Argued En Banc March 17, 2014
Submitted, San Francisco, California February 3,
As Amended December 21, 2015.
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A019-263-384.
The en banc court denied petitioner's petition for review from the Board of Immigration Appeals' decision finding him deportable, based on the en banc court's affirmance of the district court's determination following a bench trial pursuant to this court's transfer under 8 U.S.C. § 1252(b)(5)(B) finding that petitioner is not a United States citizen.
Judge Hurwitz wrote an opinion joined by the full panel as to Parts I-III; by Judges Kozinski, Silverman, Rawlinson, Bybee, Murguia and Nguyen as to Part IV; and by Judges Kozinski, Silverman, Rawlinson and Bybee as to Parts V and VI.
In Parts I-III, Judge Hurwitz wrote that petitioner presented substantial credible evidence that he was a U.S. citizen and that the government satisfied its burden to rebut his claim by clear and convincing evidence.
In Part IV, Judge Hurwitz wrote that the district court determined only a factual question regarding whether petitioner was a U.S. or Mexican citizen, and that independent review was not appropriate.
In Part V, Judge Hurwitz concluded that this court is required under Fed.R.Civ.P. 52(a) to review the district court's factual findings, including its ultimate conclusion that petitioner is not a citizen because he was born in Mexico, for clear error. Judge Hurwitz wrote that Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1970), an alienage-determination case applying independent review to findings of fact, has been overruled.
In Part VI, Judge Hurwitz denied the petition for review.
Judge N.R. Smith wrote an opinion concurring in part and dissenting in part. Chief Judge Thomas and Judges Pregerson and W. Fletcher joined as to Part I, in which Judge N.R. Smith would hold that the government must prove by clear, unequivocal, and convincing evidence that a petitioner claiming to be a U.S. citizen is deportable. Judge N.R. Smith also concurred in Sections I-III and in the result of Section V and VI of the majority decision; writing that although he did not agree with the majority's holding on the burden of proof, he concurred in the judgment to deny the petition.
Judge Murguia wrote an opinion concurring in part and dissenting in part, which Judge Nguyen joined in full and which Chief Judge Thomas and Judges Pregerson and W. Fletcher joined as to Parts A, B and D. In Parts A, B and D, Judge Murguia would find that whether petitioner procured U.S. citizenship illegally or by fraud is a question of law to be reviewed de novo, and would reverse the district court and grant the petition for review. In Part C, Judge Murguia would hold that Lim, which applied an independent standard of review in an alienage determination case, is sound and should be followed. In Part E, upon independently reviewing the district court's determination that the government met its burden and reviewing for clear error the district court's underlying findings of fact, Judge Murguia would reverse the district court and grant the petition for review.
Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, Washington; and Martha H. Rickey, Northwest Immigrant Rights Project, Granger, Washington, for Petitioner.
August E. Flentje (argued), Stuart F. Delery, Colin A. Kisor, Elizabeth J. Stevens, Aaron S. Goldsmith, Katherine E.M. Goettel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Holly S. Cooper, Davis, California, as and for Amicus Curiae U.C. Davis Immigration Law Clinic.
Devin T. Theriot-Orr, Gibbs Houston Pauw, Seattle, Washington, for Amicus Curiae American Immigration Lawyers Association.
Charles Roth, Chicago, Illinois, as and for Amicus Curiae National Immigrant Justice Center.
Before: Sidney R. Thomas, Chief Judge and Harry Pregerson, Alex Kozinski, Barry G. Silverman, William A. Fletcher, Johnnie B. Rawlinson, Jay S. Bybee, N. Randy Smith, Mary H. Murguia, Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Hurwitz. Partial Concurrence and Partial Dissent by Judge N.R. Smith; Partial Concurrence and Partial Dissent by Judge Murguia. N.R. SMITH, Circuit Judge, dissenting in part, with whom THOMAS, Chief Judge, and PREGERSON and FLETCHER, Circuit Judges, join in Part I, but concurring in Sections I-III and in the result of Section V and VI of the majority decision.
HURWITZ, Circuit Judge, joined by the full panel as to parts I-III of his opinion; joined in full as to his entire opinion by KOZINSKI, SILVERMAN, RAWLINSON, and BYBEE, Circuit Judges; joined in the results of Parts V and VI by N.R. SMITH, Circuit Judge; and joined in Part IV by MURGUIA and NGUYEN, Circuit Judges:
Andrew D. Hurwitz
Our task is to review a district court determination--made after a bench trial--that the petitioner was born in Mexico,
not the United States. After finding the petitioner had introduced sufficient evidence that he is a U.S. citizen, the district court shifted the burden to the government to rebut by " clear, unequivocal, and convincing" evidence, and found that it had done so.
The petitioner claims that the district court erred in concluding that " clear, unequivocal, and convincing" evidence--a phrase we have used to describe the government's burden in alienage-determination proceedings--is identical to the traditional civil intermediate burden of proof. He argues the proper burden is instead more akin to the " beyond a reasonable doubt" standard that applies in criminal cases. We disagree, and hold that " clear, unequivocal, and convincing" is the familiar intermediate standard used in civil cases when particularly important individual interests are at stake.
Because we find no error in the district court's application of the burden of proof, we also reach the second substantial question presented in this case--the standard of review applicable to the trial court's findings of fact. The petitioner argues we must review the district court's findings de novo. We hold, instead, that the " clear error" standard of Federal Rule of Civil Procedure 52(a) applies. Under that standard, the petition for review must be denied.
Although the parties sharply contest whether the petitioner is a U.S. citizen, much of the evidence in this case is a matter of public record and undisputed.
1. Two authentic birth certificates are in the record--one of Salvador Mondaca-Vega, born on June 3, 1931 in Sinaloa, Mexico, the other of Renoldo Mondaca Carlon, born on July 17, 1931 in Imperial, California. Although the petitioner concedes he has on multiple occasions identified himself as Salvador Mondaca-Vega, he claims he is really Reynaldo Mondaca Carlon, a U.S. citizen.
2. It is uncontested that regardless of his place of birth, the petitioner grew up in El Fuerte, Sinaloa, Mexico. He came to the United States around 1951, when he was about twenty years old, to look for work. A long series of contacts with law enforcement and immigration authorities ensued.
His rap sheet indicates that in July 1951, the petitioner, identifying himself as Salvador Mondaca, was taken into custody by the Sheriff's Office in Auburn, California and transferred to federal immigration officials. In September 1951, the petitioner accepted voluntary departure under the name Salvador Mondaca-Vega.
3. The record also reflects various actions taken in 1952 and 1953 by individuals identifying themselves by the names on the birth certificates; the parties dispute whether these actions were taken by the petitioner. In September 1952, someone identifying himself as Salvador Mondaca unsuccessfully applied for a social security card, naming his place of birth as Mexico and stating that his date of birth was April 13, 1931. Also in September 1952, someone identifying himself as Reynaldo Mondaca Carlon registered for selective service in Salinas, California; he was later found unacceptable for induction.
In May 1953, a person claiming to be Reynaldo C. Mondaca and identifying his date of birth as July 17, 1931 and his place of birth as Imperial, California, successfully applied for a social security card. Handwriting analysis suggests the signature on this application belongs to the petitioner. Although the district court made no finding as to who made the first social security card application and the selective service registration, the court concluded that the May 1953 application was made by the petitioner.
4. According to the rap sheet, in May 1953 and September 1954, the petitioner, claiming first to be Salvador Mondaca-Vega, then Salvador Mondaca, was transferred to immigration authorities in Washington State and deported to Mexico. A 1994 fingerprint analysis by the Seattle Police Department indicates that fingerprints taken on both occasions were from the same individual, and that they belong to the petitioner.
5. In September 1954, the petitioner, in a sworn interview with an INS official, stated that his name is Salvador Mondaca-Vega, that he was born on April 16, 1931 in Sinaloa, Mexico, and that he is a Mexican citizen. Expert handwriting analysis submitted by both parties suggests the signature on the statement was made by the petitioner.
6. The rap sheet indicates that on at least two occasions after his 1954 deportation, the petitioner received voluntary departure--once in 1956 as Salvador Mondaca-Vega, and once in 1966 under the name Jose Valdez-Vega. The name Salvador Mondaca-Vega also appears in an October 1969 entry for a bench warrant issued in California for failure to appear.
7. In August 1970, the petitioner married Aurelia Estrella. They had nine children, six born in Mexico and three in the United States. In 1977, the petitioner successfully petitioned for adjustment of status for his wife and two of his Mexico-born children based on his asserted status as a U.S. citizen; the remaining four Mexico-born children received certificates of citizenship based on their father's purported status. The Department of State issued the petitioner a U.S. passport in April 1998, and a replacement passport in September 2005 after the original was lost.
The convoluted procedural history of this case begins in 1994, when the petitioner, after a conviction in Washington state court for second-degree assault, was charged with entry without inspection and making a false claim of U.S. citizenship and placed in removal proceedings.
1. After an evidentiary hearing, an immigration judge found by " clear, convincing and unequivocal" evidence that the petitioner is a non-citizen who entered without inspection and by misrepresentation. The BIA affirmed.
2. On review, we found the petitioner's claim of U.S. citizenship presented genuine issues of material fact and, pursuant to the statute now codified at 8 U.S.C. § 1252(b)(5)(B), transferred the proceedings to the Eastern District of Washington for a de novo determination of the petitioner's alienage. Mondaca-Vega v. Ashcroft, 104 Fed.Appx. 627, 628 (9th Cir. 2004).
The district court denied the parties' cross-motions for summary judgment, Mondaca-Vega v. Holder, No. 2:04-cv-00339-FVS, 2011 WL 1195877, at *3 (E.D. Wash. Mar. 29, 2011), and conducted a bench trial.
3. At trial, the petitioner admitted that he had used the name Salvador Mondaca-Vega (and other names he could not remember). He claimed, however, that he never knew the real Salvador Mondaca-Vega and could not recall how he came up with the name. He explained that he repeatedly used the name of a non-citizen with authorities because friends told him a U.S. citizen would be detained longer.
The district court found the petitioner had carried his initial burden of proof by offering a U.S. passport and showing that his wife and children had adjusted status and obtained citizenship through him. Mondaca-Vega v. Holder, No. 2:04-cv-00339-FVS, 2011 WL 2746217, at *9 (E.D. Wash. July 14, 2011). The court then shifted the burden to the government to rebut the petitioner's claim of citizenship by " clear and convincing" evidence, and, after hearing the government's case, found this burden satisfied.
Id. at *9-10. This conclusion was based in part on the district judge's finding that the petitioner's testimony was not credible. Id. at *7-8, *10.
4. On April 25, 2013, a divided three-judge panel of this Court found no clear error in the district court's conclusion. Mondaca-Vega v. Holder, 718 F.3d 1075, 1086 (9th Cir. 2013). A majority of the non-recused active judges then voted to rehear the case en banc.
The government " bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence." Chau v. INS, 247 F.3d 1026, 1029 n.5 (9th Cir. 2001). When, however, the government offers evidence of foreign birth, a " rebuttable presumption of alienage" arises, " shifting the burden to the [alleged citizen] to prove citizenship." Id. Upon production by a petitioner of " substantial credible evidence" of the citizenship claim, this presumption bursts and the burden shifts back to the government to " prov[e] the respondent removable by clear and convincing evidence." Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009); see also Lee Hon Lung v. Dulles, 261 F.2d 719, 724 (9th Cir. 1958) (" [W]here one has, over a long period of years, acted in reliance upon a decision . . . admitting him as a citizen of the United States, the fraud or error which will warrant disregard of such decision must be established by evidence which is clear, unequivocal, and convincing." ).
To the extent the government contends that the petitioner failed to offer even " substantial credible evidence" of U.S. citizenship, we reject this claim. The petitioner possessed a valid U.S. passport and successfully petitioned for the adjustment of status of his wife and children based on his purported status as a U.S. citizen. This is " substantial credible evidence" of U.S. citizenship. Ayala-Villanueva, 572 F.3d at 737 n.3.
At issue, then, is whether the government bore its burden of proving the
petitioner's alienage. Id.; see also Lee Hon Lung, 261 F.2d at 724 (noting that when the burden shifts back to the government, the question is whether sufficient evidence " warrant[s] disregard[ing]" the petitioner's proof of citizenship). The threshold issue is whether the district court erred in holding the government to a " clear and convincing" burden of proof. We review the district court's determination of the appropriate quantum of proof de novo. United States v. Gill, 280 F.3d 923, 930 (9th Cir. 2002).
The petitioner correctly notes that our alienage determination cases often describe the government's burden as proof by " clear, unequivocal, and convincing" evidence. See, e.g., Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970) (citing Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960), and Knauer v. United States, 328 U.S. 654, 657, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946)); Lee Hon Lung, 261 F.2d at 723 (citing Schneiderman v. United States, 320 U.S. 118, 123, 125, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943), and Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944)). The petitioner argues that the word " unequivocal" must add some meaning to the words " clear and convincing," and that " clear, unequivocal, and convincing" thus signifies a higher burden than simply " clear and convincing."
We disagree. Our task today is not to apply canons of statutory construction; the burden of proof in alienage-determination proceedings is entirely a judicial construct.Cf. Woodby v. INS, 385 U.S. 276, 284, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (" [D]egree of proof . . . is the kind of question which has traditionally been left to the judiciary to resolve . . . ." ). The Supreme Court has repeatedly used the phrases " clear, unequivocal, and convincing" and " clear and convincing" interchangeably. Compare Baumgartner, 322 U.S. at 671 (describing the burden on the government in denaturalization cases as proof by " clear, unequivocal, and convincing" evidence), with Pullman-Standard v. Swint, 456 U.S. 273, 286 n.16, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (describing the issue in Baumgartner as " whether or not the findings of the two lower courts satisfied the clear and convincing standard of proof necessary to sustain a denaturalization decree" ). We have repeatedly done the same. See, e.g., United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012); Lopez-Chavez v. INS, 259 F.3d 1176, 1180-81 (9th Cir. 2001); United States v. Meza-Soria, 935 ...