ARTURO NICOLA ESPICHAN, AKA Arturo Espichan Izaguirre, Petitioner
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
September 24, 2019
Petition for Review of a Final Order of the Board of
Immigration Appeals Immigration Judge: Leo Finston (No.
Kristina C. Ivtindzioski (Argued) Counsel for Petitioner
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
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("INA"), 8 U.S.C. § 1432(a) (repealed 2000).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.
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.
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.
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.
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. §
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
JURISDICTION AND ...