Caballero v. Holder, 2:13-cv-00992 JWS
| Decision Date | 05 May 2014 |
| Docket Number | 2:13-cv-00992 JWS |
| Parties | Guadalupe Caballero, Plaintiff, v. Eric H. Holder, Jr., United States Attorney General, Defendant. |
| Court | U.S. District Court — District of Arizona |
[Re: Motion at Docket 44]
Defendant Eric H. Holder, Jr., United States Attorney General ("Defendant" or "Government"), filed a motion for summary judgment at docket 44. Defendant's statement of facts in support of the motion is at docket 45. Plaintiff Guadalupe Caballero ("Plaintiff" or "Caballero") filed a response at docket 48. Her response to Defendant's statement of facts is at docket 49, with supporting materials at dockets 50 and 51. Defendant's reply is at docket 52, and his reply to Plaintiff's additional facts is at docket 53. Oral argument was not requested and would not assist the court.
In September of 2007, Caballero pleaded guilty to Attempted Transportation of Marijuana for Sale and was given four years of supervised probation. Four years laterCaballero was arrested for a probation violation, and the Government initiated removal proceedings.
During removal proceedings, Caballero claimed U.S. citizenship through acquisition. That is, while she was born in Mexico, she argued that she acquired U.S. citizenship through her father, Ramon Montoya, whom she asserted had acquired citizenship through his father, Roberto Montoya. However, Caballero later indicated that she was unable to provide sufficient evidence to rebut the presumption of alienage. The immigration judge therefore found that Caballero was removable.
Caballero did not raise the issue of acquired citizenship in her unsuccessful appeal to the Board of Immigration Appeals ("BIA"). She also did not raise the issue of citizenship in her petition for review with the Court of Appeals. The Court of Appeals, however, transferred the matter to this court for a de novo review of Caballero's citizenship claim pursuant to 8 U.S.C. § 1252 (b)(5)(B). Under § 1252(b)(5)(B) this court must make a decision on the issue of citizenship as if this action had been brought as a declaratory judgment action.1
The parties conducted further discovery. The Government subsequently filed the pending motion for summary judgment, arguing that there is no genuine issue of material fact concerning Caballero's paternal grandfather's residency in the United States and her father's physical presence in the United States which would allow her to assert acquired citizenship.
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."2 The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."3 Ultimately, "summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party."4 However, summary judgment is mandated under Rule 56(c) "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."5
The moving party has the burden of showing that there is no genuine dispute as to any material fact.6 Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.7 Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.8 All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of thenon-movant.9 However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.10
The Court of Appeals transferred Caballero's citizenship claim to this court pursuant to 8 U.S.C. § 1252(b)(5)(B) for a new hearing.11 Under §1252(b)(5)(B) the court is directed to make a decision on the citizenship claim "as if [it] had been brought in the district court under [the declaratory judgment statute]." Thus, while Caballero is the respondent in the removal proceedings, in this action Caballero is effectively a plaintiff seeking a declaratory judgment as to her citizenship. Accordingly, she has the burden of proving her citizenship by a preponderance of the evidence.12
Placing the initial burden on Caballero is in line with the burden-shifting framework governing the removal proceedings themselves. When, as here, there is evidence or if it is undisputed that the petitioner was born in a foreign country, the petitioner must provide "substantial credible evidence in support of [her] citizenship claim."13 In the event the petitioner can meet this burden, the Government then bearsthe "ultimate burden of proving the respondent removable by clear and convincing evidence."14
A person obtains citizenship through birth or naturalization.15 A person born in the United States is automatically a citizen.16 It is undisputed here that Caballero was not born in the United States and has not obtained citizenship through naturalization. She argues, however, that she obtained citizenship by birth based on acquisition. That is, she argues that she acquired citizenship through her father, Ramon Montoya, who in turn acquired it from Roberto Montoya, a citizen of the United States. Indeed, persons not born in the United States, such as Caballero and her father, may still acquire citizenship by birth pursuant to immigration statutes.17 "The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth."18 These statutes provide specific residency or presence requirements to transmit citizenship from a citizen parent to his or her foreign-born child. The Government argues that Caballero did not provide sufficient evidence to show that both Roberto and Ramon met the applicable requirements.
In order for Caballero to demonstrate that she acquired citizenship at birth from her father Ramon, she must first provide evidence that Ramon, who was also born in Mexico, acquired citizenship from Roberto under § 201(g) of the former Nationality Act (1940), which was the applicable statute in effect at the time of Ramon's birth on June 1, 1947. Former § 201(g) states that a person shall be a citizen of the United States at birth when that person is:
born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had 10 years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of 16 years, the other being an alien: Provided, That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years.…19
Thus, to demonstrate her father Ramon acquired citizenship through her paternal grandfather Roberto, Caballero must establish by a preponderance of the evidence that Roberto was a United States citizen who resided in the United States for ten years before Ramon was born, that five of those ten years occurred after Roberto's sixteenth birthday, and that Ramon satisfies the retention requirement.
For purposes of this motion, the Government concedes that Roberto was a United States citizen based on his birth certificate, which indicates he was born in Arizona.20 The retention requirement is not at issue here. Thus, the only question is whether Caballero provided enough evidence to establish that Roberto resided—that is,had his principal dwelling place21—in the United States for ten years prior to Ramon's birth in 1947 and that five of those years were after 1936, Roberto's sixteenth birthday.
It is undisputed, based on the evidence provided, that Roberto was born in Douglas, Arizona, on September 17, 1920.22 It is also undisputed that as of April 1926 Roberto was registered at a school in Sonora, Mexico, and that he was at that school in 1929.23 It is undisputed that his son, Ramon, was born in Pilares, Mexico, in 194724 and that his parents had lived in Mexico at least some amount of time before he was born.25 The family moved to Agua Prieta, Mexico, when Ramon was still young.26 There is no other evidence of Roberto's residency until 1951, when there is a record of Roberto living in the United States.27
Drawing all inferences in favor of Caballero, the evidence suggests Roberto was in the United States from September of 1920 through April of 1926, about five and a half years. By 1926, however, Roberto was living in Mexico and was still there in 1929. He was in Mexico in 1947 as well, but Roberto's residency from 1929 through Ramon's birth in 1947, the relevant period of time, is unknown. While it is possible that Roberto could have at least intermittently resided in the United States during this time, the burden is on Caballero to present sufficient evidence from which the court could inferhis residency in the United States. She speculates in her briefing that Roberto was a migrant worker and went back and forth between the United States and Mexico. Speculation will not suffice.28 Moreover, her speculation is undermined by an April 10, 2012 letter from the Social Security Administration indicating that no United States earning or employment records...
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