On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 03-cv-00309) District Judge: Honorable Yvette Kane
Before: Nygaard, Rosenn, and Becker, Circuit Judges.
The opinion of the court was delivered by: Becker, Circuit Judge
Argued: December 14, 2004
This appeal by Odiri Nkofi Bagot ("Bagot") from the District Court's order denying his petition for a writ of habeas corpus in a deportation case requires us to inquire into the matter of "legal custody." That inquiry will inform our determination as to whether Bagot is correct that Respondents deported him to Guyana illegally, because, having been in his father's legal custody at the time the father was naturalized, he is derivatively a United States citizen. Respondents maintain that, although Bagot lived with his father in New York, a previous New York state divorce decree and form custody order left him in the legal custody of his mother, who was in Guyana at the time and had never been to the United States.
The District Court was confronted, as we are here, with the difficult question of how to define "legal custody"—but the relevant law is almost silent on that definition. Judge Becker, the author of the Opinion of the Court, believes that, as there is "no federal law of domestic relations," De Sylva v. Ballentine, 351 U.S. 570, 580 (1956), legal custody depends on state law in the first instance. Having reviewed the New York precedents, he concludes that Bagot was not in his mother's legal custody under state law. Judges Rosenn and Nygaard would not delve into state law, but would find that no valid decree awarded custody of Bagot to his mother. The panel is unanimous, however, that under the fallback "actual uncontested custody" standard of the immigration laws, see Matter of M—, 3 I. & N. Dec. 850 (BIA 1950), Bagot was in the legal custody of his father and thus obtained derivative citizenship. We will therefore reverse the order of the District Court and remand with directions to issue the writ.
The Opinion of the Court in this case consists of Parts I, II, III.A, III.B.2, IV, and V of this Opinion. In the remainder of Part III.B, and in Part III.C, Judge Becker, writing only for himself, explores New York's law of legal custody. Although, as will appear, he finds that law inconclusive, he believes that this threshold exercise is compelled both by the reasoning of our sister Courts of Appeals and by basic principles of federalism.
I. Facts and Procedural History
The essential facts are not in dispute. Petitioner Odiri Nkofi Bagot was born on March 6, 1974, in Guyana. His parents, Brian Bagot and Frances Wright, were natives and citizens of Guyana, and had married there in 1971. In 1982, Brian Bagot left his wife and three children in Guyana and emigrated to the United States, settling in Brooklyn, New York.
In 1984, Brian Bagot, acting pro se, sued Frances Wright for divorce in New York City. On August 28, 1984, Justice Jack Turret of the New York County Supreme Court granted the divorce in a two-page form order. The form contained a child custody provision, in which Frances Wright's name was typed. The custody provision read: "Frances Bagot shall have custody of the child(ren) of the marriage," and then listed the three children, including Odiri Bagot. The words "shall have custody of the child(ren) of the marriage" were pre-printed on the form; the names of Frances Bagot and the children were filled in. In addition, typed onto the form was the statement "That the Family Court shall be granted concurrent jurisdiction with the Supreme Court with respect to the issues of; support, custody and visitation." Frances Wright and all three Bagot children were still living in Guyana at that time; it does not appear that they had ever been in the United States at the time of the divorce.
Life in Guyana was apparently difficult for the children, and in 1988 Frances Wright and Brian Bagot agreed that the children would be better off living in New York. Wright therefore agreed to give Brian Bagot custody of, and responsibility for, the children, and to send them to live with him in New York. Frances Wright herself remained in Guyana until October 1995. She then went to New York to live with one of her daughters, and became a naturalized U.S. citizen on February 26, 2001.
Brian Bagot, meanwhile, had made arrangements to bring his children to New York. Odiri Bagot arrived in New York on November 16, 1988, as a lawful permanent resident. He was fourteen years old. Odiri Bagot was raised by his father from that time on. He lived with his father in Brooklyn, and attended Erasmus High School there. On December 13, 1991, Brian Bagot became a naturalized United States citizen. At the time, Odiri Bagot was seventeen years old.
B. The Removal Proceedings
On May 14, 1999, in the County Court for Broome County, New York, Odiri Bagot pled guilty to third-degree attempted criminal sale of a controlled substance (cocaine). Cf. N.Y. Penal Law § 220.39. He received a sentence of three to six years.
On January 24, 2000, while Odiri Bagot was in prison, the Immigration and Naturalization Service (INS) initiated removal proceedings.*fn1 The INS claimed that Bagot, as a non-citizen lawful permanent resident, was removable under § 237 of the Immigration and Nationality Act (INA) because he had been convicted of an aggravated felony and of a controlled-substance violation.*fn2 An Immigration Judge ordered Bagot removed to the Bahamas or Guyana. Appeal to the Board of Immigration Appeals (BIA) was waived. Bagot was paroled from the New York prison system on November 19, 2002, and was taken into Bureau of Immigration and Customs Enforcement (BICE) custody.
On February 19, 2003, Bagot filed the present petition for habeas corpus in the United States District Court for the Middle District of Pennsylvania, which entered a temporary stay of deportation. Two days after filing his petition, Bagot filed an application for a Certificate of Citizenship, claiming that he was entitled to derivative citizenship based on his father's naturalization. The INS denied this application on February 26, 2003. The Administrative Appeals Unit denied an appeal. On February 25, 2004, the District Court denied the petition for habeas corpus. Bagot filed a timely notice of appeal on April 23, 2004.
In its February 2004 decision, the District Court lifted its stay of deportation. Prior to briefing in this appeal, Bagot was apparently removed to Guyana.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction in this habeas action pursuant to 28 U.S.C. § 2241. We have appellate jurisdiction to review the District Court's denial of habeas corpus under 28 U.S.C. §§ 1291 and 2253. See Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002). Although Bagot has been removed to Guyana, the removal does not moot his appeal. See Chong v. Quarantillo, 264 F.3d 378, 385 (3d Cir. 2001). As the facts are not disputed, we review only the legal question whether Bagot was in the "legal custody" of his father at the time when his father became a naturalized U.S. citizen. This is a question of law subject to plenary review. See Gerbier, 280 F.3d at 302.
Several of the arguments that Bagot now presses were not raised, in specific terms, before the District Court. In particular, much turns on Bagot's contention that the custody award in the 1984 New York divorce judgment was invalid under New York law, a contention that was raised for the first time on appeal. Respondents claim that this argument is waived, and urge us not to consider it now, pointing out that "[i]t is well established that failure to raise an issue in the district court constitutes a waiver of the argument" in this Court. Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991).
At oral argument, Bagot's counsel asserted that certain other arguments in the briefing before the District Court, especially the contention that Bagot's father never lost his parental rights, implicated the question whether the divorce judgment was valid and therefore put that question fairly before the District Court. We are skeptical. "[T]he crucial question regarding waiver is whether [petitioner] presented the argument with sufficient specificity to alert the district court," Brennan v. Norton, 350 F.3d 399, 418 (3d Cir. 2003) (quoting Keenan v. City of Philadelphia, 983 F.2d 459, 471 (3d Cir. 1993)), and it is questionable whether Bagot's general statement that his father retained custody was enough to inform the District Court of his present argument that the 1984 New York divorce judgment was entered without subject-matter jurisdiction.
However, this conclusion need not be fatal to Bagot's appeal. This Court has discretionary power to address issues that have been waived. See Keenan, 983 F.2d at 471; id. at 477 (Higginbotham, J., dissenting in part); Loretangeli v. Critelli, 853 F.2d 186, 189-90 n.5 (3d Cir. 1988) ("This court may consider a pure question of law even if not raised below where refusal to reach the issue would result in a miscarriage of justice or where the issue's resolution is of public importance."); Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir. 1983) ("[I]n the past we have heard issues not raised in the district court when prompted by exceptional circumstances." (citations omitted)).
We think that this is just such an exceptional case, and that it is therefore appropriate to consider Bagot's waived arguments on appeal. The argument omitted in the District Court is a pure question of law, and one that is closely related to arguments that Bagot did raise in that court. No additional fact-finding is necessary. As will appear, the proper resolution of the legal question, though not exactly simple, is reasonably certain. And failing to consider Bagot's arguments would result in the substantial injustice of deporting an American citizen.
Bagot does not dispute that he has committed a removable offense under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i). He argues only that he is in fact an American citizen, and therefore not subject to deportation under 8 U.S.C. § 1227. See Acosta v. Gaffney, 558 F.2d 1153, 1158 (3d Cir. 1977). This argument is based on the provisions of the INA that allow children of citizens, in some circumstances, to claim derivative citizenship.
A. Derivative Citizenship
Bagot was not born in the United States and has never been formally naturalized; his citizenship claim is derivative upon his father's naturalization. The burden of proof of eligibility for citizenship is on the applicant. Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967). All doubts "should be resolved in favor of the United States and against the claimant." Id. (quoting United States v. Macintosh, 283 U.S. 605, 626 (1931)).
At the times relevant to this case, the INA's requirements for derivative citizenship were as follows:
(a) A child born outside of the United States of alien parents... becomes a citizen of the United States upon the fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parents if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of ...