Ayala-Villanueva v. Holder

• Citation: 572 F.3d 736
• Decision Date: 14 July 2009
• Docket Number: No. 07-70110.,07-70110.
• Parties: Wilsonis AYALA-VILLANUEVA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

572 F.3d 736

Wilsonis AYALA-VILLANUEVA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-70110.

United States Court of Appeals, Ninth Circuit.

Submitted June 11, 2009.^*

Filed July 14, 2009.

Leon Rosen, Law Office of Leon Rosen, Las Vegas, NV, for the petitioner.

Richard Zanfardino, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, District of Columbia, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A037-300-465.

Before: PROCTER HUG, JR., B. FLETCHER and HAWKINS, Circuit Judges.

HUG, Circuit Judge:

Wilsonis Ayala-Villanueva ("Ayala") petitions this court for review of a final order of removal. Removal proceedings were initiated on March 7, 2003, when the Department of Homeland Security ("DHS")¹ issued and served on Ayala a notice to appear, charging him with removal as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(G) (theft offense) based on his conviction for possession of stolen property in violation of Nevada Revised Statutes § 205.275. Ayala claims that he is a derivative citizen and is therefore not removable.² On three occasions, the Immigration Judge ("IJ") terminated the removal proceedings, concluding that Ayala had presented substantial, credible evidence of his citizenship and that the government had failed to prove deportability by clear and convincing evidence. Each time the IJ terminated removal proceedings, the DHS appealed to the Board of Immigration Appeals ("BIA"). The BIA sustained each DHS appeal and thrice remanded the matter to the IJ.

In her first order, filed December 5, 2003, the IJ concluded that Ayala had presented sufficient evidence of his derivative citizenship. The BIA, however, held that the IJ's citizenship hearing was insufficient because it was conducted without prior notice to the parties and involved only limited testimony from Ayala. On remand, the IJ held extensive hearings and allowed the parties to substantially develop the evidentiary record. In her carefully drafted order of October 18, 2005, the IJ extensively reviewed the documentary evidence and testimony concerning Ayala's citizenship. Concluding that Ayala had presented substantial credible evidence in support of his citizenship claim and that the government had failed to carry its ultimate burden of proving deportability by clear and convincing evidence,³ the IJ ordered the proceedings terminated. The BIA again sustained the government's appeal, concluding that the IJ's reliance on Ayala's "newly discovered" birth certificate was "clearly erroneous" and that Ayala had failed to rebut the presumption of alienage by substantial credible evidence.

In her third order terminating proceedings, the IJ expanded her analysis of the facts and law and suggested that the government's evidence supporting alienage had been discredited by Ayala. Because no new evidence had been submitted on remand, the BIA sustained the government's third appeal, saying that the IJ had "no basis to again terminate the proceedings." The BIA instructed the IJ that, on remand, she "should not reinstate her prior order and not terminate the proceedings, unless new and substantial evidence is provided which is sufficient to rebut the presumption of alienage in this case." The IJ, "feel[ing] that [she could] do nothing else but comply" with the BIA's order, found that Ayala is a native and citizen of El Salvador and that, because he was convicted of an aggravated felony, he is removable. Accordingly, the IJ ordered Ayala removed to El Salvador. The BIA dismissed Ayala's appeal, and Ayala now petitions this court for relief.

This court has jurisdiction to consider Ayala's nationality claim pursuant to 8 U.S.C. § 1252(b)(5). If the "record presents no genuine issue of material fact about the petitioner's nationality, a reviewing court must decide the nationality claim." Chau v. INS, 247 F.3d 1026, 1029 (9th Cir.2001) (citing 8 U.S.C. § 1252(b)(5)(A)). If, however, "the record presents a genuine issue of material fact as to the petitioner's nationality, the reviewing court must transfer the proceeding to a district court for a de novo determination." Id. (citing 8 U.S.C. § 1252(b)(5)(B)).⁴ Traditional summary judgment rules guide our decision concerning transfer. Id. Where "the evidence presented in support of the claim would be sufficient to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment," transfer for a de novo determination of the citizenship claim is statutorily mandated. Id.

Ayala was born out of wedlock in El Salvador on July 28, 1973. On October 23, 1982, when Ayala was nine years old, he was admitted to the United States as a lawful permanent resident. Ayala claims that he became a derivative citizen through his mother, Maria Dolores Villanueva ("Villanueva"), when she naturalized on February 19, 1987. "[D]erivative citizenship is determined under the law in effect at the time the critical events giving rise to eligibility occurred." Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). Former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (repealed 2000), which was in effect at the time of Villanueva's naturalization, governs Ayala's claim to citizenship. The statute provides, in pertinent part, that:

A child born outside of the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions:

. . .

(3) The ... naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of ... the parent naturalized under clause ... (3) of this subsection....

8 U.S.C. § 1432(a). It is uncontested that Ayala meets conditions (4) and (5); he was 13 years old and living in the United States as a legal permanent resident when his mother naturalized. His derivative citizenship thus turns on whether he meets condition (3).

Before these proceedings, Ayala had assumed that his mother's husband, Jose Humberto Ayala Gaitan ("Humberto"),⁵ was his father and that his mother and Humberto were married at the time of his birth. Villanueva and Humberto, however, were not married until July 28, 1976, and each birth certificate included in the administrative record shows that Ayala was born out of wedlock. Therefore, Ayala is a derivative citizen if his "paternity ... has not been established by legitimation." See 8 U.S.C. § 1432(a)(3). Humberto's marriage to Villanueva establishes Ayala's paternity by legitimation and destroys Ayala's claim to citizenship only if Humberto is Ayala's father. If, however, Humberto is not Ayala's father, Ayala's paternity was never established by legitimation and he is a derivative citizen.

The administrative record contains four documents purporting to be copies and translations of Ayala's birth certificate. The two birth certificates obtained by Ayala and entered into the administrative record as exhibits 9 and 12 indicate that Ayala's father is not Humberto. According to these documents, Ayala was born to Jose Tiburcio Ayala Gaitan ("Tiburcio"), who was a 21-year-old student at the time of Ayala's birth. The birth record number shown on these certificates is 686 and the place of birth is given as Hospital San Pedro of Usulutan. The government offered two birth certificates, exhibits 11 and 13, which indicate that Humberto is Ayala's father. Humberto is identified as a 26-year-old small agriculturalist. These two documents give Canton of San Antonio in Concepcion Batres as the place of Ayala's birth and indicate a birth record number of 386. Despite these differences, all four birth certificates bear marked similarities. They are consistent with regard to the date and time of Ayala's birth and the identity and description of his mother. Each certificate also describes Ayala's father as being from Estanzualas and having the Personal Cedula Identification number 519653. Lastly, all of the birth certificates indicate that they are found on page 349 in the book of births.

The record also includes a certified letter from Marcia Iraida Martinez...