Jesus Sanchez-Sanchez v. United States Immigration and Naturalization Service

957 F.2d 702, 92 Cal. Daily Op. Serv. 1457, 92 Daily Journal DAR 2366, 1992 U.S. App. LEXIS 2276, 1992 WL 29896

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1992
• Docket: 91-70082
• Status: Published

Opinion

PER CURIAM:

Jesus Sanchez-Sanchez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) reversing the determination of the immigration judge (“IJ”) and finding Sanchez-Sanchez deportable to Mexico pursuant to 8 U.S.C. §§ 1251(a)(2) & (11) as an alien who entered the United States without inspection and was convicted of possession of a controlled substance. Sanchez-Sanchez also seeks to have his case transferred to the United States district court for de novo determination of his claim to United States nationality pursuant to 8 U.S.C. § 1105a(a)(5)(B). We have jurisdiction to consider Sanchez-Sanchez’s claim under 8 U.S.C. § 1105a(a). We transfer these proceedings to the United States district court for a de novo hearing on Sanchez-Sanchez’s claim of citizenship.

Section 1105a(a)(5)(B) provides that whenever a petitioner claiming to be a national of the United States makes a non-frivolous showing of his citizenship, a court reviewing an order of the BIA must transfer the proceedings to a United States district court for a de novo hearing if a genuine issue of material fact as to the petitioner’s nationality is presented. 8 U.S.C. § 1105a(a)(5)(B). In determining whether a genuine issue of material fact exists, Fed. R.Civ.P. 56 summary judgment principles are controlling, and thus “a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the evidence presented in support of the claim would be sufficient to entitle a litigant to trial- were such evidence presented in opposition to a motion for summary judgment.” Agosto v. INS, 436 U.S. 748, 754-56, 98 S.Ct. 2081, 2087, 56 L.Ed.2d 677 (1978).

Here, our review of the record indicates, and the Immigration and Naturalization Service concedes, that Sanchez-Sanchez’s claim is not frivolous, and a genuine issue of material fact as to his nationality is presented by the evidence before the BIA. 1 Accordingly, we transfer this proceeding to the district court for the District of Arizona, the district in which Sanchez-Sanchez resides, for a de novo hearing on Sanchez-Sanchez’s claim to United States nationality. See 8 U.S.C. § 1105a(a)(5)(B); Agosto, 436 U.S. at 756, 98 S.Ct. at 2086-87. We express no view as to Sanchez-Sanchez’s nationality claim, and hold this petition for review in abeyance pending judicial determination of this claim.

MATTER TRANSFERRED TO THE DISTRICT OF ARIZONA.

1 . At his deportation hearing on September 21, 1987, Sanchez-Sanchez testified that he was told by his parents that he was born in San Antonio, Texas, and that he obtained a delayed Texas birth certificate just prior to entering the United States in 1983. He also testified that he obtained a Mexican birth certificate so that he could attend school in Mexico. Both Sanchez-Sanchez’s natural mother and father also testi-

fied that their son was born in San Antonio, Texas, and corroborated Sanchez-Sanchez’s testimony. Based on the parents' testimony, the IJ determined that Sanchez-Sanchez was a United States citizen by birth and terminated the deportation proceedings.