Friday, October 27, 2006

Case Law Development: Meaning of "Legal Separation" under Immigration Law

The Fourth Circuit Court of Appeals was called upon to determine what constitutes a "legal separation" in a case involving deportation of a resident alien.  The petitioner was subject to removal because he had been convicted of aggravated felonies.  He sought to evade deportation by claiming that he automatically became a citizen as a consequence of his mother's naturalization when he was a minor. He had come to the United States from Ethiopia with his parents when he was 10 years old.  His father had returned to Ethiopia later that same year, but his mother had remained in the United States and was naturalized in 1994 when the petitioner turned 17. 

At the time of mother's naturalization, federal law provided that a child also becomes a citizen as a consequence of the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.  8 U.S.C. ยง 1432(a) (1999) (repealed 2000)   The act did not define "legal separation."  Here, the parents had apparently negotiated and signed a separation agreement at the time Husband returned to Ethiopia, though there were no witnesses to the agreement and it was not incorporated into a judicial decree until the couple's 2003 divorce. 

The court of appeals affirmed the BIA interpretation that only judicially recognized marital separations are considered "legal" for the purposes of section 1432(a).  Petitioner argued that because Maryland courts will enforce voluntary separation agreements as a species of contract, the BIA was required to recognize his parents as "legally separated" as of the purported date of their agreement.  The court of appeals, over one dissent, held that federal law controlled the issue however.  After reviewing federal law on the question, the court held that the BIA interpretation was not unreasonable and affirmed.

Afeta v. Gonzales, 2006 U.S. App. LEXIS (October 26, 2006)
Opinion on web (last visited October 28, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/10/case_law_develo_9.html

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