Opinion
CIVIL ACTION NO. 04-936
May 24, 2004
ORDER
AND NOW, this 24th day of May, 2004, upon consideration of petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (docket entry # 1) and the Government's response thereto, and the Court finding that:
(a) Petitioner was born on February 5, 1968, and her parents married each other in 1974;
(b) In 1978, petitioner's mother, Verna Simpson, emigrated from Jamaica to the United States, but she and her husband did not divorce or take other judicial steps to terminate their marriage or to formalize their physical separation;
(c) Petitioner legally entered the United States in 1981;
(d) On July 25, 1984, petitioner was sixteen years old, and Verna Simpson became a naturalized citizen of the United States;
(e) On February 5, 2004, an Immigration Judge ("IJ") ordered petitioner removed from the United States as an alien convicted of an aggravated felony;
(f) Though the Board of Immigration Appeals has yet to decide petitioner's appeal from the IJ's decision, petitioner has filed a petition for writ of habeas corpus claiming that her present "custody" is illegal because she is not an alien, as the IJ found, but is a citizen of the United States;
(g) Petitioner claims that she became a U.S. citizen when her mother was naturalized because, at that time, there had been a "legal separation" of her parents, see 8 U.S.C. § 1432(a)(3) (repealed 2000)
The Government concedes that, if there had been a "legal separation" of her parents, petitioner would have become a citizen when her mother was naturalized because all other relevant criteria in § 1432(a) were satisfied.
(h) Petitioner concludes that — when her mother was naturalized — her parents were "legal[ly] separat[ed]" because they were living "separate and apart" from each other
See 23 Pa. Cons. Stat. § 3301(d) (2004) (permitting a court to grant a no-fault divorce when the marital relationship is irretrievably broken and the spouses have been living "separate and apart" for at least two years).
(i) In other words, she contends that her parents wereactually legally separated because they may havequalified for a no-fault divorce;
(j) We disagree because every federal court of appeals to construe § 1432(a)(3) has held that a "legal separation" requires some sort of judicial intervention into an existing marriage and that informal cessation of cohabitation is insufficient, Brissett v. Ashcroft, 363 F.3d 130, 132 (2d Cir. 2004) ("In our view § 1432(a)(3)'s requirement of a `legal separation' is satisfied only by a formal act which, under the laws of the state or nation having jurisdiction of the marriage, alters the marital relationship either by terminating the marriage (as by divorce), or by mandating or recognizing the separate existence of the marital parties."); Suarez v. Ashcroft, 69 Fed. Appx. 184, 185 (4th Cir. 2003) ("We conclude that, under § 1432(a)(3), the term `legal separation' means a judicial separation."); Nehme v. INS, 252 F.3d 415, 425-26 (5th Cir. 2001) ("[W]e think Congress clearly intended that the naturalization of only one parent would result in the automatic naturalization of an alien child only when there has been a formal, judicial alteration of the marital relationship."); Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir. 2000) (explaining that "domestic relations law in the United States treats `legal separation' as the judicial suspension or dissolution of a marriage");
(k) Because petitioner has not pointed to a formal governmental action that altered the status of her parents' marriage between its inception and the time of her mother's naturalization, her parents were not legally separated when her mother was naturalized, and thus § 1432(a)(3) did not confer United States citizenship on petitioner;
It is hereby ORDERED that:
1. The petition for writ of habeas corpus is DENIED; and
2. The Clerk shall CLOSE this civil action statistically.