FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
H
ERBERT
P
ADILLA
C
ARINO
,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-72985
Agency No.
A043-023-209
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 22, 2020
Honolulu, Hawaii
Filed May 18, 2021
Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wallace
2 PADILLA CARINO V. GARLAND
SUMMARY
*
Immigration
Denying Herbert Padilla Carino’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that where it has not been proven that a custody order
was entered in error, was contrary to law, or otherwise did
not reflect the true legal relationship between a petitioner’s
parents, a nunc pro tunc order cannot retroactively establish
a naturalized parent’s sole legal custody for the purposes of
derivative citizenship under former 8 U.S.C. § 1432(a).
Carino was born in 1981 in the Philippines to Philippine
citizen parents, who married after his birth. Carino’s father
immigrated to the United States in 1982 and naturalized in
1988. In 1990, while living in Hawaii, Carino’s father filed
for divorce, and the Hawaii family court awarded joint legal
custody to the parents. In 1991, Carino was admitted to the
United States as a lawful permanent resident. In 2013, after
Carino was placed in immigration proceedings due to a drug-
related conviction, his parents signed a stipulation that his
father was to have sole legal and physical custody of Carino
since his arrival in the United States. The Hawaii family
court issued a nunc pro tunc order granting physical custody
of Carino to his father retroactively to 1991.
In pertinent part, the applicable derivative citizenship
statute, former 8 U.S.C. § 1432(a), provides that a child
derives citizenship upon the “naturalization of the parent
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PADILLA CARINO V. GARLAND 3
having legal custody of the child when there has been a legal
separation of the parents.” With respect to the legal custody
element, this court has held that it refers to sole legal
custody. Here, the Board concluded that Carino was
ineligible for derivative citizenship because there was no
evidence that his parents entered into a legal agreement in
1991 that transferred sole legal custody to his father.
However, the Board affirmed the immigration judge’s grant
of protection under the Convention Against Torture.
The panel held that Congress did not intend for this type
of nunc pro tunc order, one untethered from the facts as they
were during Carino’s childhood, to give rise to automatic
derivative citizenship under section 1432(a). First, the panel
explained that this court has rejected the expansive view of
nunc pro tunc power on which Carino relied. Next, the panel
agreed with the First and Fifth Circuits that a strictly federal
ground provides a basis for rejecting Carino’s argument,
explaining that recognizing this nunc pro tunc order for the
purposes of section 1432(a) would not serve the statute’s
purpose of protecting the parental rights of a non-citizen
parent. Also agreeing with the First and Fifth Circuits, the
panel concluded that allowing a state court to modify
retroactively a custody agreement during a petitioner’s
adulthood would improperly give the state court the power
to affect the terms and conditions of naturalization.
Further, the panel explained that its holding was
consistent with prior precedent of this court that gave weight
to a nunc pro tunc order where the record indicated that the
order did not retroactively create new relationships, but
rather recognized an existing relationship under state law.
Likewise, the panel noted that other circuits have
acknowledged that it might be appropriate to accord weight
4 PADILLA CARINO V. GARLAND
to a nunc pro tunc modification of a custody agreement to
correct an error or reflect the parents’ actual agreement.
COUNSEL
Gary G. Singh (argued), Law Office of Gary G. Singh,
Honolulu, Hawaii, for Petitioner.
Laura Halliday Hickein (argued), Trial Attorney; Shelley R.
Goad, Assistant Director; Merrick B. Garland, Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
WALLACE, Circuit Judge:
Petitioner Herbert Padilla Carino seeks review of the
final order of the Board of Immigration Appeals (Board),
which denied Carino’s request to reconsider the Board’s
November 14, 2016, denial of his derivative citizenship
claim. Carino argues that he is a derivative citizen pursuant
to former Immigration and Nationality Act (INA) section
321(a). 8 U.S.C. § 1432(a). He points to a 2013 Hawaii state
court nunc pro tunc order, issued when Carino was an adult,
that purportedly modified his parents’ 1990 custody
agreement and retroactively established that Carino’s father
had sole legal custody of Carino while the child resided in
the United States. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(b)(5)(A). “We review de novo the legal questions
involved in a claim that a person is a national of the United
PADILLA CARINO V. GARLAND 5
States.” Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir.
2001). We deny the petition.
I.
Carino was born in the Philippines in 1981 to Philippine
citizens Domingo Carino and Prescila Padilla. His parents
were unmarried when he was born, but they married in 1985.
Carino’s father immigrated to the United States in 1982 and
became a naturalized U.S. citizen in 1988. In 1990, while
living in Hawaii, Carino’s father filed for divorce from
Carino’s mother. In its divorce decree, the family court
awarded “[j]oint legal custody to [Carino’s parents] with
primary physical custody to [Carino’s mother] subject to
[Carino’s father’s] rights of reasonable visitation.”
Following the divorce, Carino’s father filed a visa petition
for Carino to bring him to the United States. In 1991, Carino
was admitted to the United States in Hawaii as a lawful
permanent resident.
In 1994, Carino’s father applied for a certificate of
citizenship on behalf of Carino to memorialize a claim of
automatic derivative citizenship. Four months later,
Carino’s father withdrew the application and signed a
document that stated, “I understand that [Carino] [does] not
derive citizenship through my naturalization as I do not have
sole legal custody of the [child].” Carino’s father did not
apply for Carino’s naturalization when Carino was a minor,
and Carino did not apply for naturalization as an adult.
In 2007, Carino was convicted of a drug-related offense.
In 2013, the Department of Homeland Security (DHS)
issued a notice to appear charging Carino as removable
pursuant to former INA sections 237(a)(2)(A)(iii) and
237(a)(2)(B)(i) for having been convicted of an aggravated
felony drug trafficking offense and a controlled substance
6 PADILLA CARINO V. GARLAND
offense. In 2013, after Carino was placed into immigration
proceedings, his parents signed a stipulation that Carino’s
father was “to have sole[] legal and physical custody of
[Carino] . . . since his arrival in the United States of America,
on November 21, 1991.” On April 24, 2013, the Hawaii
family court issued a nunc pro tunc order granting “physical
custody” of Carino to his father retroactively to November
21, 1991. According to Carino, the order “was based on the
fact that [Carino] was living with his father since 1991, his
father was solely responsible and both parents signed a
stipulation agreeing that sole legal and physical custody was
with the father since 1991.”
Between 2013 and 2014, Carino appeared before the
Immigration Judge (IJ) and asserted a claim of derivative
citizenship based on his father’s 1988 naturalization. During
this time, Carino also submitted for the first time an
application for a certificate of citizenship to the U.S.
Citizenship and Immigration Services (USCIS), claiming
automatic derivative citizenship. In May 2014, USCIS
issued a notice of decision denying Carino’s application,
reasoning that the Hawaii family court order was not entered
until 2013, when Carino was an adult.
In November 2014, the IJ rendered an oral decision
holding that Carino qualified for automatic derivative
citizenship pursuant to former 8 U.S.C. § 1432(a).
According the nunc pro tunc order and the parents’
stipulation “high probative value,” the IJ held that “given
[Carino’s] testimony, the documents from the family court,
and the manner in which [Carino’s] father assumed custody
of [Carino], attempted to gain his certificate of citizenship,
and the fact that [Carino’s] mother never appears to have
contested her sons moving to Hawaii to live with their
PADILLA CARINO V. GARLAND 7
father,” Carino automatically derived citizenship from his
father. DHS appealed from the IJ’s decision to the Board.
In November 2016, the Board issued a decision holding
that the IJ erred in granting Carino’s request to terminate
proceedings based on a valid claim of derivative citizenship
and remanded. The Board reasoned that because Carino
presented no evidence to suggest that his parents entered into
a legal agreement in 1991 that would have transferred sole
legal custody to his father, a Hawaii state court acting in
1991 would not have recognized his father as having sole
legal custody.
In January 2017, the IJ held on remand that Carino was
eligible for protection under the Convention Against Torture
(CAT) based on his fear of harm in the Philippines because
of his drug conviction and the treatment of people believed
to be involved with drugs in the Philippines under President
Rodrigo Duterte. In February 2017, DHS appealed from the
IJ’s decision to the Board, and in September 2017, the Board
affirmed the IJ’s decision granting CAT protection,
dismissed the appeal, and remanded the proceedings for
background checks. In September 2017, the IJ entered an
order granting Carino CAT protection. Carino appealed from
the IJ’s decision to the Board, again challenging the denial
of his automatic derivative citizenship claim. In October
2018, the Board construed Carino’s filing as a motion to
reopen or for reconsideration of its prior decision and
dismissed the appeal.
II.
“[D]erivative citizenship is determined under the law in
effect at [the] time the critical events giving rise to eligibility
occurred.” Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th
Cir. 2005). We analyze Carino’s derivative citizenship
8 PADILLA CARINO V. GARLAND
claim pursuant to section 321(a) of the INA, 8 U.S.C.
§ 1432(a) (section 1432(a)), the provision in effect from the
time Carino began residing in the United States in 1991 until
Carino’s eighteenth birthday in 1999.
Section 1432(a) provides, in pertinent part, that:
A child born outside of the United States of
alien parents . . . becomes a citizen of the
United States upon fulfillment of the
following conditions: . . .
(3) The naturalization of the parent having
legal custody of the child when there has been
a legal separation of the parents . . . ; 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 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.
8 U.S.C. § 1432(a) (repealed 2000).
Carino meets the fourth condition because his father was
naturalized in 1988 when Carino was six years old. Carino
meets the fifth condition because he began to reside in the
United States in 1991 when he was nine years old.
PADILLA CARINO V. GARLAND 9
The central issue is whether Carino meets the third
condition. The meaning of the term “legal custody” as
contained in section 1432(a)(3) is a question of federal
statutory interpretation. See United States v. Casasola,
670 F.3d 1023, 1029–32 (9th Cir. 2012). “Although
uniformity is an important concern in federal statutory
interpretation, where the term in question involves a legal
relationship that is created by state or foreign law, the court
must begin its analysis by looking to that law.” Minasyan,
401 F.3d at 1076 (citations omitted). “This is especially true
where a statute deals with a familial relationship; there is no
federal law of domestic relations, which is primarily a matter
of state concern.” De Sylva v. Ballentine, 351 U.S. 570, 580
(1956).
Carino satisfies the third condition’s parental legal
separation element because his parents separated in 1990
when Carino was nine years old. However, with respect to
the condition’s legal custody element, we have held that
within the context of section 1432(a), “[t]he phrase ‘legal
custody[]’ . . . means sole legal custody.” Casasola,
670 F.3d at 1029; see id. at 1031 (reasoning, in part, that “if
[section] 1432(a) were interpreted to allow the naturalization
of one parent with joint legal custody to confer automatic
derivative citizenship on a child, the statute would not serve
the purpose of protecting the custodial, non-citizen parent”).
Here, the state court’s 1990 decree served as a judicial
determination that established joint legal custody between
Carino’s parents. Cf. Minasyan, 401 F.3d at 1076 & n.12
(recognizing the government’s concession that the
naturalized parent’s actual custody of the petitioner satisfied
the legal custody condition because “[i]n the absence of a
judicial determination or judicial statutory grant of custody
where the parents are legally separated, the parent having
actual uncontested custody is to be regarded as having ‘legal
10 PADILLA CARINO V. GARLAND
custody’ of the person concerned” (alteration in original)
(citation omitted)). Carino has not shown — and does not
allege — that there was a subsequent judicial determination
or agreement between his parents before his eighteenth
birthday that transferred sole legal custody to his father.
Carino, therefore, does not meet the third condition of
section 1432(a) and does not automatically derive U.S.
citizenship from his father.
III.
Carino argues that he nevertheless meets the third
condition of section 1432(a) and automatically derives U.S.
citizenship from his father because of the 2013 state court
nunc pro tunc order.
1
At oral argument, Carino conceded
that he sought the 2013 order not to correct an error in the in
the 1990 decree, but rather to improve Carino’s position in
his immigration proceedings. Carino’s argument, therefore,
suggests that even where there is no evidence of a scrivener’s
error or an agreement between parents to transfer legal
custody to the naturalized parent during a petitioner’s
childhood, a nunc pro tunc order can retroactively establish
a naturalized parent’s sole legal custody for the purposes of
automatic derivative citizenship under section 1432(a). For
the reasons discussed below, we conclude that it cannot.
1
Although the stipulation signed by Carino’s parents in 2013 stated
that Carino’s father was to have “sole[] legal and physical custody” of
Carino since 1991, the state court’s order grants the “motion to modify
physical custody.” We do not reach whether the state court nunc pro
tunc order also applied to the legal custody arrangement between
Carino’s parents as the distinction does not affect our holding.
PADILLA CARINO V. GARLAND 11
A.
First, we have rejected the expansive view of nunc pro
tunc power on which Carino’s argument relies. 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, although the law
of the state as construed by the state’s highest court is
controlling on the issue. Comm’r v. Estate of Bosch,
387 U.S. 456, 457, 465 (1967); see also Fierro v. Reno,
217 F.3d 1, 5 (1st Cir. 2000). “Nunc pro tunc merely
describes inherent power of court to make its records speak
the truth. . . . Nunc pro tunc signifies now for then, or in
other words, a thing is done now, which shall have same
legal force and effect as if done at time when it ought to have
been done.” United States v. Allen, 153 F.3d 1037, 1044 (9th
Cir. 1998), quoting Nunc Pro Tunc, Black’s Law Dictionary
(5th ed. 1979). However, a court’s nunc pro tunc order to
“make its records speak the truth” must be consistent with
the facts at the time of the original judgment. In United
States v. Sumner, 226 F.3d 1005 (9th Cir. 2000), we held the
following:
The power to amend nunc pro tunc is a
limited one, and may be used only where
necessary to correct a clear mistake and
prevent injustice. It does not imply the ability
to alter the substance of that which actually
transpired or to backdate events to serve
some other purpose. Rather, its use is limited
to making the record reflect what the . . .
court actually intended to do at an earlier
date, but which it did not sufficiently express
or did not accomplish due to some error or
inadvertence.
12 PADILLA CARINO V. GARLAND
Id. at 1009–10 (emphasis added) (quotation marks and
citations omitted).
Carino’s argument fails in part because it erroneously
assumes that the Hawaii state court could alter what actually
happened during his childhood and backdate his parents’
2013 agreement to serve the purposes of his immigration
proceedings. However, we need not conclusively determine
whether the 2013 state court order was a proper nunc pro
tunc order. We hold that Congress did not intend for this
type of nunc pro tunc order, one untethered from the facts as
they were during Carino’s childhood, to give rise to
automatic derivative citizenship under section 1432(a).
B.
We agree with the First and the Fifth Circuits that a
strictly federal ground provides a basis for rejecting Carino’s
argument. See Bustamante-Barrera v. Gonzales, 447 F.3d
388, 400–01 (5th Cir. 2006) (holding that the petitioner did
not meet section 1432(a)’s criteria despite a state nunc pro
tunc order, which retroactively awarded sole legal custody
to the petitioner’s citizen mother, because during the
relevant time his parents shared joint legal custody); Fierro,
217 F.3d at 6 (holding that a state nunc pro tunc order, which
retroactively changed custody from the petitioner’s non-
citizen mother to his citizen father, did not establish that the
petitioner met section 1432(a)’s criteria because during the
relevant time he was in his mother’s custody). In enacting
section 1432(a), “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.” Minasyan,
401 F.3d at 1080 n.20, quoting Fierro, 217 F.3d at 6. “In
enacting this particular derivative citizenship provision,
Congress sought to protect parental rights, to preserve the
family unit, and to ensure that only those alien children
PADILLA CARINO V. GARLAND 13
whose ‘real interests’ were located in the United States with
their custodial parent, and not abroad, should be
automatically naturalized.” Id. at 1079. We have
acknowledged that “[i]f United States citizenship were
conferred to a child where one parent naturalized, but the
other parent remained an alien, the alien’s parental rights
could be effectively extinguished.” Barthelemy v. Ashcroft,
329 F.3d 1062, 1066 (9th Cir. 2003), overruled in part on
other grounds as recognized in United States v. Mayea-
Pulido, 946 F.3d 1055, 1062 (9th Cir. 2020). Here, the
parental rights of Carino’s mother were not at stake because
Carino achieved majority in 1999 and neither parent had
custodial rights in 2013 when the state court entered its nunc
pro tunc order. Recognizing this nunc pro tunc order for the
purposes of section 1432(a) would not serve the statute’s
purpose of protecting the parental rights of a non-citizen
parent.
We also agree with the First and the Fifth Circuits that
“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.” Fierro, 217 F.3d at 6; see also Bustamante-
Barrera, 447 F.3d at 401. We have held that foreign
nationals can only obtain U.S. citizenship “upon terms and
conditions specified by Congress,” and “[c]ourts are without
authority to sanction changes or modifications; their duty is
rigidly to enforce the legislative will. . . .” Zixiang Li v.
Kerry, 710 F.3d 995, 1003 (9th Cir. 2013), quoting INS v.
Pangilinan, 486 U.S. 875, 884 (1988). Allowing a state
court to modify retroactively a custody agreement during a
petitioner’s adulthood would improperly give the state court
the power to affect the terms and conditions of
naturalization.
14 PADILLA CARINO V. GARLAND
We hold that where it has not been proven that a custody
order was entered in error, was contrary to law, or otherwise
did not reflect the true legal relationship between a
petitioner’s parents, a nunc pro tunc order cannot
retroactively establish a naturalized parent’s sole legal
custody for the purposes of section 1432(a). Accordingly,
the 2013 state court order that purportedly nunc pro tunc
modified Carino’s parents’ 1990 custody arrangement did
not retroactively transfer sole legal custody to Carino’s
father for the purposes of section 1432(a).
C.
Our holding here is consistent with our prior decisions.
In Minasyan, we held that a nunc pro tunc divorce decree
entered after the petitioner had achieved majority established
for the purposes of section 1432(a) that his parents had
legally separated before his mother’s naturalization because
the decree “did not create a legal fiction, but rather
acknowledged a separation that was actually in effect both
in practice and as a matter of [state] law” during the relevant
time. 401 F.3d at 1080 n.20. We accorded weight to the
nunc pro tunc order entered after the petitioner’s eighteenth
birthday because the record indicated that the order did not
retroactively create new legal relationships, but rather
recognized an existing relationship under state law.
Other circuits have also acknowledged that it might be
appropriate to accord weight to a nunc pro tunc modification
of a custody agreement to correct an error or reflect the
parents’ actual agreement. In Bustamante-Barrera v.
Gonzales, 447 F.3d 388 (5th Cir. 2006), the Fifth Circuit
acknowledged: “It is at least possible that circumstances
could exist in which such a decree would legitimately
demonstrate that an alien child had in fact been in the sole
legal custody of his one naturalized parent prior to his
PADILLA CARINO V. GARLAND 15
eighteenth birthday.” Id. at 401. In Fierro v. Reno, 217 F.3d
1 (1st Cir. 2000), the First Circuit stated: “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.” Id. at 7.
IV.
The Board did not err in holding that Carino failed to
show that he meets the third condition of section 1432(a) and
that he did not automatically derive U.S. citizenship from his
father.
The petition for review is DENIED.
