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Foncette v. Bureau of Immigration Customs and Enforcement

January 17, 2007

KENRICK FONCETTE, PETITIONER,
v.
BUREAU OF IMMIGRATION CUSTOMS AND ENFORCEMENT RESPONDENT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Judge

(Chief Judge Kane)

MEMORANDUM AND ORDER

Presently before the court is petitioner's motion for summary judgment pursuant to FED. R. CIV. P. 56. (Doc. 30). For the reasons set forth below, the motion will be granted.

I. Procedural Background

On November 10, 2005, the matter was transferred to this Court by the United States Court of Appeals for the Third Circuit "for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section of 2201 of Title 28," pursuant to 8 U.S.C. § 1252(b)(5)(B). (Doc. 1). This Court has jurisdiction pursuant to 8 U.S.C. § 1252(b)(5)(B) which states that "[i]f the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States . . . for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28." § 1252(b)(5)(B).

The matter was scheduled for a hearing. (Doc. 6). The parties sought, and were granted, several continuances of the hearing date. (Docs. 9, 12, 14). In February 2006, the parties filed a "Joint Motion for a Continuance." (Doc. 20). In that motion, which was prepared by respondent's attorney, the parties agreed "that the sole issue is whether petitioner's parents became legally separated, as contemplated by 8 U.S.C. § 1432(a), at any point before petitioner reached the age of eighteen in 1978." (Id. at p. 1, ¶ 2). The parties further stated the following:

6. In his [trial] brief, petitioner detailed ongoing efforts by his mother, in his native Trinidad seeking to have the High Court of that country declare that an order of separation had been granted to his mother by the Trinidad courts in July of 1962.

7. Such a declaration is necessary since the court records for that period have apparently been destroyed.

8. The parties agree that since the Trinidad courts would have had jurisdiction over the marriage of petitioner's parents during the time periods relevant to these proceedings, a finding by the High Court that the Trinidad courts had issued a separation order to petitioner's mother in July of 1962 would likely resolve the nationality claims at issue in this case. (Id. at p. 2, ¶¶ 6-8). Based on these representations, the joint motion for a continuance was granted and the case was administratively closed. (Doc. 22).

On June 27, 2006, the parties notified the Court that, on May 19, 2006, the High Court of Trinidad issued a declaration that petitioner's mother had been the beneficiary of an order of separation since 1962. (Docs. 27, 28). Respondent took the position that the declaration was insufficient to confer derivative citizenship on petitioner and requested that this Court review the matter. (Doc. 27, p. 2). Petitioner contended "that both parties agreed that the issue of whether Petitioner's parents had legally separated was the sole issue in the case at bar, as acknowledged by Respondent in the Notice. Petitioner therefore wishes to be accorded an opportunity to file with the Court a Motion for Summary Judgment. . . ." (Doc. 28, p. 2).

On June 30, 2006, the case was reopened and petitioner was afforded the opportunity to file a motion for summary judgment. That motion is fully briefed and is presently ripe for disposition.

II. Statement of Facts

On May 25, 2004, a Notice to appear was issued by the Bureau of Immigration and Customs Enforcement ("ICE"). (Doc. 54, Ex. B). ICE alleged that petitioner was not a citizen of the United States. Rather, he was a native and citizen of Trinidad and Tobago who was admitted to the United States on or about September 8, 1974. (Id.). He was subject to removal pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("Act"), as amended, in that he was convicted of an aggravated felony as defined in sections 101(a)(43)(F) (G) and (U) of the Act. He was also subject to removal pursuant to Section 237(a)(2)(C).

On October 13, 2004, petitioner filed an Application for Citizenship stating that he was claiming United States citizenship through his United States citizen mother, who became a naturalized citizen on May 29, 1974. (Doc. 54, Ex. I). His request was denied on November 3, 2004. The district director stated that "[i]nasmuch as only one of your parents became a United States citizen before you were eighteen years of age, and since your mother and father did not obtain a legal separation /divorce, with legal custody over you accorded to your citizen parent before your eighteenth birthday, you did not derive citizenship as a result of your mother's naturalization." (Id.at Exs. I, K).

On March 15, 2005, ICE issued a decision and order concerning petitioner's application for derivative United States citizenship pursuant to 8 U.S.C. § 1432(a)(3). (Id. at Ex. M). The application was denied due to petitioner's failure to establish that his parents were legally separated. This denial resulted in the Immigration Judge issuing an order of removal from the United States to Trinidad and Tobago. (Id.). Petitioner appealed the decision. In August 2005, the Board of Immigration Appeals found that he failed to establish that his parents were ever legally separated and the appeal was dismissed. (Id. at Ex. N).

Petitioner timely filed a petition for review with the United States Court of Appeals for the Third Circuit, which then transferred the matter to this Court to resolve the issue of petitioner's derivative citizenship. As noted above, the matter was administratively closed while the issue of legal separation was pursued by petitioner's mother, Whilma Virginia Jacob-Foncette ("Jacob-Foncette"), in the High Court of Trinidad. Specifically, Jacob-Foncette sought an order from the court declaring that since 1962, her marital status had been governed by section 4 of the ...


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