Apolonia Domingo-Marcos v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 29, 2023
• Docket: 17-71611
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

APOLONIA PAM DOMINGO-MARCOS; No. 17-71611 et al., Agency Nos. A206-848-461 Petitioners, A206-848-462 A206-848-463 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted September 12, 2023 Pasadena, California

Before: M. SMITH, FRIEDLAND, and MILLER, Circuit Judges.

Apolonia Pam Domingo-Marcos and her two children petition for review of

the Board of Immigration Appeals’ decision dismissing their appeal from an

Immigration Judge’s decision rejecting their claims of United States citizenship

and ordering them removed. We transferred proceedings to the district court under

8 U.S.C. § 1252(b)(5)(B) to review the claims of citizenship de novo. Following

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. discovery, the district court granted summary judgment to the government. We

have jurisdiction under 8 U.S.C. § 1252, and we reverse the district court’s

judgment and remand for further proceedings.

We review the district court’s grant of summary judgment de novo. Giha v.

Garland, 12 F.4th 922, 925 (9th Cir. 2021). “Summary judgment is appropriate

only if, taking the evidence and all reasonable inferences drawn therefrom in the

light most favorable to the non-moving party, there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.”

Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (quoting Furnace v. Sullivan,

705 F.3d 1021, 1026 (9th Cir. 2013)).

The district court erred in granting the government’s motion for summary

judgment with respect to Domingo-Marcos’s citizenship claim. The government

bears the initial burden to establish citizenship by clear and convincing evidence.

Giha, 12 F.4th at 929. The government carried that burden by presenting evidence

that Domingo-Marcos was born outside the United States, including a Guatemalan

birth certificate, certified birth record, identity card, and baptismal certificate in

Domingo-Marcos’s name. Domingo-Marcos does not dispute that the documents

refer to her.

Nevertheless, Domingo-Marcos presented sufficient contradictory evidence

to establish a genuine dispute of material fact about her citizenship, such that a

2 reasonable factfinder could conclude by a preponderance of the evidence that she

was born in the United States. Giha, 12 F.4th at 928–29. That evidence includes a

declaration from Ana Ramirez, a family friend, stating that she “personally

witness[ed] Apolonia Pam Domingo-Marcos [being] born at Palomar Hospital in

Escondido, CA.” Domingo-Marcos has not forfeited reliance on Ramirez’s

declaration: She attached the declaration as an exhibit to her opposition to

summary judgment and relied on it in her opening brief on appeal. If Ramirez were

to testify at trial, her testimony would not be hearsay. See Fed. R. Evid. 801(c)(1).

At this stage, that is sufficient. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th

Cir. 2010) (en banc) (explaining that at summary judgment, the proponent need

only “set out facts that it will be able to prove through admissible evidence”).

In addition, Domingo-Marcos, her grandmother, Juana Mateo-Francisco, and

her aunt, Josemelita Patricia Marcos-Mateo, all attested that Domingo-Marcos was

born in the United States. Another aunt, Maria Baltazar-Marcos, attested that

Domingo-Marcos’s mother returned from the United States with Domingo-Marcos

when she was a baby. Although testimony from those witnesses would be hearsay,

such testimony would likely be admissible under Federal Rule of Evidence

803(19), and it creates a genuine dispute of fact independent of Ramirez’s

testimony.

3 The district court also erred in granting summary judgment in favor of the

government as to Domingo-Marcos’s children. Under 8 U.S.C. § 1409(c), children

have the nationality status of unwed mothers who are continuously physically

present in the United States for one year. Sessions v. Morales-Santana invalidated

that provision, but did so only “prospectively” as to children born after that

decision issued. 582 U.S. 47, 76–77 (2017). Domingo-Marcos’s children were born

in 2005 and 2012. Marcos-Mateo attested that Domingo-Marcos was “one year,

and five months” old when Domingo-Marcos’s mother said she was moving the

family back to Guatemala. Ramirez likewise stated that Domingo-Marcos was

“around 1.5 years old” when she left the United States.

A reasonable factfinder might ultimately decide not to credit the evidence

offered by Domingo-Marcos. But at the summary-judgment stage, that evidence is

sufficient to create a genuine dispute of fact as to her citizenship and that of her

children. We therefore reverse the grant of summary judgment and remand for

further proceedings.

Costs shall be taxed against the respondent.

REVERSED and REMANDED.