing a state court to modify retroactively a custody agreement during a petitioner’s adulthood would improperly give the state court the power to affect the terms and conditions of naturalization. Further, the panel explained that its holding was consistent with prior precedent of this court that gave weight to a nunc pro tunc order where the record indicated that the order did not retroactively create new relationships, but rather recognized an existing relationship under state law. Likewise, the panel noted that other circuits have acknowledged that it might be appropriate to accord weight 4 PADILLA CARINO V. GARLAND to a nunc pro tunc modification of a custody agreement to correct an error or reflect the parents’ actual agreement.
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