On Petition for Review from the Board of Immigration Appeals. (No. A40-135-340).
The opinion of the court was delivered by: McKEE, Circuit Judge
Before: SLOVITER, McKEE, and WEIS, Circuit Judges
Marc Hilaire Joseph petitions for review of an order of the Board of Immigration Appeals dismissing his appeal from the Immigration Judge's determination that he is deportable as charged, and denying his claim of derivative citizenship. Joseph contends that he is not subject to deportation because he is a United States national. Alternately, he asks us to transfer this matter to the District Court for a de novo determination of his claim of United States citizenship pursuant to INA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B). For the reasons that follow we will grant Joseph's petition for review, vacate the order of the BIA, and transfer the case to the appropriate District Court for adjudication.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joseph was born in Haiti on July 5, 1973. He alleges that his mother was Rosemane Joseph.*fn2 According to Joseph, Rosemane became pregnant with him when she was 12 years old as a result of being raped by an unknown assailant. Joseph alleges that, due to the circumstances surrounding his birth, he was raised in Haiti by his grandparents -- Rosemane's father, Hermann Joseph ("Hermann") and her mother, Lolita Clergé Joseph ("Lolita"). Hermann and Lolita are now deceased. He also claims that he grew up believing that Hermann and Lolita were his father and mother, and that Rosemane was his older sister. He maintains that he did not learn that Rosemane was actually his mother until he was 13 years old.
It is undisputed that Rosemane came to the United States in 1981 and settled in New Jersey. She married Angelo Morales, a United States citizen, in 1983. Morales filed a spouse petition for Rosemane, and she was admitted to the United States as an immigrant on March 23, 1985. On September 5, 1985, Morales filed a petition identifying Joseph as Rosemane's son, and his stepson. The Immigration and Naturalization Service ("INS")*fn3 approved the petition on October 7, 1985, and on February 15, 1986, Joseph was admitted to the United States; he was then 13 years old. Joseph maintains that he learned the truth about his mother some point after his arrival in the United States.*fn4 Rosemane was naturalized as a United States citizen when Joseph was 16 years old. Joseph now maintains that, as Rosemane's son, he derived citizenship through her.
Joseph's contact with the INS began after his 1995 and 1996 convictions in New Jersey for state criminal offenses, including crimes considered "aggravated felonies" under the INA. On January 2, 1997, the INS served Joseph with an Order to Show Cause charging him with being deportable under INA § 241(a)(2)(A)(iii) for his aggravated felony convictions, and under INA § 241(a)(2)(B)(I) for his conviction for a crime involving a controlled substance. At his initial deportation hearing on March 6, 1997, Joseph asserted that he had derived U.S. citizenship through his mother and was therefore not subject to deportation under the Act. His claim was rejected, and he was ordered deported to Haiti.
On January 31, 2001, Joseph filed a pro se motion to reopen, recounting his out-of-wedlock birth in Haiti and asserting that he obtained derivative citizenship, under INA § 321(a)(3), upon his mother's naturalization prior to his 18th birthday. On November 21, 2001, the IJ denied Joseph's motion to reopen, concluding that Haitian law precluded Joseph from benefitting from the out-of-wedlock provision of § 321(a)(3). The BIA dismissed Joseph's appeal of that decision because Haiti had eliminated all distinctions between legitimate and illegitimate children. In the BIA's view, it was therefore irrelevant under the Act whether his natural father acknowledged him since Joseph had been legitimated at birth and could therefore not derive U.S. citizenship pursuant to § 321(a)(3).
Thereafter, pro bono counsel filed a petition for review on Joseph's behalf. The petition alleged that the Civil Code of Haiti only legitimized children born out of wedlock who had been acknowledged by their natural father. Since Joseph's mother had been raped and his natural father was unknown, Joseph contended that he was never acknowledged by his natural father and could therefore not be considered legitimated under Haitian law. The government agreed.
On December 12, 2002, the U.S. Department of Justice, Office of Immigration Litigation, filed a motion for remand with this court. After additional filings with this court and the BIA that we need not detail for purposes of our decision, newly-reopened proceedings began in front of the IJ. One month later, the government issued a new charge of deportability against Joseph, charging him with deportability under INA § 241(a)(1)(A). The government now asserted that Joseph was excludable at the time of entry because Rosemane was not actually his mother. Rather, according to the government, she was really his elder sister, and Joseph was therefore Morales's brother-in-law rather than his stepson. Thus, the government claimed that Joseph's immigrant visa was invalid and introduced a series of documents and reports from Haiti to support this claim.
On December 29, 2003, in a written decision, the IJ agreed with the INS's position and ordered Joseph deported to Haiti based upon the judge's finding that Joseph was a deportable alien, and not a U.S. citizen. The BIA affirmed, and this petition for review followed.
The IJ reviewed the government's evidence including reports of an investigation into the circumstances surrounding Joseph's birth in Haiti. The IJ then recounted the testimony of each of the witnesses at the removal hearing including Joseph, Rosemane's brother Garry Joseph ("Garry") and Morales.
The IJ ruled that Joseph failed to prove derivative citizenship by a preponderance of the evidence. First, the IJ noted that Joseph did not submit any police or medical reports to confirm that Rosemane had been raped, nor had he submitted any evidence to establish that Rosemane had failed to attend school or that she had received medical care during her pregnancy. The IJ also commented on the fact that, although Garry had testified that Rosemane's ...