Moreno v. Holder
Filing
12
DECISION AND ORDER: Absent any statutory basis for concluding that Petitioner is entitled to derivative citizenship, the Court DENIES Petitioner's nationality claim. Ordered by Judge William F. Kuntz, II on 11/5/2013. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
GIOY ANNI JOSE MARTINO MORENO,
DECISION AND ORDER
13-cv-1285 (WFK) (SMG)
Petitioner,
-againstERIC H. HOLDER, JR.,
Respondent.
--------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge
Giovanni Martino Moreno ("Petitioner"), acting pro se, asserts a claim of nationality
based on derivative citizenship. For the reasons that follow, the Court hereby DENIES
Petitioner's nationality claim.
I.
Preliminary Statement
This action originated on August 15,2012, when Petitioner filed a motion for a stay of
removal with the Second Circuit Court of Appeals, asserting "Petitioner could be possible [sic1a
derivative citizen of the United States." Dkt. No.1, Att. 3 (Petition for Review and Stay of
Removal, dated Aug. 15,2012) and Att. 4 (Motion Information Statement, dated Sept. 5, 2012).
Finding genuine issues of material fact regarding Petitioner's nationality claim, the Second
Circuit transferred the case to this Court, pursuant to 8 U.S.C. § 1252(b)(5)(B), for resolution of
Petitioner's claim. Id., Att. 6 (Second Circuit Order, dated Feb. 25, 2013). On June 13,2013,
this Court conducted an evidentiary hearing where it reviewed de novo Petitioner's claim of
derivative citizenship. Petitioner, proceeding pro se, appeared at the hearing with his mother,
Ms. Eduviges Concepcion Moreno ("Eduviges"), and his father, Mr. Mario Jose Martino
("Mario"). The Government opposed Petitioner's motion, arguing, pursuant to 8 U.S.C. §
I 432(a), that Petitioner did not derive citizenship through the naturalization of either or both of
his parents. After careful review ofthe evidence submitted and elicited at the hearing, the Court
finds Petitioner failed to demonstrate by a preponderance of the evidence that he derived
citizenship from his naturalized parents.
II.
Factual Background
Petitioner was born in Panama in 1975 to Mario and Eduviges, both citizens of Panama.
See Gov't Ex. L (Appl. for Immigrant Visa); Gov't Ex. C (Dep. Tr. of Mario Jose Martino
("Mario Dep. Tr.")) at 7: I 0-9: 19. Although unmarried at the time of Petitioner's birth, Mario
and Eduviges later married on December 27, 1979 in Panama, see Gov't Ex. B (Marriage
Certificate), and Mario's paternity is not disputed, see Govt' Ex. L (Appl. for Immigrant Visa
listing Mario as Petitioner's father); Mario Dep. Tr. at 6: 12-19; Hr'g Tr. at 47: 15-17 ("Even
though you married Eduviges after Giovanni was born, did you always acknowledge him as your
son? A: Yes. I gave him my name when he was born."). When they married, Mario was
enlisted in the United States Army, stationed in Panama. Mario Dep. Tr. at 10:2-11 :6, 14:22IS: 10.
Mario became a United States citizen on April II, 1979, when Petitioner was four years
old. Gov't Ex. 0 (Mario Cert. of Naturalization). In 1980, Mario was transferred to an army
base in California. Mario Dep. Tr. at II :3-11. On March 26, 1980, the United States Embassy
in Panama granted Petitioner's Application for Immigrant Visa. See Gov't Exs. L, S. Two
months later, Petitioner and Eduviges entered the United States to join Mario in California.
Gov't Ex. M; Gov't Ex. R; Gov't Ex. N (Dep. Tr. ofEduviges Martino ("Eduviges Dep. Tr.")) at
2
8: 18-22. The family returned to Panama in 1982 or 1983, where they remained until 1984 or
1985, when the army discharged Mario and the family moved to New York. Mario Dep. Tr. at
11:22-12:19,15:19-16:4. The family has resided in New York continuously since that time. Id
at 6:2-25. Eduviges became a United States citizen on August 5, 2008, when Petitioner was
thirty-three years old. Gov't Ex. A (Eduviges Cert. of Naturalization).
Although Mario and Eduviges remain married, they periodically separated over the
course of their marriage. See, e.g., Mario Dep. Tr. at 16:17-24,23:9-29:3,34:18-38:10. Mario
estimates he and Eduviges separated between three and nine times over the course of their
marriage, sometimes for as long as one-and-a-half or two years. See id at 23:25-24:9, 27:5-11.
The couple never had a legal separation, nor did they ever seriously consider divorce. Id at
36:24--38:10; see also Hr'g Tr. at 57:1-16 ("Q: Thank you. Did you ever speak to an attorney
about getting a legal separation? A: Never. Q: Did you ever consider getting a legal separation
in Panama? A: Never. I love my wife. Q: Did you ever consider getting a legal separation in
California? A: Never. Q: And also in New York, never? A: Never. Q: Okay. Did you know
that it was possible to obtain a legal separation? A: I did not want no legal separation. I was
looking forward to make up and she coming back."); Hr'g Tr. at 64:18-24. Mario and Eduviges
currently live together as husband and wife. Mario Dep. Tr. at 16: 17-24; see also Eduviges Dep.
Tr. at 8:3-4.
III.
Procedural Background
On March 29, 2004, following convictions for attempted petit larceny and attempted
robbery in the second degree, the Government initiated removal proceedings against Petitioner
for his convictions for "two crimes involving moral turpitude not arising out of a single scheme
or criminal misconduct." Gov't Ex. E at 1, 3 (Notice to Appear at Removal Proceedings, dated
3
Mar. 29, 2004) (citing 8 U.S.C. § I 227(a)(2)(A)(ii)). On September 27,2004, Petitioner applied
for, and was granted, cancellation of the removal proceedings. Gov't Ex. Q (Immigration Court
Removal Proceedings, dated Sept. 27, 2004).
The Government initiated removal proceedings against Petitioner for the second time on
February 23, 2010. Gov't Ex. G (Notice to Appear at Removal Proceedings, dated Feb. 23,
20 I 0). On March 16, 20 II, Petitioner was charged with removability for having been convicted
in 2005 of criminal possession of a controlled substance (crack cocaine) in the seventh degree.
See id. (citing 8 U.S.C. § 1227(a)(2)(B)(i)); see also Gov't Ex. H (Immigration Court Removal
Proceedings, dated Mar. 16,2011); Gov't Ex. I (Decision of the Board ofimmigration Appeals,
dated Jul. 28, 2011). The Board ofimmigration Appeals ("BOA") entered a final administrative
order of removal in respondent's case on July 28,2011. Gov't Ex. I; see also Gov't Ex. J
(Decision ofthe BOA, dated Aug. 8, 2012).
On June 27, 2012, Petitioner filed a motion to reopen or reconsider the BOA's final
order, raising a claim of ineffective assistance of counsel. See Gov't Ex. J. The BOA denied
Petitioner's motion on August 8, 2012, affirming its final order of removal because Petitioner's
motion was untimely filed and Petitioner was not entitled to equitable tolling because he failed to
notify his former counsel of the claim; and, in any event, ineffective assistance was not facially
apparent in the case. Jd.
On August 17,2012, Petitioner filed a Petition for Review and Stay of Removal with the
Second Circuit Court of Appeals. See Dkt. No. I, Att. 3; see also 2d Cir. Dkt. No. 12-3394, No.
3. Petitioner filed a second motion to stay removal on September 10,2012, in which motion
Petitioner first asserted the possibility of derivative citizenship. See Dkt. No. I, Att. 4; see also
2d Cir. Dkt. No. 12-3394, No.18. In response to the Government's second motion in opposition,
4
see 2d Cir. Dkt. No. 12-3394, No. 21 ("Martino Moreno fails to substantiate in any way his
newly raised assertion that he may be a derivative United States citizen"), Petitioner filed a
response stating he "'has a legitimate claim of derivative citizenship' based on a theory that he
derived citizenship as a child through his father," Gov't Br. at 2 (citing 2d Cir. Dkt. No. 12-3394,
No. 32 at 5-6). On February 25, 2013, following Petitioner's assertions and pursuant to 8 U.S.C.
§ 1252(b)(5)(B), the Second Circuit ordered this Court to conduct a de novo evidentiary hearing
to determine whether Petitioner derived United States citizenship. Dkt. No.1, Alt. 2; see also 2d
Cir. Dkt. No. 12-3394, Nos. 54, 55.
IV.
Discussion
A. Standard of Law
Pursuant to 8 U.S.C. § I 252(b)(5)(B), "[i]fthe petitioner claims to be a national of the
United States and the court of appeals finds that a genuine issue of material fact about the
petitioner's nationality is presented, the court shall transfer the proceeding to the district court of
the United States for the judicial district in which the petitioner resides for a new hearing on the
nationality claim and a decision on that claim as if an action had been brought in the district
court under section 2201 of Title 28." Once transferred, this Court must conduct a de novo
evidentiary hearing to determine the validity of the petitioner's claim of citizenship. Fisher v.
Mukasey, 274 Fed. App'x 96, 98 (2d Cir. 2008) (citing Agosto v. Immigration and Naturalization
Serv., 436 U.S. 748, 756-57 (1978)). The petitioner bears the burden of proving citizenship by a
preponderance of the evidence. Fisher v. Mukasey, No. 08-CV-1812, 2008 WL 4693135, at *6
(E.D.N.Y. Oct. 22, 2008) (Bianco, J.); Berenyi v. Dist. Director, INS, 385 U.S. 630, 637 (1967)
("[T]he burden is on the alien applicant to show his eligibility for citizenship in every respect.
This Court has often stated that doubts should be resolved in favor of the United States and
5
against the claimant.") (internal quotation marks omitted); cf 22 C.F.R. § 51.40 ("The applicant
has the burden of proving that he ... is a U.S. citizen or non-citizen national.").
Pursuant to 8 U.S.C. § 1432, an individual born abroad, to alien parents, who reached age
eighteen before the enactment of the Child Citizenship Act of2000 on February 27, 2001,1 may
derive United States citizenship through the naturalization of a parent or parents where the
following conditions have been met:
(I) The naturalization of both parents; or
(2) The naturalization of the surviving parent 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 the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the
age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful
admission for permanent residence at the time of the naturalization of the
parent last naturalized under clause (\) of this subsection, or the parent
naturalized under clause (2) or (3) of this subsection, or thereafter begins
to reside permanently in the United States while under the age of eighteen
years.
8 U.S.C. § 1432(a), repealed by Child Citizenship Act of2000, Pub. L. 106-395, 114 Stat. 1632.
B. Petitioner is Not a Derivative Citizen
It is undisputed that both of Petitioner's parents are living and that only one, Mario,
naturalized before Petitioner's eighteenth birthday. See Gov't Ex. A (Eduviges Cert. of
Naturalization, dated Aug. 5, 2008). Accordingly, neither subsection (\) nor subsection (2)
I Congress enacted the Child Citizenship Act of2000 to "streamline automatic citizenship for children born abroad
... at least one of whose parents subsequently naturalized as a United States citizen." In re Rodriguez-Tejedor, 23 I.
& N. Dec. 153, 156--57 (BIA 2001) (quoting H.R. Rep. No. 106-852, at 4 (2000» (internal quotation marks
omItted). The Act repealed 8 U.S.c. § 1432 and replaced 8 U.S.C. § 1431 with "a more generous provision." Id at
156. The revised provisions do not apply to Petitioner because he was over the age of eighteen when the Act took
effect. Id at 163 ("[I]fan individual ... is over 18 years of age during the validity of the statute now in effect
[which entered into effect on February 27,2001], he cannot meet the material conditions for automatic
citizenship.").
6
applies to support Petitioner's claim. See 8 U.S.C. §§ l432(a)(l), (2). Pursuant to subsection
(3), an individual may derive citizenship in one oftwo ways: either through (a) the
naturalization of the custodial parent when there has been a legal separation of the parents, or (b)
the naturalization of the mother if the child was born out of wedlock and the paternity ofthe
child has not been established by legitimation. Mario's paternity is also undisputed. See Gov't
Br. at 3, n.4; see also Gov!' Ex. L (Appl. for Immigrant Visa listing Mario as Petitioner's father);
Mario Dep. Tr. at 6: 12-19; Hr'g Tr. at 47: 15-17. Accordingly, the only avenue by which
Petitioner could possibly claim derivative citizenship would be through "the naturalization of the
parent having legal custody of the child when there has been a legal separation of the parents." 8
U.S.C. § l432(a)(3).
"[T]he meaning of the term 'legal separation' within § l432(a)(3) is a question offederal
law." Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004). In Brissett v. Ashcroft, the Second
Circuit held that "§ 1432(a)(3)'s requirement ofa 'legal separation' is satisfied only by a formal
act which, under the laws of the state or nation having jurisdiction of the marriage, alters the
marital relationship either by terminating the marriage (as by divorce), or by mandating or
recognizing the separate existence ofthe marital parties." Id at 132. In concluding that "an
informal separation is not sufficient to render the parties legally separated," id at 133, the Court
relied on both the text of the statute and sound policy considerations:
[To] includ[e] an informal separation within the provision's terms would
effectively eviscerate the force of the term 'legal' from the statute.
Moreover, such a broad definition would render any number of couples,
voluntarily apart for any reason, legally separated, and the resulting
automatic naturalization of the couples' children upon the naturalization of
the couples' children upon the naturalization of one spouse could have
unforeseen and undesirable implications for many families.
Id at 134 (internal citation omitted).
7
The record before the Court does not enable the Court to determine conclusively which
state or nation had jurisdiction over Mario and Eduviges' marriage through 1993-the year
Petitioner turned eighteen. Nor does the Government adequately brief this choice-of-Iaw
determination. See, e.g., Gov't Br. at 8 ("Mario and Eduviges were married in Panama, and were
subject to the jurisdiction of Panama law until they moved to New York in 1984 or 1985."); see
also Hr'g Tr. at 25:22-27:7. Because Mario and Eduviges were married in Panama in 1979 and
became domiciled in New York in 1984 or 1985, either Panama or New York must have had
jurisdiction over their marriage for this entire period? However, the Court need not determine
which had jurisdiction over Eduviges and Mario's marriage at any given moment during this
time period because Eduviges and Mario did not obtain a "legal separation" under either Panama
or New York law.
Under Panama family law, physical separation alone does not constitute legal separation.
See Gov't Br., Addendum B (Panama Civil Code (1973) Art. 125, 127), Addendum A (Panama
Family Code (1994) Art. 201), and Addendum C (Univ. of Panama Sch. of Law and Political
Sci., A Statement of the Laws ofPanama in Matters Affecting Business 257 (1978)). To obtain a
legal separation under Panama law, a spouse must obtain a judicial separation decree by
demonstrating one or more recognized grounds for separation, such as adultery, cruel treatment,
or total abandonment. See Addendum B, Arts. 114, 126, 127. A marriage governed by Panama
law is legally suspended by separation duly ordered by competent legal authority. Id, Art. 127.
Neither Eduviges nor Mario intended or attempted to seek a separation decree, nor did either
obtain a separation decree in fact. See, e.g., Hr' g Tr. at 56: 15-19 ("Q: Okay. Did you ever
2
The Government notes that Mario retained Panamanian domicile during the time he was stationed in California in
the early 19805. Gov't Br. at 8, n.9 (citing Furman v. Gen. Dynamics Corp., 377 F. Supp. 37, 45 (S.D.N.Y. 1974)
("[M]ilitary service in no way affects a person's domicile or pennanent residence, in the absence of acts showing an
intent to change it."».
8
obtain a legal separation order in anywhere you lived? A: No, no. We never went to no lawyer
or nothing. We never did nothing legal. It was just the way we fight, we separate and we got
back together.") Therefore, there was no legal alteration of their marriage under Panamanian
law.
Similarly, under the New York Domestic Relations Law, a married couple may file a
legal action for separation for anyone or more of several reasons, including adultery and
abandonment. N.Y. Domestic Relations Law § 200. Alternatively, New York law also
recognizes a legal separation where the parties enter into a written separation agreement. See id.
§ 170(6) (permitting divorce through provision of "a written agreement of separation, subscribed
by the parties thereto and acknowledged or proved in the form required to entitle a deed to be
recorded," among other conditions); see also Schine v. Schine, 31 N.Y.2d 113, 116,335
N.Y.S.2d 58, 60, 286 N.E.2d 449,450 (N.Y. 1972). Neither Mario nor Eduviges sought a
separation decree or entered into a written separation agreement. See Mario Dep. Tr. at 24: 1522 ("Q: But you never divorced? A: Never. Why? 1 love her. Q: Did you ever have a legal
separation? A: 1 never knew anybody that separated and got a legal separation unless you are
not going to be together, unless you divorce."); id at 37:18-21 ("Q: SO you never filed for a
legal separation? A: No, 1 never field for a legal separation."); see also Eduviges Dep. Tr. at 25
("Ms. Dawgert: And did you ever consider getting a legal separation from your husband? The
Witness: No."); Hr'g Tr. at 56:15-19. According to Mario, their separations were always
informal, albeit somewhat frequent, events. See id. at 23: 11-19 ("1 like the street so every time
we got a fight, she goes, and sometimes 1 am not with her for a year, then we get back together,
go 'Sweetheart,' get her some roses, then we get back together and we separate again because 1
have been messing with another woman. 1 did this all my life. Lately, though, we are back
9
together. "). Under New York law, such informal agreements do not establish "legal separation"
sufficient to establish derivative citizenship. Brisselt, 363 F.3d at 132.
Accordingly, there is no evidence in the record from which the Court could reasonably
conclude that Petitioner's parents entered into a legal separation. Therefore, Petitioner did not
derive citizenship through his father under 8 U.S.c. § 1432(3).
V.
Conclusion
Absent any statutory basis for concluding that Petitioner is entitled to derivative
citizenship, the Court DENIES Petitioner's nationality claim.
SO ORDERED
Dated: Brooklyn, New York
November 5, 2013
s/WFK
HON. WILLIAM F. K
10
TZ, II
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?