Alexander v. Sessions

• Decision Date: 11 April 2017
• Docket Number: No. CV–16–04514–PHX–DGC,CV–16–04514–PHX–DGC
• Citation: 263 F.Supp.3d 740
• Parties: Roger ALEXANDER, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
• Court: U.S. District Court — District of Arizona

263 F.Supp.3d 740

Roger ALEXANDER, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.

No. CV–16–04514–PHX–DGC

United States District Court, D. Arizona.

Signed April 11, 2017

Monika Sud–Devaraj, Law Offices of Monika Sud–Devaraj & Marshall G. Whitehead PLL, Phoenix, AZ, for Petitioner.

Anh–Thu P. Mai–Windle, Julie M. Iversen, US Dept. of Justice—Office of Immigration Litigation, Washington, DC, for Respondent.

ORDER

David G. Campbell, United States District Judge

Petitioner Roger Alexander appealed a final order of removal issued by the Board of Immigration Appeals ("BIA"). Doc. 33–2. The Ninth Circuit found that there are genuine issues of material fact regarding Petitioner's nationality, and transferred the matter to this Court under 8 U.S.C. § 1252(b)(5)(B). Doc. 33. During a conference call with the Court, counsel for the parties expressed disagreement on the burden of proof to be applied in this proceeding. The Court requested memoranda from the parties regarding the relevant burden of proof. Docs. 39, 40, 41. The Court will apply the burden of proof outlined below.

I. Section 1252(b)(5)(B).

"[O]nce removal proceedings have been initiated, a petition for review under 8 U.S.C. § 1252(b)(5) is the only avenue by which a person may seek a judicial determination of his or her status as a national of the United States." Chau v. I.N.S. , 247 F.3d 1026, 1028 n.2 (9th Cir. 2001). Under this provision:

If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court ... for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28.

8 U.S.C.A. § 1252(b)(5)(B).

The Ninth Circuit retains jurisdiction over the petition, holding it in abeyance while it "refer[s] proceedings to the district court for the sole purpose of resolving a ‘genuine issue of material fact.’ " Mondaca–Vega v. Lynch , 808 F.3d 413, 424 (9th Cir. 2015), cert. denied , ––– U.S. ––––, 137 S.Ct. 36, 196 L.Ed.2d 26 (2016) ; see also Anderson v. Holder , 673 F.3d 1089, 1093 (9th Cir. 2012). The Ninth Circuit has expressed doubt as to whether a district court's conclusions under § 1252(b)(5)(B) are "separately appealable[,]" emphasizing instead that such conclusions are a component of the judicial review of an order of removal. See Anderson v. Holder , 673 F.3d at 1093–94 ; Rose v. Sessions , 679 Fed.Appx. 557, 559 (9th Cir. 2017).

II. Mondaca–Vega Burden Shifting.

There has been some disagreement about the appropriate standard to be applied by the district court in a referred matter under § 1252(b)(5)(B). In 2015, the Ninth Circuit, sitting en banc , found no error where the district court, "[a]fter finding the petitioner had introduced sufficient evidence that he is a U.S. citizen, ... shifted the burden to the government to rebut by ‘clear, unequivocal, and convincing’ evidence[.]" Mondaca–Vega , 808 F.3d at 417. The district court in Mondaca–Vega had concluded that "[t]he petitioner bears the initial burden of proving United States citizenship by a preponderance of the evidence." Mondaca–Vega v. Holder , No. CV-04-339-FVS, 2011 WL 2746217, at *9 (E.D. Wash. July 14, 2011). On review, the Ninth Circuit majority made no reference to the preponderance of the evidence standard mentioned by the district court. Instead, in describing the general standards that apply in such cases, the majority stated that the petitioner had the burden of producing "substantial credible evidence," after which the burden would shift to the government to produce clear, unequivocal, and convincing evidence:

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) [.]

Id. at 419.

Thus, although the primary question in Mondaca–Vega was whether "clear, unequivocal, and convincing evidence" is tantamount to proof beyond a reasonable doubt (the majority said no, the standard is the same as the traditional "clear and convincing" evidence), the Court of Appeals endorsed a three-part burden-shifting approach under § 1252(b)(5)(B) : (1) if the government offers evidence of foreign birth, (2) the petitioner must present "substantial credible evidence" of citizenship, (3) after which the government must counter with clear and convincing evidence. Id. at 419–20.

Mondaca–Vega did not describe the level of proof required to meet the "substantial credible evidence" standard. In another immigration removal case, however, the Ninth Circuit explained that "[s]ubstantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rivera v. Mukasey , 508 F.3d 1271, 1274 (9th Cir. 2007) (citation and quotation marks omitted); Rose , 679 Fed.Appx. at 559 ("Substantial evidence is more than a mere scintilla, but less than a preponderance.") (citation, quotation marks, and alterations omitted).

The government argues that petitioner should be required in this case to prove his citizenship by a preponderance of the evidence. The government's briefing is not clear on whether the government views this as the only burden in the case, with Petitioner succeeding or failing on whether he can present a preponderance of the evidence, or whether the government is simply arguing that the second step of the three-step process described above requires a preponderance of the evidence. As the government argues in its reply that this is his "initial burden" (Doc. 41 at 6), the Court will assume that the government is arguing that the second step of the three-step process must be satisfied by a preponderance of the evidence.¹

The Court cannot conclude that the second step of the burden-shifting approach to be applied in this case requires a preponderance of the evidence. As noted above, the Ninth Circuit's decision in Mondaca–Vega requires only substantial credible evidence. Elsewhere, the Ninth Circuit has declined to impose a preponderance of the evidence burden on a petitioner claiming to be a citizen in a removal proceeding. In Murphy v. I.N.S. , 54 F.3d 605 (9th Cir. 1995), the Court of Appeals found that requiring a petitioner during administrative removal proceedings "to rebut, by a preponderance of the evidence, the presumption of alienage established when the INS set forth a prima facie case, improperly relieved the government of its burden of proving alienage by clear and convincing evidence." Id. at 609. Rather, the court explained, the "presumption established by a prima facie case does not reduce the government's burden of persuasion, but merely requires the opponent to go forward with evidence." Id. at 610. "The burden of persuasion remains on the government at all times to establish alienage by clear and convincing evidence[.]" Id.

The Ninth Circuit subsequently described the burden shifting applicable to removal proceedings in these words:

In a deportation proceeding, the INS bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence. However, evidence of foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to the respondent or deportee to prove citizenship. If the deportee can produce substantial credible evidence in support of his or her citizenship claim, thereby rebutting the presumption, INS' burden of proving deportability by clear and convincing evidence again comes into play.

Chau , 247 F.3d at 1029 n.5 (9th Cir. 2001) (citing Murphy , 54 F.3d 605 at 609–610 ); see also Ayala–Villanueva , 572 F.3d at 738 n.3.

These cases seem to make clear that once the government offers evidence of foreign birth, a petitioner must produce substantial credible evidence in support of his or her citizenship claim. If the petitioner does so, the burden shifts back to the government to show a lack of citizenship by clear and convincing evidence.²

III. Removal Proceedings.

The government argues that when an issue of nationality is referred to a district court under § 1252(b)(5)(B), the district court decision is to be made as if the petitioner had brought an action seeking declaratory judgment under 28 § U.S.C. 2201. 8 U.S.C. § 1252(b)(5)(B). Because individuals requesting a declaratory judgment of citizenship bear the burden of proving citizenship by a preponderance of the evidence, an individual claiming citizenship before the district court in a § 1252(b)(5)(B) proceeding must satisfy the same burden of proof. Doc. 39 at 5–6. Although the Court sees some logic in this argument, Ninth Circuit law does not support it.

Mondaca–Vega concerned a § 1252(b)(5)(B) proceeding in the district court—the same kind of proceeding as this case. 808 F.3d at 418. And although § 1252(b)(5)(B) does state that the matter is to be heard as if an action had been brought in the district court under the declaratory relief provision, that provision ( 28 U.S.C. § 2201 ) says nothing about the burden of proof. Rather, the reference to § 2201 appears to be intended to make clear that the district court must conduct a de novo hearing, not simply rule on the basis of the record before the court of appeals. See Mondaca–Vega , 808 F.3d at 435 (R.N. Smith, J.,...