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Thompson v. Lynch

United States Court of Appeals, First Circuit

December 29, 2015

RICHARD MARVIN THOMPSON, Petitioner,
v.
LORETTA E. LYNCH, [*] ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Thomas S. Rome, on brief for petitioner.

Joseph D. Hardy, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Blair T. O'Connor, Assistant Director, on brief for respondent.

Before Howard, Chief Judge, Torruella and Lipez, Circuit Judges.

TORRUELLA, CIRCUIT JUDGE.

Petitioner Richard Marvin Thompson ("Thompson") is a lawful permanent resident who was convicted of a deportable offense. Thompson contends that he has derivative citizenship from his father's naturalization and therefore cannot be deported. Former section 321(a) of the Immigration and Nationality Act provides that a child derives citizenship from the naturalization of one parent if (1) the naturalized parent has "legal custody of the child when there has been a legal separation of the parents"; (2) the naturalization occurs before the child turns eighteen years old; and (3) the child is a lawful permanent resident either at the time of or after the naturalization. 8 U.S.C. § 1432(a) (repealed 2000).

In his petition for review, Thompson argues the Board of Immigration Appeals ("BIA") incorrectly rejected his argument that his parents were in a common-law marriage and legally separated within the meaning of former section 321(a)(3) when they ceased cohabitation. But Thompson has not proven that his parents' relationship or separation was legally recognized. As a result, we deny Thompson's petition.

I. Facts

Thompson was born in 1982 to Jamaican parents in Jamaica. Sometime after Thompson's birth, Thompson's father moved to the United States and, in 1992, became a naturalized citizen. In 1997, Thompson's father petitioned for Thompson to immigrate to the United States. Later that year, at the age of fourteen, Thompson was admitted as a lawful permanent resident and moved to the United States to live with his father. Thompson remained in the custody of his father until he reached adulthood.

In 2001, Thompson pleaded guilty to one count of second-degree assault in violation of section 53a-60a(2) of the Connecticut General Statutes and received a sentence of five years' imprisonment, suspended, and three years' probation. The parties do not dispute that this qualified as a removable offense under either 8 U.S.C. § 1227(a)(2)(A)(iii) (an aggravated felony) or 8 U.S.C. § 1227(a)(2)(A)(i) (a crime of moral turpitude committed within five years after admission and for which a sentence of one year or more of imprisonment could be imposed).

By 2012, the government had detained Thompson and initiated deportation proceedings against him. Thompson then filed an N-600 application for citizenship with U.S. Customs and Immigration Services ("USCIS"), claiming that he derived citizenship from his father's naturalization. USCIS denied Thompson's application, explaining that because Thompson's parents were never legally married, they could not have legally separated as required by section 321(a)(3). An immigration judge adopted USCIS's reasoning fully and ordered Thompson be removed to Jamaica.

Thompson appealed the removal order to the BIA. In his appeal, Thompson asserted that his parents "were common law spouses in Jamaica" who legally separated when they ceased cohabitation. The BIA rejected this argument on the grounds that Thompson had not proven that Jamaica recognized common-law marriage at the time of his birth and that the cessation of cohabitation did not qualify as a "legal separation." Based on these conclusions, the BIA affirmed the removal order.

II. Discussion

Thompson's citizenship claim depends on former section ...


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