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Davino H. Watson v. Eric H. Holder

May 31, 2011

DAVINO H. WATSON, PETITIONER,
v.
ERIC H. HOLDER , JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.



Per curiam.

09-0657-ag

Watson v. Holder

Argued: May 17, 2011

Before: CABRANES, STRAUB, and RAGGI, Circuit Judges.

The question presented for our review is whether petitioner Davino H. Watson has been "legitimated" under Jamaican law within the meaning of 8 U.S.C. § 1101(c)(1) even though his parents never married, with the result that he has obtained derivative citizenship as a consequence of the naturalization of his father.

Watson, a native of Jamaica, seeks review of a February 5, 2009, order of the Board of Immigration Appeals ("BIA"), affirming the November 13, 2008, decision of Immigration Judge ("IJ") John B. Reid, which denied Watson's motion to terminate the removal proceedings brought against him on the grounds that Watson had not derived U.S. citizenship through the naturalization of his father.

In re Watson, No. A046 633 823 (BIA Feb. 5, 2009), aff'g No. A046 633 823 (Immig. Ct. Batavia, N.Y. Nov. 13, 2008).

BACKGROUND

Watson is a 26-year-old native of Jamaica who entered the United States on August 4, 1998, as a lawful permanent resident to live with his father and step-mother (the latter was an American citizen).
On November 23, 2004, Watson was convicted of attempted robbery in the second degree in New York State court. Roughly three years later, in September 2007, Watson was convicted in New York State court for the attempted sale of cocaine. As a result of these convictions, the Department of Homeland Security initiated removal proceedings against Watson in 2008.
Appearing before the IJ in August 2008, Watson acknowledged his previous convictions, but denied that he was a citizen of Jamaica. Watson claimed that he had obtained derivative American citizenship through his father, who was naturalized in 2002 when Watson was 17 years old. The IJ continued the proceedings in order to allow Watson to pursue his claim to American citizenship with U.S. Citizenship and Immigration Services. When these efforts were rebuffed, the matter returned to the IJ. Watson pressed his argument that he was entitled to American citizenship because he was a minor, living with his father in the United States, when his father became a citizen of the United States.
Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1431(a), "[a] child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) [a]t least one parent of the child is a citizen of the United States, whether by birth or by naturalization[;] (2) [t]he child is under the age of eighteen years[; and] (3) [t]he child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence." For purposes of these requirements, Section 1101(c)(1) defines a "child" as: an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or elsewhere . . . if such legitimation . . . takes place before the child reaches the age of 16 years . . . and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption. 8 U.S.C. § 1101(c)(1).
The only issue in dispute between the parties is whether Watson qualifies as a "child" (of his American father) within the meaning of this statutory provision. The Attorney General has argued that Watson is not a child because his biological parents never married, making him illegitimate under Jamaican law; in the alternative, the Attorney General claims that even if Watson has been considered "legitimate" since birth under the applicable law (here, Jamaica), he still does not qualify as a child under § 1101(c)(1) because he was not in the legal custody of his father at birth.
On November 13, 2008, the IJ issued an oral decision finding that Watson had failed to demonstrate that he had derived citizenship from his father. The IJ's decision was principally predicated on two separate holdings: (1) the burden is on Watson to establish that he is indeed an American citizen, and (2) previous precedent of the BIA, specifically Matter of Hines, 24 I. & N. Dec. 544, 547 (BIA 2008), establishes that children born out of wedlock--as Watson concedes he was--are generally not treated as "legitimate" ...

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