FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HERBERT PADILLA CARINO, No. 18-72985 Petitioner, Agency No. v. A043-023-209 MERRICK B. GARLAND, Attorney General, OPINION Respondent. 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 …
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