USCA1 Opinion
February 13, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1735
No. 95-1558
ROGER F. ALEXANDER, ETC., ET AL.,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ERRATA SHEET
The opinion of this Court, issued on January 31, 1996, should be
amended as follows:
On cover sheet, line 1 of attorney listings, replace "William A.
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Maganiello" with "William A. Mangiello".
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1735
No. 95-1558
ROGER F. ALEXANDER, ETC., ET AL.,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Michael G. Hillinger with whom William A. Mangiello was on briefs
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for petitioners.
Carl H. McIntyre, Jr., Office of Immigration Litigation, Civil
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Division, Department of Justice, with whom Stuart M. Gerson, Assistant
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Attorney General, Civil Division, Frank W. Hunger, Assistant Attorney
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General, Civil Division, and David J. Kline, Assistant Director, were
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on briefs for respondent.
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January 31, 1996
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BOUDIN, Circuit Judge. Petitioner Roger Alexander,
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named Roger Alexander Hobbs at birth, was born in Great
Britain on February 13, 1945, son of Sarah Hobbs and, he
alleges, Floyd Alexander, an American serviceman. Roger was
unaware of his true father until 1968, when he discovered
that the man whom he believed to be his father had died in
1943. His mother then told him that his father was in fact
Floyd Alexander. Sometime after Floyd's death in 1970, Roger
established contact with his supposed American half-siblings.
In 1984, Roger, his wife Anne, and their three sons moved to
the United States.
In 1985, Roger filed an application for a certificate of
U.S. citizenship which was denied the following year. Some
months after Roger filed the application, the Immigration and
Naturalization Service ("INS") served an order to show cause
on Roger and Anne, charging that they were deportable under 8
U.S.C. 1251(a)(2), on the ground that they had overstayed
their non-immigrant visas. Roger contested this order by
presenting a claim to derivative citizenship through Floyd.
The INS held three days of hearings on Roger's
citizenship claim in Boston in 1987 and 1988. On September
22, 1988, the immigration judge entered an order denying
Roger's claims, finding the Alexanders deportable, and
granting their request for voluntary departure. That order
was appealed to the Board of Immigration Appeals; on June 9,
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1992 the Board dismissed the Alexanders' appeal, holding that
Roger had not met the statutory requirements for derivative
citizenship under 8 U.S.C. 1401 and 1409. The Alexanders
filed a motion for reconsideration which the Board denied.
The Alexanders then filed in this court a timely petition for
review, which we now grant.
8 U.S.C. 1105a(a)(5) provides that whenever a
petitioner, who seeks review of an order of deportation,
claims to be a national of the United States and
makes a showing that his claim is not frivolous,
the court shall (A) pass upon the issues presented
when it appears from the pleadings and affidavits
filed by the parties that no genuine issue of
material fact is presented; or (B) where a genuine
issue of material fact as to the petitioner's
nationality is presented, transfer the proceedings
to a United States district court . . . for hearing
de novo . . . .
The government does not contest that Roger has alleged a
viable theory of citizenship. The only question for our
decision is whether there is a "genuine issue of material
fact" for determination by the district court. Agosto v.
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INS, 436 U.S. 748, 754 (1978). This standard is analogous to
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that governing motions for summary judgment under Fed. R.
Civ. P. 56. Anderson v. Liberty Lobby, 477 U.S. 242, 248
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(1986).
If Roger has a statutory claim to U.S. citizenship, it
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is by operation of 8 U.S.C. 1409(b),1 which states in
relevant part that
the provisions of section 1401(g) of this title
shall apply to a child born out of wedlock on or
after January 13, 1941, and before December 24,
1952, as of the date of birth if the paternity of
such child is established at any time while such
child is under the age of twenty-one years by
legitimation.
18 U.S.C. 1401(g) provides that the foreign-born child of
parents, one of whom is a U.S. citizen and one of whom is an
alien, is "a citizen . . . at birth" if the U.S. citizen
parent resided in the United States for a statutorily defined
period prior to the child's birth.
Thus, to show that he was a U.S. citizen at birth, Roger
must prove that (1) Floyd was his father; (2) Floyd was a
U.S. citizen who satisfied the physical presence requirements
of section 1401(g); and (3) Floyd's paternity was established
prior to Roger's 21st birthday. Enough evidence at the INS
hearing indicated that Floyd was Roger's biological father,
and Floyd was admittedly a U.S. citizen who satisfied the
physical presence requirements. So this appeal turns on
whether there is also a genuine factual dispute as to whether
Roger was legitimated prior to his 21st birthday.
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1Roger argues that he qualifies for citizenship under 8
U.S.C. 1409(a), but it is clear that current section
1409(a) does not apply to individuals born prior to November
15, 1968. See 102 Stat. 2619 (1988). And former section
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1409(a) applies only to individuals born on or after December
24, 1952. 66 Stat. 238 (1952).
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At the hearing before the immigration judge, Roger
offered the affidavit of David Klickstein, now deceased, a
Maine attorney and notary public. According to the
affidavit, in 1955 Floyd signed a document acknowledging that
Roger was his son; Klickstein notarized the document but did
not keep a copy, nor was any copy offered at the hearing.
Roger also offered testimony by Floyd's first wife that Floyd
had told her that he had executed the alleged affidavit.
Floyd's alleged document, if made and acknowledged as
described in Klickstein's affidavit, legitimated Roger as
Floyd's son under Maine law in 1955, when Roger was under age
21. See 8 U.S.C. 1101(c)(1) (providing that state law
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governs).2
To be sure, the Board found the Klickstein affidavit
unconvincing, saying that Roger's "claim that his father
executed a purported document acknowledging paternity is not
adequately supported." But under the unusual statutory
procedure already described, this court does not review that
finding under a substantial-evidence or other customary
standard. Once a genuine material issue of fact is posed,
the statute entitles Roger to a trial de novo in the district
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2Under Maine law in 1955, "[i]f the father of a child
born out of wedlock adopts him or her into his family or in
writing acknowledges before some justice of the peace or
notary public that he is the father, such child is . . . the
heir and legitimate child of his or her father." 4 Me. Rev.
Stat. c. 170, 3 (1954), repealed by 1979 Me. Laws ch. 540,
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24-C.
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court. 8 U.S.C. 1105a(a)(5).
On appeal the INS argues that the absence of the actual
document is fatal to Roger's claim as a matter of law. We
disagree: there is nothing in the language of the Maine
statute to indicate that the continued existence of the
document is essential to legitimation, nor does the INS refer
us to any Maine case law to support this view. To the
contrary, the statute indicates that it is the creation of
the document, not its preservation, that matters. Cf. In re
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Joyce's Estate, 183 A.2d 513, 514 (Me. 1962).
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Although it might surprise a lay person to see how
little importance we attach to the preservation of the
affidavit, no lawyer would be surprised. A will, for
example, must be made and executed with startling formality,
but if lost or misplaced may be proved by oral evidence.
E.g., In re Estate of Fuller, 399 A.2d 960, 961 (N.H. 1979).
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Indeed, the whole tendency of the law of evidence governing
documents is to demand the original if available but to
forgive its absence if explained. See Fed. R. Evid. 1004.
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Of course, Roger must prove that his legitimation occurred
but this is a matter for the district court.3
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3The Board apparently considered the Klickstein
affidavit at the hearing but found it insufficient. As the
issue has not been raised by the INS, we have no occasion to
consider whether the affidavit would be admissible in
district court under a hearsay exception, e.g., Fed. R. Evid.
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804(b)(5), whether the rules of evidence would be strictly
applied in a proceeding before the district judge, or whether
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The INS argues in the alternative that even if Roger
became a "citizen . . . at birth" under section 1401(g), he
lost his citizenship under the retention requirements of
former section 1401(b). That section originally provided,
with a qualification not here pertinent, that anyone who
became a citizen under section 1401(g) lost his citizenship
unless he came to the U.S. before age 23 and remained for at
least five years. 66 Stat. 235 (1952). Roger admits that he
does not satisfy this requirement, nor a slightly less
rigorous version later enacted. See 92 Stat. 1046 (1972).
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Although the retention requirement was repealed entirely
in 1978, the repeal was by its own terms not retroactive. 92
Stat. 1046. We were therefore initially disposed to conclude
that Roger's section 1409(b) claim was barred by the
retention requirement. However, in the course of preparing
the opinion, the court encountered a 1994 amendment, codified
at 8 U.S.C. 1435, that provides relief as follows:
A person who was a citizen of the United
States at birth and lost such citizenship for
failure to meet the physical presence retention
requirements under section 1401(b) of this title
(as in effect before October 10, 1978), shall, from
and after taking the oath of allegiance required by
section 1448 of this title be a citizen of the
United States and have the status of a citizen of
the United States by birth, without filing an
application for naturalization . . . .
The effect of this language appeared to allow Roger to escape
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other more readily admissible evidence exists to show that
Floyd's statement was prepared and notarized.
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the retention requirement merely by filing an oath of
allegiance. See 8 U.S.C. 1448 (prescribing oath).
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Confident that the INS would wish to see justice done,
we asked the parties to address this provision in
supplemental briefs. Roger replied that he had not yet taken
such an oath but proposed to do so. The INS, in its reply,
did not deny that the oath would erase the bar of former
section 1401(b). But it argued that this court has "no
jurisdiction" to consider the 1994 amendment issue because
that would require consideration of evidence not appearing
"upon the administrative record upon which the deportation
order is based." 8 U.S.C. 1105a(a)(4).
Section 1105a(a)(4), like many counterparts, e.g., 5
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U.S.C. 706; 29 U.S.C. 160(e) and (f), is intended to
prevent a reviewing court from considering evidence not
before an administrative agency, i.e., to assure that agency
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findings are reviewed upon the record made before the agency.
Cf. Camp v. Pitts, 411 U.S. 138, 142 (1973). Nothing in such
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provisions prevents a reviewing court from applying correct
legal principles to a dispute, whether or not previously
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identified in the agency proceeding. And if former section
1401(b) is now a hollow shell, the INS' argument fails as a
matter of law.
Of course, Roger did not rely upon the 1994 amendment
(nor did the INS mention it to us in its brief). Failure to
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raise an argument in timely fashion means that a reviewing
court is free to disregard it. Thomas v. INS, 976 F.2d 786,
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789 (1st Cir. 1992). But the law that was overlooked (the
1994 amendment) is not disputed, Congress' intent to preserve
citizenship on condition is apparent, the condition can be
mechanically satisfied, and the right in question--American
citizenship--is one of the most precious imaginable.
We therefore transfer this case to the district court
for trial de novo. 8 U.S.C. 1105a(a)(5). We do not at this
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time pass upon any alternative constitutional claims made by
Roger. The district court may require Roger to present
evidence within a reasonable time that he has executed the
oath prescribed by 8 U.S.C. 1448; if Roger fails to do so,
the district court may dismiss on that ground alone.
Otherwise, the court should proceed to the merits of his
claim under section 1409(b).
It is so ordered.
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