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Duncan v. Barr

United States Court of Appeals, Fourth Circuit

March 19, 2019

HOWARD EGBA DUNCAN, JR., a/k/a Duncan Egbaf, a/k/a Howard Duncan, Petitioner,
v.
WILLIAM P. BARR, Attorney General, Respondent.

          Argued: November 1, 2018

          On Petition for Review of an Order of the Board of Immigration Appeals.

         ARGUED:

          Michael S. DePrince, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Petitioner.

          Lindsay Donahue, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Anthony Vale, Kate A. Mahoney, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Petitioner.

          Chad A. Readler, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before MOTZ, DUNCAN and QUATTLEBAUM, Circuit Judges.

          DUNCAN, CIRCUIT JUDGE:

         After submitting an unsuccessful application for a certificate of citizenship with the United States Customs and Immigration Services (the "USCIS"), Howard Egba Duncan, Jr. was placed in removal proceedings. Duncan applied for relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"), 8 C.F.R. § 1208.16(c), and also moved to terminate the proceedings on the basis that he had derived citizenship from his father under the Child Citizenship Act of 2000 (the "CCA"), 8 U.S.C. §§ 1431-33. The immigration judge (the "IJ") determined that Duncan had failed to demonstrate the requisite governmental acquiescence for relief under the CAT and that he had not derived citizenship under the CCA because he was not in the "physical custody" of his father during the requisite time period. The Board of Immigration Appeals (the "BIA") affirmed on both grounds, finding that the IJ did not clearly err in reaching either conclusion.

         We are compelled to find that the BIA applied the wrong standard of review as to both determinations. Consistent with precedent established since the BIA's decision, we hold that whether the government would acquiesce to torture under the CAT is a mixed question of fact and law. Similar analysis persuades us that whether Duncan was in the "physical custody" of his father under the CCA is likewise a mixed question of fact and law. While the IJ's findings of fact are subject to clear error review, the application of those facts to the relevant legal standards constitute legal judgments subject to de novo review by the BIA. Accordingly, we grant the petition for review and remand to the BIA.

         I.

         Duncan is a legal permanent resident of the United States who was born in Nigeria to a Nigerian mother and an American father. When Duncan was six years old, he and his grandmother moved from Nigeria to the United States to live with Duncan's father. Duncan lived with his father and grandmother for three months before his father was incarcerated in April 1998. A few months later, Duncan's grandmother filed a petition to become Duncan's guardian, which was granted later that year. Duncan's father remained incarcerated until 2011, two years after Duncan's eighteenth birthday.

         Throughout his father's incarceration, Duncan and his father had limited physical contact with one another; Duncan visited his father approximately once a month and the two talked on the phone several times a week. Though Duncan's father provided some financial support to Duncan and remained involved in certain aspects of his upbringing--e.g., deciding where he went to school, what shoes his grandmother could purchase for him, and whether he would play football--Duncan's grandmother acted as his primary caretaker, driving him to and from school and providing him shelter, clothing, and consistent financial support.

         Prior to the instant removal proceedings and before his eighteenth birthday, Duncan applied for a certificate of citizenship on July 14, 2009. His application was denied in March 2010. Duncan appealed the denial of his application, which the Administrative Appeals Office (the "AAO") affirmed in February 2015, finding that Duncan failed to establish that he was in the "legal custody" or "physical custody" of his father because he did not reside with his father during the relevant period.[1]

         After Duncan's appeal was denied, the government initiated removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(2) based on his convictions for four crimes committed between October 2008 and January 2011. The government charged three grounds of removability: (1) his conviction of a crime of violence under 18 U.S.C. § 16, which was an aggravated felony; (2) his conviction of two crimes involving moral turpitude that did not arise from a single scheme; and (3) his conviction for a firearm offense.

         Duncan moved to terminate the proceedings on the basis that he was not removable because he had derived citizenship through his father under the CCA. As a citizen, he would not be removable from the United States under § 1227(a)(2), which only ...


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