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Click here for the full text of this decision FACTS:Javier Otoniel Bustamante-Barrera emigrated from Mexico to the United States with his parents in 1983, when he was 4 years old. All became legal permanent residents. His parents divorced in California in 1991. The divorce decree awarded his mother “sole physical custody” of Bustamante-Barrera, but awarded both parents “joint legal custody” and granted his father visitation rights while Bustamante-Barrera lived with his mother. Bustamante-Barrera’s mother became a U.S. citizen in 1994, but his father never became a citizen. In 2000, Bustamante-Barrera was convicted in Texas state court on an assault charge involving a family member, which is considered a crime of moral turpitude under the immigration laws. He was also convicted on an aggravated assault with a deadly weapon charge. In addition to the prison term assessed against him, Bustamante-Barrera became subject to removal proceedings by the Department of Homeland Security. Bustamante-Barrera admitted to the convictions, but he argued that the immigration judge did not have jurisdiction over him, because he had derivative citizenship from his mother. He met the requirements of 8 U.S.C. �1432(a), he said, because he was under the age of 18 when his mother became a citizen, he was under her legal custody and he was living in the country as a legal permanent resident. Recognizing that there might be a problem with invoking this section, because it states that a child be under the “sole custody” of the naturalized parent, not joint custody of both parents, Bustamante-Barrera’s mother asked a California state court to issue a nunc pro tunc amended divorce decree that gave her sole legal custody over Bustamante-Barrera. The lawyer for Bustamante-Barrera’s mother stated that the sole purpose of the amendment was to satisfy the requirements of the immigration law as it applied to Bustamante-Barrera. The immigration judge sided with Bustamante-Barrera, holding that DHS had not carried its burden of proving that Bustamante-Barrera was an alien and terminating the removal proceedings. The Bureau of Immigration Affairs reversed, holding that a legal permanent resident with two living parents, only one of whom has become a citizen, does not automatically derive citizenship from the naturalized parent unless that parent had sole legal custody over him before his 18th birthday. In his petition for review to this court, Bustamante-Barrera argues that the BIA overstepped its legal authority, violated the Full Faith and Credit Act and violated the equal protection clause of the Fifth Amendment. HOLDING:Petition denied. The court acknowledges a split among the circuit courts over whether the BIA’s interpretation of the statute is entitled to deference or whether interpretation of the statute should be conducted de novo. The court says it is unnecessary to make such a determination in this case because its conclusion would be the same regardless of what framework were used. The court notes that it is the first circuit to interpret �1432(a)’s requirement that derivative citizenship flows from being under the sole custody of the naturalized parent. The text of the statute says that a child can become naturalized only if “the parent having legal custody of the child” has become naturalized. The court observes that in other parts of the immigration statutes, Congress used the phrase “parent or parents,” but in this section it used only the phrase “parent having legal custody.” Therefore, if Congress meant for �1432(a)’s requirements to be met when two legally separated shared joint legal custody of a child, and only one of those two parents was naturalized, it could have. The court also finds that the legislative history of the statute supports its interpretation, noting that allowing for the automatic change in a child’s citizenship based on only one parent’s naturalization “could seriously interfere with the non-naturalized parent’s rights, and thereby undermine �1432(a)’s purpose.” The court also finds that the interpretation offered by Bustamante-Barrera would lead to absurd results by “not recognizing derivative citizenship when an alien child’s parents are married and only one parent is naturalized . . . while . . . recognizing derivative citizenship when an alien child’s parents are legally separated, continue to share legal custody (and thus legal rights) over the child, and only one parent is naturalized.” The court then turns to decide if Bustamante-Barrera was in the sole legal custody of his mother prior to his 18th birthday. The court rejects Bustamante-Barrera’s reliance on the Full Faith and Credit Act, noting that state law cannot overcome federal immigration and naturalization laws. The court then condemns Bustamante-Barrera’s reliance on the amended decree in this case. The court does says that there may be a situation where a nunc pro tunc amended decree could enhance an alien’s claim of derivative citizenship under �1432(a), but not here. “The record here confirms that [Bustamante-Barrera's] mother sought the amended decree solely for the purpose of controlling immigration and naturalization law. We refuse to reward such blatant manipulation of federal law.” Finally, the court rejects Bustamante-Barrera’s equal protection claim. OPINION:Wiener, J.; Jones, C.J., Wiener and Prado, JJ.

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