Chau v. United States Department of Homeland Security, CIV 03-00422-PHX-SMM.
Citation | 424 F.Supp.2d 1159 |
Decision Date | 28 March 2006 |
Docket Number | No. CIV 03-00422-PHX-SMM.,CIV 03-00422-PHX-SMM. |
Parties | Dung Van CHAU, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Respondent. |
Court | U.S. District Court — District of Arizona |
Lori Anne Higuera, Nancy-Jo Merritt, Fennemore Craig PC, Phoenix, AZ, for Petitioner.
Allen W. Hausman, Anthony C. Payne, David V. Bernal, Robert D. McCallum, Jr., U.S. Dept. of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, Cynthia M. Parsons, U.S. Attorney's Office, Phoenix, AZ, for Respondent.
This case was transferred to this Court from the United States Court of Appeals for the Ninth Circuit for a de novo determination of Petitioner's citizenship. Chau v. INS, 247 F.3d 1026, 1032 (9th Cir.2001). Since then, the Court has allowed the parties substantial time to develop the factual and legal bases for their positions. Pending before the Court is Respondent's Motion for Summary Judgment (Doc. No. 54). While the Court has not conducted a hearing, it is capable of reaching a legal decision on the Record before it. Therefore, after considering the arguments raised by the parties in their briefings and the entire case file, the Court hereby issues the following Memorandum of Decision and Order.
The following facts are undisputed.
Mr. Chau ("Chau" or "Petitioner") was born in Saigon, Vietnam on November 8, 1971. (Pet'r's SOF ¶ 1; Resp't's SOF ¶ 1.) His mother, Thi Mai Chau ("Ms.Chau"), is a native and citizen of Vietnam. (Pet'r's SOF ¶ 2; Resp't's SOF ¶ 7.) Neither Petitioner nor Ms. Chau know the specific identity of Petitioner's father. (Pet'r's Resp. at 7, lines 11-12; Resp't's SOF ¶ 11.) Ms. Chau claims that she met Petitioner's father on two occasions at a bar in Vietnam and that she was pregnant one month after meeting. (Trans. of Deportation Hr'g at p. 74, lines 2-4, p. 75, line 11.) She reports that she did not speak English and Petitioner's father did not speak Vietnamese. (Id. at p. 98, lines 1-6.) She states that he was in the U.S. forces in Vietnam because he was dressed in a paratrooper's uniform when she met him. (Id. at lines 8-11.) Ms. Chau reports that his name was "Nick" (or "Net") and that he was tall and dark with a dimple on a cheek. (Id. at lines 11, 20-24.) Ms. Chau states she has had no further contact with Petitioner's father. (Id. at p. 75, lines 11-12.) She states that Petitioner resembles his father because he is tall and dark, and he had a dimple on his cheek as a child. (Id. at lines 2-6.)
Petitioner states that his father was an African-American because he was given a nickname of "Dung Medan," which means "Dung a Black American." (Id. at p. 104, lines 24-25—p. 105, line 1.) Petitioner entered the United States with his mother and half-brother on December 4, 1984 as a "refugee" under § 207 of the Immigration and Nationality Act.1 He was domiciled in Arizona from that time until he reached the age of twenty-one. On June 8, 1987, Petitioner's status was adjusted to that of a lawful permanent resident alien.
The Immigration and Naturalization Service ("INS"2 or "Respondent") initiated deportation proceedings against Chau in 1996. The INS charged that Chau was subject to deportation because (1) he is not a citizen of the United States, and, (2) therefore, he is deportable pursuant to 8 U.S.C. § 1252(a)(2)(A)(ii) (1994), Immigration and Nationality Act ("INA") § 241(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
In proceedings before the Immigration Judge ("IJ"), Chau asserted that he was not deportable; Chau claimed he is a derivative citizen of the United States pursuant to Section 301 of the INA (8 U.S.C. § 1401) and provisions of Pub.L. No. 97-359 (the "Amerasian Immigration Act"3 or "AIA"), 96 Stat. 1716 (1982) (codified in 8 U.S.C. § 1154(f)). Chau argued that because he was admitted to the United States as a child of a United States citizen under the AIA, and because § 301's requirements were met, he established his derivative citizenship pursuant to Section 301(g) of the INA (8 U.S.C. § 1401).
On March 3, 1998, the IJ found that Chau entered the United States under the AIA, which provided evidence of his derivative citizenship. The IJ further determined that Chau's father likely met the residency requirement of INA § 301. Consequently, the IJ concluded that the INS had failed to show that Chau had no claim to citizenship, and that Chau is a derivative citizen of the United States. Chau's deportation proceedings were terminated. The INS appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and, on March 19, 1999, the BIA sustained the appeal and ordered Chau deported from the United States. The BIA rejected the IJ's finding that Chau had entered the United States pursuant to the AIA and concluded that Chau failed to provide sufficient evidence to demonstrate that his unknown father satisfied the residency requirement of INA § 301.
Chau then petitioned the Ninth Circuit Court of Appeals for review of the BIA's decision. Chau contended that "INA § 242(b)(5)(A), 8 U.S.C. § 1252(b)(5)(A), entitles him to a determination by th[e] court that he is a United States national and, therefore, not deportable." Chau v. INS, 247 F.3d 1026, 1027 (9th Cir.2001). In the alternative, Chau "request[ed] that [the court] 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)." Id. at 1027-28.
In his petition, Chau "conten[ded] that his entry into the United States under the Amerasian Immigration Act ... 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)." Id. at 1030. Chau also argued that he is "`a derivative citizen'" because "Congress, in enacting the Amerasian Immigration Act, conferred citizenship on all persons immigrating to the United States under the provisions of that Act." Id. In the alternative, he contended 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 [his] claim that he is the only child of a United States citizen and (2) leaves only the question of whether [his] father met the residency requirements of § 301.
Id. The Ninth Circuit did not adopt either argument. Id.
The Ninth Circuit also found that there were "genuine factual disputes precluding a determination ... of Chau's derivative citizenship." Id. at 1032. Therefore, the Ninth Circuit transferred the matter to this Court "for a de novo hearing on Chau's claim to United States citizenship." Id. The Ninth Circuit identified the following "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 requirement of § 301." Id. at 1030.
On June 3, 2002 and September 9, 2002, this Court conducted status hearings. On October 18, 2002, the INS filed a Motion for Summary Judgment (Doc. No. 11), arguing that Chau could not establish derivative citizenship because he does not know the exact identity of his father. The Court denied that Motion on September 15, 2003. (Doc. No. 19) Addressing an issue initially raised by the Ninth Circuit in a footnote, Chau, 247 F.3d at 1032 n. 8, the Court found that Chau, as a child born out of wedlock, is required to meet the heightened proof-of-paternity requirement of INA § 309, as a matter of law. The Court further found that questions of fact remain regarding whether or not Chau can meet those proof-of-paternity requirements. In addition to that legitimation requirement, the Court reiterated the genuine issues of fact previously identified by the Ninth Circuit: [1] the identity of Chau's father, [2] whether Chau immigrated to the United States under the provisions of the Amerasian Immigration Act, and [3] whether his father met the residency requirements of § 301. Subsequent to that Order, the parties engaged in further discovery until the filing of the instant Motion.
On August 10, 2005, the INS filed the pending Motion for Summary Judgment (Doc. No. 54) which this Court now considers.
A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines "which facts are material." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The dispute must also be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also Jesinger, 24 F.3d at 1130.
A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element...
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