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NO. 03-71369
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MONDACA-VEGA
A 019 263 384
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General
Respondent.
PETITION FOR REVIEW OF
BOARD OF IMMIGRATION APPEALS FINAL ORDER
PETITION FOR REHEARING WITH SUGGESTION FOR
REHEARING EN BANC
Matt Adams
Martha H. Rickey
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
Tel. (206) 957-8611
Attorneys for Petitioner
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………
I. INTRODUCTION .................................................................... 1
II. REASONS FOR GRANTING REHEARING ........................... 2
A) The Panel’s Decision Rejects Controlling Precedent as to the
Applicable Standard of Review. ......................................................................... 2
B) The Panel’s Decision Deviates from Controlling Precedent in
Applying the Burden of Proof, Equating a “Clear and Convincing”
Standard, with a “Clear, Convincing & Unequivocal” Standard. ................10
C) Application of the Proper Standard to the Facts Requires the
Panel’s Decision to be Reversed. .......................................................................14
III. CONCLUSION ................................................................... 18
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369........... 19
CERTIFICATE OF SERVICE ..................................................... 20
ADDENDUM ................................................................................ 21
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iii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418 (1979) ......................................................... 10, 11
Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ................................. 3, 4, 6
Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) .................................................. 5
Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) .....................................13
Baumgartner v. United States, 322 U.S. 665 (1944) .......................... 3, 4, 6, 7, 8, 12
Bechtel v. United States, 176 F.2d 741 (9th Cir. 1949) ............................................. 3
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984).....................8, 9
California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981)
..............................................................................................................................10
Chaunt v. United States, 364 U.S. 350 (1960) ................................................ 3, 7, 17
Corona-Palomera v. INS, 661 F.2d 814 (9th Cir. 1981) .........................................13
Costello v. United States, 365 U.S. 265 (1961) ......................................................... 3
Demirchyan v. Holder, 641 F.3d 1141 (9th Cir. 2011) ............................................. 5
Fedorenko v. United States, 449 U.S. 490 (1981) ............................................ 1, 3, 7
Frank v. Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) ................................................. 5
Iran v. INS, 656 F.2d 469 (9th Cir.1981) .................................................................13
Klapprott v. United States, 335 U.S. 601, 617 (1949) .............................................13
Knauer v. United States, 328 U.S. 654 (1946) ................................. 1, 3, 6, 7, 14, 15
Kungys v. U.S., 485 U.S. 759 (1988) .......................................................................13
Lee Hon Lung v. Dulles, 261 F.2d 719 (9th Cir. 1958) ...........................................10
Lim v. Mitchell, 431 F.2d 197 (9th Cir.1970) ................................................. 1, 3, 10
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Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) ............................... 4
Mondaca-Vega v. Holder, --F.3d--, No. 03-71369 (9th Cir. April 25, 2013) . 1, 4, 6,
10, 11, 12, 14, 15, 21
Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) ............................................................13
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................. 8
Ng Fung Ho v. White, 259 U.S. 276 (1922) .................................................... 5, 6, 15
Nowak v. United States, 356 U.S.660 (1958) ......................................................3, 16
Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) .............................. 2
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........................................ 3, 4, 8, 9
Rivera v. Ashcroft, 394 F.3d 1129 (9th Cir. 2005) ..............................................5, 17
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...........2, 9
Schneiderman v. United States, 320 U.S. 118 (1943) .............................. 6, 7, 12, 15
Stacher v. United States, 258 F.2d 112 (9th Cir. 1958) ............................................. 3
Trop v. Dulles, 356 U.S. 86, 92 (1958) ....................................................................17
United States v. Delmendo, 503 F.2d 98 (9th Cir. 1974) ........................................... 3
United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) ................................1, 9
Woodby v. INS, 385 U.S. 276 (1966) ............................................................ 1, 11, 12
Statutes
8 U.S.C. § 1229a(c)(3)(A) .......................................................................................12
8 U.S.C. § 1252(b)(5)(B) ........................................................................................... 5
Other Authorities
H. Doc. 99-63 (1985) ................................................................................................. 9
The New Oxford American Dictionary, 368 (2d ed. 2005)......................................11
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v
Rules
Fed.R.Civ.P. 52(a)(6) .................................................................................... 3, 4, 8, 9
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I. INTRODUCTION
Petitioner Reynaldo Mondaca, a.k.a. Salvador Mondaca-Vega (“Petitioner”
or “Mr. Mondaca”), seeks panel rehearing with suggestion for rehearing en banc of
the Court’s opinion. Mondaca-Vega v. Holder, --F.3d--, No. 03-71369 (9th Cir.
April 25, 2013). As pointed out in the dissenting opinion, the Panel’s holding
conflicts with controlling precedent of the United States Supreme Court and this
Court, which directs a contrary result as to the standard of review that must be
applied to the district court’s findings of fact. See, e.g., Knauer v. United
States, 328 U.S. 654 (1946); Fedorenko v. United States, 449 U.S. 490 (1981); Lim
v. Mitchell, 431 F.2d 197 (9th Cir.1970). Similarly, the Panel’s decision directly
conflicts with an existing opinion by the First Circuit Court of Appeals. See
United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006). Consideration by the
full court is therefore necessary to secure and maintain uniformity of the Court’s
decisions.
Moreover, the Panel’s holding conflicts with controlling precedent of the
Supreme Court in applying the burden of proof, erroneously equating “clear,
unequivocal, and convincing” evidence as being the same as the “clear and
convincing” standard. See Woodby v. INS, 385 U.S. 276 (1966).
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II. REASONS FOR GRANTING REHEARING
A) The Panel’s Decision Rejects Controlling Precedent as to the Applicable
Standard of Review.
The Panel erred in deviating from controlling case law from the Supreme Court
(and from this Court) based on its supposition that the Supreme Court had
implicitly rejected its prior case law, even though the cases the Panel relied on did
not address the standard of review in citizenship or denaturalization issues. The
Panel’s assumption violates a clear principal previously established by the
Supreme Court: “If a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989). See also Nunez-Reyes v. Holder, 646
F.3d 684, 692 (9th Cir. 2011) (en banc) (“As a circuit court, even if ‘recent
Supreme Court jurisprudence has perhaps called into question the continuing
viability of [its precedent], we are bound to follow a controlling Supreme Court
precedent until it is explicitly overruled by that Court.’” (citation omitted)).
However, the majority did precisely what the Supreme Court stated must not occur
-- the majority claimed the authority to announce that Supreme Court precedent,
which is directly on point, is no longer controlling.
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The panel found that in reviewing the district court’s findings, its standard of
review is constrained by Fed.R.Civ.P. 52(a)(6), which states that a reviewing court
may only set aside factual findings that are clearly erroneous. However, as the
dissenting opinion clearly explains, a long and venerable line of cases from the
Supreme Court establishes that where the government seeks to strip an individual
of their United States citizenship, or to deport someone despite their claim of U.S.
citizenship, the Court of Appeals is required to provide independent review. See
Fedorenko, 449 U.S. at 506; Costello v. United States, 365 U.S. 265
(1961); Chaunt v. United States, 364 U.S. 350 (1960); Nowak v. United States, 356
U.S. 660 (1958); Knauer, 328 U.S. 654; Baumgartner v. United States, 322 U.S.
665 (1944). As one would expect, this Court has up until now applied that same
standard. See United States v. Delmendo, 503 F.2d 98 (9th Cir.1974); Lim, 431
F.2d 197; Stacher v. United States, 258 F.2d 112 (9th Cir.1958); Bechtel v. United
States, 176 F.2d 741, 744 (9th Cir. 1949).
However, the majority cites to Pullman-Standard v. Swint, 456 U.S. 273
(1982), to assert that “[t]he Supreme Court has since cabined much of the core of
Baumgartner,” and further asserts that it need not abide by controlling precedent
from this Court because “Lim and its progeny relied on implications drawn from
Knauer and Baumgartner that the Supreme Court subsequently repudiated in
Pullman–Standard and Anderson. Because Lim is clearly irreconcilable with
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Pullman–Standard and Anderson, it has been effectively overruled.” Mondaca-
Vega, slip op. at 8, 13.1
However, the cases relied on by the majority do not overturn or repudiate
Baumgartner, let alone address any of its progeny. Instead, they clarified that the
standard addressed in Baumgartner is specific to its context, citizenship cases
where the exacting burden of proof is directly tied into the standard of review, and
does not provide justification for such searching review in other contexts. The
Supreme Court explained in Pullman-Standard,
Whatever Baumgartner may have meant by its discussion of “ultimate
facts,” it surely did not mean that whenever the result in a case turns on a
factual finding, an appellate court need not remain within the constraints of
Rule 52(a). Baumgartner's discussion of “ultimate facts” referred not to pure
findings of fact-as we find discriminatory intent to be in this context-but to
findings that “clearly impl[y] the application of standards of law.”
456 U.S. at 286 (citation omitted). In contrast, the Court in Pullman-Standard held
that Rule 52(a) controlled because the question at issue under the statute was a
“pure question of fact . . . unmixed with legal considerations.” Id. at 286 n.16. The
Supreme Court clearly distinguished Baumgartner’s discussion of “ultimate facts”
as an appraisal of the strength of the entire body of evidence in a denaturalization
case. Id. Thus, not only does Pullman-Standard not overturn Baumgartner, it
1 As this Court previously explained, the test to determine whether prior
controlling case law has been overruled is if “the relevant court of last resort must
have undercut the theory or reasoning underlying the prior circuit precedent in
such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003) (en banc).
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acknowledges one of the primary distinguishing features of that case—an exacting
standard of proof requiring independent review of the facts.
In Ng Fung Ho v. White, 259 U.S. 276 (1922), the Supreme Court considered a
challenge to an executive order of deportation issued against residents who claimed
to be U.S. citizens. Justice Brandeis, writing for the unanimous Court, held that
the executive had no jurisdiction to order the deportation of a citizen: “The claim
of citizenship is thus a denial of an essential jurisdictional fact.” 259 U.S. at 284;
see also Rivera v. Ashcroft, 394 F.3d 1129, 1136 (9th Cir. 2005) (same); Frank v.
Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) (“Until the claim of citizenship is
resolved, the propriety of the entire proceeding is in doubt.”).
Moreover, in the instant case the Court of Appeals has remanded the
proceedings to the district court pursuant to 8 U.S.C. § 1252(b)(5)(B), as a
mechanism for additional fact-finding. But the Court of Appeals retains original
jurisdiction, and with it the obligation to determine its own jurisdiction de novo.
“[W]e never relinquished jurisdiction over [the original petition for review] when
we transferred it for a limited purpose to the district court.” Anderson v. Holder,
673 F.3d 1089, 1093-94 (9th Cir. 2012) (citing Demirchyan v. Holder, 641 F.3d
1141, 1143 (9th Cir. 2011)). Thus, the Court retains its obligation to ensure that
DHS has carried its burden to present clear, unequivocal and convincing evidence
that leaves no doubt as to Petitioner’s citizenship claim. See Schneiderman v.
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United States, 320 U.S. 118, 125 (1943). As such, the Court’s obligation to review
the findings of fact, independently determining whether DHS has met its burden, is
no different from when Mr. Mondaca first filed a petition for review from the
BIA’s final order.
The majority also asserts that “the Supreme Court has rejected
Baumgartner’s remaining reasoning” in Anderson v. City of Bessemer City, 470
U.S. 564 (1985), citing to the issue of factual findings predicated on credibility
determinations as compared to factual finding based on physical or documentary
evidence. Mondaca-Vega, slip op. at 11-12. But that certainly is not the remaining
reasoning proffered by Baumgartner, Knauer, and its progeny for providing
independent review at the appellate level. Rather, the primary reason, which the
majority fails to address, is that the right at issue, citizenship in this country, is not
only derived from the constitution but is so special that “[t]o deport one who so
claims to be a citizen obviously deprives him of liberty,” and “[i]t may result also
in loss of both property and life, or of all that makes life worth living.” Ng Fung
Ho, 259 U.S. at 284.
The Supreme Court’s decision in Baumgartner was followed two years later
by its holding in Knauer, which reaffirmed that the fundamental reason for de novo
review in citizenship cases is that citizenship is a special right which is protected
by a demanding burden of proof:
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When denaturalization is sought on this (Baumgartner v. United States,
supra), as well as on other grounds (Schneiderman v. United States, supra),
the standard of proof required is strict. We do not accept even concurrent
findings of two lower courts as conclusive. We reexamine the facts to
determine whether the United States has carried its burden of proving by
‘clear, unequivocal, and convincing’ evidence, which does not leave ‘the
issue in doubt,’ that the citizen who is sought to be restored to the status of
an alien obtained his naturalization certificate illegally.
Knauer, 328 U.S. at 657-58 (citations omitted).
Similarly, in Fedorenko the Supreme Court clarified that precisely because
American citizenship is precious, and “its loss can have severe and unsettling
consequences,” the Government carries a heavy burden, presenting evidence that
must be clear, convincing, and unequivocal, that does not leave the issue in doubt.
449 U.S. at 505-06. For those same reasons, in reviewing denaturalization cases,
“we have carefully examined the record ourselves.” Id.
In Chaunt the Supreme Court explained again that the appellate court’s
responsibility to provide a searching review of the facts is based on the rights at
issue, which go to the very nature of our government:
The issue in these cases is so important to the liberty of the citizen that the
weight normally given concurrent findings of two lower courts does not
preclude reconsideration here, for we deal with ‘judgments lying close to
opinion regarding the whole nature of our government and the duties and
immunities of citizenship.’
Chaunt, 364 U.S. at 353 (quoting Baumgartner, 322 U.S. at 671). Indeed, in
Chaunt the Supreme court cites to the same language in Baumgartner that is later
cited approvingly in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485
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(1984), a decision which postdates Pullman-Standard, further clarifying that
Supreme Court did not regard its earlier decision in Pullman-Standard as rejecting
the holding in Baumgartner.
In Bose Corp., the Supreme Court again emphasized the need for a searching
review of facts that necessarily implicate First Amendment protections, affirming
such review where “the constitutional values protected by the rule make it
imperative that judges—and in some cases judges of this Court—make sure that it
is correctly applied.” 466 U.S. at 501-02. This case reaffirms, after Pullman-
Standard, a long line of Supreme Court cases recognizing independent review in
appellate decisions of factual findings that guarantee similar constitutional rights.
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964) (free
expression).
Not only was Bose Corp. issued after Pullman-Standard, further evidencing
its continuing vitality, but as the dissenting opinion in this case also points out,
Bose Corp. provides yet another example where the Supreme Court has clarified
that that the reach of the clearly erroneous standard under Rule 52(a) is not all
encompassing. Rather, where certain constitutional rights are at issue, the
appellate courts retain independent review of the facts. Thus, there is even less
basis to assert that Rule 52(a) should be applied to citizenship cases
notwithstanding the long line of controlling case law to the contrary.
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In 1985, following the Supreme Court decisions in Bose Corp. and Pullman-
Standard, among others, Rule 52 was amended to clarify that it was not intended to
distinguish oral from documentary evidence-based findings of fact. See H. Doc.
99-63, at 20-22 (1985) (noting that “the Supreme Court has not clearly resolved the
issue.”). However, the rule did nothing to modify the exception reaffirmed in Bose
Corp., that a more searching review is applicable in order to preserve certain
constitutional rights. And more specific to the instant case, the Committee let pass
without comment the Supreme Court’s long-established exception to Rule 52(a)
requiring independent appellate review of factual findings by lower courts in
citizenship and denaturalization cases.
Ultimately, even if the Panel believes that Rule 52(a) should be read to
apply to all appellate cases, it is clear that the Supreme Court has not taken that
position to this point. Instead of abiding by controlling precedent, the majority
usurps the “prerogative of the Supreme Court” to declare that its prior case law is
no longer binding. Rodriguez de Quijas, 490 U.S. at 484.2
2 In determining that it would no longer abide by the Supreme Court’s case law
controlling citizenship determinations, the Panel’s holding also created a direct
conflict with another circuit. The First Circuit clarified that the special standard of
review is based on the fact that the Supreme Court “made clear that
denaturalization cases are of an unusual nature.” See Zajanckauskas, 441 F.3d at
37-38, n.5 (“The government urges us to abandon the standard articulated
in Cufari and adhere to the more deferential standard articulated in Fed.R.Civ.P.
52(a). However, the Supreme Court cases which the government cites in support of
its position have nothing to do with denaturalization.”).
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B) The Panel’s Decision Deviates from Controlling Precedent in Applying
the Burden of Proof, Equating a “Clear and Convincing” Standard,
with a “Clear, Convincing & Unequivocal” Standard.
The Panel also deviates from controlling case law to reach its holding that
there is but one “intermediate” evidentiary standard, equating “clear, convincing
and unequivocal” evidence with evidence that is only “clear and convincing.”
Mondaca-Vega, slip op. at 18. The failure to reverse the district court for not
applying the correct standard is especially important because as noted in the
previous section, it ties directly into the rationale provided by the Supreme Court
for providing a searching, independent review of the record.
The Panel’s decision acknowledges “that in at least two cases we have
articulated the government’s burden for disproving citizenship as ‘clear,
unequivocal, and convincing’ evidence, without expressly equating that
formulation to the more common ‘clear and convincing’ standard.” Id. at 16
(citing Lim, 431 F.2d at 199; Lee Hon Lung v. Dulles, 261 F.2d 719, 723-24 (9th
Cir. 1958)). However, the Panel then cites Addington v. Texas, 441 U.S. 418, 432
(1979), and California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454
U.S. 90, 93 (1981), for the proposition that there are three discrete evidentiary
standards: mere preponderance, clear and convincing, and beyond a reasonable
doubt. Id. at 17. Thus, the Panel concluded that the District Court did not err in
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only applying a “clear and convincing” standard instead of a more demanding,
“clear, convincing and unequivocal” standard. Id. at 8.
The Supreme Court in Addington discussed a “continuum” with “three
standards or levels of proof.” 441 U.S. at 433. Yet the Panel overstates the
holding in Addington to assert that “federal law generally recognizes a ‘continuum’
containing only ‘three standards or levels of proof.’” Mondaca-Vega, slip op. at 17
(emphasis added). This assertion contradicts the Supreme Court’s plain language:
a continuum necessarily includes a scale of varying degrees, as opposed to three
distinct, discrete levels.3
In Woodby, the Supreme Court reiterated that “[i]n denaturalization cases the
Court has required the Government to establish its allegations by clear,
unequivocal, and convincing evidence.” 385 U.S. at 285. The Court further noted
that this “standard of proof is no stranger to the civil law”, but also that “[t]his
standard, or an even higher one, has traditionally been imposed in cases involving
allegations of civil fraud, and in a variety of other kinds of civil cases involving
such issues as adultery, illegitimacy of a child born in wedlock, lost wills, oral
contracts to make bequests, and the like.” Id. at 285 n.18 (emphasis added). This
3 A “continuum” is defined as: a continuous sequence in which adjacent elements
are not perceptibly different from each other, although the extremes are quite
distinct: <at the fast end of the fast-slow continuum>; [mathematics] the set of real
numbers. The New Oxford American Dictionary, 368 (2d ed. 2005).
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explanation of the different standards applicable in civil proceedings, directly
contradicts the Panel’s holding that there are only three discrete standards
applicable.
It is also noteworthy that in Woodby, the Supreme Court reversed the Second
and Sixth Circuit Courts of Appeals for applying a standard of proof requiring a
showing of only “reasonable, substantial and probative evidence” rather than
“clear, convincing and unequivocal” evidence. 385 U.S. at 279-81, 286. Yet, 8
U.S.C. § 1229a(c)(3)(A), clearly equates “clear and convincing evidence” with
“reasonable, substantial and probative evidence,” the standard that was rejected in
Woodby and replaced with the higher standard of “clear, convincing, and
unequivocal.” This further demonstrates that the Court of Appeals erred in failing
to hold the district court to the proper standard of proof.
Moreover, as the dissent explains in this case, the majority ignores the
Supreme Court’s clear precedent which explains why there is such a high
evidentiary burden placed on the government in citizenship and denaturalization
cases. See Mondaca-Vega, slip op. at 27 n.1 (citations omitted). Indeed, the
Supreme Court in Schneiderman and Baumgartner,
required a burden of proof for denaturalization which in effect
approximates the burden demanded for conviction in criminal cases,
namely, proof beyond a reasonable doubt of the charges alleged as
cause for denaturalization. This was in itself and to that extent
recognition that ordinary civil procedures . . . do not suffice for
denaturalization and all its consequences.
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Klapprott v. United States, 335 U.S. 601, 617 (1949) (J. Rutledge, concurring).4
In addition, both the Panel and the district court erred in determining that
Petitioner had the initial burden of producing evidence to demonstrate his
citizenship, applying the burden-shifting approach laid out in Ayala-Villanueva v.
Holder, 572 F.3d 736, 738 n.3 (9th Cir. 2009). However, that case and others
applying this burden-shifting approach involve individuals who conceded that they
were born abroad, but nonetheless claimed to have derived or acquired U.S.
citizenship. Case law clarifies that if someone was born abroad there is a
presumption of “alienage.” Corona-Palomera v. INS, 661 F.2d 814 (9th Cir.
1981). However, case law is equally clear that this presumption does not operate
where the individual claims to be born in the United States. See Murphy v. INS, 54
F.3d 605, 609 (9th Cir. 1995) (“The BIA decisions on which the government relies
to support the respondent’s burden to prove citizenship by a preponderance of the
evidence are inapposite. In each case, the respondent’s foreign birth was an
undisputed fact, but the respondent attempted to prove derivative citizenship based
upon a parent's alleged United States citizenship.”). The government must
establish “alienage” before the burden-shifting presumption applies. See id. (citing
Iran v. INS, 656 F.2d 469, 471 (9th Cir.1981)). Given that Petitioner claims
4 The Supreme Court again applied this demanding standard again in Kungys v.
U.S., 485 U.S. 759, 776 (1988).
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birthright citizenship, he should not have been assigned the initial burden of
presenting evidence that he is a citizen.
C) Application of the Proper Standard to the Facts Requires the Panel’s
Decision to be Reversed.
The Panel failed to apply the proper evidentiary standard to determine
whether DHS carried its burden to bring forward clear, unequivocal, and
convincing evidence that does not leave the issue of Petitioner’s citizenship in
doubt. The Panel brushes aside the district court’s repeated speculation and
conjecture as “not findings at all” but rather “part of the court’s reasoning when
deciding that Petitioner was not a credible witness.” Mondaca-Vega, slip op. at 21.
Yet as the Supreme Court has clarified, “[w]here the fate of a human being is at
stake, we must not leave the [deciding issue] to conjecture.” Knauer, 328 U.S. at
659.
For example, as the dissent notes, the record not only does not support the
district court’s speculation as to when Petitioner began using the name Reynaldo
Mondaca, it directly contradicts it. Mondaca-Vega, slip op. at 21. Similarly, the
majority chose to highlight and affirm the district court’s judicial notice of
distances between geographical points without examining whether this distance
supported the inferences made by the court. Id. at 24. It failed to acknowledge
that the distance was only relevant to support further conjecture, that in 1953 one
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15
had to present a birth certificate in order to obtain a Social Security card. There is
nothing in the record to support an assumption that Petitioner returned to his
parent’s home at that time to get a birth certificate.
Several other errors were acknowledged only by the dissent, including the
district court’s improper speculation regarding: Petitioner’s possession of his birth
certificate; what someone in Petitioner’s position would or would not have done in
the early 1950s; and what may or may not have been in Petitioner’s financial
interest. See id. at 46-47. Once again, the Panel failed to hold the government to
its burden to produce evidence. Speculation cannot justify a decision to strip
anyone of their precious right to birthright citizenship. The judiciary must hold the
executive to the highest standard of proof. See, e.g., Ng Fung Ho, 259 U.S. at 284-
85; Schneiderman, 320 U.S. at 122; Knauer, 328 U.S. at 659.
In affirming the district court’s adverse credibility finding regarding
Petitioner’s deceased wife, the Panel ignores the fact that the immigration judge,
who unlike the district court had the opportunity to observe her demeanor and
witness her live testimony, declined to make an adverse credibility finding. See
Mondaca-Vega, slip op. at 23; E.R. v.2 at 181-82. In the underlying administrative
proceedings the government introduced no evidence to contradict her consistent
testimony that she always knew Petitioner as “Reynaldo,” even when they were
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16
living in the town he grew up in Mexico, and that he had always represented to her
that he had been born in the United States.
Despite acknowledging that someone named Reynaldo Mondaca is indeed a
U.S. citizen born in California, the very year Petitioner asserts that he was born,
the government introduced no evidence whatsoever that any other person had ever
claimed to be Reynaldo. Cf. Nowak v. United States, 356 U.S.660, 665 n.3 (1958)
(“The gap in the Government’s proof cannot be filled in such tenuous fashion.”).
In addition, the Panel failed to even acknowledge that the Mexican birth certificate
introduced by the government had been hunted down by the government in
Mexico, and that there was absolutely no evidence that Petitioner had ever used or
been in possession of that document. See E.R. v.2 at 156.
Further, the Panel did not even address the district court’s erroneous finding
that “[n]either the INS nor the United States Attorney questioned his assertion that
his name is Reynaldo Carlon Mondaca” when Petitioner was arrested and
criminally charged with alien smuggling in 1980. See E.R. v.1 at 8. There was
absolutely no evidence to support the district court’s finding. Indeed, by 1980,
Petitioner was well known to INS and law enforcement and his fingerprints linked
him to a person previously ordered deported as a citizen of Mexico. Yet, the
government criminally prosecuted him as a U.S. citizen in 1980, seven years after
a full-scale INS investigation into his identity in 1973 and approval of his family
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17
petitions in 1977. He was again held for an investigation into his identity and
immigration status in 1983. Then in 1994, with no new evidence, an INS officer
ignored the prior findings and decided to charge Petitioner as a deportable
Mexican. See E.R. v.2 at 119-26, 144-46, 155, 174-76.
By failing to apply the appropriate standard of review, in order to ensure that
the government had presented clear, convincing and unequivocal evidence, the
Panel failed to acknowledge what is at stake in this case: birthright citizenship,
affecting not just Petitioner, but the settled lives of his adult children, all with
established families and careers. The government has repeatedly reaffirmed his
U.S. citizenship, for over a thirty-year period. An INS officer arbitrarily decided to
charge him as deportable without any additional evidence from the prior
determinations, after Mr. Mondaca had been convicted of a crime.5 The Panel’s
decision should be reversed, clarifying that the government must be held to a
standard of proof that corresponds to the fundamental constitutional rights at issue.
A person who claims citizenship by birth may only be removed with “‘clear,
unequivocal, and convincing’ evidence that does not leave ‘the issue in doubt.’”
Chaunt, 364 U.S. at 353 (citations omitted).
5 “As Chief Justice Warren observed in Trop v. Dulles, 356 U.S. 86, 92 (1958)
(plurality opinion), ‘[c]itizenship is not a license that expires upon misbehavior.’”
Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th Cir. 2005).
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18
III. CONCLUSION
Petitioner respectfully requests that the petition for rehearing be granted in
recognition that the Panel’s holding cannot be reconciled with controlling case law.
Date: July 1, 2013 Respectfully submitted,
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
Attorney for Petitioner
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CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369
I certify that:
1. Pursuant to Fed. R. App. P. 40-1(a), the attached petition for rehearing brief
is
Proportionately spaced, has a typeface of 14 points or more and contains
_4,192___ words (must not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text).
July 1, 2013 s/ Matt Adams
Date Matt Adams
Northwest Immigrant Rights Project
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20
CERTIFICATE OF SERVICE
RE: Mondaca-Vega v. Holder, Case No. 03-71369
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on July 1, 2013.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Executed in Seattle, Washington, on July 1, 2013.
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
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ADDENDUM
Mondaca-Vega v. Holder, -- F.3d --, No. 03-71369 (9th Cir. April 25, 2013).
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No. 03-71369 _____________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ___________________________________________________
SALVADOR MONDACA-VEGA,
Petitioner (Not Detained),
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
ON APPEAL OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON’S FINAL ORDER
RESPONDENT’S BRIEF IN OPPOSITION TO PETITIONER’S PETITION FOR REHEARING BY PANEL OR EN BANC
STUART DELERY Assistant Attorney General Civil Division DAVID J. KLINE Director JEFFREY S. ROBINS Assistant Director Office of Immigration Litigation Date: August 13, 2013
KATHERINE E.M. GOETTEL Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115 Attorneys for Respondent
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TABLE OF CONTENTS
INTRODUCTION………………………………………………………….1 ARGUMENT……………………………………………………………….1 A. Lim v. Mitchell is No Longer Good Law; the Clearly Erroneous Standard is Consistent with Supreme Court Precedent. ………1
B. The Panel’s Decision Regarding the Burden of Proof is Consistent with Supreme Court and Ninth Circuit Case Law…………………………………………………………….7
C. The panel did not err in affirming the district court’s application of the standard to the facts in this case. ……………………...11 CONCLUSION……………………………………………………………15
i
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TABLE OF AUTHORITIES
Addington v. Texas, 441 U.S. 418 (1979)………………………………………2, 8, 10, 11 Anderson v. City of Bessemer, 470 U.S. 564 (1985)……………………………………………passim Ayala-Villanueva v. Holder,
572 F.3d 736 (9th Cir. 2009) ……………………………………….10 Baumgartner v. United States, 322 U.S. 655 (1944)……………………………………………3, 4, 5 California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981)………………………………………2, 8, 9, 10, 11 Cardenas-Delgado v. Holder,
--- F.3d ---, No. 11-72057, 2013 WL 3198419 (9th Cir. June 26, 2013) …………………………………………….........................................3
Friend v. Reno, 172 F.3d 638 (9th Cir. 1999)………………………………………...10 Lee Hon Lung v. Dulles, 261 F.2d 719 (9th Cir. 1958)………………………………………10 Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1990)…………………………………...passim Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001)…………………………………10, 11 Matter of Extradition of Smyth, 72 F.3d 1433 (9th Cir. 1996)………………………………………13 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)…………………………………1, 2, 3, 7
ii
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Mondaca-Vega v. Holder, 718 F.3d 1075 (9th Cir. 2013)………………………………7, 10, 14 Murphy v. INS, 54 F.3d 605 (9th Cir. 1995)……………………………………10, 11 Pullman-Standard v. Swint, 456 U.S. 273 (1982)……………………………………………passim Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010)………………………………………14 United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960)…………………………………………………1 United States v. Arango, 670 F.3d 988 (9th Cir. 2012)………………………………………10 United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006)…………………………………………7 Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2007)………………………………………13 Woodby v. INS, 385 U.S. 276 (1966)………………………………………………9, 10
STATUTES
8 U.S.C. § 1252(b)(5)………………………………………………………6
FEDERAL RULES OF PROCEDURE Fed. R. App. P. 35…………………………………………………………. 7 Fed. R. App. P. 35(b)(1)……………………………………………………1 Fed. R. App. P. 35(b)(2)……………………………………………………1 Fed. R. App. P. 35(b)(1)(A)……………………………………………11, 15
iii
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Fed. R. App. P. 35(b)(1)(B)……………………………………………….15 Fed. R. App. P. 40(a)(2)…………………………………………….…….15 Fed. R. Civ. P. 52(a)…………………………………………….…….2, 5, 6
OTHER AUTHORITIES 2 McCormick On Evid. § 340 (7th ed.) ………………………………….…8
iv
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INTRODUCTION
Respondent hereby opposes Salvador Mondaca-Vega’s (“Mr.
Mondaca-Vega”) Petition for Rehearing with Suggestion for Rehearing En
Banc (“Reh. Pet.”). Mr. Mondaca-Vega does not satisfy the requirements
for rehearing en banc or by panel set forth in Rules 35 and 40 of the Federal
Rules of Appellate Procedure.1 En banc review is intended to bring to the
attention of the entire Court a precedent-setting error of exceptional public
importance or an opinion that directly conflicts with prior Supreme Court or
Ninth Circuit precedent. See Fed. R. App. P. 35(b)(1)-(2); see also United
States v. American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). But the
Panel’s decision does not meet either of these requirements.
The first issue is whether an appellate court reviews a district court’s
findings of fact on a nationality claim for clear error or de novo. The Panel
reviewed the district court’s findings of fact for clear error. That standard of
review is consistent with Anderson v. City of Bessemer, 470 U.S. 564
(1985), and Pullman-Standard v. Swint, 456 U.S. 273 (1982), which
effectively overruled Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1990).
Rehearing en banc is unwarranted where higher authority is irreconcilable
with Circuit precedent. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
1 Petitioner makes no arguments in favor of rehearing by panel. Respondent will therefore focus on the standard for rehearing en banc.
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2003) (en banc). Here, Pullman-Standard and Anderson conflict with Lim
and the Ninth Circuit should review fact-finding in citizenship claims for
clear error.
Second, the Panel held correctly that there is no meaningful difference
between the clear, convincing, and unequivocal standard and the clear-and-
convincing standard. Because the Panel’s decision was supported by
Addington v. Texas, 441 U.S. 418, 432 (1979), California ex rel. Cooper v.
Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981) (per curiam), and
several Ninth Circuit cases, rehearing is unwarranted on this issue.
Last, in affirming the district court’s findings of fact, the Panel did not
err. Petitioner fails to show how the Panel’s decision conflicts with
controlling law in any way.
ARGUMENT
A. Lim v. Mitchell is No Longer Good Law; the Clearly Erroneous Standard is Consistent with Supreme Court Precedent.
The Panel applied the “clearly erroneous” standard of review to the
trial court’s findings of fact, citing Federal Rule of Civil Procedure 52(a)(6).
It is well-settled law that an appellate court reviews a trial court’s findings of
fact for clear error. See Anderson v. City of Bessemer, 470 U.S. 564 (1985).
Nevertheless, Petitioner argues that the Panel should have reviewed the
district court’s findings of fact de novo, citing to this Court’s decision in Lim
2
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v. Mitchell, 431 F.2d 197 (9th Cir. 1970). In Lim, the Ninth Circuit held that
an appellate court has the authority “to re-examine the facts” in citizenship
cases. Id. at 200. But Lim is no longer good law in light of intervening
higher authority that directly contradicts that decision.
“[A]lthough a three judge panel generally may not overrule a prior
decision of this court, that rule does not take into account situations in which
the prior decision has been ‘undercut by higher authority to such an extent
that it has been effectively overruled by such higher authority and hence is
no longer binding on district judges and three judge panels of this court.’”
Cardenas-Delgado v. Holder, --- F.3d ---, No. 11–72057, 2013 WL
3198491, at *7 (9th Cir. June 26, 2013) (quoting Miller, 335 F.3d at 899).
The Supreme Court’s decisions in Pullman-Standard and Anderson have
effectively overruled the Ninth Circuit’s decision in Lim, and rehearing en
banc or by panel is unnecessary to resolve the applicability of those cases.
In support of his argument, Petitioner goes back to the Supreme
Court’s 1946 case in Knauer v. United States, 328 U.S. 607 (1946), which in
turn relies on Baumgartner v. United States, 322 U.S. 655 (1944). The
Ninth Circuit relied on both cases in Lim. Baumgartner was one of the first
cases to suggest that, in certain situations, an appellate court should review
3
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findings of fact de novo. In Baumgartner, the Supreme Court discussed
different types of fact-finding:
The phrase ‘finding of fact’ may be a summary characterization of complicated factors of varying significance for judgment. Such a ‘finding of fact’ may be the ultimate judgment on a mass of details involving not merely an assessment of the trustworthiness of witnesses but other appropriate inferences that may be drawn from living testimony. . . . Finding so-called ultimate “facts” more clearly implicates the application of standards of law. . . . Though labeled ‘finding of fact’, it may involve the very basis on which judgment of fallible evidence is to be made. . . . Particularly is this so where a decision here for review cannot escape broadly social judgments lying close to opinion regarding the whole nature of our Government and the duties and immunities of citizenship.
Baumgartner, 322 U.S. at 670-71 (emphasis added).
The Baumgartner court talked about “ultimate facts” and facts that
included underlying societal judgments. Id. They are the sort of facts that
are not based on credibility determinations or factual review of documentary
evidence, but are facts that implicate an “application of standards of law.”
Pullman-Standard, 456 U.S. at 286 n.1.
Forty years after Baumgartner, in Pullman-Standard, the Court
carefully parsed out the sometimes blurry line between “pure findings of
fact” and conclusions of law that are based on findings of fact. Id. at 288
(“The Court has previously noted the vexing nature of the distinction
between questions of fact and questions of law.”) Despite its “vexation,” the
4
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Court made clear that any time an appellate court reviews a pure finding of
fact, it should apply the Rule 52(a) clearly-erroneous standard. The Court
explained:
Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous. It does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with “ultimate” and those that deal with “subsidiary” facts.
Id. at 286-87 (emphasis added). The Court went on to explain that,
“Whatever Baumgartner may have meant by its discussion of ‘ultimate
facts,’ it surely did not mean that whenever the result in a case turns on a
factual finding, an appellate court need not remain within the constraints of
Rule 52(a).” Id. at 286 n.16. The “conclusiveness” of fact-findings turns on
the “nature of the materials on which the finding is based.” Id. at 671.
Following Pullman-Standard, any distinction that remained between
“pure findings of fact” and “ultimate facts” was done away with in
Anderson. In that case, the Court expanded on the Pullman-Standard court’s
definition of “pure findings of fact” to include not just credibility
determinations, but also physical evidence, documentary evidence, and
inferences drawn from evidence. 470 U.S. at 574. Any such finding of fact
5
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should be reviewed by an appellate court for clear error. Id. The Court
eliminated any exceptions to the clear-error rule:
[V]arious Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. This theory has an impressive genealogy . . . but it is impossible to trace the theory’s lineage back to the text of Rule 52(a), which states straightforwardly that “findings of fact shall not be set aside unless clearly erroneous.” That the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) “does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.”
Id. at 574 (quoting Pullman-Standard, 456 U.S. at 287). Accordingly, the
Supreme Court in Anderson made clear that any exceptions to Rule 52(a)’s
clear-error standard are no longer good law. The Supreme Court’s decision
made no exception for the Ninth Circuit’s decision in Lim, and Petitioner can
point to no basis for this Court to carve out one.
Nor can Petitioner deny that this case turned on pure findings of fact.
The district court was tasked with answering one factual question: Is
Petitioner Salvador Mondaca-Vega, a Mexican national, or is he Reynaldo
Mondaca Carlon, a U.S. citizen? See 8 U.S.C. § 1252(b)(5). In answering
that question, the court made “pure findings of fact:” it assessed Petitioner’s
credibility and that of Petitioner’s wife, it reviewed the documentary
evidence, and it evaluated Petitioner’s prior statements. Following Pullman-
6
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Standard and Anderson, these are “pure findings of fact” that must be
reviewed for clear error.
Because Anderson and Pullman irreconcilably conflict with Lim, Lim
is no longer good law. Lim has been effectively overruled by a higher court
and en banc review is therefore unnecessary to resolve whether Lim is still
good law.2 See Miller, 335 F.3d at 900 (if a “relevant court of last resort”
has “undercut the theory or reasoning underlying the prior circuit precedent
in such a way that the cases are clearly irreconcilable. . . . a three-judge
panel of this court and district courts should consider themselves bound by
the intervening higher authority . . . .”). Because Lim has been effectively
overruled, this issue is not one of exceptional importance. The Court should
therefore deny Petitioner’s petition for rehearing.
B. The Panel’s Decision Regarding the Burden of Proof is Consistent with Supreme Court and Ninth Circuit Case Law.
The Panel held that the Government bore the burden of proving non-
citizenship by clear, convincing, and unequivocal evidence, which, it held, is
the same as the clear-and-convincing standard. Mondaca-Vega v. Holder,
718 F.3d 1075, 1081-83 (9th Cir. 2013). The Panel’s holding is taken
2 Petitioner also cites United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006), as conflicting authority. But the standard for rehearing en banc is not whether the Panel’s decision conflicts with other circuit courts, but whether the Panel’s decision conflicts with Ninth Circuit law or Supreme Court law. See Fed. R. App. P. 35.
7
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directly from the Supreme Court’s decision in Addington v. Texas, 441 U.S.
418, 432 (1979) and California ex rel. Cooper v. Mitchell Bros.’ Santa Ana
Theater, 454 U.S. 90, 93 (1981) (per curiam). Despite this controlling law,
the Petitioner argues that the clear, convincing, and unequivocal standard is
a special, higher burden of proof akin to the criminal beyond-a-reasonable-
doubt standard. (Pet. Reh. at 12.) Petitioner’s argument is not supported by
Supreme Court or Ninth Circuit case law.
To the contrary, in Addington v. Texas, the Supreme Court recognized
that courts use different word formulas to describe the clear-and-convincing
standard, which is the standard between a preponderance of the evidence and
proof beyond a reasonable doubt. 441 U.S. at 424 (discussing the
“intermediate standard, which usually employs some combination of the
words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing’”).3 The Court held
that each of these formulations is a variation on the same standard. Id. It
made clear that the standard applicable here – clear, convincing, and
unequivocal – is an iteration of the intermediate, clear-and-convincing
standard. Id.
3 See also 2 McCormick On Evid. § 340 (7th ed.) (“The [clear-and-convincing] formula varies from state to state, but among the phrases used are the following: ‘by clear and convincing evidence,’ ‘clear, convincing and satisfactory,’ ‘clear, cogent and convincing,’ and ‘clear, unequivocal, satisfactory and convincing.’ . . . No high degree of precision can be attained by these groups of adjectives.”).
8
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The Supreme Court recognized this again in California ex rel.
Cooper, 454 U.S. at 93. In that case, the Supreme Court again explained
that “[t]hree standards of proof are generally recognized, ranging from the
‘preponderance of the evidence’ standard employed in most civil cases, to
the ‘clear and convincing’ standard reserved to protect particularly important
interests in a limited number of civil cases,” to proof beyond a reasonable
doubt in criminal cases. Id. (internal citations omitted). Those important
interests generally are considered liberty interests such as involuntary
commitment hearings, civil fraud, denaturalization, and libel. Id. In this
way, the clear-and-convincing standard is reserved for only the most
important civil cases with the greatest equities, including the equities at issue
in this case – citizenship.
Petitioner cites Woodby v. INS, 385 U.S. 276 (1966), in support of his
argument that the clear-and-convincing and clear, unequivocal, and
convincing standards are different. (Pet. Reh. at 11-12.) But the Woodby
court was not discussing a higher standard than clear and convincing; it was
discussing the clear-and-convincing standard itself. Id. at 285 (stating that
“a person [should not] be banished from this country upon no higher degree
of proof than applies in a negligence case”). The higher standard, though, is
not akin to a proof-beyond-a-reasonable doubt standard, but is between that
9
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and the general civil preponderance-of-the-evidence standard. Id. (“To be
sure, a deportation proceeding is not a criminal prosecution.”). The clear,
convincing, and unequivocal standard that the Court articulated in Woodby is
the same intermediate standard that the Supreme Court later discussed in
Addington and California ex rel. Cooper.
Petitioner points to two cases in which the Ninth Circuit did not
expressly equate the clear, convincing, and unequivocal standard with the
clear-and-convincing standard.4 But in neither case did the Ninth Circuit say
that the clear, convincing, and unequivocal standard is a higher standard
than clear and convincing. And Petitioner ignores the cases cited by the
Panel in which the Ninth Circuit used the two standards interchangeably.5
For example, in United States v. Arango, the Ninth Circuit referenced both
the clear, convincing, and unequivocal standard and the clear-and-
convincing standard when it articulated the standard in a denaturalization
proceeding. 670 F.3d 988, 992 (9th Cir. 2012). In Lopez-Chavez v. INS, the
4 See Lim, 431 F.2d at 199; Lee Hon Lung v. Dulles, 261 F.2d 719, 723–24 (9th Cir. 1958). 5 See Mondaca-Vega, 718 F.3d at1082 (citing United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009); Lopez-Chavez v. INS, 259 F.3d 1176, 1180–81 (9th Cir. 2001); Friend v. Reno, 172 F.3d 638, 646 (9th Cir. 1999); Murphy v. INS, 54 F.3d 605, 608–10 (9th Cir. 1995)).
10
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Ninth Circuit articulated the standard “clear, convincing, and unequivocal”
but discussed a relevant case applying the “clear and convincing” standard.
259 F.3d 1176, 1180-81 (9th Cir. 2001). Petitioner has not – and cannot –
point to any cases holding that the two standards are markedly different.
There is simply no case in direct conflict with the Panel’s decision. See Fed.
R. App. P. 35(b)(1)(A).6 Rather, the Panel’s decision is supported by the
Supreme Court’s decisions in Addington and California ex rel. Cooper.
C. The Panel did not err in affirming the district court’s application of the standard to the facts in this case.
As discussed above, the Panel correctly applied the clear, convincing,
and unequivocal evidence standard. When it applied that standard, the Panel
properly determined that the district court did not commit clear error in its
fact-finding. Petitioner tries to poke holes into the Panel’s decision, but fails
to acknowledge that the great weight of evidence supports it.
6 Petitioner also argues that the Panel erred in affirming the district court’s burden-shifting. Petitioner contends that the burden can only shift to him if he concedes foreign birth abroad or foreign citizenship. (Pet. Reh. at 13). This is inconsistent with Ninth Circuit law. The Ninth Circuit has held that the petitioner bears the initial burden in section 1252(b)(5) cases. See Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995) (“Only at a de novo district court hearing on citizenship under section [1252(b)(5)] does the alien subject to deportation bear the burden of proving citizenship by a preponderance of the evidence.”). The case law that Petitioner cites is relevant only in deportation proceedings, not in de novo citizenship cases in the district court.
11
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Based on the undisputed evidence alone, the Government met its
burden of proving that Petitioner is not a United States citizen by clear,
convincing, and unequivocal evidence. The undisputed facts are as follows:
(1) Petitioner used the name Salvador Mondaca-Vega during the
1950’s. (Pet. Op. Br. at 8-9.); (2) Petitioner grew up in El Fuerte, Sinaloa,
Mexico. (Pet. Op. Br. at 7; Joint Pretrial Order Agreed Fact No. 4, ER v. 1
at 26.); (3) Salvador Mondaca-Vega was born in 1931 just outside of El
Fuerte, Sinaloa, Mexico, a few weeks before Reynaldo Mondaca Carlon’s
birth in California. (Joint Pretrial Order Agreed Fact No. 2 & 3, ER v.1 at
25-26.); (4) Petitioner allowed himself to be deported as a Mexican national.
(Pet. Op. Br. at 8.); (5) Petitioner accepted voluntary departure as a Mexican
national ten to twenty times. (Joint Pretrial Order Agreed Fact No. 24, ER
v.1 at 30.); (6) Petitioner signed a sworn statement in 1954, affirming that
his name Salvador Mondaca-Vega and that he was born in Mexico. (Pet.
Op. Br. at 9.); (7) Petitioner’s contemporary handwriting matches the
handwriting on Salvador Mondaca-Vega’s 1954 sworn statement. (Joint
Pretrial Order Agreed Fact No. 8, ER v.1 at 26-27.); and (8) Petitioner’s
contemporary fingerprints match Salvador Mondaca-Vega’s fingerprints
from the 1950’s. (Joint Pretrial Order Agreed Fact No. 9, ER v.1 at 27.)
12
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In addition to these undisputed facts, Petitioner proffered no witnesses
that could corroborate his birth in California and childhood in El Fuerte,
Mexico, and Petitioner has provided inconsistent testimony about the use of
the name Salvador Mondaca-Vega and his deportations in the 1950’s. (See,
e.g., Joint Pretrial Order, Pet. Contentions Nos. 23-25, ER v.1 at 30.) Thus,
the Court need not even address the issues that Petitioner raises in his
petition for rehearing because the Government has sustained its burden of
proving Petitioner’s non-citizenship by clear, convincing, and unequivocal
evidence based upon the undisputed evidence alone.
First, Petitioner contends that the Panel “brushed aside” the district
court’s “speculation and conjecture.” (Pet. Reh. at 14.) But the district court
did not speculate, it drew rational inferences from the evidence in the record,
which is a trial court’s job. See Matter of Extradition of Smyth, 72 F.3d
1433, 1435 (9th Cir. 1996) (“[I]nference-drawing is a type of factfinding, a
process by which the presence of one fact leads to a probable estimate of a
second fact.”). To do so does not amount to error. See Wallace v. City of
San Diego, 479 F.3d 616 (9th Cir. 2007) (it is the fact-finder’s job to “weigh
evidence and draw inferences from it”).
Second, Petitioner claims that the Panel should have reversed the
district court’s adverse credibility finding regarding his wife’s testimony.
13
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But as the Panel points out, Petitioner’s wife’s testimony was inconsistent
with previous sworn statements and such inconsistencies can form the basis
of an adverse credibility finding. See Mondaca-Vega, 718 F.3d at 1081. An
adverse credibility finding can also be based a witness’ lack of detail when
testifying. See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).
The district court did not err, nor did the Panel in affirming it, when it found
that Petitioner’s wife’s testimony was not credible.
Third, Petitioner seeks rehearing because the Panel did not address the
fact that the Government “hunted down” Salvador Mondaca-Vega’s birth
certificate, and the fact that there was no evidence that he ever used it. But
these facts are a logical extension of the evidence that shows Petitioner went
to great lengths to hide his true identity. Thus, it is unsurprising that no
evidence exists that Petitioner ever used or possessed his Mexican birth
certificate.
Last, Petitioner complains that the Panel did not address his arrest and
indictment in 1980. Furthermore, Petitioner claims that by 1980, the U.S.
Attorney’s Office should have linked Petitioner’s identity to that of Salvador
Mondaca-Vega due to a prior investigation. The two investigations,
however, occurred in a pre-digital era, in a time when connecting the dots of
identity fraud was much more difficult. The fact that INS had previously
14
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investigated Petitioner’s identity fraud did not mean that the federal agencies
were able to access that information, years later in a different geographic
region. The Panel did not need to address this tangential issue to reach its
ultimate conclusion that the district court did not clearly err when it found
that Petitioner is Salvador Mondaca-Vega, and this issue does not merit
rehearing by Panel or en banc.
In sum, Petitioner can point to no fact-finding that contradicts
Supreme Court or Ninth Circuit case law, or one that is an issue of
exceptional importance. Because the district court’s conclusions were
supported by a wealth of evidence in the record, this case does not present an
important issue that requires rehearing by panel or en banc.
CONCLUSION
For the foregoing reasons, this Court should not grant rehearing in this
case. Petitioner has failed to show that the Panel’s decision conflicts with
Ninth Circuit or Supreme Court case law, and he has failed to show that this
is an issue of exceptional importance. See Fed. R. App. P. 35(b)(1)(A)-(B).
The Panel did not overlook or misapprehend any point of law necessitating
its rehearing the case. See Fed. R. App. P. 40(a)(2).
15
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DATED: March 13, 2013 Respectfully submitted, STUART F. DELERY
Assistant Attorney General Civil Division DAVID J. KLINE Director Office of Immigration Litigation JEFFREY ROBINS Assistant Director Office of Immigration Litigation
s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL
Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115
Attorneys for Respondent
16
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Federal Rule of Appellate Procedure
32(a)(7)(C) and Ninth Circuit Rules 31-2 and 40-1(a), that I used Microsoft
Word 2010 to prepare Respondent’s Brief, and the typeface is proportionally
spaced in 14-point Times New Roman typeface. The brief contains 3,865
words of text and 369 lines of text.
DATE: August 13, 2013 s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system on August 13, 2013.
I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation
17
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NO. 03-71369
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MONDACA-VEGA
CASE NO. A 019 263 384
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General
Respondent.
PETITION FOR REVIEW OF FINAL ORDER OF THE
BOARD OF IMMIGRATION APPEALS
PETITIONER’S OPENING SUPPLEMENTAL BRIEF
BEFORE THE EN BANC COURT
Matt Adams
Martha H. Rickey
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
Attorneys for Petitioner
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………..
I. INTRODUCTION .................................................................... 1
II. ARGUMENT .......................................................................... 2
A. Controlling Case Law Clarifies that this Court Must Apply a
Searching, Independent Review of the Record in Resolving Mr.
Mondaca’s Claim to Birthright Citizenship……………………………...2
B. The District Court Failed to Apply the Appropriate Burden of Proof…5
C. The District Court’s Findings are Not Supported by the Record..….....12
D. Even if Review were Limited to Clear Error, the District Court’s
Findings Should be Set Aside…………………………………………….16
III. CONCLUSION ................................................................... 17
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369........... 19
CERTIFICATE OF SERVICE ..................................................... 20
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iii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418 (1979) ....................................................... 7, 8, 10
Afroyim v. Rusk, 387 U.S. 253 (1967) .....................................................................12
Anderson v. City of Bessemer, 470 U.S. 564 (1985) ...........................................4, 17
Barber v. Ruth, 7 F.3d 636 (7th Cir. 1993) ................................................................ 4
Baumgartner v. U.S., 322 U.S. 665 (1944) ................................................... 1, 3, 4, 5
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)......................... 3
Chaunt v. U.S., 364 U.S. 350 (1960) ...................................................................3, 12
Costello v. United States, 365 U.S. 265 (1961) ...................................................6, 12
Fedorenko v. U.S., 449 U.S. 440 (1981) ..................................................................12
Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) ...................................... 2
Klapprott v. U.S., 335 U.S. 601 (1949) ...................................................................12
Knauer v. U.S., 328 U.S. 654 (1946) ............................................................... passim
Kungys v. U.S., 485 U.S. 759, 781 (1988) ...............................................................12
Kwock Jan Fat v. White, 253 U.S. 454 (1920) .......................................................... 8
Mondaca-Vega, 718 F.3d 1075 (9th Cir. 2013) ............................................... passim
Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) ............................................................12
Ng Fung Ho v. White, 259 U.S. 276 (1922) ............................................................... 2
Nowak v. U.S., 356 U.S. 660 (1958) ........................................................................12
Perez v. Brownell, 356 U.S. 44 (1958) ....................................................................12
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .................................................3, 4
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iv
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ............... 3
Schneiderman v. U.S., 320 U.S. 118 (1943) .................................................... passim
U.S. v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) .................................................. 4
United States v. Minker, 350 U.S. 179 (1956) ........................................................... 2
Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) ........................................................11
Woodby v. INS, 385 U.S. 276 (1966) ...................................................................9, 11
Statutes
18 U.S.C. § 2 ............................................................................................................15
8 U.S.C. § 1229a(c)(3)(A) .......................................................................................11
8 U.S.C. § 1325 ........................................................................................................15
Other Authorities
Matter of Patel, 19 I. & N. Dec. 774 (1988) ............................................................11
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1
I. INTRODUCTION
This Court must provide searching, independent review of the District
Court’s findings because Petitioner’s citizenship hangs in the balance. This level
of review was first established seventy years ago by the Supreme Court in cases
reviewing citizenship claims. See Baumgartner v. U.S., 322 U.S. 665, 670 (1944).
The Supreme Court has since repeatedly clarified that even on appeal the Court
maintains de novo review of factual findings in deportation and denaturalization
cases examining questions of citizenship. Knauer v. U.S., 328 U.S. 654, 657-58
(1946) (“We reexamine the facts to determine whether the United States has
carried its burden”). There is no authority that would permit a reviewing court to
deviate from this standard.
The District Court erred in failing to hold the Executive to the exacting
standard that is applicable where it seeks to strip away a person’s claim to
citizenship. The agency “must sustain the heavy burden” by presenting “‘clear,
unequivocal, and convincing’ evidence which does not leave the issue in doubt.”
Schneiderman v. U.S., 320 U.S. 118, 135 (1943). Even if the Court were to equate
the “clear, unequivocal, and convincing” standard with the “clear and convincing”
standard, the Supreme Court has repeatedly made clear that in the context of
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2
claims to U.S. citizenship, the Court must require the agency to provide evidence
which does not leave the issue in doubt.
This Court should reject the findings and conclusions of the District Court as it
relied on factual errors and speculation, allowing the agency to replace evidence
with conjecture. “To deport one who so claims to be a citizen obviously deprives
him of liberty. . . . It may result also in loss of both property and life, or of all that
makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
Consequently, “where there is doubt it must be resolved in the citizen’s favor.”
Gorbach v. Reno, 219 F.3d 1087, 1097 (9th Cir. 2000) (en banc) (quoting United
States v. Minker, 350 U.S. 179, 188 (1956)).
II. ARGUMENT
A. Controlling Case Law Clarifies that this Court Must Apply a Searching,
Independent Review of the Record in Resolving Mr. Mondaca’s Claim
to Birthright Citizenship.
This Court provides searching, independent review of the District Court’s
factual findings with regard to citizenship determinations because of the
constitutional right at stake.
Suffice it to say that emphasis on the importance of “clear, unequivocal, and
convincing” proof, see Schneiderman v. United States, [citation omitted], on
which to rest the cancellation of a certificate of naturalization would be lost
if the ascertainment by the lower courts whether that exacting standard of
proof had been satisfied on the whole record were to be deemed a “fact” of
the same order as all other “facts”, not open to review here.
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3
Baumgartner, 322 U.S. at 671. Baumgartner, and a long, uninterrupted line of
cases directly addressing claims of citizenship, clearly established a rule that the
appellate court retained a responsibility to carefully examine the factual findings
for error. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v. U.S., 328
U.S. 654, 657-58 (1946). As the Supreme Court explained, “the rule of
independent review assigns to judges a constitutional responsibility that cannot be
delegated to the trier of fact, whether the factfinding function be performed in the
particular case by a jury or by a trial judge.” Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 501 (1984).
While Federal Rule of Civil Procedure 52(a) calls for a much more
deferential standard of review of factual findings in most other areas of law, the
Supreme Court has not altered its approach in cases reviewing citizenship claims.
Accordingly, the standard remains the same: “If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
While the Supreme Court in Pullman-Standard v. Swint, 456 U.S. 273, 286
n.16 (1982), explains in a footnote why it chose not to depart from the more
deferential standard articulated in Rule 52(a) in most other areas of law, its
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4
reasoning does nothing to undermine the continued vitality of the standard of
review in citizenship claims established in Baumgartner.1
The First Circuit has rejected arguments that this heightened standard of
review is no longer appropriate in cases involving claims to U.S. citizenship. U.S.
v. Zajanckauskas, 441 F.3d 32, 38 n.5 (1st Cir. 2006). Similarly, the Seventh
Circuit clearly acknowledged that, contrary to its general approach, the Supreme
Court requires de novo appellate review of factual findings in denaturalization and
First Amendment cases. Barber v. Ruth, 7 F.3d 636, 643 (7th Cir. 1993). But
following Pullman-Standard, the Seventh Circuit “decline[d] to exercise plenary
review outside of the limited domain to which the Supreme Court has restricted the
doctrine.” Id.
Much discussion notes that the Supreme Court has eschewed any broad
extension as to what the Supreme Court referred to as “ultimate facts” in
Baumgartner. Nonetheless, what is clear is that the Supreme Court determined
that in cases reviewing efforts by the government to strip away individuals’ right to
1 As explained in petition for rehearing, p. 6-8, the Panel opinion in this case failed
to recognize the Supreme Court’s primary reasoning in providing for a searching
independent review on the appellate level, and thus erred in asserting that “the
Supreme Court has rejected Baumgartner’s remaining reasoning,” citing to
Anderson v. City of Bessemer, 470 U.S. 564 (1985). Mondaca-Vega, 718 F.3d
1075, 1079 (9th Cir. 2013). Anderson does not even cite to Baumgartner, let alone
purport to abrogate any last vestiges of authority.
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5
U.S. citizenship, an appellate court retains independent review of this application
of law to fact. As Judge Pregerson wrote in his dissenting opinion:
Baumgartner is an example of the Court making a determination, where
Congress has not spoken, to designate an issue a question of fact or law. In
Baumgartner, the Court articulated its standard of independent appellate
review for what it described as a finding of “ultimate ‘facts,’” which “clearly
implies the application of standards of law.” Baumgartner, 322 U.S. at 671,
64 S.Ct. 1240.
Mondaca-Vega, 718 F.3d at 1091. Here, Petitioner contests the District Court’s
failures not only in making factual determinations, but in failing to apply the
demanding burden of proof in weighing whether the evidence compels a
conclusion that the issue is not left in doubt. Pursuant to controlling case law, the
ultimate conclusion cannot be parsed from review of the other factual
determinations of the trial court—the same standard must apply.
B. The District Failed to Apply the Appropriate Burden of Proof.
The District Court erred in failing to require the agency demonstrate with
“clear, unequivocal and convincing” evidence that Mr. Mondaca was not entitled
to birthright citizenship. Knauer, 328 U.S. at 657-58 (“We reexamine the facts to
determine whether the United States has carried its burden of proving by ‘clear,
unequivocal, and convincing’ evidence, which does not leave ‘the issue in
doubt’”). While the District Court erred in failing to recognize the distinction
between “clear and convincing” evidence and the more exacting “clear,
unequivocal, and convincing” evidence standard, this case does not rest on that
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6
distinction. Even if the trier of fact equated “clear and convincing” evidence with
“clear, unequivocal, and convincing” evidence it should have been compelled to
determine that the agency failed to present evidence that does not leave the issue in
doubt.
Indeed, the Court need not even determine the difference between the two
standards, as under either, the District Court’s findings readily demonstrate that the
trier of fact failed to hold the Executive to its demanding burden of proof. In the
context of cases reviewing the Executive’s efforts to strip an individual of their
claim to U.S. citizenship, the Court has repeatedly demanded that the agency be
required to produce such compelling evidence that does not leave the issue in
doubt. See Costello v. United States, 365 U.S. 265, 272 (1961) (“We have
examined the record to determine if the evidence leaves ‘the issue in doubt,’
Schneiderman, 320 U.S. 118, 158”).
Nonetheless, a discussion contrasting a “clear and convincing” standard with
“a clear, unequivocal, and convincing” standard helps to further illuminate why the
Petition for Review should be granted, as it reinforces the demanding standard at
play and the important constitutional rights at stake. Undoubtedly, a lack of
precision in case law has led to confusion, with some decisions intermingling, and
appearing to equate, the “clear and convincing” standard with the more rigorous,
“clear, unequivocal, and convincing” standard. Mondaca-Vega, 718 F.3d at 1082.
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But again, not only has the Supreme Court established the original standard in an
unbroken line of cases going back seventy years to Schneiderman, 320 U.S. at 125,
it has also distinguished this exacting standard in the citizenship and deportation
context, contrasting it with a more lenient standard of “clear and convincing”
evidence required in other contexts.
Specifically, in Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court
examined what standard of evidence was constitutionally required to impose
indefinite civil commitment on an individual. The Court was reviewing the Texas
Supreme Court’s determination that a trial court need only employ a
“preponderance of the evidence” standard in making this determination. The
Texas Supreme Court had overturned the Court of Civil Appeals’ decision, which
had in turn reversed the trial court’s original instructions applying a “clear,
unequivocal, and convincing evidence” standard in favor of the criminal standard
“beyond a reasonable a doubt.” Id. at 421-422.
In Addington, the Supreme Court first determined that “the individual’s
interest in the outcome of a civil commitment proceeding is of such weight and
gravity that due process requires the state to justify confinement by proof more
substantial than a mere preponderance of the evidence.” Id. at 427.
Next, the Supreme Court determined that due process did not require
application of the most demanding standard—evidence beyond a reasonable doubt.
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Id. at 429-31. Nonetheless, the Court noted that it was perfectly acceptable for
states to apply this more stringent standard, as “procedures must be allowed to vary
[from state to state] so long as they meet the constitutional minimum.” Id. at 431.
In explaining why due process did not require evidence beyond a reasonable doubt
in the context of civil commitment, the Supreme Court explained, “the heavy
standard applied in the criminal cases manifests our concern that the risk of error
must be minimized even at the risk that some who are guilty might go free. The
full force of that idea does not apply to civil commitment.” Id. at 428. 2 The Court
explained that unlike an erroneous conviction, ongoing professional oversight,
treatment concerns and involvement of family and friends would generally provide
continuous opportunities to appropriately address an erroneous civil commitment.
Id.
In distinguishing civil commitment proceedings, Addington also relied
heavily on the fact that predicting the future actions of the person in question
(would they be a danger to themselves or others), necessarily contains a lack of
certainty, and is a prognosis based on expert opinions, not concrete facts of
historical verification: “The subtleties and nuances of psychiatric diagnosis render
2 In contrast to civil commitment, but similar to a criminal conviction and
significant here, the Supreme Court has also stated, “it is better that many []
immigrants should be improperly admitted than that one natural born citizen of the
United States should be permanently excluded from his country.” Kwock Jan Fat
v. White, 253 U.S. 454, 464 (1920).
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certainties virtually beyond reach in most situations. The reasonable doubt
standard of criminal law functions in its realm because there the standard is
addressed to specific, knowable facts.” Id. at 430. Thus, it rejected “beyond a
reasonable doubt” as the constitutionally-required standard.
And then, most instructive to the case at hand, the Court concluded that the
“clear, unequivocal and convincing” standard demanded too much: “Similarly, we
conclude that use of the term ‘unequivocal’ is not constitutionally required,
although states are free to use that standard.” Id. at 432. The Court made this
pronouncement after surveying the different standards applied, noting that some
states require “clear and convincing” evidence, while others require “clear, cogent
and convincing” evidence, and others “clear, unequivocal and convincing”
evidence. Id. at 431-32.
In deciphering “clear, unequivocal and convincing” evidence the Court
turned to deportation and denaturalization cases applying that standard:
In Woodby v. INS, 385 U.S. 276 (1966), dealing with deportation, and
Schneiderman v. United States, [citation omitted], dealing with
denaturalization, the Court held that “clear, unequivocal, and convincing”
evidence was the appropriate standard of proof. The term “unequivocal,”
taken by itself, means proof that admits of no doubt, a burden
approximating, if not exceeding, that used in criminal cases.
Id. at 432. The Court explained why a higher burden of proof was appropriate in
the deportation and denaturalization context: “The issues in Schneiderman and
Woodby were basically factual, and therefore susceptible of objective proof, and
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the consequences to the individual were unusually drastic—loss of citizenship and
expulsion from the United States.” Id. Thus, Addington expressly distinguished
deportation and denaturalization proceedings from civil commitment proceedings
that required only “clear and convincing” evidence to satisfy due process.
The Supreme Court concluded by noting that the trial court in the civil
commitment proceedings originally employed the more stringent standard of
“clear, unequivocal and convincing” evidence. Id. at 433. “However,
determination of the precise burden equal to or greater than the ‘clear and
convincing’ standard which we hold is required to meet due process guarantees is a
matter of state law which we leave to the Texas Supreme Court.” Id. Thus, the
Court made readily apparent that “clear, unequivocal and convincing” does not
equate to the constitutionally-required “clear and convincing” standard, otherwise
there would be no need to leave it to the State Supreme Court to determine if it
wanted to adopt the higher standard applied by the trial court.
The Sixth Circuit has similarly recognized that Addington compels the
conclusion that “the omission of ‘unequivocal’ makes a difference. The ‘clear,
unequivocal, and convincing standard’ is a more demanding degree of proof than
the ‘clear and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir.
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11
2013).3 As the Supreme Court explained, “[t]he standard serves to allocate the risk
of error between the litigants and to indicate the relative importance attached to the
ultimate decision.” 441 U.S. at 423. In the instant case, the District Court failed to
acknowledge the correct standard, failing thus to recognize “the degree of
confidence our society thinks he should have in the correctness of factual
conclusions.” Id.
Ultimately, whether the District Court labeled the burden of proof “clear and
convincing” as opposed to “clear, unequivocal, and convincing,” it should have
nonetheless recognized that when citizenship is at stake the appropriate standard
requires the adjudicator to determine whether the agency presented evidence so
compelling that it does not leave the issue in doubt. See, e.g., Knauer, 328 U.S. at
657-58 (“whether the United States has carried its burden of proving by clear,
unequivocal, and convincing evidence, which does not leave the issue in doubt.”
(emphasis added). “Furthermore, because of the grave consequences incident to
denaturalization proceedings we have held that a burden rests on the Government
3 As the Sixth Circuit noted, 733 F.3d at 605-06, the Board of Immigration Appeals
has also declared that “[t]he clear and convincing standard imposes a lower burden
than the clear, unequivocal, and convincing standard ... because it does not require
that the evidence be unequivocal or of such a quality as to dispel all doubt.”
Matter of Patel, 19 I. & N. Dec. 774, 783 (1988). Moreover, the Immigration and
Nationality Act equates “clear and convincing” as requiring “reasonable,
substantial, and probative” evidence. 8 U.S.C. § 1229a(c)(3)(A). Yet in Woodby,
the Supreme Court reversed the Second and Sixth Circuits for requiring only
“reasonable, substantial and probative evidence” rather than “clear, unequivocal,
and convincing evidence.” 385 U.S at 279-81, 286.
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to prove its charges in such cases by clear, unequivocal and convincing evidence
which does not leave the issue in doubt. This burden is substantially identical with
that required in criminal cases – proof beyond a reasonable doubt.” Klapprott v.
U.S., 335 U.S. 601, 611-12 (1949) (citation omitted) (emphasis added). Accord
Nowak v. U.S., 356 U.S. 660, 663 (1958) (“evidence which does not leave ‘the
issue in doubt’”) (emphasis added); Perez v. Brownell, 356 U.S. 44, 47 (1958)
(overruled on other grounds in Afroyim v. Rusk, 387 U.S. 253 (1967)); Chaunt, 364
U.S. at 353 (same); Costello, 365 U.S. at 269 (same); Fedorenko v. U.S., 449 U.S.
440, 505 (1981) (same); Kungys v. U.S., 485 U.S. 759, 781 (1988) (same).4
C. The District Court’s Findings are Not Supported by the Record.
In determining whether the agency had presented “clear, unequivocal and
convincing” evidence the district court failed to properly consider undisputed facts,
made clear errors in the factual findings, and relied on speculation, all errors that
should compel reversal.
4 Respondent asserts that the district court did not err in placing the initial burden
on Petitioner to demonstrate his citizenship. Respondent cites to Murphy v. INS,
54 F.3d 605, 610 (9th Cir. 1995), which in dicta not applicable to that case asserted
that “[o]nly at a de novo district court hearing on citizenship under section . . . does
the alien subject to deportation bear the burden of proving citizenship by a
preponderance of the evidence.” However, Murphy cited to no authority to support
that assertion. Indeed, as Murphy acknowledged, case law demonstrates that the
burden is on the agency until it presents evidence of alienage, thereby shifting the
burden. Id. at 608-09. However, this point does not impact the instant case as the
district court found that Petitioner was able to come forward with prima facie
evidence of citizenship.
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The government does not contest that Reynaldo Mondaca Carlon is a real
person, born in Imperial, California, on July 17, 1931, to parents Antonia Carlon
and Marin Mondaca. (ER v.1 25.) Nor does the government contest that the birth
certificate presented by Petitioner to identify himself as Reynaldo Mondaca is
authentic. Id. The government has verified its authenticity on multiple occasions.
(ER v.2 115-20, 144.) Nor has the government introduced any evidence that any
other person has ever claimed to be Reynaldo Mondaca. This is despite the fact
that the agency’s investigation first concluded “[b]oth the SSN application and the
Selective Service efforts appear to be actions taken by the true Reynaldo.” (ER v.1
29-30.) The agency quickly backed away from this conclusion when handwriting
experts for both parties conccluded that the signature on the application, “Reynaldo
C. Mondaca”, appeared to be made by Petitioner. (ER v.1 26.)
Significantly, the sole reason provided by the district court for finding it
“highly improbable the petitioner obtained the birth certificate for Renoldo [sic]
Mondaca from his mother,” was its flawed speculation regarding what steps Mr.
Mondaca must have taken to turn around and apply for a Social Security card the
day after he was deported in May of 1953. (ER v.1 14-15.) Indeed, the district
court’s finding depended on layers of improper speculation. (Petr’s. Opening Br.
37-41.) Similarly, the District Court based its findings on speculation regarding
Mr. Mondaca’s financial incentives. Id. at 41-45. “Where the fate of a human
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14
being is at stake, we must not leave the [deciding issue] to conjecture.” Knauer,
328 U.S. at 659.
Moreover, it is undisputed that Petitioner has always used the Social
Security Number, dating back to when it was issued on May 23, 1953. (ER v.1-
29.) Thus, the district court erred in finding that petitioner began using the name
Reynaldo C. Mondaca due to “his marriage to Aurelia Estrella in Reno, Nevada, on
August 7, 1970.” (ER v.1 17-18.)
In addition, the agency investigated Mr. Mondaca’s citizenship at least as
early as 1973. (ER v.2 155.) That was when the agency first requested and
obtained production of a birth certificate under the name of Salvador Mondaca
Vega. (ER v.2 155.) Nonetheless, beginning in 1977, the agency issued
certificates of citizenship to four of Mr. Mondaca’s children, based on its
determination that Mr. Mondaca is a U.S. citizen. (ER v.1 27-28.) Similarly, the
agency granted family visas for his wife and two other children. Id. Finally, the
Department of State issued Mr. Mondaca a passport in 1998 and then issued a
replacement passport in 2005. Id. at 28.5
In 1980, Mr. Mondaca was arrested on suspicion of smuggling persons into
the country. (ER v.1 28.) He was charged as a U.S. citizen, and convicted under 8
5 The Department of State only sought to revoke the Passport on the heels of this
litigation, relying on a clearly erroneous charge; i.e., that he admitted to the
Immigration Judge on April 29, 1998, “that you were not Reynaldo Mondaca but
rather Salvador Mondaca.” (ER v.2 241.)
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15
U.S.C. § 1325 and 18 U.S.C. § 2. (ER v.2 -125.) There is no record of any effort
to remove him after this conviction. However, the district court committed plain
error in finding that after Petitioner was arrested and charged with smuggling
“[n]either the INS nor the United States Attorney questioned his assertion that his
name is Reynaldo Carlon Mondaca.” (ER v.1 8.) There is nothing in the record to
support the conjecture that federal authorities simply accepted Mr. Mondaca’s
assertion of citizenship without any investigation. Indeed, as with any criminal
prosecution, his prints were entered into the same system that recorded his prior
removals from the country under different aliases. (ER v.2 160.)
He was stopped again by the Bonnie Lake Police in 1983 and again turned
over to immigration. (ER v.2 127.) Again, the agency initiated an investigation as
to a possible false claim, based on his rap sheet. (ER v.2 128.) Respondent asserts
that ‘[t]hese investigations, however, occurred in a pre-digital era, in a time where
connecting the dots….” (Respt.’s Opp’n to Reh’g 14.) But this defense fails to
acknowledge that the government took the fingerprints of the individuals they
charged in both immigration and criminal proceedings. That is how they were
alerted to the citizienship investigation conducted in 1973.
Respondent contends that there is no evidence that Mr. Mondaca ever
claimed to be either Reynaldo Mondaca (or otherwise asserted that he was a U.S.
citizen) on the numerous occasions when he was removed from the country. (ER
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16
v.1-24.) But of course, this is asking him to prove a negative. If Mr. Mondaca
were detained with evidence of his true identity, then he would not be subject to
removal, and there generally would be no removal records, just as the FBI reports
fail to record the time when he was arrested and released by INS in 1983. (ER v.2-
135, 160.)
Relatedly, the district court erred in concluding he was deported in July of
1953. (ER v.1 5.) However, FBI records only show that he was transferred to
immigration from the Sacramento Police Department, not that he was actually
removed. (ER v.2 158.)6 Similarly, while he was arrested by immigration officials
and removed in 1951, May of 1953,1954, 1956 and 1966, there is no similar record
of immigration authorities taking any action against him when he was arrested in
October of 1969, with charges being brought under both names. (ER v.2 133,
159.)
D. Even if Review were Limited to Clear Error, the District Court’s
Findings Should be Set Aside.
Indeed, even if this Court were to restrict its review to clear error as
prescribed under Rule 52(a), the District Court’s findings and conclusions must be
set aside as they are based on factual error and speculation. An analysis restricted
to clear error must nonetheless ensure that the underlying adjudicator applied the
6 The administrative record maintained by the agency also includes an old,
certified copy of Reynaldo Mondaca’s birth certificate issued by the City of
Imperial, with a handwritten note “Calexico Calif May 19, 1952.” (ER v.2 113.)
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17
appropriate burden of proof in concluding that the Executive had met its heavy
burden in demonstrating Mr. Mondaca’s identity with clear, unequivocal, and
convincing evidence.
The Panel cited to Anderson, stating that where there “are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Mondaca-Vega, 718 F.3d at 1083. But this was precisely the
problem. The evidence presented did not compel the conclusion that Mr. Mondaca
was not a U.S. citizen. Instead, at most the evidence provided two alternative
possibilities. But if there are two plausible views, then the agency has failed to
present evidence that does not “leave the issue in doubt.” It is precisely for this
reason that Mr. Mondaca’s petition for review must be granted.
III. CONCLUSION
Petitioner respectfully requests that the en banc Court reverse the findings
and conclusions of the district court, and declare that Mr. Mondaca is a U.S.
citizen.
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Date: January 24, 2014 Respectfully submitted,
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
Attorneys for Petitioner
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19
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369
I certify that:
1. Pursuant to Fed. R. App. P. 40-1(a), the attached opening supplemental brief
for Petitioner is
Proportionately spaced, has a typeface of 14 points or more and contains
_4,166___ words (per this Court’s order must not exceed 4,200 words).
January 24, 2014 s/ Matt Adams
Date Matt Adams
Northwest Immigrant Rights Project
615 Second Avenue, Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
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20
CERTIFICATE OF SERVICE
RE: Mondaca-Vega v. Holder, Case No. 03-71369
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on January 24, 2014.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Executed in Seattle, Washington, on January 24, 2014.
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
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No. 03-71369 _____________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ___________________________________________________
SALVADOR MONDACA-VEGA,
Petitioner (Not Detained),
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS
RESPONDENT’S SUPPLEMENTAL BRIEF BEFORE THE EN BANC COURT
STUART DELERY Assistant Attorney General Civil Division AUGUST E. FLENTJE Senior Counsel for Immigration Civil Division COLIN A. KISOR Acting Director Office of Immigration Litigation Date: February 14, 2014
ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation KATHERINE E.M. GOETTEL Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115 Attorneys for Respondent
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TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………….……..i TABLE OF AUTHORITIES……………………………………………………….ii
I. INTRODUCTION ……………………………………………………….….1
II. ARGUMENT………………………………………………………………..1
A. The Court of Appeals Should Review Fact-Finding for Clear Error
in Section 1252(b)(5) Transfer Cases………………………………………..1
B. The Petitioner in a Section 1252(b)(5) Case Should Bear the Burden to Prove Citizenship by a Preponderance of the Evidence………………….7
C. There Is No Meaningful Distinction Between the Clear and Convincing and the Clear, Unequivocal, and Convincing Standards….......10
D. Applying Either the Clear Error or De Novo Standard of Review, This Court Should Uphold the District Court’s Findings of Fact. ……….. 13
III. CONCLUSION…………………………………………………………… 16 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
i
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TABLE OF AUTHORITIES
CASES
Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 715 (E.D.Va. 2012)……………………………… 9
Addington v. Texas,
441 U.S. 418, 432 (1979) ……………………………………1, 8, 9, 11, 13 Ali v. Obama,
736 F.3d 542, 545 (D.C. Cir. 2013)……………………………………..5 Anderson v. City of Bessemer,
470 U.S. 564 (1985)…………………………………………. 1, 2, 3, 4, 7 Anderson v. Holder,
673 F.3d 1089, 1092 (9th Cir. 2012)……………………………………. 6 Ayala-Villanueva v. Holder,
572 F.3d 736, 737 n.3 (9th Cir. 2009)………………………………. 7, 13
Baumgartner v. United States, 322 U.S. 655 (1944)………………………………………………….. 2, 3
Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 501 (1984)………………………………………………….5 California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater,
454 U.S. 90, 93 (1981) (per curiam)……………………………. .1, 11, 12
Delmore v. Brownell, 236 F.2d 598, 600 (3d Cir. 1956)………………………………………..9
Edwards v. Bryson,
536 Fed. App’x. 217, 219 (3d Cir. 2013)………………………………..8 Graham v. Holder,
No. CV 12-00066, 2013 WL 5445525, at *1 (D. Ariz. Sept. 30, 2013)…9
ii
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Hughes v. Ashcroft, 255 F.3d 752, 758 (9th Cir. 2001)……………………………………….4
Knauer v. United States,
328 U.S. 607 (1946)………………………………………….………… 2, 12
Kungys v. United States, 485 U.S. 759, 768-70, 800 n.11 (1988)……………………..……………….6
Lim v. Mitchell, 431 F.2d 197, 199-200 (9th Cir. 1970)…………………………………...…9 Lopez-Chavez v. INS,
259 F.3d 1176, 1180-81 (9th Cir. 2001)……………………………….…..13 Lopez-Gomez v. Gonzales,
No. 08-cv-1276, 2014 WL 50217, at *4-5 (S.D. Cal. Jan. 7, 2014)………..9 Lung v. Dulles,
261 F.2d 719, 723 (9th Cir. 1958)………………………………………….10 Matter of Extradition of Smyth,
72 F.3d 1433, 1435 (9th Cir. 1996)………………………………………..16 Mondaca-Vega v. Holder,
718 F.3d 1075, 1081 (9th Cir. 2013)……………………………...7, 9, 12, 16 Murphy v. INS,
54 F.3d 605, 608-10 (9th Cir. 1995)……………………………………….13 Nijhawan v. Holder,
557 U.S. 29, 42, (2009)…………………………………………………….12 Perez-Mejia v. Holder,
663 F.3d 403, 418 (9th Cir. 2011)………………………………………….14 Planned Parenthood v. American Coalition of Life Activists,
290 F.3d 1058, 1070 (9th Cir. 2002)………………………………………...5
iii
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Pullman-Standard v. Swint, 456 U.S. 273 (1982)…………………………………………………1, 2, 3, 4
Santosky v. Kramer,
455 U.S. 745, 756 (1982)…………………………………………………..11 St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 510 (1993) …………………………………………………..10
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)………………………………………… 13
United States v. Hovsepian,
359 F.3d 1144, 1168 (9th Cir. 2004)………………………………………...9 United States v. Zajanckauskas,
441 F.3d 32, 38 n.5 (1st Cir. 2006)………………………………………....5 Vega-Alvarado v. Holder,
No. CV 09-5591, 2011 WL 333101, at *3 (C.D. Cal. Jan. 28, 2011)………9 Woodby v. INS,
385 U.S. 276, 285 (1966) …………………………………………………..12 Yee Tung Gay v. Rusk,
290 F.2d 630, 631 (9th Cir. 1961)………………………………………….. 8
STATUTES
The Declaratory Judgment Act: 28 U.S.C § 2201…………………………………………………………….4, 8, 10
Federal Rules of Civil Procedure
Rule 52(a)………………………………………………………………………......3 Rule 52(a)(6)…………………………………………………………………. 1, 2, 7
iv
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Immigration and Nationality Act of 1952, As Amended: 8 U.S.C. § 1229a(c)(3)(A)………………………………………………………….7 8 U.S.C. § 1252(b)(5)………………………………………………………...passim 8 U.S.C. § 1421(c) ………………………………………………………………8, 9 8 U.S.C. § 1451…………………………………………………………………….6 8 U.S.C. § 1503…………………………………………………………………….8 8 U.S.C. § 1503(a) …………………………………………………………… .8, 10
MISCELLANEOUS
2 McCormick On Evid. § 340 (7th ed.)………………………………………...…11
v
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I. INTRODUCTION
This Court should deny Petitioner’s petition for review because he is not a
U.S. citizen under any standard of review and regardless of the burden of proof.
The Court should apply the clear error standard when it reviews a district
court’s findings of fact on a nationality claim. First, this standard of review is
consistent with Anderson v. City of Bessemer, 470 U.S. 564 (1985), Pullman-
Standard v. Swint, 456 U.S. 273 (1982), and Federal Rule of Civil Procedure
52(a)(6). Second, there is no meaningful difference between the clear, convincing,
and unequivocal standard and the clear-and-convincing standard. Because the
District Court’s decision is consistent with Addington v. Texas, 441 U.S. 418, 424
(1979), California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S.
90, 93 (1981) (per curiam), and several Ninth Circuit cases addressing the relevant
standard of review, it does not rest on a legal error. Last, the District Court’s
findings of fact are not clearly erroneous. The undisputed evidence clearly and
unequivocally shows that Petitioner is Salvador Mondaca-Vega, a Mexican citizen.
II. ARGUMENT
A. The Court of Appeals Should Review Fact-Finding for Clear Error in Section 1252(b)(5) Transfer Cases.
At issue before the en banc court is whether a trial court’s findings of fact in
a citizenship case should be reviewed for clear error or de novo. It is well-settled
law that an appellate court reviews a trial court’s findings of fact for clear error.
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See Anderson, 470 U.S. 564; Fed. R. Civ. P. 52(a)(6). But Petitioner asks the
Court to apply an exception to this rule in the context of citizenship cases
transferred to district courts under section 1252(b)(5). There is no rationale to
support such a rule, nor does the outdated and inapposite case law relied on by
Petitioner.
This case is about where Petitioner was born – Mexico or the United States –
and the Petitioner primarily challenges the District Court’s conclusions regarding
Petitioner’s birth, which cannot be treated as anything other than a finding of fact
without doing violence to the term. Id. at 5; 12-17. The Court should review these
findings of fact for clear error, not de novo. As discussed fully in Respondent’s
Response to Petitioner’s Rehearing Petition, the Supreme Court has overruled the
line of cases suggesting that findings of fact in citizenship cases are subject to de
novo review. See Resp. to Pet. for Reh. at 2-7. Knauer v. United States, 328 U.S.
607 (1946), and Baumgartner v. United States, 322 U.S. 655 (1944), held that, in
certain situations, an appellate court should review findings of fact de novo. The
Supreme Court distinguished between different types of fact-finding, identifying
some facts as “ultimate facts” – which includes applications of law to fact and facts
underlying societal judgments – and other facts as “pure” findings of fact, such as
credibility determinations. Baumgartner, 322 U.S. at 670-71.
Forty years later, in Pullman-Standard, the Supreme Court expressly
distinguished “pure findings of fact” from mixed questions of law and fact. 456
2
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U.S. at 287-88. In that case, the Court made clear that any time an appellate court
reviews a pure finding of fact, it should apply the Rule 52(a) clearly erroneous
standard. Id. The Court went on to explain that, “[w]hatever Baumgartner may
have meant by its discussion of ‘ultimate facts,’ it surely did not mean that
whenever the result in a case turns on a factual finding, an appellate court need not
remain within the constraints of Rule 52(a).” Id. at 286 n.16.
In Anderson, the Supreme Court did away with the notion that any type of
fact-finding could evade clear error review. The Court eliminated any exceptions
to the clear-error rule and expanded the Pullman-Standard court’s definition of
“pure findings of fact” to include physical evidence, documentary evidence,
inferences drawn from evidence, as well as credibility determinations. 470 U.S. at
574. The Court held that an appellate court should review any such findings for
clear error, and expressly rejected various courts of appeals’ theories that they may
“exercise de novo review over fact findings not based on credibility
determinations.” Id. Accordingly, following Anderson, prior exceptions to Rule
52(a)’s clear-error standard are no longer good law. The Supreme Court’s
decisions make no exception for citizenship cases, and Petitioner can point to no
basis for this Court to carve out one.
To the contrary, applying Rule 52(a)’s clear-error standard best comports
with the plain terms of 8 U.S.C. § 1252(b)(5). Under section 1252(b)(5), a court of
appeals is to transfer a case to district court to resolve any factual issue relating to
3
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the petitioner’s citizenship. 8 U.S.C. § 1252(b)(5) (providing for “a new hearing
on the nationality claim and a decision on that claim as if an action had been
brought in the district court under section 2201 of Title 28”). Thus, the purpose of
a transfer under section 1252(b)(5) is for the District Court to conduct fact-finding
and issue a decision comparable to a declaratory judgment. Id. Accordingly, a
court will transfer the case where there are factual issues to resolve. See Hughes v.
Ashcroft, 255 F.3d 752, 758 (9th Cir. 2001). In rendering “a decision on” a
nationality claim, a district court may also resolve legal issues, not just factual
ones, and those issues are reviewed de novo. But a District Court’s fact-finding –
which is the primary purpose of a section 1252(b)(5) action – is reviewed for clear
error.
In this case, there was no legal dispute surrounding Petitioner’s claim to
citizenship. Both parties agreed that the issue was whether Petitioner was actually
born in the United States, which is a factual determination. E.R. v.2 at 35, Joint
Pretrial Order. In answering that question, the court assessed Petitioner’s
credibility and that of Petitioner’s wife, it reviewed the documentary evidence, and
it evaluated Petitioner’s prior statements. Following Pullman-Standard and
Anderson, there can be no question that these are not mixed questions of law and
fact, but pure findings of facts reviewed for clear error.
Petitioner argues that the constitutional rights at stake compel a more
searching review. (Pet. Supp. Br. at 2.) But there is nothing unusual about
4
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reviewing fact-finding in constitutional challenges, and where constitutional rights
are at stake, under the clear error standard of review. Instead, that is the norm.
See, e.g., Ali v. Obama, 736 F.3d 542, 545 (D.C. Cir. 2013) (reviewing a district
court’s fact-finding in a habeas corpus case for clear error). Petitioner references
First Amendment cases in which appellate courts review “constitutional facts” de
novo. Pet. Supp. Br. at 3 (citing Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 501 (1984)). But those facts are markedly different than the facts that a
district court finds in a section 1252(b)(5) case. In the First Amendment context,
an appellate court does not review “pure” findings of fact. It reviews the record to
ensure that “the speech in question actually falls within the unprotected category
and to confine the perimeters of any unprotected category within acceptably
narrow limits.” Bose Corp., 466 U.S. at 505; see also Planned Parenthood v.
American Coalition of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002)
(reviewing “the core constitutional fact” de novo to ensure that the speech within
the unprotected category is construed narrowly). An appellate court’s review of
“constitutional facts” is unlike a section 1252(b)(5) case where the district court is
tasked with finding facts relating to a petitioner’s citizenship, such as where the
petitioner was born. These are pure findings that should be reviewed for clear
error.
Last, Petitioner cites United States v. Zajanckauskas, 441 F.3d 32, 38 n.5
(1st Cir. 2006), which is a denaturalization case, and not a section 1252(b)(5)
5
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transfer case. In fact, all of the citizenship cases that Petitioner cites in support of a
higher burden of proof are denaturalization cases, which are distinctly different
from section 1252(b)(5) cases. Once a person is naturalized, the only way in
which the Government may take citizenship away is through denaturalization
proceedings under 8 U.S.C. § 1451. To prevail in a denaturalization action, the
Government must show by clear, convincing, and unequivocal evidence that the
naturalized citizen illegally procured naturalization or gained it through material
misrepresentation. Id.; see also Kungys v. United States, 485 U.S. 759, 768-82
(1988).
In a de novo district court action under section 1252(b)(5), on the other hand,
citizenship is an open question for the district court to decide as if it were a simple
Declaratory Judgment Act case. Typically, the question in these cases is whether
the petitioner was born in the United States, or whether he can prove that he
derived citizenship through his parents. See, e.g., Anderson v. Holder, 673 F.3d
1089, 1092 (9th Cir. 2012). The Government is not taking away a right or
privilege it already granted; indeed, the government cannot take citizenship away
in a 1252(b)(5) proceeding. Importantly, section 1252(b)(5) puts the burden on the
petitioner to prove citizenship after the court of appeals finds that there is a
material issue of fact relating to a petitioner’s citizenship. See infra Part II.B.
Because of this, case law in the denaturalization context is not relevant.
6
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Neither case law nor public policy compel the Court to apply a heightened
standard of review when reviewing a trial court’s findings of fact in a section
1252(b)(5) transfer case. For these reasons, the Court should apply the clear error
standard. Fed. R. Civ. P. 52(a)(6); Anderson, 470 U.S. at 574.
B. The Petitioner in a Section 1252(b)(5) Case Should Bear the Burden to Prove Citizenship by a Preponderance of the Evidence.
The District Court correctly placed the initial burden on the Petitioner to
prove citizenship by a preponderance of the evidence. E.R. v.1 at 19. Petitioner
contends that the burden-shifting that occurs in administrative removal proceedings
also applies in section 1252(b)(5) cases, and the panel adopted this interpretation as
well. Pet. Supp. Br. at 12 n.4; Mondaca-Vega v. Holder, 718 F.3d 1075, 1081 (9th
Cir. 2013). The argument lacks merit.
In administrative removal proceedings, the Government bears the initial
burden “of establishing by the deportability of an admitted alien.” 8 U.S.C.
§ 1229a(c)(3)(A); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir.
2009) (the Government bears the burden “of establishing by clear, unequivocal,
and convincing evidence, all facts supporting deportability.”). Evidence of foreign
birth creates a rebuttable presumption of alienage, and the burden shifts to the
petitioner to prove citizenship. Ayala-Villanueva, 572 F.3d at 737 n.3. If the
petitioner presents credible evidence of citizenship, the presumption of alienage is
7
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rebutted, and the Government “then bears the ultimate burden of proving the
respondent removable by clear and convincing evidence.” Id.
This Court should not apply the burden-shifting scheme in removal
proceedings to section 1252(b)(5) proceedings. As discussed in Part II.A above, a
section 1252(b)(5) transfer case is different than a removal case. The question of
citizenship is an open question. And, notably, it is arising on a petition for review
of a final removal order, after the burden-shifting scheme has already been applied
in immigration court and the immigration court has found that the person is an
alien. If the appellate court finds that there is a material issue of fact and transfers
the case to the district court, the court should decide it “as if an action had been
brought in the district court under section 2201 of Title 28 [the Declaratory
Judgment Act].” Id. In declaratory judgment actions, the burden of proof is on the
plaintiff. And more broadly, the burden in civil cases generally is on the plaintiff
to prove his or her case by a preponderance of the evidence.1 See Addington, 441
1 Placing the burden on the petitioner is also consistent with the burden in analogous citizenship cases arising under 8 U.S.C. § 1503 and 8 U.S.C. § 1421(c). Under both statutes, plaintiffs can bring a district court case for a de novo determination of citizenship, resulting in a declaratory judgment under 28 U.S.C. § 2201. See 8 U.S.C. §§ 1421(c); 1503(a). Courts have consistently held in both contexts that the burden is on the plaintiff to prove eligibility for citizenship by a preponderance of the evidence. See Yee Tung Gay v. Rusk, 290 F.2d 630, 631 (9th Cir. 1961) (in a section 1503 case, “[t]he burden was upon appellants to establish their citizenship by a fair preponderance of the evidence.”); Edwards v. Bryson, 536 Fed. App’x. 217, 219 (3d Cir. 2013) (“In the § 1503(a) proceeding before the District Court, Edwards bore the burden of proving his citizenship by a preponderance of the evidence.”) (internal citations and quotations omitted);
8
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U.S. at 423. Indeed, even the dissenting judge agreed that the “burden” is on the
petitioner, who must “carr[y] his initial burden by a preponderance of the evidence
that he is an American citizen.” Mondaca-Vega, 718 F.3d at 1095 (Pregerson, J.,
dissenting).
There is ample Ninth Circuit case law to support placing the burden on the
petitioner in a section 1252(b)(5) case. In Lim v. Mitchell, the Court stated that
“[a]s plaintiff below, Lim had the burden of proving by a fair preponderance of the
evidence that he is an American citizen.” 431 F.2d 197, 199 (9th Cir. 1970).
Other circuit courts and many district courts within this Circuit likewise held that
the burden rests on the petitioner in a section 1252(b)(5) action.2 This Court
should hold that the petitioner bears the burden by a preponderance of the evidence
because it is consistent with other citizenship cases under 8 U.S.C. §§ 1421(c) and
United States v. Hovsepian, 359 F.3d 1144, 1168 (9th Cir. 2004); Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 715-16 (E.D. Va. 2012) (adopting the preponderance standard in a 1421(c) case). 2 See, e.g., Delmore v. Brownell, 236 F.2d 598, 600 (3d Cir. 1956) (“[Peitioner] had the burden of proving his citizenship by a preponderance of the evidence.”); Lopez-Gomez v. Gonzales, No. 08-cv-1276, 2014 WL 50217, at *4-5 (S.D. Cal. Jan. 7, 2014); (“Though the party claiming citizenship is the respondent during the removal proceedings, in the de novo hearing in district court, that party is in the position of a plaintiff seeking a declaratory judgment. . . . [and] has the burden of proving his citizenship by a preponderance of the evidence in order to prevail.”) (citations and quotations omitted); Graham v. Holder, No. CV 12-00066, 2013 WL 5445525, at *1 (D. Ariz. Sept. 30, 2013) (same); Vega-Alvarado v. Holder, No. CV 09-5591, 2011 WL 333101, at *3 (C.D. Cal. Jan. 28, 2011) (same).
9
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1503(a), with other cases arising under the Declaratory Judgment Act, and the
general rule in civil cases that the plaintiff bears the burden of proving his or her
case by a preponderance of the evidence.
In a case that goes to trial, like this one, burden shifting plays no formal role.
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510 n.3 (1993). However,
Respondent agrees that, as a practical matter, once a petitioner in a section
1252(b)(5) case presents a valid citizenship document, the Government must
provide clear, convincing, and unequivocal evidence to show he was not a citizen.
Lung v. Dulles, 261 F.2d 719, 724 (9th Cir. 1958). Accordingly, because the
District Court found that Petitioner possessed a valid, unexpired passport, the court
appropriately called on the Government to provide clear and convincing evidence
that Petitioner was not who he claimed to be.3
C. There Is No Meaningful Distinction Between the Clear and Convincing and the Clear, Unequivocal, and Convincing Standards.
Another question before the en banc court is the significance of the term
“unequivocal,” in the phrase “clear, unequivocal, and convincing evidence,” and
whether that standard is equivalent to the clear-and-convincing standard or akin to
the more stringent criminal standard. While the District Court announced that it
was applying the clear, convincing, and unequivocal standard (E.R. v.1 at 21),
3 The Department of State revoked Petitioner’s passport in April 2011. E.R. v.1 at 14. Because the time to file an administrative appeal had not yet run, the District Court treated Petitioner’s passport as valid and un-revoked. Id.
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Petitioner contends that the Court “erred by failing to recognize the distinction”
between the two standards. Pet. Supp. Br. at 5. But both standards are the
intermediate civil standard reserved for cases where liberty rights are at stake.
Addington, 441 U.S. at 424. Because the two standards are the same, the District
Court did not err when it used the two standards interchangeably.
As discussed in Respondent’s Petition for Rehearing Response, the Supreme
Court recognized that courts use different word formulas to describe the clear-and-
convincing standard. Id. (discussing the “intermediate standard, which usually
employs some combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and
‘convincing’”); see also Resp. to Pet. for Reh. at 8-9.4 The Court held that each of
these formulations is a variation on the same standard. Addington, 441 U.S. at 424.
In California ex rel. Cooper, the Supreme Court explained that the intermediate
clear and convincing standard was “reserved to protect particularly important
interests in a limited number of civil cases,” including citizenship. 454 U.S. at 93
(1981); accord Santosky v. Kramer, 455 U.S. 745, 756 (1982) (for particularly
important individual interests the “Court has mandated an intermediate standard of
proof – ‘clear and convincing evidence’”). Indeed, in listing the types of liberty
4 See also 2 McCormick On Evid. § 340 (7th ed.) (“The [clear-and-convincing] formula varies from state to state, but among the phrases used are the following: ‘by clear and convincing evidence,’ ‘clear, convincing and satisfactory,’ ‘clear, cogent and convincing,’ and ‘clear, unequivocal, satisfactory and convincing.’ . . . No high degree of precision can be attained by these groups of adjectives.”).
11
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interests that are subject to the intermediate standard, the Supreme Court grouped
denaturalization and deportation cases together with civil commitment and libel
cases. California ex rel. Cooper, 454 U.S. at 93.
Petitioner argues that the clear, convincing, and unequivocal standard should
not “leave the issue in doubt.” Pet. Supp. Br. at 5 (quoting Knauer, 328 U.S. at
657-58). In making this argument, Petitioner suggests that the clear, convincing,
and unequivocal standard is essentially equivalent to the criminal standard, or
perhaps even higher, given no possibility of unreasonable doubt. Mondaca-Vega,
718 F.3d at 1097 (Pregerson, J., dissenting) (reasoning that the government can
never carry its burden when “there is ‘conflicting evidence’” because “it cannot be
said that the government has carried its burden to prove by evidence ‘which does
not leave the issue in doubt’”). But, like deportation and denaturalization cases, a
citizenship case under section 1252(b)(5) is not a criminal case and the Supreme
Court has repeatedly emphasized this point. Nijhawan v. Holder, 557 U.S. 29, 42,
(2009) (“[A] deportation proceeding is a civil proceeding in which the Government
does not have to prove its claims ‘beyond a reasonable doubt.’”); Woodby v. INS,
385 U.S. 276, 285 (1966) (same). While the clear, convincing, and unequivocal
standard is a high standard, it is not the same as proof beyond a reasonable doubt,
and such a standard, in name or otherwise, is emphatically not appropriate.
Last, contrary to Petitioner’s argument that the clear, convincing, and
unequivocal standard is markedly higher than the clear and convincing standard,
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several Ninth Circuit cases reference the two standards interchangeably. See, e.g.,
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012).5 And Petitioner
admits as much, stating that “some decisions intermingl[e], and appear[] to equate,
the ‘clear and convincing’ standard with the more rigorous, ‘clear, unequivocal,
and convincing’ standard.” Pet. Supp. Br. at 6. But an intermingling of the
standards is not due to confusion or imprecision, it is because they come from the
same intermediate burden of proof. See Addington, 441 U.S. at 424. Accordingly,
the District Court did not err when it interchanged the two standards, and this
Court should therefore affirm the District Court’s application of the clear,
convincing, and unequivocal standard.
D. Applying Either the Clear Error or De Novo Standard of Review, this Court Should Uphold the District Court’s Findings of Fact.
The great weight of undisputed evidence in this case compels this Court to
affirm the District Court’s finding that Petitioner is Salvador Mondaca-Vega under
either the clear error or de novo standards of review. That evidence includes:
• Petitioner’s own admissions (including a sworn statement) that he used the name Salvador Mondaca-Vega during the 1950s. ER v.2 at 44, 148-49, 198; SER at 13, 15-16;
• Petitioner’s own admissions that he was born in 1931 and grew up in El Fuerte, Sinaloa, Mexico. ER v.2 at 148;
5 See also Ayala-Villanueva v. Holder, 572 F.3d 736, 736, 737 n.3 (9th Cir. 2009); Lopez-Chavez v. INS, 259 F.3d 1176, 1180-81 (9th Cir. 2001); Murphy v. INS, 54 F.3d 605, 608-10 (9th Cir. 1995).
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• A birth certificate showing that Salvador Mondaca-Vega was born in 1931 just outside of El Fuerte, Sinaloa, Mexico. ER v.2 at 138-140;
• Petitioner’s allowing himself to be deported as a Mexican national and acceptance of voluntary departure as a Mexican national ten to twenty times. ER v.2 at 148-49; SER at 16-17;
• Petitioner’s fingerprints and handwriting match that of Salvador Mondaca-Vega from the 1950s. SER at 23; 26-38.
Accordingly, applying either standard, this Court need not look beyond the
undisputed evidence to affirm the District Court’s finding that Petitioner is
Salvador Mondaca-Vega.
Nevertheless, Petitioner tries to estop the Government from questioning
Plaintiff’s citizenship because it did not criminally prosecute or seek to deport
Petitioner in the 1970s and 1980s. See Pet. Supp. Br. at 14-15. For example,
Petitioner points out that the former Immigration and Naturalization Service first
investigated him in 1973, but then gave certificates of citizenship to Petitioner’s
children four years later. Id. at 14. And in 1980, the U.S. Attorney’s Office in for
the District of Arizona charged Petitioner as a U.S. citizen during criminal
proceedings. Id. at 15. But it is a well-settled rule in this circuit that the
Government is not estopped from correcting a mistake. See Perez-Mejia v. Holder,
663 F.3d 403, 418 (9th Cir. 2011) (“[T]he government was negligent in improperly
granting Perez-Mejia [legal permanent resident] status . . . [but] [t]he government
was not estopped from correcting the mistake when it was discovered.”). Simply
because the Government once lacked the knowledge, resources, or ability to
14
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discover Petitioner’s fraud or deport or prosecute Petitioner does not estop it from
now showing that he is not a U.S. citizen.
Petitioner also argues that he should not be required to “prove a negative”;
meaning, he should not have to prove that he presented his birth certificate to INS
or otherwise asserted that his true identity is Reynaldo Mondaca Carlon. Pet.
Supp. Br. at 16. But this argument ignores Petitioner’s own deposition and trial
testimony. Petitioner admitted that he was deported because he affirmatively
claimed to be Salvador Mondaca-Vega and affirmatively claimed birth in Mexico.
SER at 12-17 . He was not deported simply because he omitted his true identity.
In fact, in 1954, when in deportation proceedings for the third time, he signed a
sworn statement attesting that his name is Salvador Mondaca-Vega and that he was
born in Mexico. ER v.2 at 148-49. He also attested to the fact that he had been
deported and accepted voluntary departure on numerous occasions. Id. And it is
not disputed that the fingerprints of Mondaca-Vega taken at that time match the
Petitioner. Petitioner is not expected to “prove a negative.” His task is only
impossible because he cannot explain, without admitting the truth of his birth, why
he would hold himself out as a Mexican citizen for several years, bearing the same
name as a man who was born in the same small town where he grew up within two
months of his purported birthdate.
Petitioner also argues that the District Court speculated about his birth
certificate and his financial incentives for crossing back and forth across the
15
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border. Pet. Supp. Br. at 13-14. But as the panel opinion explained, these were
“not findings at all” and there is nothing improper about a district court discussing
its “reasoning when deciding that Petitioner was not a credible witness.”
Mondaca-Vega, 718 F.3d at 1084. Further, as discussed fully in Respondent’s
answering brief (Resp. Ans. Br. at 28-29; 38-40), a trial court may draw rational
inferences from the evidence in the record, and that is what occurred here. See
Matter of Extradition of Smyth, 72 F.3d 1433, 1435 (9th Cir. 1996) (“[I]nference-
drawing is a type of factfinding, a process by which the presence of one fact leads
to a probable estimate of a second fact.”). The District Court rationally inferred
that if Petitioner had his California birth certificate in his possession in the 1950s,
he would have presented it to immigration authorities. It also rationally inferred
that, if Petitioner were truly a U.S. citizen, he would not want to be abruptly
deported to Mexico while he was working in the United States.
In sum, Petitioner’s own actions and behaviors are enough to compel this
Court to affirm the District Court’s findings of fact. Whether this Court reviews
the District Court’s finding for clear error or de novo, the conclusion is the same:
Petitioner is Salvador Mondaca-Vega, a Mexican citizen.
III. CONCLUSION
For the foregoing reasons, this Court should deny the petition for review.
16
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DATED: February 14, 2014 Respectfully submitted, STUART F. DELERY
Assistant Attorney General Civil Division AUGUST E. FLENTJE Senior Counsel for Immigration Civil Division
COLIN A. KISOR Acting Director Office of Immigration Litigation ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation
s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL
Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115
Attorneys for Respondent
17
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Federal Rule of Appellate Procedure
32(a)(7)(C) and Ninth Circuit Rules 31-2 and 40-1(a), that I used Microsoft Word
2010 to prepare Respondent’s Brief, and the typeface is proportionally spaced in
14-point Times New Roman typeface. The brief contains 4,196 words of text and
363 lines of text.
DATE: February 14, 2014 s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation
18
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on February 14, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation
19
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NO. 03-71369
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MONDACA-VEGA
A 019 263 384
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General
Respondent.
PETITION FOR REVIEW OF
BOARD OF IMMIGRATION APPEALS FINAL ORDER
PETITIONER’S REPLY BRIEF BEFORE THE EN BANC COURT
Matt Adams
Martha H. Rickey
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
Tel. (206) 957-8611
Attorneys for Petitioner
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................... iii
I. STANDARD OF REVIEW ....................................................... 1
II. BURDEN OF PROOF ............................................................. 3
A) This Court Reviews a Final Order of Deportation to Determine if the
Agency Satisfied its Heavy Burden. ................................................................... 3
B) The Burden of Proof Does Not Switch to Petitioner after Limited
Transfer from this Court. .................................................................................... 4
C) Respondent Did Not Present Evidence to Sustain its Heavy Burden of
Proof. ..................................................................................................................... 7
III. CONCLUSION ................................................................... 11
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369........... 12
CERTIFICATE OF SERVICE ..................................................... 13
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iii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418 (1979) .................................................................. 4
Anderson v. City of Bessemer, 470 U.S. 564 (1985) ................................................. 1
Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) .................................................. 2
Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) ....................................... 6
Baumgartner v. United States, 322 U.S. 665 (1944) ................................................. 5
Chaunt v. U.S., 364 U.S. 350 (1960) ......................................................................... 1
Demirchyan v. Holder, 641 F.3d 1141 (9th Cir. 2011) ............................................. 2
Kashat v. Comm’r of Internal Revenue, 229 F.2d 282 (6th Cir. 1956) ..................... 9
Kaur v. Ashcroft, 379 F.3d 876 (9th Cir. 2004) ......................................................... 9
Klapprott v. U.S., 335 U.S. 601 (1949) ..................................................................... 3
Knauer v. U.S., 328 U.S. 654 (1946) ......................................................................... 1
Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1970) ........................................................... 8
Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.Ct. 843 (Jan. 22, 2014) . 5
Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir. 2002) .......................................... 9
Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011) ............................................... 7
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ..................................................... 1
Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15 (2000) .......................................... 2
Schneiderman v. U.S., 320 U.S. 118 (1943) ................................................. 3, 5, 8, 9
Singh v. INS, 292 F.3d 1017 (9th Cir. 2002) ............................................................. 9
Woodby v. INS, 385 U.S. 276 (1966) ......................................................................... 3
Yee Tung Gay v. Rusk, 290 F.2d 630 (9th Cir. 1961) ................................................ 6
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iv
Statutes
8 U.S.C. § 1252(b)(5)(B) ........................................................................................... 2
8 U.S.C. § 1421(c) ..................................................................................................... 6
8 U.S.C. § 1503 .......................................................................................................... 6
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1
I. STANDARD OF REVIEW
Respondent argues there is no basis to make an exception to the general rule
that a trial court’s findings of fact should only be reviewed for clear error.
(Respt’s. Suppl. Br. 2) (hereinafter “Resp’t”.) Indeed, Respondent argues that
“[t]he Supreme Court’s decisions make no exception for citizenship cases, and
Petitioner can point to no basis for this Court to carve out one.” Id. at 3. This
assertion is backward. Respondent urges this Court to ignore the Supreme Court’s
controlling precedent requiring a searching, independent review for cases
involving challenges to citizenship. Since the 1940s the Supreme Court has held
that in citizenship cases a reviewing court must apply de novo review, in order to
protect the almost sacred constitutional matter at issue, which lies at the heart of
our democracy. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v.
U.S., 328 U.S. 654, 658-59 (1946). It is Respondent who is not able to point to any
case law holding that the clear-error rule should be applied in citizenship cases.
Respondent argues that through Pullman-Standard v. Swint, 456 U.S. 273
(1982), and Anderson v. City of Bessemer, 470 U.S. 564 (1985), “[t]he Court
eliminated any exceptions to the clear-error rule.” (Resp’t 3.) This assertion
ignores the fact that the Supreme Court has never purported to reject the separate
standard of review in citizenship cases. As previously noted, the footnote in
Pullman-Standard does not profess to overturn this exception, and Anderson does
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2
not even address it. (Petr’s. Suppl. Br. 3-5.) Nor is there any other case that
explicitly states that the clear-error rule must be applied in all cases.
Respondent also seeks to justify application of the clear-error rule simply
because this case was transferred to district court for additional factfinding under
the predecessor statute to 8 U.S.C. § 1252(b)(5)(B). However, this limited transfer
does not alter the context of the instant proceedings: this Court maintains
jurisdiction to review the lawfulness of the agency’s action in rejecting Mr.
Mondaca’s claim to citizenship and ordering him deported. See Demirchyan v.
Holder, 641 F.3d 1141, 1143 (9th Cir. 2011) (“[W]e see no meaningful distinction
between transfer under 8 U.S.C. § 1252(b)(5)(B) and limited remand.”); Anderson
v. Holder, 673 F.3d 1089, 1093-94 (9th Cir. 2012).
Similarly, Respondent erroneously asserts that, “there was no legal dispute
surrounding Petitioner’s claim to citizenship. Both parties agreed that the issue
was whether Petitioner was actually born in the United States, which is a factual
determination.” (Resp’t 4.) As the Supreme Court has explained, the findings of
fact include application of a very demanding legal standard, one that does not leave
the issue in doubt. Similarly, the Supreme Court has made clear that the burden of
proof is a “‘substantive’ aspect of a claim.” Raleigh v. Illinois Dept. of Revenue,
530 U.S. 15, 20-21 (2000). And as discussed below, the burden of proof applied
by the Court is an essential component of this case.
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3
II. BURDEN OF PROOF
A) This Court Reviews a Final Order of Deportation to Determine if the
Agency Satisfied its Heavy Burden.
Respondent attempts to distinguish “1252(b)(5) cases” from denaturalization
cases in order to avoid the “higher burden of proof” that is required, claiming they
are “distinctly different” since in the latter the government tries to take citizenship
away whereas in the former “citizenship is an open question.” (Resp’t 6.) There is
nothing in the procedural posture of this case to support Respondent’s contention
that Respondent should be held to any less exacting standards than those laid out
by the Supreme Court in Schneiderman v. U.S., 320 U.S. 118 (1943), and its
progeny. The government’s burden of proof in deportation proceedings is identical
to the burden of proof in denaturalization proceedings. See Woodby v. INS, 385
U.S. 276, 285-86 (1966) (comparing deportation to denaturalization and
determining “[n]o less a burden of proof is appropriate in deportation
proceedings”).
The Supreme Court has repeatedly clarified the heavy burden that
Respondent must bear in attempting to reject Petitioner’s claim to U.S. citizenship:
“a burden rests on the Government to prove its charges in such cases by clear,
unequivocal and convincing evidence which does not leave the issue in doubt.”
Klapprott v. U.S., 335 U.S. 601, 612 (1949) (citation omitted). Respondent seeks
to avoid this plain language by asserting that this standard must not be equated
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4
with the criminal standard. (Resp’t 12.) Petitioner does not ask this Court to
equate one standard with the other. Rather, this Court must simply apply the
standard that the Supreme Court has repeatedly declared is applicable: evidence
which does not leave the issue in doubt. (Petr’s. Suppl. Br. 11-12.)
In attempting to avoid this plain language, Respondent also cites to
Addington v. Texas, 441 U.S. 418 (1979). (Resp’t 11, 13.) Yet in that case the
Supreme Court discussed the burden described in Schneiderman and Woodby,
noting, “[t]he term ‘unequivocal,’ taken by itself, means proof that admits of no
doubt, a burden approximating, if not exceeding, that used in criminal cases.” 441
U.S. at 432 (citation omitted). Citizenship by birth in the United States is secured
by the Fourteenth Amendment. While the Supreme Court has not explicitly
applied the burden of proof in language traditionally used in criminal cases, there
is no basis to ignore the Supreme Court’s clearly repeated mandate that the
applicable burden requires that the agency present evidence which does not leave
the issue in doubt.
B) The Burden of Proof Does Not Switch to Petitioner after Limited
Transfer from this Court.
Respondent also argues that in civil cases the petitioner bears the burden of
proof, and since this case was remanded to district court for factual findings it
should be treated as any other case reviewing the trial court’s findings. (Resp’t 8.)
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5
This argument ignores the fact that the agency initiated the instant proceedings,
seeking to deport Mr. Mondaca by rejecting his claim to U.S. citizenship. The
Supreme Court’s recent holding in Medtronic, Inc. v. Mirowski Family Ventures,
LLC, 134 S. Ct. 843, 849 (Jan. 22, 2014), is instructive. There, the Court held that
when a licensee seeks a declaratory judgment to settle an allegation of patent
infringement, the licensee does not bear the burden of persuasion. Rather, the
defendant, the patent holder who alleges the infringement, should bear the burden.
The Court explained that this was so for three reasons, all of which are instructive
in the instant case. First, “it is well established that the burden of proving
infringement generally rests upon the patentee.” Id. Similarly, in deportation and
denaturalization cases, it is well established the burden rests on the government.
Second, the Court clarified “[w]e have long considered ‘the operation of the
Declaratory Judgment Act’ to be only ‘procedural,’ leaving ‘substantive rights
unchanged.’” Id. (citations omitted). Similarly, any limited transfer for
declaratory findings by the district court in citizenship cases must be considered as
purely a procedural mechanism for factfinding. Finally, the Supreme Court
reiterated that the “‘burden of proof’ is a ‘substantive’ aspect of a claim.’” Id.
(citations omitted). Likewise, Schneiderman, Baumgartner v. United States, 322
U.S. 665 (1944), and their progeny have emphasized the important role the heavy
burden of proof plays in cases reviewing claims to U.S. citizenship.
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6
Respondent also errs in arguing that Petitioner should bear the burden of
proving citizenship by a preponderance of the evidence, because that would be
“consistent with the burden in analogous citizenship cases.” (Resp’t 8 n.1.)
However, the cases cited are not “analogous” at all: 8 U.S.C. § 1421(c) actions
deal with denied naturalization applications, where it is logical to place the initial
burden on the petitioner who is a non-citizen seeking to become one.
Respondent’s reliance on 8 U.S.C. § 1503 is similarly misplaced. The text of that
section itself disavows any applicability to cases where nationality questions
“arose by reason of, or in connection with any removal proceeding.” 8 U.S.C. §
1503(a). Moreover, the cases cited all concerned petitioners who sought a
declaration of their derivative citizenship after conceding foreign birth. See, e.g.,
Yee Tung Gay v. Rusk, 290 F.2d 630 (9th Cir. 1961) (Chinese-born petitioners
applied for U.S. passports in Hong Kong alleging derived citizenship).1
Ultimately, Respondent acknowledges that regardless of the initial burden,
in a case like this one, where an individual “presents a valid citizenship document,
1 Respondent also argues, “[e]vidence of foreign birth creates a rebuttable
presumption of alienage, and the burden shifts to the petitioner to prove
citizenship.” (Resp’t 7.) But the case cited is not one in which a petitioner has
maintained birthright citizenship. Nor is it a case where a petitioner has previously
been recognized as a U.S. citizen. Rather, it concerns a petitioner who conceded
birth abroad but argued citizenship was acquired or derived through a parent.
Ayala-Villanueva v. Holder, 572 F.3d 736, 738 (9th Cir. 2009).
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7
the Government must provide clear, convincing, and unequivocal evidence to show
he was not a citizen.” (Resp’t 10.)
C) Respondent Did Not Present Evidence to Sustain its Heavy Burden of
Proof.
Respondent errs in asserting that “Petitioner tries to estop the Government
from questioning [his] citizenship because it did not criminally prosecute or seek to
deport [him] in the 1970s and 1980s.” (Resp’t 14.) First, Mr. Mondaca has never
made any type of estoppel claim. Respondent’s reliance on Perez-Mejia v. Holder,
663 F.3d 403, 418 (9th Cir. 2011), is misplaced, as the petitioner there conceded
that he had been granted lawful permanent residence in error, but sought to prevent
the government from correcting the mistake when it was discovered. In this case
Petitioner certainly does not concede any mistake, and does not seek to “estop” any
conduct. Rather, he firmly maintains that the agency is seeking to strip him of his
inalienable right to birthright citizenship.
Moreover, Respondent’s characterization ignores that Mr. Mondaca is not
simply relying on the fact that he was not prosecuted or deported on many
occasions based on claims to U.S. citizenship. Rather, the Executive has
repeatedly determined that Petitioner is a U.S. citizen in granting family visa
petitions to his spouse and two children in 1977, in granting derivative citizenship
applications to four other children in 1977, and in issuing and then reissuing his
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8
U.S. passport. (See ER v.1 27-28, Agreed Facts 13, 15, 16.) Thus, Petitioner
asserts that the agency now has a very heavy burden in seeking to undo his
entitlement to U.S. citizenship based on allegations of fraud or mistake. See Lim v.
Mitchell, 431 F.2d 197, 199 (9th Cir. 1970) (“Denial of a certificate of citizenship
some thirty-six years after appellant was admitted into this country as a citizen is,
like cancellation of a certificate of citizenship, in its consequences ‘more serious
than a taking of one’s property, or the imposition of a fine or other penalty.’ The
government should not prevail ‘without the clearest sort of justification and
proof.’”) (citing Schneiderman, 320 U.S. at 122).
Respondent also errs in claiming that it is seeking to correct a mistake it only
later discovered, because it previously lacked the “knowledge, resources, or ability
to discover Petitioner’s fraud.” (Resp’t 14-15.) All the information and evidence
relied upon by Respondent was obtained in the agency’s initial investigation in
1973, more than 20 years before placing Petitioner in deportation proceedings after
declining to do so in 1973, 1980, and 1983, and more than 15 years after
confirming his U.S. citizenship in 1977 and approving multiple visa petitions and
derivative citizenship applications.
Despite rejecting his claim to citizenship in deportation proceedings, the
agency did not call any witnesses or present any additional evidence. Similarly, in
district court, Respondent did not provide any new evidence. Before a person may
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9
be stripped of citizenship, the government bears the heavy burden to present clear,
unequivocal, and convincing evidence that does not leave the issue in doubt.
Schneiderman, 320 U.S. at 135. In this case, the agency has not presented such
evidence. Instead, the agency convinced the trial court to accept the invitation to
speculate as to why a U.S. citizen would allow himself to be deported to Mexico
on multiple occasions, noting that Mr. Mondaca used an alias that corresponds to a
birth certificate from Mexico that the agency obtained in 1973.
Respondent attempts to defend such speculation by asserting that “a trial
court may draw rational inferences from the evidence in the record.” (Resp’t 16.)
But the district court’s findings were based on improper assumptions about how a
citizen would act and unfounded speculation regarding financial incentives,
cultural expectations, and motives of detained individuals—not rational inferences.
(See Petr’s. Show Cause Br. 41-45) (citing Singh v. INS, 292 F.3d 1017, 1024 (9th
Cir. 2002); Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir. 2002); Kaur v.
Ashcroft, 379 F.3d 876, 887-88 (9th Cir. 2004)). Cf. Kashat v. Comm’r of Internal
Revenue, 229 F.2d 282, 286 (6th Cir. 1956) (noting that allegations of fraud are
easily made, especially when a person’s circumstances seem “strange[] to an
experienced and enlightened American mind”).2
2 It is also notable that the district court’s credibility determination was heavily
colored by the assumption that Mr. Mondaca would have needed a copy of his
birth certificate in order to apply for a Social Security card in 1953. (Petr’s. Suppl.
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The agency’s final order of deportation must be reversed as it has not met its
heavy burden of proof. It is undisputed that Petitioner has presented a valid birth
certificate demonstrating that Reynaldo Mondaca is entitled to birthright
citizenship. It is undisputed that Petitioner has established Social Security and
employment history as Reynaldo Mondaca since the 1950s. There is no evidence
of any other person who is Reynaldo Mondaca. Despite being removed multiple
times in the 1950s and 1960s, and despite noting the alternative aliases and prior
removals, the Executive has repeatedly adjudicated and confirmed Mr. Mondaca’s
applications asserting his U.S. citizenship, starting in 1977.
In contrast, the agency relies on incredulity that a U.S. citizen would allow
himself to be removed multiple times to Mexico, and on a Mexican birth certificate
it obtained in 1973 that roughly conforms with an alias that he used. In asking this
Court to sustain the findings of the district court, Respondent is asking that the
lives of Mr. Mondaca and his children (and grandchildren) be thrown into chaos,
despite the fact that the narrative urged by Respondent at best presents only more
questions. The record compels a finding that Respondent failed to meet its burden
to present clear, unequivocal, and convincing evidence that does not leave the issue
of Petitioner’s citizenship in doubt.
Br. 13.) Indeed, the district court’s “conclusions of law” section focuses heavily
on this birth certificate issue. (ER v.1 19-21.)
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III. CONCLUSION
For these reasons Petitioner requests that the Court grant his petition for
review, reversing the final order of deportation.
Date: February 28, 2014 Respectfully submitted,
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
615 Second Avenue, Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
Attorneys for Petitioner
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12
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369
I certify that:
1. Pursuant to Fed. R. App. P. 40-1(a), the attached petition for rehearing brief
is
Proportionately spaced, has a typeface of 14 points or more and contains
_2,459___ words (per this Court’s order must not exceed 2,500 words).
February 28, 2014 s/ Matt Adams
Date Matt Adams
Northwest Immigrant Rights Project
615 Second Avenue, Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
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13
CERTIFICATE OF SERVICE
RE: Mondaca-Vega v. Holder, Case No. 03-71369
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on February 28, 2014.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Executed in Seattle, Washington, on February 28, 2014.
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
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NO. 03-71369
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MONDACA-VEGA
CASE NO. A 019 263 384
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General
Respondent.
PETITION FOR REVIEW OF FINAL ORDER OF THE
BOARD OF IMMIGRATION APPEALS
PETITIONER’S OPENING SUPPLEMENTAL BRIEF
BEFORE THE EN BANC COURT
Matt Adams
Martha H. Rickey
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
Attorneys for Petitioner
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………..
I. INTRODUCTION .................................................................... 1
II. ARGUMENT .......................................................................... 2
A. Controlling Case Law Clarifies that this Court Must Apply a
Searching, Independent Review of the Record in Resolving Mr.
Mondaca’s Claim to Birthright Citizenship……………………………...2
B. The District Court Failed to Apply the Appropriate Burden of Proof…5
C. The District Court’s Findings are Not Supported by the Record..….....12
D. Even if Review were Limited to Clear Error, the District Court’s
Findings Should be Set Aside…………………………………………….16
III. CONCLUSION ................................................................... 17
CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369........... 19
CERTIFICATE OF SERVICE ..................................................... 20
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iii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U.S. 418 (1979) ....................................................... 7, 8, 10
Afroyim v. Rusk, 387 U.S. 253 (1967) .....................................................................12
Anderson v. City of Bessemer, 470 U.S. 564 (1985) ...........................................4, 17
Barber v. Ruth, 7 F.3d 636 (7th Cir. 1993) ................................................................ 4
Baumgartner v. U.S., 322 U.S. 665 (1944) ................................................... 1, 3, 4, 5
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)......................... 3
Chaunt v. U.S., 364 U.S. 350 (1960) ...................................................................3, 12
Costello v. United States, 365 U.S. 265 (1961) ...................................................6, 12
Fedorenko v. U.S., 449 U.S. 440 (1981) ..................................................................12
Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) ...................................... 2
Klapprott v. U.S., 335 U.S. 601 (1949) ...................................................................12
Knauer v. U.S., 328 U.S. 654 (1946) ............................................................... passim
Kungys v. U.S., 485 U.S. 759, 781 (1988) ...............................................................12
Kwock Jan Fat v. White, 253 U.S. 454 (1920) .......................................................... 8
Mondaca-Vega, 718 F.3d 1075 (9th Cir. 2013) ............................................... passim
Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) ............................................................12
Ng Fung Ho v. White, 259 U.S. 276 (1922) ............................................................... 2
Nowak v. U.S., 356 U.S. 660 (1958) ........................................................................12
Perez v. Brownell, 356 U.S. 44 (1958) ....................................................................12
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .................................................3, 4
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iv
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ............... 3
Schneiderman v. U.S., 320 U.S. 118 (1943) .................................................... passim
U.S. v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) .................................................. 4
United States v. Minker, 350 U.S. 179 (1956) ........................................................... 2
Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) ........................................................11
Woodby v. INS, 385 U.S. 276 (1966) ...................................................................9, 11
Statutes
18 U.S.C. § 2 ............................................................................................................15
8 U.S.C. § 1229a(c)(3)(A) .......................................................................................11
8 U.S.C. § 1325 ........................................................................................................15
Other Authorities
Matter of Patel, 19 I. & N. Dec. 774 (1988) ............................................................11
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1
I. INTRODUCTION
This Court must provide searching, independent review of the District
Court’s findings because Petitioner’s citizenship hangs in the balance. This level
of review was first established seventy years ago by the Supreme Court in cases
reviewing citizenship claims. See Baumgartner v. U.S., 322 U.S. 665, 670 (1944).
The Supreme Court has since repeatedly clarified that even on appeal the Court
maintains de novo review of factual findings in deportation and denaturalization
cases examining questions of citizenship. Knauer v. U.S., 328 U.S. 654, 657-58
(1946) (“We reexamine the facts to determine whether the United States has
carried its burden”). There is no authority that would permit a reviewing court to
deviate from this standard.
The District Court erred in failing to hold the Executive to the exacting
standard that is applicable where it seeks to strip away a person’s claim to
citizenship. The agency “must sustain the heavy burden” by presenting “‘clear,
unequivocal, and convincing’ evidence which does not leave the issue in doubt.”
Schneiderman v. U.S., 320 U.S. 118, 135 (1943). Even if the Court were to equate
the “clear, unequivocal, and convincing” standard with the “clear and convincing”
standard, the Supreme Court has repeatedly made clear that in the context of
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2
claims to U.S. citizenship, the Court must require the agency to provide evidence
which does not leave the issue in doubt.
This Court should reject the findings and conclusions of the District Court as it
relied on factual errors and speculation, allowing the agency to replace evidence
with conjecture. “To deport one who so claims to be a citizen obviously deprives
him of liberty. . . . It may result also in loss of both property and life, or of all that
makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
Consequently, “where there is doubt it must be resolved in the citizen’s favor.”
Gorbach v. Reno, 219 F.3d 1087, 1097 (9th Cir. 2000) (en banc) (quoting United
States v. Minker, 350 U.S. 179, 188 (1956)).
II. ARGUMENT
A. Controlling Case Law Clarifies that this Court Must Apply a Searching,
Independent Review of the Record in Resolving Mr. Mondaca’s Claim
to Birthright Citizenship.
This Court provides searching, independent review of the District Court’s
factual findings with regard to citizenship determinations because of the
constitutional right at stake.
Suffice it to say that emphasis on the importance of “clear, unequivocal, and
convincing” proof, see Schneiderman v. United States, [citation omitted], on
which to rest the cancellation of a certificate of naturalization would be lost
if the ascertainment by the lower courts whether that exacting standard of
proof had been satisfied on the whole record were to be deemed a “fact” of
the same order as all other “facts”, not open to review here.
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Baumgartner, 322 U.S. at 671. Baumgartner, and a long, uninterrupted line of
cases directly addressing claims of citizenship, clearly established a rule that the
appellate court retained a responsibility to carefully examine the factual findings
for error. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v. U.S., 328
U.S. 654, 657-58 (1946). As the Supreme Court explained, “the rule of
independent review assigns to judges a constitutional responsibility that cannot be
delegated to the trier of fact, whether the factfinding function be performed in the
particular case by a jury or by a trial judge.” Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 501 (1984).
While Federal Rule of Civil Procedure 52(a) calls for a much more
deferential standard of review of factual findings in most other areas of law, the
Supreme Court has not altered its approach in cases reviewing citizenship claims.
Accordingly, the standard remains the same: “If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
While the Supreme Court in Pullman-Standard v. Swint, 456 U.S. 273, 286
n.16 (1982), explains in a footnote why it chose not to depart from the more
deferential standard articulated in Rule 52(a) in most other areas of law, its
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4
reasoning does nothing to undermine the continued vitality of the standard of
review in citizenship claims established in Baumgartner.1
The First Circuit has rejected arguments that this heightened standard of
review is no longer appropriate in cases involving claims to U.S. citizenship. U.S.
v. Zajanckauskas, 441 F.3d 32, 38 n.5 (1st Cir. 2006). Similarly, the Seventh
Circuit clearly acknowledged that, contrary to its general approach, the Supreme
Court requires de novo appellate review of factual findings in denaturalization and
First Amendment cases. Barber v. Ruth, 7 F.3d 636, 643 (7th Cir. 1993). But
following Pullman-Standard, the Seventh Circuit “decline[d] to exercise plenary
review outside of the limited domain to which the Supreme Court has restricted the
doctrine.” Id.
Much discussion notes that the Supreme Court has eschewed any broad
extension as to what the Supreme Court referred to as “ultimate facts” in
Baumgartner. Nonetheless, what is clear is that the Supreme Court determined
that in cases reviewing efforts by the government to strip away individuals’ right to
1 As explained in petition for rehearing, p. 6-8, the Panel opinion in this case failed
to recognize the Supreme Court’s primary reasoning in providing for a searching
independent review on the appellate level, and thus erred in asserting that “the
Supreme Court has rejected Baumgartner’s remaining reasoning,” citing to
Anderson v. City of Bessemer, 470 U.S. 564 (1985). Mondaca-Vega, 718 F.3d
1075, 1079 (9th Cir. 2013). Anderson does not even cite to Baumgartner, let alone
purport to abrogate any last vestiges of authority.
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5
U.S. citizenship, an appellate court retains independent review of this application
of law to fact. As Judge Pregerson wrote in his dissenting opinion:
Baumgartner is an example of the Court making a determination, where
Congress has not spoken, to designate an issue a question of fact or law. In
Baumgartner, the Court articulated its standard of independent appellate
review for what it described as a finding of “ultimate ‘facts,’” which “clearly
implies the application of standards of law.” Baumgartner, 322 U.S. at 671,
64 S.Ct. 1240.
Mondaca-Vega, 718 F.3d at 1091. Here, Petitioner contests the District Court’s
failures not only in making factual determinations, but in failing to apply the
demanding burden of proof in weighing whether the evidence compels a
conclusion that the issue is not left in doubt. Pursuant to controlling case law, the
ultimate conclusion cannot be parsed from review of the other factual
determinations of the trial court—the same standard must apply.
B. The District Failed to Apply the Appropriate Burden of Proof.
The District Court erred in failing to require the agency demonstrate with
“clear, unequivocal and convincing” evidence that Mr. Mondaca was not entitled
to birthright citizenship. Knauer, 328 U.S. at 657-58 (“We reexamine the facts to
determine whether the United States has carried its burden of proving by ‘clear,
unequivocal, and convincing’ evidence, which does not leave ‘the issue in
doubt’”). While the District Court erred in failing to recognize the distinction
between “clear and convincing” evidence and the more exacting “clear,
unequivocal, and convincing” evidence standard, this case does not rest on that
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distinction. Even if the trier of fact equated “clear and convincing” evidence with
“clear, unequivocal, and convincing” evidence it should have been compelled to
determine that the agency failed to present evidence that does not leave the issue in
doubt.
Indeed, the Court need not even determine the difference between the two
standards, as under either, the District Court’s findings readily demonstrate that the
trier of fact failed to hold the Executive to its demanding burden of proof. In the
context of cases reviewing the Executive’s efforts to strip an individual of their
claim to U.S. citizenship, the Court has repeatedly demanded that the agency be
required to produce such compelling evidence that does not leave the issue in
doubt. See Costello v. United States, 365 U.S. 265, 272 (1961) (“We have
examined the record to determine if the evidence leaves ‘the issue in doubt,’
Schneiderman, 320 U.S. 118, 158”).
Nonetheless, a discussion contrasting a “clear and convincing” standard with
“a clear, unequivocal, and convincing” standard helps to further illuminate why the
Petition for Review should be granted, as it reinforces the demanding standard at
play and the important constitutional rights at stake. Undoubtedly, a lack of
precision in case law has led to confusion, with some decisions intermingling, and
appearing to equate, the “clear and convincing” standard with the more rigorous,
“clear, unequivocal, and convincing” standard. Mondaca-Vega, 718 F.3d at 1082.
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But again, not only has the Supreme Court established the original standard in an
unbroken line of cases going back seventy years to Schneiderman, 320 U.S. at 125,
it has also distinguished this exacting standard in the citizenship and deportation
context, contrasting it with a more lenient standard of “clear and convincing”
evidence required in other contexts.
Specifically, in Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court
examined what standard of evidence was constitutionally required to impose
indefinite civil commitment on an individual. The Court was reviewing the Texas
Supreme Court’s determination that a trial court need only employ a
“preponderance of the evidence” standard in making this determination. The
Texas Supreme Court had overturned the Court of Civil Appeals’ decision, which
had in turn reversed the trial court’s original instructions applying a “clear,
unequivocal, and convincing evidence” standard in favor of the criminal standard
“beyond a reasonable a doubt.” Id. at 421-422.
In Addington, the Supreme Court first determined that “the individual’s
interest in the outcome of a civil commitment proceeding is of such weight and
gravity that due process requires the state to justify confinement by proof more
substantial than a mere preponderance of the evidence.” Id. at 427.
Next, the Supreme Court determined that due process did not require
application of the most demanding standard—evidence beyond a reasonable doubt.
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Id. at 429-31. Nonetheless, the Court noted that it was perfectly acceptable for
states to apply this more stringent standard, as “procedures must be allowed to vary
[from state to state] so long as they meet the constitutional minimum.” Id. at 431.
In explaining why due process did not require evidence beyond a reasonable doubt
in the context of civil commitment, the Supreme Court explained, “the heavy
standard applied in the criminal cases manifests our concern that the risk of error
must be minimized even at the risk that some who are guilty might go free. The
full force of that idea does not apply to civil commitment.” Id. at 428. 2 The Court
explained that unlike an erroneous conviction, ongoing professional oversight,
treatment concerns and involvement of family and friends would generally provide
continuous opportunities to appropriately address an erroneous civil commitment.
Id.
In distinguishing civil commitment proceedings, Addington also relied
heavily on the fact that predicting the future actions of the person in question
(would they be a danger to themselves or others), necessarily contains a lack of
certainty, and is a prognosis based on expert opinions, not concrete facts of
historical verification: “The subtleties and nuances of psychiatric diagnosis render
2 In contrast to civil commitment, but similar to a criminal conviction and
significant here, the Supreme Court has also stated, “it is better that many []
immigrants should be improperly admitted than that one natural born citizen of the
United States should be permanently excluded from his country.” Kwock Jan Fat
v. White, 253 U.S. 454, 464 (1920).
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certainties virtually beyond reach in most situations. The reasonable doubt
standard of criminal law functions in its realm because there the standard is
addressed to specific, knowable facts.” Id. at 430. Thus, it rejected “beyond a
reasonable doubt” as the constitutionally-required standard.
And then, most instructive to the case at hand, the Court concluded that the
“clear, unequivocal and convincing” standard demanded too much: “Similarly, we
conclude that use of the term ‘unequivocal’ is not constitutionally required,
although states are free to use that standard.” Id. at 432. The Court made this
pronouncement after surveying the different standards applied, noting that some
states require “clear and convincing” evidence, while others require “clear, cogent
and convincing” evidence, and others “clear, unequivocal and convincing”
evidence. Id. at 431-32.
In deciphering “clear, unequivocal and convincing” evidence the Court
turned to deportation and denaturalization cases applying that standard:
In Woodby v. INS, 385 U.S. 276 (1966), dealing with deportation, and
Schneiderman v. United States, [citation omitted], dealing with
denaturalization, the Court held that “clear, unequivocal, and convincing”
evidence was the appropriate standard of proof. The term “unequivocal,”
taken by itself, means proof that admits of no doubt, a burden
approximating, if not exceeding, that used in criminal cases.
Id. at 432. The Court explained why a higher burden of proof was appropriate in
the deportation and denaturalization context: “The issues in Schneiderman and
Woodby were basically factual, and therefore susceptible of objective proof, and
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the consequences to the individual were unusually drastic—loss of citizenship and
expulsion from the United States.” Id. Thus, Addington expressly distinguished
deportation and denaturalization proceedings from civil commitment proceedings
that required only “clear and convincing” evidence to satisfy due process.
The Supreme Court concluded by noting that the trial court in the civil
commitment proceedings originally employed the more stringent standard of
“clear, unequivocal and convincing” evidence. Id. at 433. “However,
determination of the precise burden equal to or greater than the ‘clear and
convincing’ standard which we hold is required to meet due process guarantees is a
matter of state law which we leave to the Texas Supreme Court.” Id. Thus, the
Court made readily apparent that “clear, unequivocal and convincing” does not
equate to the constitutionally-required “clear and convincing” standard, otherwise
there would be no need to leave it to the State Supreme Court to determine if it
wanted to adopt the higher standard applied by the trial court.
The Sixth Circuit has similarly recognized that Addington compels the
conclusion that “the omission of ‘unequivocal’ makes a difference. The ‘clear,
unequivocal, and convincing standard’ is a more demanding degree of proof than
the ‘clear and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir.
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2013).3 As the Supreme Court explained, “[t]he standard serves to allocate the risk
of error between the litigants and to indicate the relative importance attached to the
ultimate decision.” 441 U.S. at 423. In the instant case, the District Court failed to
acknowledge the correct standard, failing thus to recognize “the degree of
confidence our society thinks he should have in the correctness of factual
conclusions.” Id.
Ultimately, whether the District Court labeled the burden of proof “clear and
convincing” as opposed to “clear, unequivocal, and convincing,” it should have
nonetheless recognized that when citizenship is at stake the appropriate standard
requires the adjudicator to determine whether the agency presented evidence so
compelling that it does not leave the issue in doubt. See, e.g., Knauer, 328 U.S. at
657-58 (“whether the United States has carried its burden of proving by clear,
unequivocal, and convincing evidence, which does not leave the issue in doubt.”
(emphasis added). “Furthermore, because of the grave consequences incident to
denaturalization proceedings we have held that a burden rests on the Government
3 As the Sixth Circuit noted, 733 F.3d at 605-06, the Board of Immigration Appeals
has also declared that “[t]he clear and convincing standard imposes a lower burden
than the clear, unequivocal, and convincing standard ... because it does not require
that the evidence be unequivocal or of such a quality as to dispel all doubt.”
Matter of Patel, 19 I. & N. Dec. 774, 783 (1988). Moreover, the Immigration and
Nationality Act equates “clear and convincing” as requiring “reasonable,
substantial, and probative” evidence. 8 U.S.C. § 1229a(c)(3)(A). Yet in Woodby,
the Supreme Court reversed the Second and Sixth Circuits for requiring only
“reasonable, substantial and probative evidence” rather than “clear, unequivocal,
and convincing evidence.” 385 U.S at 279-81, 286.
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to prove its charges in such cases by clear, unequivocal and convincing evidence
which does not leave the issue in doubt. This burden is substantially identical with
that required in criminal cases – proof beyond a reasonable doubt.” Klapprott v.
U.S., 335 U.S. 601, 611-12 (1949) (citation omitted) (emphasis added). Accord
Nowak v. U.S., 356 U.S. 660, 663 (1958) (“evidence which does not leave ‘the
issue in doubt’”) (emphasis added); Perez v. Brownell, 356 U.S. 44, 47 (1958)
(overruled on other grounds in Afroyim v. Rusk, 387 U.S. 253 (1967)); Chaunt, 364
U.S. at 353 (same); Costello, 365 U.S. at 269 (same); Fedorenko v. U.S., 449 U.S.
440, 505 (1981) (same); Kungys v. U.S., 485 U.S. 759, 781 (1988) (same).4
C. The District Court’s Findings are Not Supported by the Record.
In determining whether the agency had presented “clear, unequivocal and
convincing” evidence the district court failed to properly consider undisputed facts,
made clear errors in the factual findings, and relied on speculation, all errors that
should compel reversal.
4 Respondent asserts that the district court did not err in placing the initial burden
on Petitioner to demonstrate his citizenship. Respondent cites to Murphy v. INS,
54 F.3d 605, 610 (9th Cir. 1995), which in dicta not applicable to that case asserted
that “[o]nly at a de novo district court hearing on citizenship under section . . . does
the alien subject to deportation bear the burden of proving citizenship by a
preponderance of the evidence.” However, Murphy cited to no authority to support
that assertion. Indeed, as Murphy acknowledged, case law demonstrates that the
burden is on the agency until it presents evidence of alienage, thereby shifting the
burden. Id. at 608-09. However, this point does not impact the instant case as the
district court found that Petitioner was able to come forward with prima facie
evidence of citizenship.
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The government does not contest that Reynaldo Mondaca Carlon is a real
person, born in Imperial, California, on July 17, 1931, to parents Antonia Carlon
and Marin Mondaca. (ER v.1 25.) Nor does the government contest that the birth
certificate presented by Petitioner to identify himself as Reynaldo Mondaca is
authentic. Id. The government has verified its authenticity on multiple occasions.
(ER v.2 115-20, 144.) Nor has the government introduced any evidence that any
other person has ever claimed to be Reynaldo Mondaca. This is despite the fact
that the agency’s investigation first concluded “[b]oth the SSN application and the
Selective Service efforts appear to be actions taken by the true Reynaldo.” (ER v.1
29-30.) The agency quickly backed away from this conclusion when handwriting
experts for both parties conccluded that the signature on the application, “Reynaldo
C. Mondaca”, appeared to be made by Petitioner. (ER v.1 26.)
Significantly, the sole reason provided by the district court for finding it
“highly improbable the petitioner obtained the birth certificate for Renoldo [sic]
Mondaca from his mother,” was its flawed speculation regarding what steps Mr.
Mondaca must have taken to turn around and apply for a Social Security card the
day after he was deported in May of 1953. (ER v.1 14-15.) Indeed, the district
court’s finding depended on layers of improper speculation. (Petr’s. Opening Br.
37-41.) Similarly, the District Court based its findings on speculation regarding
Mr. Mondaca’s financial incentives. Id. at 41-45. “Where the fate of a human
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being is at stake, we must not leave the [deciding issue] to conjecture.” Knauer,
328 U.S. at 659.
Moreover, it is undisputed that Petitioner has always used the Social
Security Number, dating back to when it was issued on May 23, 1953. (ER v.1-
29.) Thus, the district court erred in finding that petitioner began using the name
Reynaldo C. Mondaca due to “his marriage to Aurelia Estrella in Reno, Nevada, on
August 7, 1970.” (ER v.1 17-18.)
In addition, the agency investigated Mr. Mondaca’s citizenship at least as
early as 1973. (ER v.2 155.) That was when the agency first requested and
obtained production of a birth certificate under the name of Salvador Mondaca
Vega. (ER v.2 155.) Nonetheless, beginning in 1977, the agency issued
certificates of citizenship to four of Mr. Mondaca’s children, based on its
determination that Mr. Mondaca is a U.S. citizen. (ER v.1 27-28.) Similarly, the
agency granted family visas for his wife and two other children. Id. Finally, the
Department of State issued Mr. Mondaca a passport in 1998 and then issued a
replacement passport in 2005. Id. at 28.5
In 1980, Mr. Mondaca was arrested on suspicion of smuggling persons into
the country. (ER v.1 28.) He was charged as a U.S. citizen, and convicted under 8
5 The Department of State only sought to revoke the Passport on the heels of this
litigation, relying on a clearly erroneous charge; i.e., that he admitted to the
Immigration Judge on April 29, 1998, “that you were not Reynaldo Mondaca but
rather Salvador Mondaca.” (ER v.2 241.)
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U.S.C. § 1325 and 18 U.S.C. § 2. (ER v.2 -125.) There is no record of any effort
to remove him after this conviction. However, the district court committed plain
error in finding that after Petitioner was arrested and charged with smuggling
“[n]either the INS nor the United States Attorney questioned his assertion that his
name is Reynaldo Carlon Mondaca.” (ER v.1 8.) There is nothing in the record to
support the conjecture that federal authorities simply accepted Mr. Mondaca’s
assertion of citizenship without any investigation. Indeed, as with any criminal
prosecution, his prints were entered into the same system that recorded his prior
removals from the country under different aliases. (ER v.2 160.)
He was stopped again by the Bonnie Lake Police in 1983 and again turned
over to immigration. (ER v.2 127.) Again, the agency initiated an investigation as
to a possible false claim, based on his rap sheet. (ER v.2 128.) Respondent asserts
that ‘[t]hese investigations, however, occurred in a pre-digital era, in a time where
connecting the dots….” (Respt.’s Opp’n to Reh’g 14.) But this defense fails to
acknowledge that the government took the fingerprints of the individuals they
charged in both immigration and criminal proceedings. That is how they were
alerted to the citizienship investigation conducted in 1973.
Respondent contends that there is no evidence that Mr. Mondaca ever
claimed to be either Reynaldo Mondaca (or otherwise asserted that he was a U.S.
citizen) on the numerous occasions when he was removed from the country. (ER
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v.1-24.) But of course, this is asking him to prove a negative. If Mr. Mondaca
were detained with evidence of his true identity, then he would not be subject to
removal, and there generally would be no removal records, just as the FBI reports
fail to record the time when he was arrested and released by INS in 1983. (ER v.2-
135, 160.)
Relatedly, the district court erred in concluding he was deported in July of
1953. (ER v.1 5.) However, FBI records only show that he was transferred to
immigration from the Sacramento Police Department, not that he was actually
removed. (ER v.2 158.)6 Similarly, while he was arrested by immigration officials
and removed in 1951, May of 1953,1954, 1956 and 1966, there is no similar record
of immigration authorities taking any action against him when he was arrested in
October of 1969, with charges being brought under both names. (ER v.2 133,
159.)
D. Even if Review were Limited to Clear Error, the District Court’s
Findings Should be Set Aside.
Indeed, even if this Court were to restrict its review to clear error as
prescribed under Rule 52(a), the District Court’s findings and conclusions must be
set aside as they are based on factual error and speculation. An analysis restricted
to clear error must nonetheless ensure that the underlying adjudicator applied the
6 The administrative record maintained by the agency also includes an old,
certified copy of Reynaldo Mondaca’s birth certificate issued by the City of
Imperial, with a handwritten note “Calexico Calif May 19, 1952.” (ER v.2 113.)
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appropriate burden of proof in concluding that the Executive had met its heavy
burden in demonstrating Mr. Mondaca’s identity with clear, unequivocal, and
convincing evidence.
The Panel cited to Anderson, stating that where there “are two permissible
views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Mondaca-Vega, 718 F.3d at 1083. But this was precisely the
problem. The evidence presented did not compel the conclusion that Mr. Mondaca
was not a U.S. citizen. Instead, at most the evidence provided two alternative
possibilities. But if there are two plausible views, then the agency has failed to
present evidence that does not “leave the issue in doubt.” It is precisely for this
reason that Mr. Mondaca’s petition for review must be granted.
III. CONCLUSION
Petitioner respectfully requests that the en banc Court reverse the findings
and conclusions of the district court, and declare that Mr. Mondaca is a U.S.
citizen.
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Date: January 24, 2014 Respectfully submitted,
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
Attorneys for Petitioner
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CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)
AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369
I certify that:
1. Pursuant to Fed. R. App. P. 40-1(a), the attached opening supplemental brief
for Petitioner is
Proportionately spaced, has a typeface of 14 points or more and contains
_4,166___ words (per this Court’s order must not exceed 4,200 words).
January 24, 2014 s/ Matt Adams
Date Matt Adams
Northwest Immigrant Rights Project
615 Second Avenue, Ste. 400
Seattle, WA 98104
(206) 957-8611
Martha H. Rickey
Northwest Immigrant Rights Project
P.O. Box 270
Granger, WA 98932
(206) 957-8679
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CERTIFICATE OF SERVICE
RE: Mondaca-Vega v. Holder, Case No. 03-71369
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on January 24, 2014.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Executed in Seattle, Washington, on January 24, 2014.
s/ Matt Adams
Matt Adams
Northwest Immigrant Rights Project
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