Giha v. Garland

• Decision Date: 02 September 2021
• Docket Number: No. 15-73085,15-73085
• Citation: 12 F.4th 922
• Parties: Caleb Fares GIHA, aka Caleb Fares Giha Hernandez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.4th 922

Caleb Fares GIHA, aka Caleb Fares Giha Hernandez, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 15-73085

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 1, 2020 Seattle, Washington

Filed September 2, 2021

Gregory J. Dubinsky (argued), Sarah Coco, and Evan H. Stein, Holwell Shuster & Goldberg LLP, New York, New York, for Petitioner.

Rebekah Nahas (argued), Trial Attorney; Matthew Connelly, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges, and Richard G. Stearns,^* District Judge.

COLLINS, Circuit Judge:

Caleb Fares Giha ("Giha") petitions this court for review of the decision of the Board of Immigration Appeals ("BIA") affirming the order of the Immigration Judge mandating his removal to Peru. Before the agency, Giha moved to terminate his removal proceedings on the ground that, as a minor, he had acquired derivative U.S. citizenship upon his father's naturalization in 1999. Concluding that Giha's petition presented a genuine issue of material fact as to whether he was a U.S. citizen, a motions panel of this court transferred his case to the U.S. District Court for the Eastern District of California for a de novo review of his citizenship claim. See 8 U.S.C. § 1252(b)(5)(B). The district court (Magistrate Judge Grosjean) granted summary judgment for the Government, concluding that Giha is not a U.S. citizen. With the matter now restored to our docket, Giha challenges the district court's rejection of his claim of derivative U.S. citizenship. Reviewing the district court's grant of summary judgment de novo, see Sandoval v. County of Sonoma , 912 F.3d 509, 515 (9th Cir. 2018), we affirm that decision. And because Giha's petition for review otherwise presents no issues that would provide grounds for setting aside his removal order, we deny that petition.

I

The key facts underlying Giha's derivative citizenship claim were largely undisputed, but to the extent that they were, we recount them in the light most favorable to Giha. See Rice v. Morehouse , 989 F.3d 1112, 1116 (9th Cir. 2021).

A

Giha was born in Lima, Peru in 1982, and his birth certificate lists his parents as Walter Victor Giha Huarote ("Walter")¹ and Maria del Pilar Hernandez Marquez ("Hernandez"). At the time of Giha's birth, Walter and Hernandez were not formally married to one another, and both had previously been married to other persons. Walter had married a woman named Jesus Mansilla in Lima in 1959, and after having three children together, they divorced in 1970. Hernandez had married Gandolfo Salvador Mestre Saenz ("Mestre") in Lima in 1973. Hernandez and Mestre had a son together in March 1977, and his birth certificate lists their status as "Married." Giha does not dispute that the Peruvian National Registry of Identification and Civil Status (Registro Nacional de Identificación y Estado Civil or "RENIEC") contains no record of a divorce between Hernandez and Mestre, but he contends that this may have been because of their failure to submit the divorce record.

At some point between 1977 and 1980, Walter and Hernandez began a relationship with one another and eventually started living together.² They had two children, Giha in 1982 and a daughter in 1983. Giha does not dispute that his parents "never married at a courthouse, a municipality, or a church"; that they "never registered a civil union or had a civil union recognized by Peru or any Peruvian court"; and that RENIEC contains "no record of marriage" between Giha's parents. Giha claims, however, that his parents had the equivalent of a common-law marriage under Peruvian law, which expressly recognizes "de facto unions."

In early March 1987, Hernandez disappeared. Walter initially thought that she had left to visit family, as she had done on prior occasions, but he became concerned when she did not return within a few days. A week after her disappearance, he filed a report with the local police stating that she was missing and had abandoned the family. The report indicates that the police visited the house and saw that Hernandez's clothes were still in her closet. Neither her parents nor anyone else in her family knew where she was, and no one has heard from her since.

In May 1990, Walter sought and was granted permission by a Peruvian court to take his two children to the United States. In August of that same year, Walter, Giha, and Giha's sister were admitted to the U.S. as lawful permanent residents. On August 19, 1999, when Giha was 17 years old, Walter took the oath to become a naturalized U.S. citizen at a ceremony in Pomona, California.

B

After becoming an adult, Giha committed multiple criminal offenses that led to separate convictions in California state court in 2003, 2009, and 2010. In particular, in November 2010, Giha was convicted of possession of cocaine in violation of California Health and Safety Code § 11350(a). Three years later, the Department of Homeland Security initiated removal proceedings, alleging, inter alia , that Giha was removable under § 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), because he had been convicted of an offense "relating to a controlled substance."

See 8 U.S.C. § 1227(a)(2)(B)(i). At a hearing in February 2014, the Immigration Judge ("IJ") sustained this ground for removal based on Giha's 2010 conviction under § 11350. See Lazo v. Wilkinson , 989 F.3d 705, 714 (9th Cir. 2021) (holding that, under the modified categorical approach, a conviction for possession of cocaine in violation of § 11350 is an offense "relating to a controlled substance" under § 237(a)(2)(B)(i)). The IJ, however, granted Giha additional time to seek relief from removal.

In July 2014, Giha moved to terminate the removal proceedings, asserting that, under the previously-applicable provisions of the INA, he had acquired derivative U.S. citizenship upon his father's naturalization in 1999. After receiving briefing and evidence on that issue, the IJ rejected Giha's claim to citizenship in December 2014. At a subsequent hearing in April 2015, Giha withdrew his previously filed application for asylum and withholding of removal, and the IJ ordered Giha's removal to Peru. Giha appealed to the BIA, arguing only that the IJ had erred in rejecting his claim of derivative citizenship. Finding no error, the BIA dismissed Giha's appeal.

Giha timely petitioned this court for review. Because the petition raised a claim of U.S. citizenship, this court asked the parties to address whether the matter should be transferred to the appropriate district court pursuant to INA § 242(b)(5)(B). Under that statute, this court must undertake an initial preliminary review of any claim, in a petition for review, that the petitioner is actually a U.S. citizen. If we conclude that there is "no genuine issue of material fact about the petitioner's nationality," then the statute directs us to "decide the nationality claim" ourselves. 8 U.S.C. § 1252(b)(5)(A). But if we conclude that there is such a "genuine issue of material fact," then we must "transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim." Id . § 1252(b)(5)(B). Upon such a transfer, the district court must proceed as if the matter were an action under the declaratory relief statute, 28 U.S.C. § 2201, and it must render a decision on the disputed claim of U.S. citizenship. 8 U.S.C. § 1252(b)(5)(B). A motions panel of this court concluded that a genuine issue of material fact did exist as to Giha's citizenship claim, and we therefore transferred the proceeding to the U.S. District Court for the Eastern District of California, where Giha was then being detained. Pending the district court's decision, we held Giha's petition for review in abeyance.

After the matter was transferred to the district court, the parties conducted discovery on the relevant issues concerning Giha's citizenship claim, and the Government ultimately moved for summary judgment in September 2017. Giha opposed the motion, arguing that additional discovery was warranted or, in the alternative, that the record already established his claim to derivative citizenship. The district court agreed that additional discovery was warranted, and it ordered the parties to file supplemental briefs after completing that discovery. In his supplemental brief, Giha argued that there were disputed issues of material fact precluding granting summary judgment to the Government or, in the alternative, that summary judgment could be granted to him on the existing record.

The district court granted the Government's motion. The court first noted that the only dispute was whether Giha satisfied the requirement, under the terms of the applicable derivative citizenship statute, that there must have "been a legal separation" of his parents at the time of his father's naturalization in August 1999. See 8 U.S.C. § 1432(a)(3) (1999) (since repealed).³ The court held that Giha had the burden to prove the elements of his citizenship claim—including the existence of a legal separation of his parents—by a preponderance of the evidence and that he failed to carry that burden.

The district court reasoned that, under Ninth Circuit precedent, Giha could not show that his parents had legally separated without first showing that their alleged "de facto union" was valid under Peruvian law. The district court acknowledged that Peru recognizes "de facto unions," but it noted that, under Peruvian law, those who are already married "are absolutely impeded from entering into a subsequent marriage or de facto union." Because it was undisputed that Giha's mother (Hernandez) had been legally and formally married to another man (Mestre) before her relationship with Giha's father (Walter), the...