Duncan v. Barr: States Define ‘Custody’ for Derivative Citizenship

Last Updated

August 17, 2021

CLINIC, in partnership with the Law Offices of Jezic & Moyse, LLC, defended a United States citizen from deportation, resulting in an important precedent concerning the circumstances under which citizenship is automatically derived. The University of Maryland Francis King Carey School of Law Immigration Clinic capably represented Mr. Duncan before referring the case to its alumni, Himedes Chicas and Michelle N. Mendez, and Pepper Hamilton LLP (now Troutman Pepper) argued the petition for review.

In its precedential decision, Duncan v. Barr, 919 F.3d 209 (4th Cir. 2019), the Fourth Circuit held that Maryland family law is binding on the question of whether Mr. Duncan had been in his U.S. citizen father’s legal and physical custody as required by the Child Citizenship Act (CCA), codified at 8 U.S.C. § 1431 as INA § 320. On remand, the Immigration Judge (IJ) relied on analysis of Maryland statutory language, case law, the facts in the record, and the testimony of an expert witness, to hold that Maryland state law treats custody as a parental right that is not dependent on the exercise of that right. As such, the parent’s legal and physical custody rights over the child do not terminate even if the parents make arrangements for a third party to have a power of attorney or a guardianship issued on the intended basis of the power of attorney. Applied to this case, although Mr. Duncan’s U.S. citizen father was incarcerated, his legal and physical custody over Mr. Duncan was still valid in absence of a court order saying otherwise. An approved guardianship petition by Mr. Duncan’s grandmother was not such an order because it did not terminate or diminish the father’s parental rights. The IJ therefore held that Mr. Duncan was in the legal and physical custody of his father during the required time period. Mr. Duncan met the other criteria under the CCA, so the IJ held that Mr. Duncan is a U.S. citizen and terminated his removal proceedings accordingly.