Oscar Estrada-Chavez v. Jefferson Sessions
705 F. App'x 604
| 9th Cir. | 2017Background
- Petitioner Oscar Arturo Estrada-Chavez, a Guatemalan-born lawful permanent resident, seeks review of the BIA’s denial of his claim to derivative U.S. citizenship under former INA § 321(a) (8 U.S.C. § 1432, repealed 2000).
- Section 321(a) required, inter alia, that the parent having legal custody naturalize while the child was under 18 and that the parents had been legally separated during the child’s minority.
- Petitioner contends his parents were legally separated in 2000 when he was 17; he submitted affidavits from his parents stating they had lived apart since 2000 and had marital strains.
- The government/Board found the affidavits insufficient to prove a legal separation under California law (which requires a complete and final break with no present intention to resume marital relations).
- The Ninth Circuit reviews de novo legal questions on derivative citizenship, applies state law (California) to determine legal separation, and requires petitioner to prove citizenship with substantial credible evidence.
- The court concluded the affidavits established living apart and marital discord but did not show a complete and final break before petitioner turned 18; petition for review denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner’s parents were "legally separated" under California law while Petitioner was under 18 | Estrada-Chavez: Parents lived apart since 2000 and thus were legally separated when he was 17 | BIA: Affidavits show separation and discord but not a complete and final break or intent to end marriage permanently | Held: Affidavits insufficient; no legal separation shown before age 18 |
| Whether affidavits constitute substantial credible evidence of legal separation | Estrada-Chavez: Parents’ affidavits are probative and should meet the burden | BIA: Affidavits do not demonstrate the requisite complete and final break in marital relations | Held: Not substantial credible evidence; petitioner failed to meet burden |
| Proper law to determine legal separation | Estrada-Chavez: California law governs the question of separation (agreed) | BIA: Same—apply California law to evaluate separation | Held: Court applies California law; separation requires evidence of complete and final break |
| Standard of review for derivative citizenship legal questions | Estrada-Chavez: Court should review de novo (agreed) | BIA: N/A (legal question reviewed de novo) | Held: Court reviews legal issues de novo and resolves claim on record as no genuine factual dispute existed |
Key Cases Cited
- Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) (scope of review and use of state law to determine legal separation for derivative citizenship)
- Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) (petitioner bears burden to prove citizenship with substantial credible evidence)
- Chau v. INS, 247 F.3d 1026 (9th Cir. 2001) (court may decide derivative citizenship claims where no genuine factual dispute exists)
- In re Marriage of Marsden, 181 Cal. Rptr. 910 (Ct. App. 1982) (legal separation requires a parting of the ways and no present intention to resume marital relations)
- In re Marriage of Baragry, 140 Cal. Rptr. 779 (Ct. App. 1977) (living in separate residences alone does not determine legal separation)