PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-2423 HOWARD EGBA DUNCAN, JR., a/k/a Duncan Egbaf, a/k/a Howard Duncan, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: November 1, 2018 Decided: March 19, 2019 Before MOTZ, DUNCAN and QUATTLEBAUM, Circuit Judges. Petition for review granted; remanded for further proceedings by published opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Quattlebaum concurred. ARGUED: Michael S. DePrince, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Petitioner. Lindsay Donahue, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Anthony Vale, Kate A. Mahoney, PEPPER HAMILTON LLP, Philadelphia, Pennsylvania, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. DUNCAN, Circuit Judge: After submitting an unsuccessful application for a certificate of citizenship with the United States Customs and Immigration Services (the “USCIS”), Howard Egba Duncan, Jr. was placed in removal proceedings. Duncan applied for relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), 8 C.F.R. § 1208.16(c), and also moved to terminate the proceedings on the basis that he had derived citizenship from his father under the Child Citizenship Act of 2000 (the “CCA”), 8 U.S.C. §§ 1431–33. The immigration judge (the “IJ”) determined that Duncan had failed to demonstrate the requisite governmental acquiescence for relief under the CAT and that he had not derived citizenship under the CCA because he was not in the “physical custody” of his father during the requisite time period. The Board of Immigration Appeals (the “BIA”) affirmed on both grounds, finding that the IJ did not clearly err in reaching either conclusion. We are compelled to find that the BIA applied the wrong standard of review as to both determinations. Consistent with precedent established since the BIA’s decision, we hold that whether the government would acquiesce to torture under the CAT is a mixed question of fact and law. Similar analysis persuades us that whether Duncan was in the “physical custody” of his father under the CCA is likewise a mixed question of fact and law. While the IJ’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 BIA. Accordingly, we grant the petition for review and remand to the BIA. 2 I. Duncan is a legal permanent resident of the United States who was born in Nigeria to a Nigerian mother and an American father. When Duncan was six years old, he and his grandmother moved from Nigeria to the United States to live with Duncan’s father. Duncan lived with his father and grandmother for three months before his father was incarcerated in April 1998. A few months later, Duncan’s grandmother filed a petition to become Duncan’s ...
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