CA1: Massachusetts law on custody means that aggravated felon is a citizen and gets to stay

Pina v. Mukasey, No. 07-2311.  This is an actual legal issue involving immigration.  The issue comes down to whether someone is a citizen under the Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431.  The guy later committed an aggravated felony.  The IJ said he was a citizen.  The BIA said he wasn’t.  There was some question as to whether the petitioner was in the legal and physical custody of his father.  “The BIA interpreted Massachusetts law to require a court order or judgment of custody before the father of a child born out of wedlock will be deemed to have legal custody of the child. Pina’s parents did not have a formal court order related to his custody.”  Instead, they sort of arranged it between themselves. 

The First points out that under the older version of the statute, a foreign-born child could obtain derivative citizenship if both parents were naturalized, but under the newer version, only one parent is necessary.  But, the First says that state law governs the issues, and looks to the Massachusetts divorce statute.  Mass. Gen. Laws ch. 208, § 31 (2007).  The First disagrees with the way the government proposes to interpret Massachusetts law.  (I think the First is being a little hard on the government, actually.)  The First points to some Massachusetts caselaw which says that “custody” can be established without a court order.  Moreover, “Massachusetts statutes and cases suggest that in situations in which a child was born out of wedlock, as well as in divorce situations, agreements between the parents as to the upbringing and legal custody of the child are favored.”