Imad Jaffal v. Director Newark New Jersey Fie ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3148
_____________
Imad Jaffal,
Appellant
v.
Director Newark New Jersey Field Office Immigration &
Customs Enforcement; Director United States Immigration
and Customs Enforcement; The Attorney General of the
United States of America; Secretary United States
Department of Homeland Security
________________
On Appeal from the District Court for the
District of New Jersey
(D.C. No. 2-18-cv-05237)
District Judge: Hon. Stanley R. Chesler
________________
Argued on July 15, 2021
Before: McKEE, GREENAWAY, JR., and RESTREPO,
Circuit Judges
(Opinion filed: January 19, 2022)
Alexandra V. Tseitlin (Argued)
Tseitlin Law Firm P.C.
345 Seventh Avenue, 21st Floor
New York, NY 10001
Counsel for Appellant
Enes Hajdarpasic, Assistant United States Attorney
J. Andrew Ruymann
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Merrick Garland, United States Attorney General
Brian M. Boynton, Acting Assistant Attorney General
William C. Peachey, Director, District Court Section Office of
Immigration Litigation
Samuel P. Go, Assistant Director
Dhruman Y. Sampat , Trial Attorney (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
Counsel for Appellees
________________
OPINION OF THE COURT
________________
McKEE, Circuit Judge
Appellant Imad Jaffal, born in Jordan, seeks a
declaration that he is entitled to derivative U.S. citizenship
under former 8 U.S.C. § 1432(a). That statute provides that “a
child born outside the United States automatically acquires
United States citizenship if, while the child is under the age of
eighteen, the parent with legal custody of the child is
naturalized while that child’s parents are legally separated.” 1
Jaffal’s father was naturalized when Jaffal was seventeen years
old, and Jaffal presented evidence to the District Court that he
was in the sole legal custody of his father when his father was
1
Morgan v. Att’y Gen., 432 F.3d 226, 228 (3d Cir. 2005).
2
naturalized and his parents were separated. The District Court,
however, declined to accept Jaffal’s evidence of his parents’
divorce. Because we conclude that was error, we will reverse
the order of the District Court and remand the matter with
instructions to issue a judgment declaring Jaffal to be a
national 2 of the United States.
I.
The evidence presented to the District Court establishes
the following facts. Imad Jaffal’s parents, Naim Khalil Ismail
Jaffal (father) and Nimeh Amin Odetallah Musleh (mother),
were married in Amman, Jordan, on January 19, 1963. 3
Appellant, Imad Jaffal, was born in Amman, Jordan, on March
20, 1965. 4 Appellant came to the United States as a lawful
permanent resident with his parents and siblings when he was
eleven years old. Between 1979 and 1982, Jaffal and his family
lived in Cleveland, Ohio. 5
In 1981, Jaffal’s mother traveled from Ohio to Jordan
and remained in Jordan from January to April, 6 and returned
again in September and stayed into October. 7 In September
1981, Jaffal’s father also traveled to Jordan and met with
Jaffal’s mother. There, he divorced Jaffal’s mother pursuant to
Jordanian law, by declaring first to her and then to a Sharia
Judge that he was divorcing her. 8 After divorcing Jaffal’s
2
Pursuant to 8 U.S.C. § 1101(a)(22), “[t]he term ‘national of
the United States’ means (A) a citizen of the United States[.]”
3
App. 40.
4
Id.5
Id.6
App. 287.
7
App. 236, 238 (“Because [my husband and I] had a
problem between us . . . I went to Jordan for a few months
in 1981. . . . He came to Amman [in September]. We had a
fight over there. He divorced me verbally. And I came,
around two weeks after that, I came back. . . . I think
around October.”).
8
App. 500 (documenting Naim Jaffal’s travel to Jordan in
September 1981); App. 246–48 (“We had an argument. We
always had arguments. And he divorced me. In Muslim way,
he divorced me verbally.”); App. 40 (“Document of
3
mother, Jaffal’s father obtained sole legal custody of Jaffal and
three of Jaffal’s siblings. 9
Following the divorce, both of Jaffal’s parents returned
to Ohio. Jaffal’s mother lived in the family home for a few
months and then moved out to live with her mother and sister
in a house in the same neighborhood. 10 Jaffal continued to live
in the family home with his father and siblings. 11 Jaffal’s father
was naturalized in April 1982, when Jaffal was seventeen years
old. 12 Jaffal’s father died on November 10, 1984. 13
In March 2016, Jaffal filed an N-600 Application for
Certificate of Citizenship, seeking derivative U.S. citizenship
through his father. 14 USCIS denied his application and his
subsequent Motion to Reopen. 15 Thereafter, Jaffal brought this
action in the District Court for the District of New Jersey
seeking a declaratory judgment under 8 U.S.C. § 1503(a) that
he was entitled to derivative citizenship under 8 U.S.C. §
1432(a).
Jaffal presented evidence of his parents’ separation and
his father’s legal custody determination to the District Court.
The following four documents are relevant to this appeal:
• “Document of Revocable Divorce/ First Statement”
(“Jordanian Divorce”). 16 This document is dated January
26, 2016, and it was obtained by a lawyer hired by Jaffal’s
Revocable Divorce/ First Statement”); App. 61 (“Divorce
Acknowledgement Deed.”).
9
See App. 59 (“Legal Authentication Court Proof of
Legitimacy sole Custody”).
10
App. 236–37 (“He divorced me verbally. And I came,
around two weeks after that, I came back [to our home in
Ohio]. We stayed, I stayed by him around a month or two.
So he said, ‘I divorced you after three months, we are
Muslim, I divorced you, why are you staying with me?’ So
after that, I went to stay by my mother and my sister.”).
11
App. 182–83.
12
App. 283.
13
App. 285.
14
App. 322–26.
15
App. 330–33.
16
App. 40.
4
mother on a visit to Jordan. 17 The document is a sworn
statement by the Sharia Judge in Amman who performed
Jaffal’s parents’ divorce in 1981. In the document, the
Judge states that Jaffal’s father appeared before him on
September 12, 1981, and orally divorced Jaffal’s mother,
making the statement in front of two witnesses. 18 The
document also states that the divorce became irrevocable
three months after the initial separation because Jaffal’s
father did not remarry his mother during the three-month
waiting period. 19
• Letter from Osamah Salhia. 20 In this letter to the court,
Imam Osamah Salhia explains the procedure for divorce
under Sharia Law in Jordan. The letter states that the Imam
reviewed the Jordanian Divorce and its certified translation,
which affirmed that Jaffal’s parents’ divorce was
“registered in the Sharia Court of the Hashemite Kingdom
of Jordan pursuant to the marriage contract No. (146398)”
and that “[t]he divorce was executed on 12/09/1981”
(September 12, 1981). 21 It also explains that “[t]he initial
decree issued by the court was a revocable divorce. In
Islamic law, a revocable divorce is one that can be
reinstated without a new marriage contract.” 22 The
requirement “for a revocable divorce to be recognized is for
remarriage to occur during the waiting period, which is a
period of approximately three months. If the marriage is not
reinstated during the waiting period, the marriage is
officially terminated.” 23
• “Divorce Acknowledgement Deed.” 24 This document,
dated January 15, 2017, and signed by Dr. Omar Hasan Al
Khreisat, a Supreme Judge of the South Amman Legal
Court, states that Jaffal’s mother appeared before the judge
17
App. 249–50.
18
Id.19
Id.20
App. 69.
21
Id.22
Id.23
Id.24
App. 61.
5
and affirmed that she was married to Jaffal’s father in 1963
and divorced from him on September 12, 1981. 25
• “Legal Authentication Court Proof of Legitimacy Sole
Custody.” 26 In this document, dated June 6, 2016, a Sharia
Judge declares that Imad Jaffal and three of his siblings
were born to Jaffal’s parents, and “were living with their
Father Naim Jaffal who [g]ained full custody as of
09/15/1981.” 27
Jaffal argued that these documents definitively
demonstrated that his parents were legally separated in
September 1981 and that he was in the sole custody of his
father when his father was naturalized in 1982. On this basis,
he claimed he was eligible for derivative citizenship under §
1432(a).
The government moved for summary judgment, arguing
that Jaffal “ha[d] no evidence to prove two essential elements
of his claim: 1) Plaintiff cannot establish that a legal separation
had occurred at the time of his father’s naturalization; and 2)
Plaintiff cannot establish that his father had legal custody of
him at the time of his father’s naturalization.” 28 The Court
agreed, reaching only the first issue, legal separation. It ruled
that the Jordanian Divorce “on which Plaintiff relies to meet
the legal separation requirement is not entitled to recognition
under Third Circuit law.” 29 It found that under Perrin v.
Perrin, 30 our precedent requires that the divorce or separation
25
Id. Jaffal’s mother stated, “[W]e were divorced, and we
separated each other since that date.” Id. She acknowledged
that “[her] waiting period from such divorce had been elapsed
which classif[ied] such divorce [as] final and absolute as he
did not bring [her] back to his marriage bond since [the] date
of divorce.” Id.
26
App. 59.
27
Id. The document provides that it was “[a]pproved and
sealed by the Court and approved and sealed by the Jordanian
Ministry of Foreign affairs.” Id.28
Jaffal v. Thompson, No. 18-5237, 2020 WL 6074473, at *2
(D.N.J. Oct. 15, 2020).
29
Id.30
408 F.2d 107, 111 (3d Cir. 1969).
6
proceeding be “bilateral,” meaning that both parents must have
appeared either in person or through counsel. The Court
rejected Jaffal’s claim because his parents’ divorce was
unilateral. 31 It found no evidence that Jaffal’s “mother
participated in the Jordanian Divorce in any way.” 32
Accordingly, “[p]ursuant to Perrin,” it found “the Jordanian
Divorce is not recognized under Third Circuit law.” 33
In addition, the Court concluded that the Jordanian
divorce was not issued by a court of competent jurisdiction.34
It found that “[u]nder our system of law, judicial power to grant
a divorce – jurisdiction, strictly speaking – is founded on
domicil [sic].” 35 And the Court found that there was “no
dispute that, at the time of the Jordanian Divorce, Plaintiff’s
mother and father were both domiciled in the state of Ohio.” 36
Since the Court concluded that Jaffal could not demonstrate the
legal separation prong of § 1432(a), it did not address whether
Jaffal was in the sole legal custody of his father at the time of
his father’s naturalization. Instead, the Court granted summary
judgment to the government. Jaffal timely appealed. 37
II.
The District Court had jurisdiction to consider Jaffal’s
claim for derivative citizenship under 8 U.S.C. § 1503(a).
Section 1503(a) provides the mechanism by which an
individual “may institute an action . . . for a judgment declaring
him to be a national of the United States.” 38 We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
31
Jaffal, 2020 WL 6074473, at *3.
32
Id.33
Id. at *4.
34
Id.35
Id. (quoting Williams v. North Carolina, 325 U.S. 226, 229
(1945)).
36
Id.37
App. 609.
38
8 U.S.C. § 1503 (“If any person who is within the United
States claims a right or privilege as a national of the United
States and is denied such right or privilege by any department
or independent agency, or official thereof, upon the ground
that he is not a national of the United States, such person may
7
We review a district court’s grant of summary judgment
de novo and apply the same summary judgment standard as the
district court. 39 We will affirm a grant of summary judgment
only if, “after drawing all reasonable inferences from the
underlying facts in the light most favorable to the nonmoving
party, [we] conclude[] that there is no genuine issue of material
fact to be resolved at trial and the moving party is entitled to
judgment as a matter of law.” 40
A. “Legal separation” under § 1432(a).
At issue in this appeal is 8 U.S.C. § 1432(a), which, as
noted, “provides that a ‘child born outside of the United States
of alien parents . . . becomes a citizen of the United States upon
. . . [t]he naturalization of the parent having legal custody of
the child when there has been a legal separation of the
parents.’” 41 “The child must also be under eighteen years of
institute an action . . . for a judgment declaring him to be a
national of the United States.”).
39
Cranbury Brick Yard, LLC v. United States, 943 F.3d 701,
708 (3d Cir. 2019).
40
Bryan v. United States, 913 F.3d 356, 361 n.10 (3d Cir.
2019) (citation and quotations omitted).
41
Morgan, 432 F.3d at 230 (alteration in original) (quoting 8
U.S.C. § 1432(a)). In greater detail, 8 U.S.C. § 1432(a)
provides:
(a) A child born outside of the United States of
alien parents, . . . becomes a citizen of the
United States upon fulfillment of the following
conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if
one of the parents is deceased; or
(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
8
age at the time of the parent’s naturalization and be residing in
the United States as a lawful permanent resident.” 42 When
these statutory conditions are met, the child is automatically
entitled to U.S. citizenship. 43
In October 2000, “Congress repealed § 1432 by
enacting the Child Citizenship Act of 2000, [‘CCA’] Pub. L.
No. 106-395, 114 Stat. 1631,” 44 codified at 8 U.S.C. § 1431 et
seq. However, because all of the relevant facts here occurred
before the passage of the CCA, § 1432(a) controls Jaffal’s
claim to derivative citizenship. 45 The government does not
dispute that Jaffal was residing in the United States as a legal
permanent resident and was under eighteen years of age when
his father was naturalized. Accordingly, the only disputed
issues in this appeal are (1) whether Jaffal’s parents were
legally separated at the time of Jaffal’s father’s naturalization
and (2) whether Jaffal’s father then had custody of Jaffal.
We have analyzed the “legal separation” prong of §
1432(a) in two cases which are instructive here, Morgan v.
Attorney General and Espichan v. Attorney General. 46 In
Morgan, the plaintiff, a Jamaican national, sought derivative
citizenship under § 1432(a). Similarly to Jaffal, she alleged that
her parents had been “legally separated” when her parent
having legal custody – her mother – was naturalized, and that
she otherwise met the criteria for derivative citizenship under
(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 last naturalized under clause (1) of this
subsection, or 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.
42
Morgan, 432 F.3d at 230.
43
Id.
44
Id. at 230 n.1.
45
Id. (“The [CCA], however, does not apply retroactively to
persons, like petitioner, who turned eighteen before Congress
passed the [CCA].”).
46
945 F.3d 794 (3d Cir. 2019).
9
the statute. 47 We noted that the statute “does not contain a
definition of the term ‘legal separation,’” 48 and we therefore
“defer[red] to the jurisdictions with authority over the marriage
to determine the meaning of legal separation for purposes of §
1432(a)(3).” 49
Plaintiff Morgan’s parents had been married in Jamaica,
but plaintiff’s mother (and plaintiff) were living in
Pennsylvania at the time of her naturalization. Accordingly, we
concluded that “[i]n this case . . . both Jamaica and
Pennsylvania had jurisdiction” over the marriage. 50 We
therefore looked to whether either Jamaica or Pennsylvania
had “decreed a separation.” 51
Looking first at Jamaica, we found that “[a]t the time of
the petitioner’s mother’s naturalization in 1984, Jamaica
recognized a right to a judicial separation which Jamaican law
distinguished from absolute divorce.” 52 We concluded “[t]here
[wa]s no evidence that any Jamaican court ever issued a decree
of judicial separation to the petitioner’s parents,” 53 nor had any
Jamaican court issued an absolute divorce. Having failed to
find evidence of a legal separation under Jamaican law, we
then looked to Pennsylvania law but found that no separation
had occurred under Pennsylvania law either. We therefore
concluded that Morgan’s parents had not been legally
separated under the statute.
We held that legal separation under § 1432(a) occurs
“upon a formal governmental action, such as a decree issued
by a court of competent jurisdiction that, under the laws of a
state or nation having jurisdiction over the marriage, alters the
marital relationship of the parties.” 54 We clarified, however,
that “[t]he formal action need not necessarily be a judicial
47
Morgan, 432 F.3d at 229.
48
Id. at 231.
49
Id. at 233.
50
Id. at 234 (emphasis added); see also id. at 232 (“The law
of a foreign country may be applicable in some instances as
an alternate or in addition to state law.”).
51
Id. at 234.
52
Id. at 233
53
Id.
54
Id. at 234.
10
decree.” 55 Instead, we found that the state or foreign nation’s
law controlled the inquiry. A state or foreign nation could, for
example, “allow an administrative agency or other
governmental body to issue orders of separation.” 56 Or, in
some instances, there may be no need to show any government
action. We concluded, “[c]onceivably, some jurisdictions
might consider parties ‘legally separated’ if they lived apart for
a period of time without seeking any governmental
imprimatur.” 57 But because “[w]e kn[e]w of no jurisdiction
that ha[d] adopted such a policy” we left “that issue for another
day.” 58
In Espichan, however, we encountered such a
jurisdiction. There, we considered a plaintiff’s claim for
derivative citizenship under the same statute, § 1432(a). As in
Morgan, we had to consider whether Espichan’s parents had
been legally separated at the time of Espichan’s father’s
naturalization. Espichan’s parents had been married in Peru.
Our inquiry into legal separation therefore looked first to the
family law of Peru. We found “[a]rticle 326 of the Peruvian
Civil Code of 1984 provide[d] that ‘[a] union in fact ends by
death, absence, mutual agreement, or unilateral decision,’” 59
and concluded that Espichan had demonstrated that his
parents’ marriage had ended by unilateral decision.
Espichan presented evidence that, in 1990, his mother
“filed a complaint at the police headquarters in Callao, Peru,
declaring as a matter of public record that she and Espichan’s
father, having lived together since 1970, separated in 1979.” 60
Together with Espichan’s submission of a declaration that such
action was sufficient under Peruvian law to effectuate a
divorce, we concluded that he had established as a matter of
law that there was a legal separation. 61 In so concluding, we
reaffirmed our analysis in Morgan. There, “we expressly
acknowledged that there may be a case where the relevant
55
Id. at 234 n.4.
56
Id.
57
Id.
58
Id.
59
Espichan, 945 F.3d at 800.
60
Id. at 796.
61
Id. at 801.
11
jurisdiction does not require any ‘governmental imprimatur’
for parties to become ‘legally separated.’” 62 This appeal
presents an example of such a case.
With these cases in mind, we turn to the District Court’s
denial of Jaffal’s claim for derivative citizenship. The District
Court found that Jaffal failed to show he was entitled to
derivative citizenship because he did not show that his parents
were legally separated when his father was naturalized. It
declined to recognize the Jordanian Divorce because it
concluded that the Jordanian Divorce “was not issued by a
court of competent jurisdiction” 63 and that Third Circuit
precedent requires that the divorce or separation proceeding be
“bilateral.” Both of these conclusions were erroneous. 64
We again clarify today that determination of “legal
separation” under § 1432(a) involves a limited inquiry. It is
limited to whether the plaintiff has established that there was a
valid divorce or legal separation under the law of a state or
foreign nation having authority over the marriage. A court
should not inquire into whether the action (or inaction if the
relevant jurisdiction recognizes separation without any formal
governmental action) taken to effectuate the divorce would be
sufficient to result in a legal separation in any U.S. jurisdiction.
Nor should a court impose any requirements in addition to
those required under the state or foreign nation’s law.
Appellees attempt to rely upon our holding in Perrin
and principles of comity in arguing that we should not
recognize the Jordanian divorce 65 even though it was
undeniably valid under Sharia law. 66 However, principles of
62
Id. at 800 (quoting Morgan, 432 F.3d at 234 n.4).
63
Jaffal, 2020 WL 6074473, at *4.
64
On appeal, the government repeats these claims, arguing
that the District Court correctly declined to recognize the
Jordanian Divorce because Jaffal did not present “evidence of
participation by Jaffal’s mother.” Appellee Br. at 28. But this
argument relies on the District Court’s erroneous
propositions.
65
Appellee Br. at 20.
66
App. 69. Imam Salhia of Al-Azhar University in Egypt, in
a letter dated December 25, 2016, affirmed that the divorce
12
comity simply do not apply here because Congress specifically
prescribed the effect of foreign decrees in §1432 cases. The
two references to “comity” in Perrin merely highlighted the
recognition of its principles in our decision to uphold the
Mexican decree in a bilateral divorce proceeding. 67 Congress
has clearly stated that, as long as a § 1432(a) petitioner
establishes that a valid, legal separation was effectuated under
the relevant state or foreign nation’s law, s/he has met the
burden of establishing a legal separation under § 1432(a). That
statute is the policy of the United States, and we are not
persuaded that concepts of comity in any way mitigate or
negate that congressional expression of United States policy
regarding foreign decrees for purposes of citizenship inquiries
under § 1432(a). 68 For the same reasons, Appellee’s attempts
to argue the effect of the Full Faith and Credit Clause are
simply unpersuasive.
B. The District Court erred in failing to recognize the
Jordanian Divorce.
Jordanian courts had authority to alter Jaffal’s parents’
marriage. As our analysis in Morgan makes clear, both the
state in which Jaffal and his father lived at the time of
naturalization, as well as the foreign marital country, could
appropriately exercise authority over the marriage for the
purposes of § 1432(a). 69
was carried out in accordance with Islamic Law. He discussed
the registration of the divorce in the Sharia Court of the
Hashemite Kingdom of Jordan and verified the legal
conversion of the initially “revocable divorce,” upon
expiration of the “waiting period,” into an “irrevocable
divorce.”
67
408 F.2d at 109 and 111
68
For a more thorough discussion of principles underlying the
doctrine of comity, see U.S. ex rel. Saroop v. Garcia, 109
F.3d 165, 168-71 (3d Cir. 1997).
69
See Morgan, 432 F.3d at 234 (concluding that “both
Jamaica and Pennsylvania had jurisdiction” over the
marriage) (emphasis added); Espichan, 945 F.3d at 799
(looking to Peruvian law to determine whether Espichan’s
parents had effectuated a legal separation according to the
Peruvian Civil Code).
13
The District Court erroneously concluded that, under
Morgan, the Jordanian Divorce was not issued by a “court of
competent jurisdiction” because Jaffal had not shown that
either of his parents were domiciled in Jordan. 70 In so
concluding, the court ignored the fact that we did not require
the plaintiff in Morgan to show that her parents were domiciled
in Jamaica (where the divorce had allegedly been granted). To
the contrary, the plaintiff and her mother in Morgan were
living in Pennsylvania at the time of the naturalization, but we
still took pains to first analyze the law of separation in Jamaica
– that is, in the marital jurisdiction – to see whether a legal
separation had been issued under Jamaican law. 71 Had
Jamaican courts failed to be “courts of competent jurisdiction,”
we would not have looked to Jamaican law. 72 Since Morgan,
our review of § 1432(a) claims has looked to the law of the
jurisdictions having authority over the marriage. That has been
the location where the couple was married and the state in
which the naturalized parent resided. 73
70
See Jaffal, 2020 WL 6074473, at *4.
71
Morgan, 432 F.3d at 233.
72
The court’s reliance on Perrin v. Perrin, 408 F.2d 107 (3d
Cir. 1969) for the proposition that “[o]rdinarily, the
recognition in the United States of [] a foreign decree will
depend upon whether at least one of the spouses was
domiciled in the foreign state when the decree of divorce was
rendered,” id. at 109, was misplaced. Perrin was not a case in
which we interpreted § 1432(a), and, in Perrin, we later held,
“domicile is not intrinsically an indispensable prerequisite to
jurisdiction.” Id. at 110. We recognized the divorce at issue in
that case, even though neither spouse was domiciled in
Mexico, where the divorce took place.
73
See, e.g., Espichan, 945 F.3d at 799 (looking to Peruvian
law). We note, too, that the laws of other foreign nations or
states could also have authority over a marriage, if, for
example, the married couple was issued a valid separation in
a third location that was neither the marital country nor the
state in which the parent was living at the time of
naturalization. The bottom line is that if a plaintiff presents
evidence of a valid separation under the laws of any
jurisdiction having proper authority over the marriage, such
14
Accordingly, both Ohio and Jordan had authority over
Jaffal’s parents’ marriage. The Jordanian court’s actual
exercise of jurisdiction by issuing the divorce in this case
satisfies us that jurisdiction was proper under Jordanian law.
Moreover, on appeal, the government does “not challeng[e] the
validity of the divorce.” 74 Instead, the government argues that
the Jordanian Divorce should not be recognized by a U.S. court
– at least for purposes of § 1432(a) – because only Jaffal’s
father appeared before the relevant tribunal.
The District Court noted that “Plaintiff alleges only that
his father obtained a unilateral divorce in Jordan[.]” 75 The
Court believed that recognizing such a proceeding for purposes
of Jaffal’s derivative citizenship claim “offend[s] . . . public
policy,” and that the Jordanian Divorce was not “recognized
under Third Circuit law.” 76 As noted, however, this directly
contradicts our conclusion in Espichan, where we recognized
a unilateral divorce for the purpose of § 1432(a). There we
explained that the Peruvian Civil Code – the law governing the
marriage at issue – allowed for a legal separation through
“death, absence, mutual agreement, or unilateral decision.” 77
Espichan presented evidence, unrebutted by the government,
evidence will be admissible to demonstrate the legal
separation prong of § 1432(a).
74
Oral Argument Transcript at 17. We note too that our own
review of Jordanian law demonstrates that Jordanian courts
had jurisdiction. Sharia Courts in Jordan have authority over
marriages and divorces, with no mention of a domicile
requirement. Instead, the only jurisdictional requirement in
such courts is that the parties to the divorce be Muslim. See,
e.g., Jordan, U.S. Dep’t of State, at 3, https://2009-
2017.state.gov/documents/organization/171737.pdf (“The
constitution [] provides that matters concerning personal
status, such as religion, marriage, divorce, child custody, and
inheritance, are under the exclusive jurisdiction of religious
courts. Muslims are subject to the jurisdiction of Islamic law
courts, which apply Islamic law adhering to the Hanafi school
of Islamic jurisprudence[.]”).
75
Jaffal, 2020 WL 6074473, at *3.
76
Id. at *3–4.
77
Espichan, 945 F.3d at 800.
15
that his parents’ marriage had been terminated by “unilateral
decision” in Peru. No other inquiry was necessary, and none
was undertaken. Rather, we concluded as a matter of law that
Espichan’s evidence of a unilateral divorce under Peruvian law
satisfied the legal separation prong of § 1432(a). The District
Court’s concern for “public policy” in refusing to recognize a
unilateral proceeding under Sharia law in Jordan ignores the
fact that public policy is set forth in § 1432(a). There, Congress
determined public policy for purposes of determining if
someone should become a U.S. citizen based upon the
naturalization of a custodial parent.
C. The Jordanian Divorce establishes Jaffal’s parents’
legal separation as a matter of law.
Jaffal produced the Jordanian Divorce, a sworn
statement by the Sharia Judge in Amman who performed his
parents’ divorce in 1981. 78 The document provides: “At the
Sharia session held by me, I, Frelwan Al-Khawaldeh, . . .
appeared before me the lawfully capable: Naim Khalil Ismail
Jaffal . . . [who] stated that: ‘I willingly and voluntarily want
to divorce my wife Nimeh Amin Odetallah Musleh, a
Jordanian national.’” 79 Judge Al-Khawaldeh swears that
Jaffal’s father stated, in front of two witnesses, “I say that my
wife Nimeh Amin Odetallah Musleh with whom I had
consummated the marriage, is divorced from my marriage
contract . . . and I do hereby request to register and serve the
divorce upon her.” 80 The document also provides that the
Judge instructed Jaffal’s father “it has been decided to serve
the [divorce] upon [Jaffal’s mother] duly,” and that the divorce
took place on “12.09.1981” (September 12, 1981). 81
78
App. 40.
79
Id.80
Id.81
Id. The document also provides that, as of January 26,
2016, “there is no entry indicating the remarriage between the
said spouses (divorce parties) . . . . Therefore, this divorce has
been turned into [i]rrevocable after termination of the period
of waiting of the said wife (divorcee) since that we have not
received what establishes that he ha[s] returned (remarried)
her.” Id.16
As in Espichan, Jaffal also introduced evidence
describing the procedure for obtaining a divorce under the
relevant law. 82 Jaffal introduced a letter from Imam Osamah
Salhia, which confirms that Jaffal’s parents’ divorce “was
registered in the Sharia Court of the Hashemite Kingdom of
Jordan pursuant to the marriage contract No. (146398)” and
that “[t]he divorce was executed on 12/09/1981.” 83 Moreover,
the Imam confirms that “[t]he initial decree issued by the court
[i]s a revocable divorce . . . one that can be reinstated without
a new marriage contract” if remarriage “occur[s] during the
waiting period.” 84 “If the marriage is not reinstated during the
waiting period, the marriage is officially terminated . . .
render[ing] the divorce an irrevocable divorce.” 85 The Imam
concluded that “[b]ased on the court documents, the
individuals concerned did not pursue remarriage, and hence,
the court decreed that the marriage was officially terminated,
and that decree was executed with the conclusion of the waiting
period.” 86
In Espichan, a similar evidentiary showing was
sufficient for us to conclude that, as a matter of law, Espichan’s
parents had been legally separated. Espichan presented
“evidence showing that his parents dissolved their de
facto marital union under Peruvian law,” and “[b]ecause the
Government [] failed to rebut Espichan’s evidence tending to
show that his parents had a legal separation, [we found] no
genuine issue of material fact, and . . . decide[d] the issue as a
matter of law” in Espichan’s favor. 87
The same result obtains here. The government has failed
to present any evidence to rebut Jaffal’s documentation of his
parents’ legal separation. To the contrary, at oral argument, on
numerous occasions, the government conceded that it was “not
challenging the validity of the divorce.” 88 We took pains to
clarify that issue and the government repeatedly represented
82
See App. 69.
83
App. 69.
84
Id.85
Id.86
Id.87
Espichan, 945 F.3d at 800–01.
88
Oral Argument Transcript at 14.
17
that the validity of the divorce (and, as we discuss below, the
custody determination), was not being questioned.89
Accordingly, we conclude, as a matter of law, that Jaffal’s
parents were legally separated at the time of Jaffal’s father’s
naturalization.
D. Jaffal was in the sole legal custody of his father at the
time of naturalization.
Because the District Court concluded that there was no
legal separation, it did not consider whether the only other
contested requirement in this case had been satisfied: whether
Jaffal was in the sole legal custody of his father when his father
was naturalized. We employ a “two-step test [for] legal
custody. First, if there is a ‘judicial determination or judicial or
statutory grant of custody,’ then the parent to whom custody
has been granted has legal custody for INA purposes.” 90 A
judicial determination of custody ends our inquiry. “Second, if
no such determination or grant exists, the parent in ‘actual
uncontested custody’ is deemed to have legal custody.” 91
Legal custody here is straightforward because there is a
judicial grant of custody from the Sharia Court in Amman.
That confirmed that Jaffal’s father had full legal custody of
Jaffal as of September 1981. The document, “Legal
Authentication Court Proof of Legitimacy [S]ole Custody”
signed by Judge Ali [F]aleh Almrei, states, in relevant part, that
“Imad Jaffal born 1965” was “living with [his] Father Naim
89
When asked, for example, “So you’re not challenging the
validity . . . of the divorce; correct?” Id. at 17. The
government’s attorney responded: “Your Honor, we’re not
challenging the validity of the divorce.” Id. See also id. at 27
(stating that the government “is not taking issue of the
validity of the divorce decree and the custodial decree for the
purposes of this argument.”); id. at 32 (“[B]ut you do concede
that the divorce decree is valid. You do concede that?” “For
the purposes of this argument, Your Honor.”). See also id. at
12, 13, 22 (making similar concessions).
90
Bagot v. Ashcroft, 398 F.3d 252, 259 (3d Cir. 2005)
(quoting in Matter of M—, 3 I. & N. Dec. 850, 856 (BIA
1950)).
91
Id. (quoting in Matter of M—, 3 I. & N. Dec. at 856).
18
Jaffal who Gained [sic] full custody as of 09/15/1981.” 92
Again, the government presented no evidence to rebut this
judicial grant of custody. Moreover, as is true for the Jordanian
Divorce, the government conceded at oral argument that it did
not challenge the validity of the custody determination. 93 That
ends our inquiry.
The government nonetheless argues that we must
analyze whether Jaffal’s father had “actual uncontested
custody” of Jaffal at the time of naturalization and claims that
Jaffal cannot show that was the case. 94 But, as our caselaw
makes clear, we only review “actual uncontested custody”
where there is no judicial determination of custody. 95 We need
not engage in that inquiry here because Jaffal presented an
uncontested custody determination from a Jordanian court.
That vests full custody of Jaffal in his father as of September
1981. Accordingly, we conclude, as a matter of law, that Jaffal
was in the sole legal custody of his father at the time of his
father’s naturalization.
III.
In sum, we hold that Jaffal’s parents were legally
separated at the time of Jaffal’s father’s naturalization and that
Jaffal was then in the sole legal custody of his father. There are
no contested issues remaining in this appeal. Because there is
no debate as to whether Jaffal is otherwise eligible, we hold
that Jaffal is entitled to derivative U.S. citizenship under §
1432(a). 96 For the reasons stated above, we will reverse the
District Court’s grant of summary judgment to the government
92
App. 59.
93
See Oral Argument Transcript at 27 (stating that the
government “is not taking issue of the validity of the divorce
decree and the custodial decree for the purposes of this
argument”).
94
Appellee Br. at 44, 46.
95
See, e.g., Bagot, 398 F.3d at 260–61 (“[I]f, for example, a
state court has entered a valid decree granting custody of a
child to the child’s father, then the father has ‘legal custody’
of the child.”).
96
Pursuant to the unambiguous text of 8 U.S.C. § 1432(a),
one becomes a U.S. citizen “upon fulfillment of the . . .
conditions” set forth in that statute.
19
and remand this matter to the District Court with instructions
to issue “a judgment declaring [Jaffal] to be a national of the
United States.” 97
97
8 U.S.C. § 1503.
20