Rivera v. Ashcroft, 101804 FED9, 03-35548a

Docket Nº:03-35548oa
Party Name:Rivera v. Ashcroft
Case Date:October 18, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SALVADOR RIVERA, Plaintiff-Appellant


No. 03-35548

United States Court of Appeals, Ninth Circuit

October 18, 2004

Submitted June 7, 2004[*] Seattle, Washington

Amended January 7, 2005

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding


Cheryl M. Nance, Bell, Flegenheimer & Nance, Seattle, Washington; Karen L. Gilbert, for the plaintiff-appellant.

Kirsten M. Schimpff, United States Attorney's Office, Seattle, Washington, for the defendants-appellees.

Before: Harry Pregerson, Warren J. Ferguson, and Consuelo M. Callahan, Circuit Judges.


The opinion filed October 18, 2004, 387 F.3d 835 (9th Cir. 2004), is hereby amended. The amended opinion is filed concurrently with this order.


FERGUSON, Circuit Judge:

Salvador Rivera, a.k.a. Salvador Galvan-Gaspar, (hereinafter "Rivera") appeals the District Court's denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. Rivera alleges that he is a United States citizen who was wrongly removed to Mexico, that his Due Process rights were violated during removal proceedings before Immigration Judge Anna Ho, and that he is entitled to a declaration by the District Court that he is a United States citizen. We find that the District Court has jurisdiction to hear Rivera's citizenship claim and remand for further proceedings.


Salvador Rivera was born at University North Hospital in Portland, Oregon, on January 20, 1979, to Logino Rivera and Eloisa Gaspar (now Eloisa Galvan). Approximately one month after Rivera's birth, Eloisa obtained a certified copy of her son's birth certificate. When Rivera was approximately three months old, Eloisa and Logino were having "personal problems," so Eloisa took Rivera with her to Mexico. Eloisa and Rivera returned to the United States with Eloisa's new husband in November 1989 when Rivera was nearly eleven years old. A few years later, Eloisa left Rivera in the United States with her brother and returned to Mexico. She left Rivera's personal documents, including those relating to his birth, with him in the United States.

INS documents indicate that on November 26, 1991, one Jorge Amaro-Gallardo and his mother, Maria De Jesus, were apprehended in a vehicle in El Centro, California. When questioned about his immigration status, Jorge gave INS agents a birth certificate that was not his own. The birth certificate instead belonged to Salvador Rivera, born to Eloisa Gaspar and Logino Rivera on January 20, 1979, at University Hospital North in Portland, Oregon. The birth certificate had been issued on February 23, 1979. Jorge Amaro-Gallardo told INS officials that the birth certificate had been "loaned" to him by an "Arturo Galvan-Aguirre." Following this incident, the INS kept the birth certificate on file. When shown the birth certificate, Eloisa testified that it was the birth certificate that she had obtained shortly after her son's birth and had left with Rivera when she left him with her brother and went to Mexico. She did not know why another person might have had the birth certificate. Rivera also did not know.

By the time Rivera was eighteen years old, a number of warrants existed for his arrest, so he decided to develop an alias. On a visit to his grandmother in Mexico that year, Rivera paid an unknown individual for a Mexican birth certificate. Rivera used the Mexican birth certificate to apply for a Washington driver's license and state ID card under the name "Salvador Galvan-Gaspar."

On January 15, 1998, Rivera was arrested by a Border Patrol agent. Rivera believed that, due to his outstanding warrants, he would face jail or imprisonment if he gave the agent his real name. Instead, he presented himself as a Mexican citizen and underwent voluntary deportation, and then returned to the United States via Mexicali. Over a year and a half later, a Border Patrol agent interviewed Rivera at Skagit County jail in Washington. Salvador told the agent that he had previously been deported under the name Salvador Galvan-Gaspar, but that he was actually a U.S. citizen.

On December 12, 2000, Rivera was arrested by Border Patrol agents when he appeared for a parole hearing with the Washington State Department of Corrections. Rivera told the agents that he was a U.S. citizen, and that he had purchased a birth certificate in Mexico in the name of "Salvador Galvan-Gaspar." Rivera initially agreed to give a sworn statement to the agents as to his identity, but then refused after reading the list of questions that he was to answer. That same day, the INS issued a "Notice to Appear" alleging that Rivera was not a U.S. citizen.


A. Immigration Court

On January 2, 2001, Rivera appeared before Immigration Judge Anna Ho. The Immigration Judge (IJ) informed Rivera that he had the right to an attorney, and asked if he needed time to find one. Rivera responded that, in 1998, he "had a lawyer, and we already fixed this matter about me being a U.S.A. citizen." When the IJ asked Rivera whether he needed time to contact his attorney, Rivera responded, "the thing that I don't understand is why I am here if we already—," at which point the IJ cut him off. Rivera presented a birth certificate indicating that he was born in Oregon on January 20, 1979, to the IJ. She informed the government lawyer that "this is obviously a true birth certificate of the respondent," and continued the case to allow the INS time to verify Rivera's identity. The INS lawyer said that the INS would "resolve whether we think he's a citizen" before the case resumed.

The INS, however, did not resolve its position. When the parties reappeared before IJ Ho six days later, the INS lawyer told the IJ, "I don't know whether or not that birth certificate relates to him or not. I think it's a question of fact for the Court." The INS lawyer further stated that if Rivera "is a citizen, he is, of course, not removable from the United States. But he has created this situation by assuming a false identity as an illegal alien and taking a removal order or voluntary departure once before." The IJ then told Rivera that his case would be set over to January 30, 2001, and that he "may have your family come in and testify and bring in all the proof to state that you are a U.S. citizen." The IJ also told Rivera, "You need to bring in people that knew you were born and knew your name."

At the January 30 hearing, the government's position was that Rivera had agreed to "removal to Mexico under one name and now asserts to be a citizen and produces a birth certificate which may or may not be his, may or may not relate to him. But we do know that there was another instance that some person . . . has used it also." The INS presented testimony from two Border Control agents, who said that Rivera told them that he had undergone voluntary removal to Mexico before but that he was actually a U.S. citizen. The INS also presented documents relating to Rivera's removal to Mexico, his subsequent INS contacts, the fraudulent use of the Oregon birth certificate by Jorge Amaro-Gallardo in 1991, a driver's license and state ID card for "Salvador Galvan-Gaspar," and a driver's license for "Salvador Rivera." The INS stated that there was no death record for "Salvador Rivera."

Eloisa gave the IJ a packet of paperwork relating to Rivera. In addition to the birth certificate, the paperwork included a February 5, 1993 progress report for "Salvador Rivera" from LaVenture Middle School; a page from a high school yearbook picturing "Salvador Rivera" as a sophomore student; a tax return prepared for "Salvador Rivera" by H & R Block for the 1998 tax year (including W-2 forms indicating that Salvador Rivera was employed by "Larry Vander Veen" and "Draper Valley Farms"); and a police file photo indicating that "Salvador Rivera" was also known as "Salvador Galvan"). The IJ responded:

I have a lot of questions and a lot of problems with just a live certificate, which doesn't tell me anything, because anyone could go get a copy of a birth certificate. So I need a lot more proof than just a birth certificate and a picture, which is an adult picture.


You've provided a photograph of a high school album. That doesn't mean anything. Any — people who have no documents can go to high school here, so that doesn't mean you're a U.S. citizen.

. . . You know, if you're a U.S. citizen, you certainly — your mother certainly would have more than just this for record. My children were born in this country. I could trace them from their birth . . . all the way up to their adult age. And you have nothing here to show that.

The IJ put both Rivera and Eloisa on the stand; both testified as previously described. The IJ questioned Eloisa particularly closely about the time she went to Mexico without Rivera and left him in her brother's care.2 First, the IJ asked, "And when was it that you left for Mexico by yourself?" Eloisa responded that she could not "remember the year exactly." The IJ asked, "Well, how old was your son when you left for Mexico by yourself?" Eloisa answered, "I don't remember if he was 14 or less or more. I don't remember."

A few questions later, the IJ asked, "And at that time he was already 14 years old?" Eloisa said, "I don't remember if he was already 14 by then. I'm not sure." The IJ persisted: "But approximately when he was 14 years old; is that right?" Eloisa agreed.

The IJ returned to the topic again: "And you said you went to Mexico without your son when he was about 14; is that right?" Eloisa replied, "Yes." The IJ said, "Okay. And in 1993, your son was 14...

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