Brandao v. Attorney General of the United States
2011 U.S. App. LEXIS 16869
3rd Cir.2011Background
- Brandao, born in Cape Verde in 1979, became a legal permanent resident of the United States in 1985 after his mother immigrated.
- Brandao's mother later naturalized as a U.S. citizen in 1996, while Brandao was under 18.
- In 2008, Brandao entered removal proceedings following a 2005 aggravated felony conviction.
- Brandao sought derivative citizenship under former 8 U.S.C. § 1432(a)(3), arguing he derived citizenship via his mother who was unwed at his birth and naturalized before 18.
- The immigration judge and the Board denied derivative citizenship, relying on Cape Verde law distinguishing legitimacy; Brandao contested this interpretation.
- The court held that Cape Verde’s Decree Law No. 84/76 abolishes the distinction between legitimate and illegitimate children, rendering Brandao illegitimate under Cape Verde law and ineligible for derivative citizenship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brandao is eligible for derivative citizenship under 8 U.S.C. § 1432(a)(3). | Brandao contends Cape Verde's law legitimated him via his unwed mother’s naturalization. | BIA correctly applied Cape Verde law and refused derivative citizenship. | No; Cape Verde law legitimated Brandao, so § 1432(a)(3) inapplicable. |
Key Cases Cited
- Matter of Cardoso, 19 I. & N. Dec. 5 (BIA 1983) (held Article 2 abolishes illegitimate vs. legitimate distinction in Cape Verde law)
- Catwell v. Attorney General of the United States, 623 F.3d 199 (3d Cir. 2010) (upheld derivative citizenship objective protecting alien parents)
- Pierre v. Attorney General of United States, 528 F.3d 180 (3d Cir. 2008) (en banc; plenary review of statutory questions in derivative citizenship)
- Morgan v. Attorney General of the United States, 432 F.3d 226 (3d Cir. 2005) (utilized foreign law as rule of decision in interpreting statute when lacking definition)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (REAL ID Act scope excludes factual/discretionary determinations from review)
- Restrepo v. Attorney General of the United States, 617 F.3d 787 (3d Cir. 2010) (discusses Attorney General/deference framework to BIA interpretations)