HOWARD EGBA DUNCAN, JR., a/k/a Duncan Egbaf, a/k/a Howard Duncan, Petitioner,
WILLIAM P. BARR, Attorney General, Respondent.
Argued: November 1, 2018
Petition for Review of an Order of the Board of Immigration
Michael S. DePrince, PEPPER HAMILTON LLP, Philadelphia,
Pennsylvania, for Petitioner.
Lindsay Donahue, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Anthony Vale, Kate A. Mahoney, PEPPER HAMILTON LLP,
Philadelphia, Pennsylvania, for Petitioner.
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.
MOTZ, DUNCAN and QUATTLEBAUM, Circuit Judges.
DUNCAN, CIRCUIT JUDGE:
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.
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.
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.
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.
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
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.
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