NEWS FROM THE COURTS

Moussa v. INS, Eighth Circuit

In this case, the court found that the respondent was a US citizen and therefore could not be deported. 

Gamal Adbi Moussa was placed in deportation proceedings in 1999 based on several criminal convictions.  He tried to avoid deportation by asserting a claim to US citizenship.  He had been born in Ethiopia in 1977.  In 1981, while he and his mother remained in Ethiopia, his father entered the US as a refugee.  The next year, his parents divorced, and in 1989, Moussa came to the US to live with his father.  Also in 1989, his parents were remarried through a proxy ceremony, but did not resume a shared life, as the mother remained in Ethiopia.  In 1992, his father became a citizen of the US.  At that time, immigration laws provided that a minor child would derive citizenship through a parent’s naturalization if the child is in the legal custody of the naturalizing parent following a legal separation.  Because of his parent’s remarriage, there was an issue about whether there was an effective legal separation.  The INS argued that there was not, that that Moussa therefore did not derive citizenship through his father’s naturalization.  An immigration judge disagreed, but on appeal, the Board of Immigration Appeals sided with the INS.  Moussa then appealed to the Eighth Circuit.

On appeal, Moussa argued that the 1989 proxy marriage did not terminate his parents’ legal separation, because it was not consummated until after his father was naturalized.  He pointed out that the Immigration and Nationality Act does not consider a proxy marriage to be legal until it is consummated.  The government argued that the court did not have jurisdiction over the case, but the court found that it did because the issue was not whether Moussa had committed deportable offenses, but whether he was an alien subject to deportation. 

On the merits, the court agreed with Moussa.  The fact that his parents had previously been married did not change the fact that the proxy marriage was not legal for immigration purposes until it was consummated.  Therefore, the court vacated the Board’s decision and declared Moussa a US citizen. 

The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/8th/013156p.pdf.

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