NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DAVID ISRAEL GASTELUM CHAVEZ, No. 14-71612
Petitioner, Agency No. A078-461-188
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 10, 2019 Pasadena, California
Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.
The government appeals the district court’s declaratory judgment that David
Gastelum Chavez, who was born in Mexico, is a United States citizen through his
maternal grandmother, Maria de Jesus Vargas Olivo. Gastelum was charged with
illegal reentry under 8 U.S.C. § 1326. After Gastelum presented a defense of
derivative citizenship, the jury acquitted him. On June 11, 2014, the Department
of Homeland Security (DHS) arrested Gastelum and reinstated his removal order.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gastelum petitioned for review of the reinstatement order, and we transferred the
case to the district court for a de novo hearing on his claim to United States
citizenship pursuant to 8 U.S.C. §1252(b)(5)(B).
1. The district court correctly applied the legal standard for
§ 1252(b)(5)(B) citizenship determination transfer cases. We explicitly held in
Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (en banc), that
determination of citizenship in § 1252(b)(5)(B) cases involves a burden-shifting
scheme in which “[t]he government bears the ultimate burden of establishing all
facts supporting deportability by clear, unequivocal, and convincing evidence.” Id.
at 419 (internal quotation marks omitted). “When, however, the government offers
evidence of foreign birth, a rebuttable presumption of alienage arises, shifting the
burden to the alleged citizen to prove citizenship. Upon production by a petitioner
of substantial credible evidence of the citizenship claim, this presumption bursts
and the burden shifts back to the government to prove the respondent removable by
clear and convincing evidence.” Id. (internal quotation and alteration marks and
citation omitted).
2. The district court did not clearly err in finding that Gastelum’s
grandmother, Vargas, was born in the United States. It was not “illogical,
implausible, or without support in the record,” In re Retz, 606 F.3d 1189, 1196 (9th
Cir. 2010), to find that Gastelum had shown “‘substantial credible evidence’ of his
2 citizenship claim by the preponderance of the evidence.” First, a baptismal record
from June 1929 at Sacred Heart Church in El Paso states that Vargas was born in
El Paso, Texas. The current administrative assistant at the church, Teresa Del
Carmen Ortega, interpreted this record based on her training: When the registry
says “de El Paso,” that means that the individual was born in El Paso—and if the
individual was born elsewhere, it would state “nacio” and then list the other city.
Second, the detailed testimony of four family members consistently placed
Vargas’s birthplace in the United States. Gastelum’s mother, who is Vargas’s
daughter, remembers hearing a comment from her grandmother when President
Kennedy died that “they killed the president of the United States in the place where
your mom was born.” Gastelum’s sister testified that she learned that her
grandmother Vargas was born in the United States when she was five or six years
old: “My grandfather and my grandmother started getting into a fight. And my
grandfather yelled to my grandmother in order to offend her, ‘Chicana’ . . . . And
then she told me a Chicana means a person who is born in the United States.”
Caroline Lopez, Gastelum’s wife, testified that Vargas told her over the phone that
Vargas was born in El Paso because the family fled Mexico as a result of the
Cristero War and stayed in El Paso until the war was over, when Vargas was three
or four years old. Finally, Vargas’s nephew, Humberto Vargas, testified that he
3 heard from multiple family members that Vargas was born in El Paso, including
Vargas herself, his father, and his grandmother.
It also was not clearly erroneous for the district court to find that the
government’s evidence failed to “satisfy the government’s burden to establish with
clear and convincing evidence that Gastelum Chavez is not a United States
citizen.” The government’s evidence is internally conflicting. This includes two
official birth certificates issued by the Mexican government that each list Vargas’s
birthplace as a different city in Mexico. Although Gastelum provided an
explanation for one of the birth certificates, neither party provided any testimony
regarding the history or creation of the other birth certificate.
The district court weighed the evidence and judged credibility under the
correct standard required by Mondaca-Vega. The dissent would reweigh the
evidence, which we are not allowed to do on appeal. The clearly erroneous
standard is a “highly deferential standard to findings of fact, because findings of
fact are made on the basis of evidentiary hearings and usually involve credibility
determinations. Therefore, so long as the [district] court’s findings are plausible in
light of the record viewed in its entirety, we cannot reverse even if we would have
weighed the evidence differently.” In re The Vill. at Lakeridge, LLC, 814 F.3d
993, 1002 (9th Cir. 2016) (internal quotation and alteration marks and citations
omitted).
4 3. We therefore affirm the district court’s declaratory judgment and
vacate Gastelum’s final order of removal. We need not address Gastelum’s
alternative argument that DHS abused its discretion in reinstating the order of
removal after Gastelum was acquitted of his illegal reentry charge.
DECLARATORY JUDGMENT AFFIRMED; PETITION GRANTED;
FINAL ORDER OF REMOVAL VACATED.
5 FILED Gastelum Chavez v. Barr, No. 14-71612 JUL 16 2019 BYBEE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent. The district court found that Gastelum’s grandmother,
Maria de Jesus Vargas Olivo, was born in 1929 in the United States rather than in
Mexico. A review of the evidence presented on that issue has “left [me] with the
definite and firm conviction that a mistake has been committed.” United States v.
Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The government introduced seven government-issued documents all listing
Vargas’s country of birth as Mexico—five of the documents say she was born in
Ciudad Juarez, Chihuahua, and two say she was born in Villa Juarez, San Luis
Potosi. Gastelum responded with a 1929 baptismal record entry for Vargas from a
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DAVID ISRAEL GASTELUM CHAVEZ, No. 14-71612
Petitioner, Agency No. A078-461-188
v. MEMORANDUM* WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted June 10, 2019 Pasadena, California
Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.
The government appeals the district court’s declaratory judgment that David
Gastelum Chavez, who was born in Mexico, is a United States citizen through his
maternal grandmother, Maria de Jesus Vargas Olivo. Gastelum was charged with
illegal reentry under 8 U.S.C. § 1326. After Gastelum presented a defense of
derivative citizenship, the jury acquitted him. On June 11, 2014, the Department
of Homeland Security (DHS) arrested Gastelum and reinstated his removal order.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gastelum petitioned for review of the reinstatement order, and we transferred the
case to the district court for a de novo hearing on his claim to United States
citizenship pursuant to 8 U.S.C. §1252(b)(5)(B).
1. The district court correctly applied the legal standard for
§ 1252(b)(5)(B) citizenship determination transfer cases. We explicitly held in
Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (en banc), that
determination of citizenship in § 1252(b)(5)(B) cases involves a burden-shifting
scheme in which “[t]he government bears the ultimate burden of establishing all
facts supporting deportability by clear, unequivocal, and convincing evidence.” Id.
at 419 (internal quotation marks omitted). “When, however, the government offers
evidence of foreign birth, a rebuttable presumption of alienage arises, shifting the
burden to the alleged citizen to prove citizenship. Upon production by a petitioner
of substantial credible evidence of the citizenship claim, this presumption bursts
and the burden shifts back to the government to prove the respondent removable by
clear and convincing evidence.” Id. (internal quotation and alteration marks and
citation omitted).
2. The district court did not clearly err in finding that Gastelum’s
grandmother, Vargas, was born in the United States. It was not “illogical,
implausible, or without support in the record,” In re Retz, 606 F.3d 1189, 1196 (9th
Cir. 2010), to find that Gastelum had shown “‘substantial credible evidence’ of his
2 citizenship claim by the preponderance of the evidence.” First, a baptismal record
from June 1929 at Sacred Heart Church in El Paso states that Vargas was born in
El Paso, Texas. The current administrative assistant at the church, Teresa Del
Carmen Ortega, interpreted this record based on her training: When the registry
says “de El Paso,” that means that the individual was born in El Paso—and if the
individual was born elsewhere, it would state “nacio” and then list the other city.
Second, the detailed testimony of four family members consistently placed
Vargas’s birthplace in the United States. Gastelum’s mother, who is Vargas’s
daughter, remembers hearing a comment from her grandmother when President
Kennedy died that “they killed the president of the United States in the place where
your mom was born.” Gastelum’s sister testified that she learned that her
grandmother Vargas was born in the United States when she was five or six years
old: “My grandfather and my grandmother started getting into a fight. And my
grandfather yelled to my grandmother in order to offend her, ‘Chicana’ . . . . And
then she told me a Chicana means a person who is born in the United States.”
Caroline Lopez, Gastelum’s wife, testified that Vargas told her over the phone that
Vargas was born in El Paso because the family fled Mexico as a result of the
Cristero War and stayed in El Paso until the war was over, when Vargas was three
or four years old. Finally, Vargas’s nephew, Humberto Vargas, testified that he
3 heard from multiple family members that Vargas was born in El Paso, including
Vargas herself, his father, and his grandmother.
It also was not clearly erroneous for the district court to find that the
government’s evidence failed to “satisfy the government’s burden to establish with
clear and convincing evidence that Gastelum Chavez is not a United States
citizen.” The government’s evidence is internally conflicting. This includes two
official birth certificates issued by the Mexican government that each list Vargas’s
birthplace as a different city in Mexico. Although Gastelum provided an
explanation for one of the birth certificates, neither party provided any testimony
regarding the history or creation of the other birth certificate.
The district court weighed the evidence and judged credibility under the
correct standard required by Mondaca-Vega. The dissent would reweigh the
evidence, which we are not allowed to do on appeal. The clearly erroneous
standard is a “highly deferential standard to findings of fact, because findings of
fact are made on the basis of evidentiary hearings and usually involve credibility
determinations. Therefore, so long as the [district] court’s findings are plausible in
light of the record viewed in its entirety, we cannot reverse even if we would have
weighed the evidence differently.” In re The Vill. at Lakeridge, LLC, 814 F.3d
993, 1002 (9th Cir. 2016) (internal quotation and alteration marks and citations
omitted).
4 3. We therefore affirm the district court’s declaratory judgment and
vacate Gastelum’s final order of removal. We need not address Gastelum’s
alternative argument that DHS abused its discretion in reinstating the order of
removal after Gastelum was acquitted of his illegal reentry charge.
DECLARATORY JUDGMENT AFFIRMED; PETITION GRANTED;
FINAL ORDER OF REMOVAL VACATED.
5 FILED Gastelum Chavez v. Barr, No. 14-71612 JUL 16 2019 BYBEE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I respectfully dissent. The district court found that Gastelum’s grandmother,
Maria de Jesus Vargas Olivo, was born in 1929 in the United States rather than in
Mexico. A review of the evidence presented on that issue has “left [me] with the
definite and firm conviction that a mistake has been committed.” United States v.
Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The government introduced seven government-issued documents all listing
Vargas’s country of birth as Mexico—five of the documents say she was born in
Ciudad Juarez, Chihuahua, and two say she was born in Villa Juarez, San Luis
Potosi. Gastelum responded with a 1929 baptismal record entry for Vargas from a
church in El Paso, Texas, that says “de El Paso” under Vargas’s name, testimony
from the current custodian of church records about what “de El Paso” might have
meant in 1929, and testimony from four of Gastelum’s relatives who claimed to
have heard that Vargas was born somewhere in the United States.
In relying on Gastelum’s evidence and discounting the government’s, the
district court made a series of critical errors, two of which require reversal here.
First, the court mischaracterized the testimony of the current church custodian.
According to the court, the custodian testified that “a child whose baptism was being recorded was born in El Paso, unless another location was identified.” But
the custodian actually testified that, when an entry did not specify a birthplace with
the word “nacio,” she simply “assumed”—with no foundation—that the child had
been born in El Paso. Moreover, the practice of the current custodian is not
evidence of what the custodian thought in 1929; it is not even hearsay. Indeed, the
custodian did not know whether ninety years ago the church would even ask
parents about the child’s birthplace when recording a baptism in the registry. The
baptismal registry is thus useless in this case.
Second, the district court rejected seven government-issued records of
Vargas’s birthplace by claiming that they “conflict with” one another. The records,
however, do not conflict in any sense relevant here; they all state that Vargas was
born in Mexico. For our purposes, the city in which she was born does not matter.
In any event, Gastelum explained why two of the records—prepared in 1997 and
2015, decades after Vargas was born—list Villa Juarez, San Luis Potosi, as
Vargas’s birthplace: Vargas lied to the San Luis Potosi government in order to get
a Mexican passport. Once these admittedly fraudulent documents are removed
from the picture, we are left with five different documents, three dated in 1929,
stating that Vargas was born on February 4, 1929, in Ciudad Juarez, Mexico. Four
of these documents, including a birth registration and certificate dated March 5,
2 1929, are official documents from Mexico. The fifth document, also prepared in
1929, is a U.S.-issued border crossing card listing Vargas’s place of birth as
Ciudad Juarez. Thus, the overwhelming weight of the evidence shows that Vargas
was born in 1929 in Mexico. Because the district court rejected these documents
in favor of vague recollections from family members and speculation about a
baptismal record that does not actually state Vargas’s birthplace, I am convinced
that the district court committed clear error in finding that Vargas was born in the
United States.
I would reverse the judgment.