786 F.3d 420
5th Cir.2015Background
- Kamara, born in Sierra Leone in 1981, entered the U.S. in 1991 and became an LPR in 1994 via a visa petition filed by his mother, Theresa Kargbo.
- Kargbo naturalized in 1998 while Kamara was 16; Kamara claims derivative citizenship under former 8 U.S.C. § 1432(a)(3).
- Kamara’s parents divorced in Texas in 1990; the divorce decree contained no custody provision and Kamara and siblings remained in Sierra Leone with their father.
- Kamara lived with his mother in the U.S. from 1991–2000 according to affidavits and school records; the government conceded physical custody but disputed the sufficiency of proof of “legal custody.”
- An IJ and the BIA denied Kamara’s claim, concluding—based on the Fifth Circuit’s Bustamante-Barrera decision—that he failed to show his mother had “sole legal custody.” Kamara petitioned for review.
- The Fifth Circuit held the BIA misread Bustamante-Barrera, remanded for a new hearing, and transferred the case to district court for adjudication of the nationality claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1432(a)(3) requires "sole legal custody" in all cases to establish the parent "having legal custody" | Kamara: when no custody order exists, the applicable standard is "actual uncontested custody" (Matter of M-) | Government/BIA: Fifth Circuit requires "sole legal custody"—a higher standard—even absent a custody order | Court: Bustamante-Barrera requires "sole legal custody" only when a joint custody order exists; where no custody order exists, the Matter of M- two-step test applies and "actual uncontested custody" governs |
| Whether Bustamante-Barrera overruled Matter of M- and replaced the longstanding two-step test | Kamara: Bustamante-Barrera did not displace Matter of M- and is limited to cases with formal joint custody orders | Government/BIA: Bustamante-Barrera established a universal sole-custody requirement | Held: Bustamante-Barrera is narrow—it refines step 1 of Matter of M- when a custody order exists; it did not repeal the two-step framework |
| Whether Kamara proved uncontested custody by preponderance of evidence | Kamara: school records and affidavits show mother had actual custody; claim that custody was uncontested | Government: argued the record lacked proof of uncontested legal custody under the higher standard | Held: factual disputes remain on whether custody was "uncontested"; remand for further factfinding under the correct standard |
| Proper remedy and forum for further adjudication | Kamara: seeks termination of removal as a citizen | Government: proceeded with removal based on convictions | Held: Petition for review granted; case transferred to district court for a new hearing on nationality claim under Matter of M- framework |
Key Cases Cited
- Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006) (interpreting “legal custody” requirement when a joint custody order exists)
- Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005) (applying Matter of M- two-step test; actual uncontested custody sufficed absent a custody decree)
- Garcia v. USICE (Dep’t of Homeland Sec.), 669 F.3d 91 (2d Cir. 2011) (recognizing Matter of M- as longstanding precedent for absent custody orders)
- Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) (governing use of former §1432 as applied to persons over 18 at the Child Citizenship Act’s effective date)
- Ayton v. Holder, 686 F.3d 331 (5th Cir. 2012) (placing burden on claimant to prove citizenship by preponderance)