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Espichan v. Attorney General of United States

United States Court of Appeals, Third Circuit

December 27, 2019

ARTURO NICOLA ESPICHAN, AKA Arturo Espichan Izaguirre, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

          Argued September 24, 2019

          On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Leo Finston (No. A042-288-321)

          Kristina C. Ivtindzioski (Argued) Counsel for Petitioner

          Joseph H. Hunt Assistant Attorney General, Civil Division Stephen J. Flynn Assistant Director, Office of Immigration Litigation Arthur L. Rabin (Argued) United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: McKEE, AMBRO, and ROTH, Circuit Judges

          OPINION

          AMBRO, CIRCUIT JUDGE

         INTRODUCTION

         Arturo Nicola Espichan came to the United States from Peru as a 14-year-old to live with his father, who shortly after became a U.S. citizen. When the Government later sought to deport Espichan for having committed an aggravated felony, he claimed he was not an alien but a U.S. citizen, having derived citizenship from his father under a then-existing statute-§ 321(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1432(a) (repealed 2000). To meet that provision's requirements, Espichan needs to show that his parents had a "legal separation." The Government claims he cannot do so because, to be separated legally, you must first be married, and it asserts Espichan's parents were not.

         Because Espichan's nationality claim presents a genuine issue of material fact-whether his parents were married-we transfer the case to a U.S. district court for a hearing and decision on that issue. If the court finds that Espichan's parents were married, then we hold as a matter of law that Espichan has satisfied all requirements under § 1432(a)(3)-(5) for derivative citizenship and so may not be removed.

         I. BACKGROUND

         The following facts are not in dispute. Espichan is a native and citizen of Peru born in May 1975 to German Espichan and Margarita Izaguirre. His father came to the U.S. as a lawful permanent resident in 1979. He got custody of Espichan in August 1986 per a power of attorney signed by Espichan's mother at the U.S. consulate in Peru. In February 1990, Espichan's mother filed a complaint at the police headquarters in Callao, Peru, declaring as a matter of public record that she and Espichan's father, having lived together since 1970, separated in 1979.

         Espichan's father petitioned for him to come to the U.S. as a lawful permanent resident, and Espichan, then 14, arrived in March 1990. Later that month, his father became a U.S. citizen.

         Fast forward to 2016, when the Department of Homeland Security ("DHS") charged Espichan with being an alien convicted of an aggravated felony, hence subject to removal under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii).

         Espichan contested his removability before the IJ at his removal hearing, arguing that he had acquired derivative citizenship through his father under 8 U.S.C. § 1432(a)(3), the applicable law at the time of his alleged naturalization, see Morgan v. Att'y Gen., 432 F.3d 226, 230 (3d Cir. 2005), because his parents were legally separated at the time of his father's naturalization. The IJ rejected this claim, finding there could be no legal separation because DHS came forward with "unequivocal evidence" that Espichan's father "never held himself out to be married" to Espichan's mother. Accordingly, he concluded that Espichan had not established U.S. citizenship and ordered him removed to Peru. The Board of Immigration Appeals ("BIA") affirmed, and Espichan petitions us for review.

         II. JURISDICTION AND ...


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