718 F.3d 1075 (9th Cir. 2013), 03-71369, Mondaca-Vega v. Holder

Docket Nº:03-71369.
Citation:718 F.3d 1075, 85 Fed.R.Serv.3d 746
Opinion Judge:GRABER, Circuit Judge:
Party Name:Salvador MONDACA-VEGA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Attorney:Martha H. Rickey, Northwest Immigrant Rights Project, Granger, Washington; and Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner. Katherine E.M. Goettel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Judge Panel:Before: HARRY PREGERSON, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge PREGERSON. PREGERSON, Circuit Judge, dissenting:
Case Date:April 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1075

718 F.3d 1075 (9th Cir. 2013)

85 Fed.R.Serv.3d 746

Salvador MONDACA-VEGA, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 03-71369.

United States Court of Appeals, Ninth Circuit.

April 25, 2013

Argued and Submitted Sept. 19, 2012.

Page 1076

Martha H. Rickey, Northwest Immigrant Rights Project, Granger, Washington; and Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner.

Katherine E.M. Goettel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A019-263-384.

Before: HARRY PREGERSON, SUSAN P. GRABER, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge PREGERSON.

OPINION

GRABER, Circuit Judge:

Who is Petitioner? Is he Reynaldo Carlon Mondaca, a native and citizen of the United States, or is he Salvador Mondaca-Vega, a native and citizen of Mexico? The district court determined that Petitioner is Salvador Mondaca-Vega and, accordingly, that he is not a United States citizen. Reviewing the district court's findings for clear error and finding none, we now deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

We first reviewed Petitioner's final order of removal in 2003. In considering his claim of citizenship,1 we noted genuine issues of fact. Therefore, pursuant to 8 U.S.C. § 1105a(a)(5)— which now appears with only minimal modifications at 8 U.S.C. § 1252(b)(5)— we transferred the matter to the United States District Court for the Eastern District of Washington to resolve Petitioner's claim of United States citizenship. Mondaca-Vega v. Ashcroft, 104 Fed.Appx. 627 (9th Cir.2004) (unpublished).

The district court held a bench trial, after which it made extensive findings of fact. As the case reaches us, these relevant underlying facts are undisputed:

On June 3, 1931, Salvador Mondaca-Vega was born to Felix Mondaca and Josefa Vega in Mahone, Mexico. Salvador's birth was registered in El Fuerte, Sinaloa, Mexico, later that month.

On July 17, 1931, Renoldo Mondaca was born to Marin Mondaca and Antonia Carlon in Imperial, California.

Both birth certificates are in evidence, and both are genuine.

No matter where he was born, Petitioner grew up in El Fuerte, Sinaloa, Mexico. He traveled from Mexico to the United States when he was about 20 years old, or in about 1951.

In 1952, a person claiming to be Salvador Mondaca applied for a Social Security card. The applicant listed Feliz Mondaca as his father and Josefa Vega as his mother and gave a birth date of April 13, 1931. His application was rejected because he failed to establish United States citizenship.

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On May 11, 1953, a person named Salvador Mondaca-Vega was served with a warrant by the Immigration and Naturalization Service (" INS" ) while detained in the King County, Washington, jail. On May 19, the person who had been served with the warrant was fingerprinted; the prints are Petitioner's.

On May 22, 1953, Petitioner was deported from the United States under the name Salvador Mondaca-Vega.

On May 23, 1953, someone applied for a Social Security card in Calexico, California, under the name Reynaldo C. Mondaca. Handwriting analysis suggests, but does not firmly establish, that it was Petitioner who signed the application. The Social Security Administration issued a Social Security card to Petitioner under the name Reynaldo C. Mondaca. He has consistently used that Social Security number ever since.

Nonetheless, he continued to use the name Salvador Mondaca-Vega even after receiving the Social Security card in 1953. On September 15, 1954, for example, the INS issued a warrant for the detention of Petitioner, who was being held by the Yakima County, Washington, sheriff, under the name Salvador Mondaca-Vega. While in custody, Salvador Mondaca-Vega was fingerprinted. The fingerprints taken on that occasion are Petitioner's.

On September 20, 1954, Petitioner gave a sworn, signed statement to an INS official in Seattle. Therein he averred that his name is Salvador Mondaca-Vega, that he was born on " April 16, 1931, at El Puerte [sic], Sin., Mexico," and that he was a citizen of Mexico. He also stated that he had never been lawfully admitted to the United States for any purpose and that he had entered the United States " several times since about 1949." He admitted to having been " apprehended in California a number of times and granted voluntary departures to Mexico." He also agreed that he had been deported once on May 22, 1953. On September 20, 1954, Petitioner was again granted voluntary removal to Mexico under the name Salvador Mondaca-Vega.

In 1959, Petitioner began a relationship with the woman whom he eventually married. They had nine children together, of whom the first six were born in Mexico. The children's baptismal and birth records that are in evidence show the father's name as Reynaldo Mondaca.

On January 11, 1966, Petitioner was deported under yet another name, Jose Valdez-Vega. In 1969, he was referred to on his FBI Rap Sheet as Salvador Vega-Mondaca. At some point, he appears to have stopped using the name Salvador Mondaca-Vega altogether.

In the 1970s, Petitioner obtained certificates of citizenship for four of his children, supported by an affidavit under the name Reynaldo Mondaca. He also filed a relative immigrant visa petition on behalf of his wife and two of his children, again under the name Reynaldo Mondaca. The petition was approved, and the INS adjusted the status of the wife and one of his children to that of lawful permanent resident.

On April 27, 1998, the Secretary of State issued a United States passport to Petitioner under the name Reynaldo Carlon Mondaca. Petitioner lost the passport and obtained a replacement in 2005; but his passport was revoked in 2011.

Petitioner gave no explanation for why he used the name " Salvador Mondaca-Vega" or why he continued to do so after obtaining a social security card under the name " Reynaldo Mondaca." Nor did he provide any explanation for why he stopped using the name " Salvador Mondaca-Vega" and started using a different name.

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After the bench trial, the district court ruled that Petitioner had carried his initial burden of proving citizenship by a preponderance of the evidence, because the INS had determined that his wife and foreign-born children were entitled to derivative adjustment of status and citizenship through him and because the Secretary of State had issued him a passport. Then the court shifted the burden to the government to rebut Petitioner's claim of citizenship by " clear and convincing" evidence that the foregoing determinations of citizenship were a product of fraud or error. The court concluded that the government had carried its heavy burden because, among other reasons, it was " highly probable" that Petitioner's 1954 sworn and signed statement was truthful. Accordingly, the district court ruled that Petitioner is not a United States citizen.

After the district court resolved the citizenship claim, we issued an order to show cause why we " should not adopt the district court's findings and conclusions and deny the petition for review." Mondaca-Vega v. Holder, No. 03-71369, 718 F.3d 1075, 2013 WL 1760795 (9th Cir. Aug. 25, 2011) (order). Petitioner timely filed a showcause brief to challenge the district court's decision.

STANDARD OF APPELLATE REVIEW

At the outset, the parties dispute the standard of review that we should apply to the district court's findings of fact. Classic findings of fact lie at the heart of this case: Where was Petitioner born? Which birth certificate is his? Is his testimony credible? A legal consequence— United States citizenship— depends on the answer to those questions, but the law is not in doubt; only the facts are.

The government contends that Federal Rule of Civil Procedure 52(a)(6) prohibits us from setting aside a district court's finding of fact unless it is clearly erroneous. Petitioner counters that we should, instead, follow Lim v. Mitchell, 431 F.2d 197 (9th Cir.1970), and review de novo the factual findings relating to his citizenship claim. Interpretation of the Federal Rules of Civil Procedure is a question of law, Jenkins v. Whittaker Corp., 785 F.2d 720, 736 (9th Cir.1986), with respect to which we must follow circuit precedent unless it is inconsistent with intervening decisions of the Supreme Court or of this court sitting en banc, Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc). For the reasons that we will explain, Lim no longer is good law, and we must review the district court's findings of fact for clear error.

Lim involved an application for a certificate of citizenship. We wrote that, in such a case, we " must make an independent determination as to whether the evidence introduced by" the government sufficed to satisfy its burden of proof, and we undertook to " re-examine the facts." Lim, 431 F.2d at 199, 200 n. 4; see also United States v. Delmendo, 503 F.2d 98, 100 n. 2 (9th Cir.1974) (" In reviewing denaturalization based on claims that naturalization was illegally or fraudulently obtained, we are not bound by the district court's findings even if they are not clearly erroneous." (citing Bechtel v. United States, 176 F.2d 741, 744 (9th Cir.1949))).

Both Lim and Bechtel relied on Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500 (1946). There, the Supreme Court had held, in the context of a denaturalization proceeding, that the reviewing court "...

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