Chau v. Immigration & Naturalization Serv.

• Decision Date: 03 May 2001
• Docket Number: No. 99-70448,99-70448
• Citation: 247 F.3d 1026
• Parties: (9th Cir. 2001) DUNG VAN CHAU, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1026

247 F.3d 1026 (9th Cir. 2001)

DUNG VAN CHAU, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 99-70448

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 6, 2000

Filed May 3, 2001

Nancy-Jo Merritt, Fragomen, Del Rey, Bernsen & Loewy, P.C., Phoenix, Arizona, for the petitioner.

Susan Houser, Allen W. Hausman, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition for Review from an Order of the Board of Immigration Appeals INS No. A27-355-818

Before: Mary M. Schroeder, Chief Judge, and Robert R. Beezer and Richard A. Paez, Circuit Judges.

Paez, Circuit Judge

Dung Van Chau petitions for review of a decision of the Board of Immigration Appeals (BIA), which reversed the determination of the Immigration Judge (IJ) terminating deportation proceedings. The IJ held that the Immigration and Naturalization Service (INS) failed to meet its threshold burden of establishing that Chau is an alien. The BIA, concluding that the INS had met its burden, ordered Chau deported to Vietnam pursuant to Immigration and Nationality Act ("INA") §§ 241(a)(2)(A)(ii), 8 U.S.C.§§ 1251(a)(2)(A)(ii) (1994),¹ as an alien convicted of two crimes of moral turpitude. Chau contends INA §§ 242(b)(5)(A), 8 U.S.C. §§ 1252(b)(5)(A), entitles him to a determination by this court that he is a United States national and, therefore, not deportable. Alternatively, he requests that we transfer this matter to the United States District Court for Arizona for a de novo determination of his claim to United States citizenship, pursuant to INA §§ 242(b)(5)(B), 8 U.S.C. §§ 1252(b)(5)(B). We have jurisdiction to consider Chau's citizenship claim under INA §§ 242(b)(5), 8 U.S.C. §§ 1252(b)(5). ² As the INS concedes, Chau's claim to United States citizenship is nonfrivolous, and he has identified genuine issues of material fact. Accordingly, we transfer this proceeding to the district court for a de novo determination of Chau's claim of citizenship.

I.

Chau was born in Saigon, Vietnam, on November 8, 1971. His mother is Mai Chau, a Vietnamese citizen. He immigrated to the United States with his mother and half-brother in December, 1984, and became a permanent resident shortly thereafter. In 1996, the INS initiated deportation proceedings against Chau, charging that he is deportable as an alien convicted of two crimes of moral turpitude.

At his deportation hearing, Chau conceded he had been convicted of the two crimes but asserted that he is a citizen and therefore not deportable. In support of his citizenship claim, Chau introduced evidence that his father was a United States soldier stationed in Vietnam during the Vietnam conflict. Chau's mother testified that she met Chau's father in a bar in Saigon on several occasions, that he was AfricanAmerican, and that he wore a United States military uniform. Chau's mother further testified that Chau resembles his father in that he is tall, dark, and as a child had a dimple in his cheek like his father. Although the identity of the soldier is unknown, Chau contended that his father likely was a United States citizen and likely met the other necessary requirements to establish derivative citizenship under INA §§ 301, 8 U.S.C. §§ 1401.³ Chau also argued that he was admitted to the United States under Pub. L. No. 97-359, 96 Stat. 1716 (1982) (codified at 8 U.S.C. §§ 1154(f)),⁴ as the child of a United States citizen and that his classification upon admission to the country rendered him a United States citizen.

The IJ found that although Chau admitted he was born in Vietnam, he is a derivative citizen. The IJ noted that, under the provisions of the Amerasian Immigration Act, Chau was admitted into the United States as a minor child of a United States citizen under the "immediate relative" category established by INA §§ 201(b)(2)(A), 8 U.S.C. §§ 1151(b)(2)(A), and 8 C.F.R. §§ 204.4(h), and that his father, in all likelihood, satisfied the residency requirements of INA §§ 301, 8 U.S.C. §§ 1401. The IJ then found that the INS failed to prove by clear and convincing evidence that Chau has no claim to United States citizenship and terminated the deportation proceeding.⁵

The INS appealed, and, on March 19, 1999, the BIA sustained the appeal and entered an order of deportation. The BIA, rejecting the IJ's determination, concluded that Chau was born in Vietnam, that a presumption that he is an alien applied, and that he had failed to present sufficient credible evidence to rebut that presumption. In particular, the BIA rejected the IJ's finding that Chau was admitted into the United States under the Amerasian Immigration Act. Moreover, the BIA concluded that, even assuming such status, he failed to present sufficient evidence showing that his unknown father satisfied the residency requirements for establishing derivative citizenship. Because Chau failed to establish a credible claim to United States citizenship, and because Chau admitted the prior felony convictions, the BIA ordered that he be deported to Vietnam.

Chau timely petitioned for review of the BIA's order.

II.

Whenever a petitioner makes a claim to citizenship and the record presents no genuine issue of material fact about the petitioner's nationality, a reviewing court must decide the nationality claim. INA §§ 242(b)(5)(A), 8 U.S.C. §§ 1252(b) (5)(A). If the petitioner claims to be a United States citizen and 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. INA §§ 242(b)(5)(B), 8 U.S.C. §§ 1252(b)(5)(B). In determining whether a genuine issue of material fact exists, traditional summary judgment principles apply. Thus, "a court of appeals cannot refuse to allow a de novo review of a citizenship claim if 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." Agosto v. INS, 436 U.S. 748, 756, 98 S. Ct. 2081, 2087 (1978).

III.

The INS concedes that Chau presented sufficient evidence in the deportation hearing to raise genuine issues of material fact as to Chau's claim to derivative citizenship under INA §§ 301 and that transfer to the district court for further proceedings therefore is appropriate. Our own review of the record convinces us that Chau's claim is non-frivolous and there are genuine issues of fact material to Chau's claim to derivative citizenship: the identity of Chau's father, whether Chau immigrated to the United States under the provisions of the Amerasian Immigration Act, and whether his father met the residency requirements of §§ 301. The evidence before the BIA would permit, although not compel, reasonable inferences supporting a conclusion that Chau's father met the requirements of §§ 301. Under the circumstances, transfer to the district court for a de novo hearing on Chau's claim is fully warranted.

IV.

This would be the end of the matter but for Chau's contention that his entry into the United States under the Amerasian Immigration Act, Pub. L. No. 97-359, 96 Stat. 1716 (1982) (codified at 8 U.S.C. §§ 1154(f)), is undisputed and that such entry mandates a determination by this court that he is a citizen or that the only remaining factual question precluding a determination of citizenship is whether his father met the residency requirements of INA §§ 301, 8 U.S.C.§§ 1401 (1970). Although the evidence suggests that Chau was admitted to the United States under the provisions of the Amerasian Immigration Act, the evidence, as noted, is susceptible to varying interpretations. This factual issue should be resolved by the district court in the first instance. Nonetheless, given the substantial evidence presented by Chau surrounding the circumstances of how he immigrated to this country, we believe that it is appropriate to address Chau's contention regarding the legal significance of entering the United States under the Amerasian Immigration Act.

Chau argues that Congress, in enacting the Amerasian Immigration Act, conferred citizenship on all persons immigrating to the United States under the provisions of that Act. Indeed, Chau's counsel asserted at oral argument that "because of the unusual and preferential terms of the[Amerasian Immigration Act], he is . . . a derivative citizen." Alternatively, Chau argues that, because the Amerasian Immigration Act classifies its beneficiaries as children of United States citizens, entry into the United States under that Act (1) precludes the INS from contesting Chau's claim that he is the child of a United States citizen and (2) leaves only the question of whether Chau's father met the residency requirements of §§ 301. We do not agree with either argument.

In enacting the Amerasian Immigration Act, Congress sought to address the plight of Amerasian children left behind in Southeast Asia after American forces withdrew. As one congressional supporter stated, the Act "recognize[d] the moral responsibility that we have to [Amerasian ] children who have been fathered by Americans abroad." 128 Cong. Rec. 27270 (daily ed. Oct. 1, 1982) (statement of Rep. Rodino, Chairman of Committee on Judiciary). See also 128 Cong. Rec. 27271 (statement of Rep. Frank) ("I believe it is a matter of simple justice for us in the United States to welcome those children who were fathered by American servicemen in various Asian countries"); 128 Cong. Rec. 27272 (statement of Rep. Daschle) ("it is heartening to see us finally take this obvious action to right some of the wrong that has been perpetrated upon these children"). In recognition of that responsibility, Congress "provide[d] preferential treatment in the admission" of such children. Pub. L. No. 97-359, 96 Stat. 1716 (1982). See also 128 Cong. Rec. 27273 (statement of Rep. Gilman) ("this legislation . . . will give[Amerasian...