U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike. Suite 2000 Falls Cl111rcl1. Virginia 2104 I

Kari Hong, Esquire Boston College Law School 885 Centre Street Newton, MA 02459

OHS/ICE Office of Chief Counsel 525 West Van Buren Street Chicago, IL 60607

CHr

Immigrant & Refugee Appellate Center | www.irac.net

Date of this notice: 8/1/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DOn.nL ct1;VLJ
Donna CalT Chief Clerk

Enclosure
Panel Members: Co\e, Patricia A. Donovan, Teresa L. Pauley, Roger

lucasd Usertea m: Docket

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U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: In re:

Date:

AUG 01 2013

IN REMOVAL PROCEEDINGS
APPEAL ON BEHALF OF RESPONDENT: Kari Hong, Esquire

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ON BEHALF OF DHS:

Michelle Venci Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I& N Act

[8

U.S. C. 1227(a)(2)(A)(iii)] -

Convicted of aggravated felony APPLICATION: Termination ofproceedings; Convention Against Torture

The respondent appeals the Immigration Judge's February 14, 2013, decision denying his motion to terminate proceedings based on his claim of derivative citizenship under former section 32l(a)(3) of the Immigration and Nationality Act, application for protection under the Convention Against Torture, 8 C.F.R. 1208.16-.18 (2013). The respondent's appeal of the Immigration Judge's denial of his motion to terminate his proceedings will be sustained, the remainder of the appeal will be dismissed, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry ofa new decision. In his decision, the Immigration Judge denied the respondent's motion to terminate his proceedings based on his claim of derivative citizenship under former section Act (I.J. at

U.S.C. 1432(a)(3), and his

6-13). 1

321(a )(3)

of the

Specifically, the Immigration Judge concluded that, although the divorce

decree in this case acknowledges a date of separation for the respondent's naturalized parents as occurring in 1984, that acknowledgement does not, under Oregon law, establish a "separation by decision in Minyasan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005), and found that, absent Oregon court precedent recognizing the date of separation in the divorce agreement as a "separation by virtue of law," as in Minyasan, there is no "legal separation" (I.J. at 12-13). According to the Immigration Judge, the absence of Oregon court precedent identifying the date of separation in a divorce decree specifically as a "separation by virtue oflaw," is a critical distinction between the respondent's case and that in Minyasan (I.J. at 12-13 ). virtue of law" (I.J. at 12-13). In his decision, the Immigration Judge used the Ninth Circuit's

Former section 321(a)(3) of the Act provides, in pertinent part, that a child derives United

States citizenship "through the naturalization of the parent having legal custody of the child when there has been a legal separation ofthe parents." (Emphasis added).

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On appeal, the respondent argues that his parents were "legally separated," for purposes of fonner section 32l(a)(3) of the Act, in October 1984 when his mother left the family home prior to his 18th birthday rather than in January 1986 when his parents were in fact divorced after his 18th birthday. See Respondent's Brief at 5-7. In this regard, the respondent contends that his case is comparable to that decided by the Ninth Circuit in Minasyan where the Ninth Circuit held, based on a review of California family law, that a "legal separation" in California occurs, for purposes of former section 321 (a)(3) of the Act, when the family court recognizes a prior "court defined date of separation" in a subsequent divorce decree, e.g., the final divorce decree acknowledges an earlier date of separation.2 See id. The respondent does not dispute that the Immigration Judge properly looked to the law of Oregon in determining when the respondent's parents were "legally separated" (I.J. at 8 ). See Wedderburn v. INS, 215 F.3d 795 (7th Cir. 2000). As found by the Immigration Judge, Oregon, similar to California, provides for both "legal separation" and "dissolution of marriage" or divorce (I.J. at 10). See Minasyan v. Gonzales, supra at 1078. But, unlike the law in California, there is no evidence that Oregon recognizes a "court-defined date of separation" as a "separation by virtue of law" based on a separation date acknowledged in a subsequent divorce decree (I.J. atl 0). See Minasyan v. Gonzales, supra (finding a judgment of dissolution of marriage entered by California court that recognized alien's parents had separated on date that was prior to her naturalization established date of legal separation for purposes of California law and date of separation for purposes of alien's derivative citizenship claim because it was "separation by virtue of law"). In its brief, the Department of Homeland Security ("DHS") argues that the respondent's parents were not "legally separated" prior to their divorce because there was not an official "separation" order, e.g., a court order that "complies with Oregon statutes in establishing a formal separation," at the time of separation. See DHS's Brief at l. According to the DHS, in Oregon, unlike California, a formal, legal separation occurs only if a court enters an order determining the "duration of the separation" in accordance with O.R.S. 104.475. See id. The DHS further argues that the respondent's parents were not "legally separated" because there is no evidence that a legal separation was converted to a dissolution of marriage action in accordance with O.R.S. 107.465 and that any division of property based on an informal separation date does not establish a "legal separation" in Oregon. See id. at 1-2. In swn, the DHS asserts that the State of Oregon, unlike California, requires court intervention to declare a formal, legal separation such that it would qualify under former section 321(a)(3) of the Act.3 See id at 2.
.

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We note that this case arises within the jurisdiction of the United States Court of Appeals for the Seventh Circuit; thus the Ninth Circuit's decision in Minasyan is not binding. See Matter of Salazar, 23 I&N Dec. 223, 235 (BIA 2002) (we apply the law of the circuit in cases arising in that jurisdiction, but we are not bound by a decision of a court of appeals in a different circuit).
3

The DHS also cites the Board's decision in Matter of H-, 3 I&N Dec. 742 (BIA 1949), for the proposition that a "legal separation" refers only to a "limited or absolute divorce obtained through judicial proceedings." See id. at 743-44; see also DHS's Brief at 2-3. While such language could be read to suggest what the DHS proposes, this interpretation would be contrary to the statute itself. Matter of H-, stands for the proposition that an informal separation must include state involvement, e.g., a court order, or some recognition from the state in order to
2

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However, the issue is not the distinction between California and Oregon law but, rather, whether Oregon assigns "legal significance" to an informal date of separation recognized in a divorce decree. The respondent argues that "legal consequences" of a separation equate to "legal significance" such that his parents were legally separated upon the separation date recognized in the divorce decree. See Respondent's Brief at 5-7. We find the respondent's argument persuasive. See Minasyan v. Gonzales, supra at I 080 ("Central to our determination is the fact that in California a separation by virtue of law entails important legal consequences under state law") (emphasis added). As found in Minyasan, and contrary to the position of the DHS, the

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term "legal separation" in former section 32l(a)(3) of the Act refers to a "separation by virtue of law" not the narrower statutory procedure titled "legal separation" that would require some virtue of law" is in turn defined by "legal consequences." See id. formal action or intervention by Oregon, e.g., a court order. See id. at l 078. A "separation by

In this regard, we are unpersuaded by the Immigration Judge's conclusion that no "legal consequences" can inure from an informal separation in Oregon because property acquired during a marriage is considered marital property rather than separate property and/or the DHS's contention that a division of property based on an informal separation date is of no "legal consequence" absent a court order in Oregon (I.J. at 11-12). acquired during the marital period. See O.R.S.

107.IOS(l)(E).

Oregon property law provides for a rebuttable presumption of marital property for property See Richardson v. Richardson, 307 Or. 370 (1989). However, "legal consequences" of an informal separation occur when the presumption is rebutted (by showing that the other spouse did not contribute to the acquisition or increase in value of such prope1ty during a separation) at which time property acquired during the marriage but after the separation is deemed to be separate. See id.; see also Minasyan v. Gonzales, supra at 1078-79 (finding "legal consequences" under state law include the character of property acquired after the separation such that a spouse's earnings and accumulations while living separate and apart are considered separate property and recognizing that those consequences flow from the date of the separation, not from the date of a court order). any formal court "intervention." Under these circumstances, we find the respondent has established that his parents were It is of "legal significance" when property is deemed to be separate based on a separation that occurred without

"legally separated" in October

1984, the date of separation recognized in the final divorce decree,

and prior to the respondent's 18th birthday. There remains, however, an issue as to whether the respondent has met his burden of proof in establishing that he was in his father's "legal custody" during the relevant time period. In this regard, we note that the respondent's original Form N-600 was denied by the United States Citizenship and lmmigration Services ("USCIS") based on his failure to establish the "legal custody" requirement of former section 321 (a)(3) of the Act qualify under former section 321(a)(3) of the Act. See, e.g., Brissett v. Ashcroft, 363 F.3d 130,

135 and n. 4 (2d Cir. 2004). This is in accord with the decision in Minyasan, which also requires
state recognition, e.g., "legal consequences," for an informal separation to qualify under former section 32l(a)(3) of the Act. See also Matter of Mowrer, 17 I&N Dec. 613, 615 (BIA 1981) (finding viability of marriage not relevant to issue of stepparent/stepchild relationship except where parties to the marriage have "legally separated" which required more than just an informal separation). 3

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while his appeal of that decision was denied based on his failure to establish the "legal separation" requirement of former section 32l(a)(3) of the Act, and the appellate body specifically declined to address the "legal custody" issue. The parties do not appear to have argued this issue before the Immigration Judge, and there is no fact-finding regarding this issue in the Immigration Judge's decision. Thus, a remand for this purpose is necessary. Should the Immigration Judge determine that the respondent has met his burden of proof, the proceedings should be terminated. The respondent also contends that the Immigration Judge erred in denying his application for protection under the Convention Against Torture (I.J. at 14-20).

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In particular, the respondent

argues that the Immigration Judge improperly relied on the evidence of country conditions, e.g., the Department of State reports, over his father's credible testimony in determining he did not meet his burden in establishing a likelihood he will be tortured in Cambodia based on his father's experiences. See Respondent's Brief at 10-11. In this regard, the respondent does not contest the Immigration Judge's actual findings based on the country reports but, rather, claims the Immigration Judge used the country reports such that they "trumped" his father's credible testimony. See id. The respondent cites to the Seventh Circuit's decisions in Galina v. INS, 213 F.3d 955 (7th Cir. 2000), and Gramatikov v. INS, 128 F.3d 619 (7th Cir. 1997), which caution that State Department reports are not "holy writ" and may "softpedal" human rights situations in countries with which the United States is friendly. See id. However, we note that the Seventh Circuit has found that State Department reports are "entitled to deference." Zheng v. Gonzales, 409 F.3d 8 04, 8 11 (7th Cir. 2005). The Court has found that "State Department reports on country conditions ... are highly probative evidence and are usually the best source of information on conditions in foreign nations. The reports are accorded 'special weight,' because they are based on the collective expertise and experience of the Department of State, which 'has diplomatic and consular representatives throughout the world."' See id. (internal citations omitted). Given that the respondent has not cited to any alleged errors in the Immigration Judge's use of the country reports, other than arguing that his fathers credible testimony should "trump" the information contained in them, we find no reason to disturb the Immigration Judge's decision denying the respondent's application for deferral of removal under the Convention Against Torture for the reasons stated in his decision (I.J. at 14-20). See 8 C.F.R. 1003.l (d)(3)(ii) (de novo review). Accordingly, the respondent's appeal of the Immigration Judge's denial of his motion to terminate his proceedings will be sustained, the remainder of the appeal will be dismissed, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision. ORDER: The respondent's appeal of the Immigration Judge's denial of his motion to

terminate his p roceedings is sustained, the remainder of the appeal is dismissed, and the record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

Temporary Board Member Teresa L.

FOR

Donovan respectfully di ssents.

EBOARD

She would

have remanded the case for f u rther assessment of the respondent1s application for protection under the Convention Against Torture.

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