By: Daily Record Staff//June 19, 2013
By: Daily Record Staff//June 19, 2013//
DHS, Citizenship Services, Admin Appeals Office
Matter of Garcia
Chief Judge Rosenberg
Background: The applicant was initially denied citizenship because the applicant had failed to demonstrate that he was in his father’s legal custody. The Administrative Appeals Office originally found that the applicant’s parents’ Dominican divorce decree contained a notation granting custody of the applicant to his mother. The applicant presented no evidence that his father had obtained an amended divorce decree or a separate order granting custody over the applicant to him.
The applicant filed a lawsuit in U.S. District Court following the denial of his appeal. This court deemed him to not be in his father’s legal custody at the time of his father’s naturalization. On appeal to the Second Circuit, the District Court’s order was vacated. The Second Circuit found that the Dominican divorce decree awarding custody to the applicant’s mother was invalid under New York law and could not be relied upon to determine whether the applicant was in his mother’s legal custody at the time of his father’s naturalization. A new earing was ordered.
Ruling: The Administrative Appeals Office granted the applicant’s request for citizenship. For purposes of derivative citizenship, the law in effect at the time of the critical events gives rise to eligibility controls. The order of the qualifying events do not matter so long as they occur prior to the applicant’s 18th birthday.
The AAO noted that the record was voluminous, noting the testimony of both the applicant’s mother and one of his sisters concerning the issue of custody. The AAO found that it was more likely than not that the applicant was in his father’s actual uncontested custody subsequent to his parents’ divorce.
Timothy Hoover of Phillips Lytle for the applicant Carlos Garcia