Garcia v. Usice (Dept. Of Homeland Security)
669 F.3d 91
2d Cir.2011Background
- Garcia, born in the Dominican Republic (Dec. 24, 1978), became a lawful permanent resident in the U.S. after his family moved to Manhattan in 1984.
- Garcia’s mother obtained a Dominican divorce decree that purportedly granted her “guarda personal” (personal guardianship) while Garcia’s father later naturalized in 1996.
- CIS denied Garcia derivative citizenship based on the Dominican decree not granting “legal custody” to his father; the district court denied habeas relief.
- Garcia argued he resided with his father and had “actual uncontested custody” when the father naturalized, challenging the enforceability of the Dominican custody award.
- The court held that the district court erred by relying on an unenforceable custody decree and VACATED and REMANDED for a §1252(b)(5)(B) hearing with appointed counsel, remanding to determine who had actual uncontested custody.
- The court also appointed Garcia counsel for the district court proceedings and stayed removal pending further appellate proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia was in his father's legal custody at the time of naturalization. | Garcia resided with his father; evidence shows actual uncontested custody. | Dominican decree and lack of enforceable custody award undermine father’s custody claim. | Yes, remand for factual custody determination under §1252(b)(5)(B). |
| Whether New York would recognize the Dominican custody award. | New York home state with UCCJA would not recognize the foreign award. | Custody analysis should rely on foreign decree as objective custody determinant. | New York would not recognize the Dominican award; custody must be determined by actual uncontested custody. |
| Whether the district court should hold a hearing and appoint counsel under §1252(b)(5)(B) and appoint pro bono counsel. | Record incomplete; Garcia merits counsel and a hearing to develop custody evidence. | Proceedings should continue without new counsel if not warranted. | Yes; hold a hearing and appoint Garcia counsel. |
Key Cases Cited
- Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004) (custody and formal acts; state-law reference for custody governance)
- Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005) (actual custody principles; governs 'legal custody' interpretation)
- Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (custody matters; federal-law framework with state-law reference)
- Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) ( persuasiveness of BIA interpretations; derivative citizenship context)
- Morgan v. Att’y Gen., 432 F.3d 226 (3d Cir. 2005) (recognition of foreign custody; education of custody issues)