Duncan v. Barr (P)

In the petitioner’s claim for derivative citizenship and cancellation of removal, whether the government would acquiesce to torture under the Convention Against Torture is a mixed question of fact and law. Whether the petitioner was in the “physical custody” of his father under the Child Citizenship Act is likewise a mixed question of fact and law.

Here, the Board of Immigration Appeals applied the wrong standard of review as to both determinations. While the immigration judge’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 Board. Should the Board resolve the physical custody determination in the petitioner’s favor, it must also address whether or not he was in his father’s “legal custody” as the statute so requires for purposes of derivative citizenship.

Petition granted; remanded for further proceedings.

Duncan v. Barr (P), No. 17-2423, Mar. 19, 2019. 4th Cir. (Duncan) from BIA.



Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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