Arturo Espichan v. Attorney General United States
945 F.3d 794
| 3rd Cir. | 2019Background
- Petitioner Arturo Nicola Espichan, born in Peru in 1975, arrived in the U.S. in March 1990 at age 14 after his father (an LPR since 1979) obtained custody by power of attorney; the father naturalized later that month.
- In 2016 DHS charged Espichan as an alien removable for an aggravated felony; Espichan asserted derivative U.S. citizenship under former 8 U.S.C. § 1432(a)(3) (derivation upon parent’s naturalization when there has been a legal separation).
- Espichan submitted evidence that his parents entered a Peruvian de facto marital union around 1970 (affidavits from parents and aunt, and a Peruvian law firm memo recognizing de facto unions under Peruvian law).
- A February 1990 Peruvian police complaint (filed by the mother) stated the parents lived together 1970–1979 and by mutual agreement separated in 1979.
- DHS submitted conflicting official forms and affidavits indicating the parents did not report a marriage; the IJ and BIA found no marriage and denied citizenship.
- The Third Circuit vacated and transferred the case to district court for a de novo factual hearing on whether the parents were married under Peruvian law, holding that if the district court finds a marriage then the 1979 police complaint satisfies § 1432(a)(3)’s “legal separation” as a matter of law, which would establish Espichan’s derivative citizenship and bar removal.
Issues
| Issue | Espichan's Argument | Government's Argument | Held |
|---|---|---|---|
| Appropriate standard to determine whether a genuine factual dispute exists in a nationality claim | Use summary-judgment standard (government must show no genuine dispute); draw inferences for petitioner (Joseph controlling) | Citizenship is a high privilege and burden to show citizenship rests with claimant (Bagot/MacIntosh) | Use the summary-judgment framework for §1252(b)(5) transfers: government must show no genuine issue; when deciding merits Bagot’s rule applies (burden on claimant). |
| Whether Espichan’s parents were married under Peruvian law | Evidence of a Peruvian de facto union (parents’ affidavits, aunt’s affidavit, Peruvian-law memo) supports marriage | Official U.S. forms and earlier affidavits show parents did not report or acknowledge a marriage | There is a genuine issue of material fact as to marriage; credibility/resolution reserved to district court. |
| Whether the 1979 separation qualifies as a “legal separation” under §1432(a)(3) (Peruvian law) | Peruvian law recognizes de facto unions and allows dissolution by mutual agreement or unilateral decision; the 1990 police complaint declares separation in 1979 | Characterizes the police record as not establishing a formal legal separation or mutual agreement | If parents are found married, the police complaint proves by preponderance that a legal separation occurred in 1979; thus §1432(a)(3)’s separation requirement is satisfied as a matter of law. |
| Remedy and next step | Transfer to district court for de novo hearing on marriage; if marriage found, terminate removal due to derivative citizenship | Opposes finding of marriage and thus termination | Case transferred to District of New Jersey for factual determination limited to whether parents were married; court retained jurisdiction for appeal. |
Key Cases Cited
- Joseph v. Attorney General, 421 F.3d 224 (3d Cir.) (summary-judgment standard governs §1252(b)(5) transfer inquiries)
- Bagot v. Ashcroft, 398 F.3d 252 (3d Cir.) (burden of proving citizenship on claimant when deciding merits)
- Morgan v. Attorney General, 432 F.3d 226 (3d Cir.) (apply law of relevant foreign jurisdiction in derivative citizenship claims)
- Agosto v. INS, 436 U.S. 748 (1978) (Congress intended Rule 56–like standard for district-court de novo nationality hearings)
- Dessouki v. Attorney General, 915 F.3d 964 (3d Cir.) (derivative citizenship under §1432 requires parents to have been married)
- Rosales v. Lynch, 821 F.3d 625 (5th Cir.) (district-court de novo hearing on narrow nationality factual question after transfer)
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (summary judgment burden principles referenced in Agosto)
- United States v. MacIntosh, 283 U.S. 605 (1931) (citizenship is a high privilege; doubts resolved for U.S.)