DYK, Circuit Judge.
The Department of Homeland Security ("DHS") charged petitioner Ruben Jorge Monteiro Pina ("Pina") with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony after admission. The Immigration Judge ("IJ") determined that Pina had automatically acquired United States citizenship under the Child Citizenship Act of 2000 ("CCA"), 8 U.S.C. § 1431, and ordered the removal proceedings terminated. The Board of Immigration Appeals ("BIA") determined that Pina was not a U.S. citizen because the requirements of the CCA had not been satisfied, and vacated and remanded for further proceedings. The IJ issued an order of removal. This court granted a stay of removal pending review. Because we disagree with the decision of the BIA on the issue of legal custody, we vacate the removal order and remand for further proceedings.
Pina was born in the Republic of Cape Verde on November 11, 1983. His parents have never married each other, and he
In November 1994, eleven-year-old Pina and his mother also moved to the United States and were admitted as lawful permanent residents. Initially, they lived in Everett, Massachusetts, a town about thirty minutes' drive from Dorchester, Massachusetts, where Pina's father resided. Approximately one year later, Pina and his mother moved to Dorchester at his father's suggestion. The IJ found that, during this time, Pina's mother and father had, by informal agreement, "an arrangement similar to that of shared legal custody" and "akin to `shared physical custody'" under Massachusetts law. A.R. at 69. Pina had daily contact with his father, frequently eating meals with him and occasionally spending the night at his house. Pina's father also continued to support him financially, and was involved in decisions regarding major aspects of Pina's life, including his education. Pina's mother informed his father of any disciplinary issues at school or with law enforcement; Pina's father would then talk to his son about proper behavior.
Pina's father became a citizen in 1996, when Pina was thirteen years old. The same relationship continued after Pina's father acquired citizenship and continued through Pina's eighteenth birthday; the record does not disclose Pina's relationship with his father after Pina turned eighteen.
On November 20, 2002, Pina was convicted in Massachusetts state court of receiving a stolen vehicle in violation of Mass. Gen. Laws chapter 266, section 28. He was sentenced to a term of imprisonment of two years. On March 12, 2007, DHS served Pina with a notice to appear in Immigration Court and charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." A theft offense, including receipt of stolen property, is defined as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) if it carries a term of imprisonment of at least one year.
On April 4, 2007, Pina, through counsel, moved to terminate the removal proceedings, claiming derivative citizenship through his father under the CCA. The CCA provides:
8 U.S.C. § 1431(a). The IJ held a hearing on April 11, 2007. The parties agreed that Pina satisfied the first two requirements for derivative citizenship under the CCA, because Pina had at least one parent who was a United States citizen and because he was under age eighteen when the CCA took effect. See 8 C.F.R. § 320.2(a) ("To be eligible for citizenship under [the CCA], a person must establish that the [statutory] conditions have been met after February 26, 2001.").
The sole question was thus whether Pina's father had "legal and physical custody"
The government appealed the decision of the IJ to the BIA. On July 23, 2007, the BIA sustained the appeal and vacated the IJ's decision, finding that the requirements of derivative citizenship under the CCA were not met because Pina's father did not have "legal custody" of him. The BIA interpreted Massachusetts law to require a court order or judgment of custody before the father of a child born out of wedlock will be deemed to have legal custody of the child. Pina's parents did not have a formal court order related to his custody. The BIA determined that Pina's father also could not establish legal custody under 8 C.F.R. § 320.1(2), which allows a finding of legal custody when the U.S. citizen parent has been "awarded `joint custody'" or when "other factual circumstances" support such a finding. The BIA did not explain the basis of its conclusion that no such "other factual circumstances" existed here. The BIA did not reach the question of whether Pina's father had physical custody. The BIA remanded the case to the IJ for further proceedings.
On September 12, 2007, the IJ issued an order directing that Pina be removed to Cape Verde. Pina timely petitioned for review in this court. On November 14, 2007, the court granted Pina's motion to stay removal pending the outcome of his petition for review. Although the removal order is stayed, Pina remains in DHS custody. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and 8 U.S.C. § 1252(b)(5), to review questions of law.
The government agrees that the facts of this case are not in dispute and that Pina satisfies the first two requirements for automatic citizenship under the CCA. Pina's father is a citizen of the United States by naturalization, and Pina was seventeen years old and living in the United States in February 2001, when the CCA became effective. The question on review is whether Pina's father had "legal custody" of him at that time.
The current version of § 1431(a) was enacted in 2000 and became effective on February 26, 2001. See Pub.L. No. 106-395, 114 Stat. 1631. Its purpose was to liberalize then-existing law to make it easier for foreign-born children of United States citizens to obtain citizenship. See H.R.Rep. No. 106-852, at 4 (2000), reprinted in 2000 U.S.C.C.A.N. 1499, 1501. Prior to 2000, the relevant statute provided:
8 U.S.C. § 1432(a) (1994) (emphases added).
Because Pina's paternity had been established by legitimation, under the pre-2000 statute Pina could have obtained automatic citizenship only through the naturalization of both parents. Pina's mother was never naturalized.
The new version of the statute requires only one naturalized parent, so long as that parent has legal and physical custody of the child. See 8 U.S.C. § 1431(a). The CCA not only liberalized the requirements for automatic citizenship in general, it also equalized the position of mothers and fathers with regard to the citizenship of children born out of wedlock. Under the previous statute, a child born out of wedlock could gain automatic citizenship only if both parents became naturalized, or if the mother did (when the child had not been legitimated); such a child can now gain citizenship if either the mother or father becomes naturalized and has legal and physical custody.
This court has established that, because "[l]egal relationships between parents and children are typically governed by state law," the term "legal custody" as used in federal immigration law "should be taken presumptively to mean legal custody under the law of the state in question." Fierro v. Reno, 217 F.3d 1, 4 (1st Cir.2000) (applying former § 1432, precursor to current § 1431, and holding that legal custody could not be established for automatic citizenship purposes by later nunc pro tunc order). Accordingly, absent a contrary provision in the statute or its regulations, state law will govern the interpretation of "legal custody."
Nothing in the CCA itself defines the term, and the legislative history is unilluminating. A regulation promulgated by the Immigration and Naturalization Service ("INS"), formerly the agency responsible for the administration of immigration services, pursuant to the CCA defines "legal custody" as "the responsibility for and authority over a child." 8 C.F.R. § 320.1. This definition is in accord with the traditional understanding of the term. See Black's Law Dictionary 413 (8th ed.2004) (defining "legal custody" as "[t]he authority to make significant decisions on a child's behalf, including decisions about education, religious training, and healthcare"). Although the Massachusetts statute dealing with children born out of wedlock does not contain a definition of legal custody, the statute pertaining to divorce defines it in
The government agrees that Pina's father in fact exercised the rights traditionally associated with legal custody. As the IJ determined, Pina's parents had an informal agreement under which they exercised what amounted to shared legal and physical custody as defined by Massachusetts law. However, the government argues that, even though neither the traditional definition of legal custody, nor the CCA, nor the INS regulations require a court order, Massachusetts law imposes the additional requirement of a court order. It contends that, under Massachusetts law, the father of a child born out of wedlock cannot have "legal custody" of that child absent a court decree awarding such custody, and that a parental agreement cannot confer legal custody without the approval of a court. The government relies primarily on section 10(b) of chapter 209C of the Massachusetts General Laws, which provides:
Mass. Gen. Laws ch. 209C, § 10(b) (emphasis added). The government interprets section 10(b) to mean that, in the absence of a court order, the mother of a child born out of wedlock shall have sole legal custody, even where paternity has been established.
In our view, the government has not accurately interpreted Massachusetts law. In Dep't of Revenue v. C.M.J., 432 Mass. 69, 731 N.E.2d 501 (Mass.2000), the Supreme Judicial Court held that the legitimated father of a child born out of wedlock may be considered a "custodial" parent in the absence of a court order of custody. C.M.J. involved a father of three children born out of wedlock who resided with the children and their mother; both parents and the children were corecipients of Transitional Aid to Families with Dependent Children ("TAFDC") benefits. A Probate and Family Court judge nonetheless ordered the father to pay child support to the Department of Revenue.
The Supreme Judicial Court vacated the child support order. The court found that the family court judge's reading of section 10(b) was "an erroneous interpretation of the law." Id. The court noted that section 10(b) "does not state that an adjudicated father shall not have custody in the absence of ... an order or judgment, nor does it employ the term `noncustodial' or apply this term to the father." Id. at 507-08. Indeed, the court noted that to interpret the statute that way—as
The government contends that C.M.J. is distinguishable on its facts because the children in that case resided with both natural parents, while here the parents lived separately. The government thus appears to argue that, absent a decree, the father can secure legal custody only through residence with the child. We think that C.M.J. cannot be confined to its specific facts. While Massachusetts law, like the INS regulations,
Massachusetts statutes and cases suggest that in situations in which a child was born out of wedlock, as well as in divorce situations, agreements between the parents as to the upbringing and legal custody of the child are favored. See, e.g., Mass. Gen. Laws ch. 208, § 31 ("Where the [divorcing] parents have reached an agreement providing for the custody of the children, the court may enter an order in accordance with such agreement, unless specific findings are made by the court indicating that such an order would not be in the best interests of the children."); In re Custody of Zia, 50 Mass.App.Ct. 237, 736 N.E.2d 449, 457 n. 16 (Mass.App.Ct. 2000) ("It goes without saying that we encourage parental agreement in the sensitive area of child custody when it is
At oral argument we called the parties' attention to section 11(b) of chapter 209C of the Massachusetts General Laws, and requested further briefing as to the effect of that section. Both parties recognize that section 11(b) specifically provides that "[i]f a mother and father execute a voluntary acknowledgment of parentage ..., they may also make agreements regarding custody, support, and visitation," and further provides that courts shall honor such absent a finding that they are not in the best interests of the child. However, the government argues that section 11(b) requires that the agreements be filed with the court.
The statute on its face only permits the parents to file such an agreement, providing that "[s]uch agreements may be filed with any court with jurisdiction." Mass. Gen. Laws ch. 209C, § 11(b) (emphasis added). While the statute also provides that agreements related to custody "must" be filed "with a division of the probate and family court department in the judicial district or county in which the child and one of the parents lives," id., this language seems clearly designed only to specify the court in which the custody agreement "must" be filed if the parents elect to file the agreement with a court. Notably, the statute does not provide that such agreements are ineffective if not filed with the court. Given the language of the statute and that Massachusetts favors parental agreements with regard to custody, we think section 11(b) cannot be construed to require that such an agreement be filed with the court.
Thus, the informal agreement here between Pina's parents to share legal custody of him is entitled to effect. The government has conceded that, under that agreement, Pina's father exercised the rights and responsibilities associated with legal custody. Accordingly, the CCA's requirement that, at the time the statute went into effect, Pina was "in the legal ... custody of the citizen parent"—that is, his father—is satisfied.
For the foregoing reasons, the removal order issued by the IJ is vacated and remanded for further proceedings not inconsistent with this opinion.