United States Court of Appeals For the First Circuit

No. 99-8018

MIGUEL NOEL FIERRO,

Petitioner,

v.

JANET RENO, ATTORNEY GENERAL,

Respondent.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge] ____________________

No. 00-1037

MIGUEL NOEL FIERRO,

Petitioner,

v.

JANET RENO, ATTORNEY GENERAL,

Respondent. ____________________

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS ____________________

Before

Boudin, Circuit Judge, Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Matthew S. Robinowitz for petitioner. Brenda M. O'Malley, Office of Immigration Litigation, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on consolidated brief for respondent.

JUNE 5, 2000 BOUDIN, Circuit Judge. On this appeal, Miguel Noel

Fierro seeks review of a final order of removal, and a denial of

reconsideration, from the Board of Immigration Appeals ("the

Board"). The removal order is based on a statutory provision

providing for the removal from the United States of "[a]ny alien

who is convicted of an aggravated felony at any time after

admission."

(a)(2)(A)(iii) (Supp. II 1996).

Fierro concedes that he has been convicted of such a crime but

says that he is not an alien but rather a citizen of the United

States.

The critical background facts are not in dispute.

Fierro was born in Cuba on October 25, 1962. He and both of his

parents were admitted to the United States as refugees in 1970.

On October 19, 1973, Fierro's parents were divorced pursuant to

a decree from a Massachusetts probate court, and the decree

awarded Fierro's mother custody of both Fierro and his sister.

On March 25, 1976, Fierro's immigration status was changed to

that of lawful permanent resident.

On March 21, 1978, when Fierro was 15 years old, his

father became a naturalized citizen. Had Fierro then been in

the "legal custody" of his father, he would automatically have

become an American citizen under

(a) (1994),

which in defined circumstances provides automatic citizenship

-3- for alien children whose parents are naturalized. Pertinent

language in the statute, reprinted in full in an appendix to

this decision, grants such citizenship to a child born outside

the United States upon "[t]he naturalization of the parent

having legal custody of the child when there has been a legal

separation of the parents," assuming that this occurs while the

child is under age 18 and that the child is a lawful permanent

resident.

The last two conditions are satisfied here, and

the case thus turns on whether the first condition ("legal

custody") can also be met.

On February 15, 1996, Fierro was convicted in

Massachusetts of larceny and sentenced to a term of four years

in prison. It is undisputed that this conviction makes him an

aggravated felon subject to removal.

(a)(43)(G), 1227(a)(2)(A)(iii) (Supp. II 1996). Fierro's

criminal record is fairly long and it includes drug offenses,

breaking and entering with intent to commit a felony, assault

and battery, larceny, uttering and forgery. However, it was the

1996 larceny conviction that triggered an INS proceeding to

remove Fierro from the country.

In the removal proceeding, Fierro argued inter alia

that he became a United States citizen when his father was

naturalized in 1978. On January 5, 1998, the immigration judge

-4- rejected Fierro's citizenship claim because his mother had been

awarded legal custody of him in 1973 and had never become a

naturalized citizen. The judge ordered Fierro removed to Cuba.

Fierro then appealed to the Board and on appeal he submitted an

amended custody judgment secured from the Massachusetts probate

court dated May 18, 1998, four months after the immigration

judge's removal order. Although Fierro was now 35 years old,

this decree purported to award custody to Fierro's father "nunc

pro tunc to September 1, 1977."

On March 29, 1999, the Board issued a decision holding

that Fierro should be given an opportunity to pursue a different

avenue to avoid removal but it dismissed Fierro's claim of

citizenship, concluding that the state court's 1998 modification

of the custody decree had no effect on Fierro's citizenship

status. After correcting a factual error on reconsideration,

the Board adhered to its ultimate conclusion. Fierro then

abandoned his alternative avenue for seeking to avoid removal

and sought review of the Board's rejection of his citizenship

claim.

The procedural path by which Fierro arrived in this

court is complicated, see Fierro v. INS,

(D.

Mass. 1999); Fierro v. INS,

(D. Mass. 1999),

but the intricacies are of no importance on this appeal, which

-5- the government concedes is properly before this court. This

court's authority to review removal orders based on an alien's

commission of an aggravated felony has recently been restricted,

(a)(2)(C) (Supp. II 1996), but this does not bar

Fierro's claim on review that he is a citizen rather than an

alien,

(b)(5); Maghsoudi v. INS,

, 13

n.12 (1st Cir. 1999); Hall v. INS,

(4th

Cir. 1999).

It is common ground that Fierro was not subject to

removal as an alien convicted of an aggravated felony if he is

presently an American citizen. Whether Fierro is an American

citizen turns, in this case, entirely on issues of law,

including the meaning of the automatic citizenship statute in

question,

(a) (1994), and the legal effect to be

accorded to the nunc pro tunc ruling of the Massachusetts

probate court. Accordingly, our review is de novo and there is

no occasion to transfer the case to a district court to resolve

factual disputes pursuant to

(b)(5)(B) (Supp. II

1996).

Citizenship for one not born in the United States may

be acquired "only as provided by Acts of Congress." Miller v.

Albright,

(1998). Here, Fierro's claim of

citizenship requires that there have occurred, while he was

-6- under 18 and a permanent resident, "the naturalization of the

parent having legal custody of the child."

(a)

(1994). What is meant by the phrase "having legal custody of

the child" is, of course, a question of federal statutory

interpretation. But the Immigration and Naturalization Act

provides no definition nor does the legislative history

illuminate the concept. See H.R. Rep. No. 82-1365 (1952),

reprinted in 1952 U.S.C.C.A.N. 1653, 1740.

Legal relationships between parents and children are

typically governed by state law, there being "no federal law of

domestic relations." De Sylva v. Ballentine,

(1956); see also Ex parte Burrus,

(1890).

Accordingly, subject to possible limitations, we think that the

requirement of "legal custody" in section 1432 should be taken

presumptively to mean legal custody under the law of the state

in question. Although there is no decision directly on point,

this view is consistent with the approach taken in other cases

in which a federal statute depends upon relations that are

primarily governed by state law. E.g., De Sylva,

.

On the premise that state law presumptively governs

such relationships, Fierro reasons that the matter is controlled

by the state probate court judgment entered in May 1998. In

-7- that judgment, the court purported to decree that "as of

September 1, 1977 custody of the minor child [Fierro] . . . is

to be awarded" to the father and that "said order granting

custody [of Fierro to his father] . . . be entered nunc pro tunc

to September 1, 1977." There is authority under Massachusetts

law, as in other jurisdictions, that a "judgment entered nunc

pro tunc is respected and enforced as if it had been entered at

the proper time." 43 Flanagan, Massachusetts Practice § 406

(1993 & Supp. 1999).

Fierro's argument is not without a certain surface

plausibility, but we do not accept it. It is, as will become

apparent, quite doubtful whether the nunc pro tunc decree is

correct even as a matter of Massachusetts law; but while the

reasons for suspecting a possible infirmity are pertinent to our

ultimate holding, we do not rely upon this ground. Rather, even

assuming arguendo that the nunc pro tunc order accords with

Massachusetts law, it reflects an approach to defining legal

custody that is not consistent with section 1432.

It is useful to begin by explaining in somewhat more

detail (there is not a lot of detail available) the origin and

substance of the state decree-modification proceeding. In

December 1997, after the removal proceedings against Fierro had

begun but before the immigration judge rejected Fierro's claim

-8- of citizenship, his parents filed a "complaint for modification"

in the probate court which asserted that on or about September

1, 1977, Fierro had moved to Florida to live with his father.

Accompanying affidavits from Fierro's parents indicated that

Fierro had at that date moved to Florida to live with his father

in order to enroll in a school in Miami, Florida, and that

Fierro was thus living with his father when in early 1978 his

father became an American citizen.

The complaint for modification expressed the joint

request of the parents that the order be entered "nunc pro tunc

to . . . September 1, 1977," explaining that "[t]his

modification is necessary for Miguel Noel Fierro to derive

citizenship through his father and avoid being deported to

Cuba." There is no indication of what proceedings, if any,

followed, but by order dated May 18, 1998, the probate court

granted the judgment modifying the earlier divorce and custody

decree in terms already described--awarding custody to the

father and providing that the custody order be entered nunc pro

tunc to September 1, 1977.

Whether this is a proper nunc pro tunc order under

state law is open to question. Like many other concepts in the

law wrongly assumed to have a fixed meaning, nunc pro tunc is a

somewhat loose concept, like "jurisdiction" or "waiver," used

-9- somewhat differently by different courts in different contexts.

Literally meaning "now for then" (in Latin) see Black's Law

Dictionary 1097 (7th ed. 1999), it is a phrase typically used by

courts to specify that an order entered at a later date should

be given effect retroactive to an earlier date--that is, that it

should be treated for legal purposes as if entered on the

earlier date. Id. The critical question here is not the

intended effect of the phrase but in what circumstances a court

may properly order that a new judgment be given effect nunc pro

tunc.

The core notion, in Massachusetts as in many other

jurisdictions, is that a nunc pro tunc order is appropriate

primarily to correct the record at a later date to make the

record reflect what the court or other body actually intended to

do at an earlier date but did not sufficiently express or did

not get around to doing through some error or inadvertence.

Thus, a clerical mistake in a judgment might be corrected nunc

pro tunc when discovered later or a franchise sought as of

October 1 might be backdated to that date where the application

was timely made.

These concepts are embodied in a widely cited

Massachusetts case explaining the scope of a court's nunc pro

tunc authority as follows:

-10- The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or inferentially at an earlier time, which by accident, mistake or oversight was not made [a] matter of record, or to validate some proceeding actually taken but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement.

Perkins v. Perkins,

, 713-14 (Mass. 1917). However,

it is clear that there are limits on the court's authority to

make retroactive revisions to prior orders. In Perkins itself,

the court said that "a defect in a judgment, order or decree

which expressed exactly the intention of the court at the time

when it was made cannot be remedied by a nunc pro tunc entry."

.1

Under the then-prevailing decree, Fierro on September

1, 1977, was--and was intended by the probate court to be--in

the "legal custody" of his mother. Fierro had moved in with his

father and perhaps the probate court might, if requested at the

time, have ordered a transfer of legal custody. But nothing

1Many other jurisdictions have said much the same thing. E.g., Murry v. State Farm Mut. Auto. Ins. Co.,

(Ark. 1987); Jones v. Jones,

(Okla. 1968); 46 Am. Jur. 2d, Judgments § 157 (1994).

-11- prevented his mother from retaining legal custody while Fierro

was living (apparently for about a year) with his father in

Florida. There is no indication of error, inadvertence or any

of the conventional preconditions under Massachusetts law for a

revision of the original decree nunc pro tunc.

The Supreme Court has held that where federal law

incorporates a state characterization, a state trial court's

construction of state law is not binding on a federal court.

See Commissioner v. Estate of Bosch,

(1967)

(federal estate tax liability turning on character of property

interest). Several circuit courts have applied the Bosch rule

in the context of probate court nunc pro tunc orders, holding

that these orders are controlling for purposes of federal tax

liability only when the federal court determines that they are

proper under state law. E.g., Estate of Goldstein v.

Commissioner,

(10th Cir. 1973). Seemingly,

we could choose to disregard the probate court's modification

order here as a misapplication of Massachusetts law.

Instead, we are more comfortable leaving the state law

issue undecided and resting instead on a strictly federal

ground. We do not think that Congress can be taken as intending

to give effect, for purposes of section 1432, to the kind of ex

post modification of a custody decree reflected in this record--

-12- even if we assume that for purposes of Massachusetts law (e.g.,

inheritance, taxation), the probate court's modification decree

could properly reclassify Fierro's status nunc pro tunc as of

September 1977. This is so for two different reasons.

First, both the language of the automatic citizenship

provision and its apparent underlying rationale suggest that

Congress was concerned with the legal custody status of the

child at the time that the parent was naturalized and during the

minority of the child. See

(a)(4)-(5) (1994).

Congress clearly intended that the child's citizenship should

follow that of the parent who then had legal custody and it is

rather easy to imagine the reasons for this choice: presumably

Congress wanted the child to be protected against separation

from the parent having legal custody during the child's

minority.

Here, viewing matters at the time that Fierro's father

became naturalized (and indeed through the time that Fierro

turned 18), Fierro was under Massachusetts law in the legal

custody of his mother, and any Massachusetts court asked in 1978

would certainly have identified his mother as the legal

custodian under the 1973 decree. It is thus hard to see how it

could be said that in 1978 there occurred the "naturalization of

the parent having legal custody of the child," as section 1432

-13- requires. Similarly, the apparent rationale of the statute

would hardly be served by conferring citizenship on Fierro for

the first time at age 35.

Second, recognizing the nunc pro tunc order in the

present case would in substance allow the state court to create

loopholes in the immigration laws on grounds of perceived equity

or fairness. There is no suggestion that the original custody

decree was entered by mistake, was contrary to law, or otherwise

did not reflect the true legal relationship between Fierro and

his parents at any time during his minority. Congress' rules

for naturalization must be applied as they are written, and a

state court has no more power to modify them on equitable

grounds than does a federal court or agency. See generally INS

v. Pangilinan,

(1988); Examining Bd. of

Engineers, Architects & Surveyors v. de Otero,

(1976).

Obviously there are equitable arguments against

separating Fierro even as an adult from his parents, one of whom

is a naturalized citizen and the other a permanent resident.

But Congress did not view these as compelling enough to provide

for automatic citizenship for a "child" who is over 18 at the

time one or more of his parents becomes naturalized. And

Congress' fierce intention to deport aggravated felons, despite

-14- their entry into this country as children and their long-

standing residence in the United States, has only been

strengthened by recent legislation. E.g., Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

Div. C., tit. III,

-575.

The closest precedent on point is Miller v.

Christopher,

(D.C. Cir. 1996), aff'd sub nom.

Miller v. Albright,

(1998). There, an alien born

out of wedlock sought to gain citizenship through his father

under an immigration-law provision providing for citizenship if

the child was legitimated prior to reaching age 21. The D.C.

Circuit rejected an effort to achieve this result through a

state-court paternity decree obtained after the alien had

reached age 21, holding that to give retroactive effect to the

state court decree would undercut Congress' intent. Id. at

1472-73. The approach of Miller is not dissimilar to our own.

Conversely, we think Fierro gets little help from a

Board doctrine, which he urges us to follow, that "[i]n the

absence of judicial determination or judicial or statutory grant

of custody in the case of legal separation . . . the parent

having actual uncontested custody is to be regarded as having

'legal custody.'" In re M-----,

, 856 (BIA

1950); see also In re Yoon, A-39-764-548 (BIA, Dec. 30, 1999)

-15- (same). In our case there was a judicial decree granting

custody to, and only to, Fierro's mother. Neither the letter

nor the policy of the default rule expressed in In re M----- has

any application to the present case.

However, In re M----- does illustrate how careful one

must be about categorical pronouncements in this area. There

are too many possible variations to say in the abstract, as the

government urges, that a later state court decree must always be

disregarded in applying section 1432. Suppose the original 1973

decree in Fierro's case had through a clerical error named his

mother as legal custodian when the judge had ruled orally, and

the parties had understood at the time, that custody had been

awarded to his father. Our own decision is limited to the

circumstances before us.

There is one loose end. In a pro se motion for

bail/bond or in the alternative for supervised release, Fierro

says that Cuba is not accepting deportees and that he is

potentially subject to indefinite detention by the INS, which he

claims would be unlawful. Compare Ma v. Reno,

(9th

Cir. 2000), with Ho v. Greene,

(10th Cir. 2000).

At this point there is nothing in the record to indicate whether

Cuba refuses all deportees or has refused or will refuse to

accept Fierro, nor do we know whether in that event the INS

-16- would release Fierro under some form of supervision. See

(a)(3), -(6) (Supp. II 1996);

,

241.5 (2000). Our affirmance is without prejudice to any future

assertion of such claims by Fierro if and when they become ripe.

The petitions for review of the order of removal and

denial of reconsideration are denied.

-17- APPENDIX

(1994) provides as follows:

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.

-18-