Mondaca-Vega v. Lynch

Citation808 F.3d 413
Decision Date15 December 2015
Docket NumberNo. 03–71369.,03–71369.
Parties Salvador MONDACA–VEGA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Matt Adams (argued), Northwest Immigrant Rights Project, Seattle, WA; and Martha H. Rickey, Northwest Immigrant Rights Project, Granger, WA, 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, CA, as and for Amicus Curiae U.C. Davis Immigration Law Clinic.

Devin T. Theriot–Orr, Gibbs Houston Pauw, Seattle, WA, for Amicus Curiae American Immigration Lawyers Association.

Charles Roth, Chicago, IL, as and for Amicus Curiae National Immigrant Justice Center.

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

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.

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:

ORDER

The petition for review is denied.

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.

Judge N.R. Smith wrote an opinion concurring in part and dissenting in part, which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Part I. Judge N.R. Smith concurs in the result of (but does not join) Parts V and VI of Judge Hurwitz's opinion.

Judge Murguia wrote an opinion concurring in part and dissenting in part, which Judge Nguyen joins in full and which Chief Judge Thomas, and Judges Pregerson and W. Fletcher join as to Parts A, B and D.

Judges Kozinski, Silverman, Rawlinson, Bybee, N.R. Smith, and Hurwitz would deny the petition for review. Chief Judge Thomas and Judges Pregerson, W. Fletcher, Murguia, and Nguyen would grant the petition for review.

OPINION

Our task is to review a district court determination—made after a bench trial—that the petitioner1 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.

I.
A.

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 Renoldo2 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.3

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.

B.

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),4 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...

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