Luz Martinez De Arias v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 27, 2020
• Docket: 17-71398
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUZ CECILIA MARTINEZ DE ARIAS, No. 17-71398 AKA Luz Cecilia Martinez Mora, Agency No. A046-687-932 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 13, 2020** Pasadena, California

Before: GOULD and OWENS, Circuit Judges, and KORMAN,*** District Judge.

Petitioner Luz Cecilia Martinez De Arias (“De Arias”) appeals two Board of

Immigration Appeals (“BIA”) decisions from December 19, 2013 and April 25,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2017, which held (1) that De Arias is removable under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) as an alien not in possession of a valid entry document at the

time of admission, and (2) that she is removable under 8 U.S.C. § 1182(a)(6)(E)(i)

for helping her boyfriend attempt to gain unlawful entrance into the United States.

De Arias argues that her case should be remanded to the BIA due to her potential

citizenship claim. We have jurisdiction, 8 U.S.C. § 1252, and deny the petition.

De Arias is a citizen of Mexico who married a U.S. citizen in 1996. On

October 5, 1989, the former Immigration and Naturalization Service issued De

Arias a voluntary departure order that required her to leave the country on or

before June 5, 1990. De Arias contends that she complied with the order. In 1997,

her husband filed a petition on her behalf, which was approved. Soon after, she

left the United States to collect the visa at the American Consulate in Mexico. She

was admitted as a permanent resident on January 5, 1999. Her husband died on

August 25, 2003.

In 2004, De Arias applied for admission to the United States at the border

between Mexico and California. She traveled by car with her children and her

then-boyfriend, Jose Rojas Villegas (“Rojas”). Rojas presented an altered U.S.

passport bearing the name of De Arias’ deceased husband. Customs and Border

Patrol officers stopped the car for further inspection, and determined that De Arias

was inadmissible as an “alien who at any time knowingly has encouraged, induced,

2 assisted, abetted, or aided any other alien to enter or try to enter the United States

in violation of law.” 8 U.S.C. § 1182(a)(6)(E)(i). She was paroled into the United

States, with her parole expiring on July 18, 2004.

Based on De Arias’ role in Rojas’ attempt to illegally enter the United

States, the Department of Homeland Security (“DHS”) charged De Arias as

removable under 8 U.S.C. § 1182(a)(6)(E)(i). The DHS also charged that De Arias

was removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien who “at the time of

application for admission” lacked a “valid entry document” because she failed to

comply with the October 5, 1989 voluntary departure order that self-executed into

a deportation order. The immigration judge (“IJ”) found De Arias removable on

both grounds. The BIA affirmed, and De Arias appealed to us.

We review the BIA’s legal conclusions de novo. Vitug v. Holder, 723 F.3d

1056, 1062 (9th Cir. 2013). We review the agency’s factual findings for

substantial evidence. Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). We

review citizenship claims de novo. Martinez-Madera v. Holder, 559 F.3d 937, 940

(9th Cir. 2009).

We first reject De Arias’ argument that her case should be remanded to the

BIA for further fact-finding on whether she has a valid citizenship claim. Under 8

U.S.C. § 1252(b)(5)(B), where we find a genuine issue of material fact as to a

petitioner’s nationality, we must transfer the case to a district court for a new

3 hearing and a decision on the claim. 8 U.S.C. § 1252(b)(5)(B). But if there is no

genuine issue of material fact, we decide the claim ourselves. Id. § 1252(b)(5)(A).

To show that her paternal grandmother transferred her American citizenship

to her father, De Arias must show that before her grandmother gave birth to her

father, De Arias’ grandmother resided in the United States for ten years, five of

which were after her grandmother was fourteen years old. 8 U.S.C. § 1401(a)(7)

(1952). De Arias must then show that her father met the same statutory residency

requirements to show that she inherited citizenship from her father. 8 U.S.C. §

1401(a)(7) (1970).

Here, we conclude that there is no genuine issue of material fact. De Arias

offers the following in support of her claim: her paternal grandmother’s U.S.

passport; her father’s birth certificate, which indicates that he was born in Mexico;

and her bare assertion that her grandmother was born in the United States, moved

to Mexico, and returned to give birth to De Arias’ father. She provides no

evidence suggesting that her father satisfied the statutory requirements to transfer

his citizenship—if it existed at all—to De Arias herself. Transferring this case to a

district court is therefore inappropriate, and we deny De Arias’ citizenship claim.1

1 De Arias’ argument that she can claim U.S. citizenship through a novel theory of double constructive retention also fails. In Runnett v. Schultz, we held that while the doctrine of constructive retention may apply in retention of citizenship cases, it does not apply to transmittal of citizenship claims. 901 F.2d 782, 784 (9th Cir. 1990).

4 Second, we reject De Arias’ claim that the BIA erred in upholding her

removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an alien not in possession of a

valid entry document when she re-entered the country in 2004 and applied for

permanent resident status. The IJ found that De Arias did not comply with the

1989 voluntary departure order. That finding was supported by substantial

evidence, and the BIA properly held that De Arias’ failure to comply with the

order rendered her removable under the statute. Segura v. Holder, 605 F.3d 1063,

1066 (9th Cir. 2010) .

Third, the BIA correctly held that De Arias was removable for attempted

alien smuggling, under 8 U.S.C. § 1182(a)(6)(E)(i). The IJ found that De Arias

gave Rojas, her boyfriend at the time, her deceased husband’s passport so that he

could use it to illegally enter the country. The IJ also determined that De Arias

falsely told border officials that Rojas was her deceased husband. Those findings

were supported by substantial evidence. And the BIA correctly held that those

affirmative acts constituted aiding and abetting under the meaning of the statute.

Sanchez v. Holder, 704 F.3d 1107, 1109-10 (9th Cir. 2012) (per curiam).

Finally, we lack jurisdiction to consider De Arias’ remaining arguments

because she failed to administratively exhaust them before the BIA. Farhoud v.

INS, 122 F.3d 794, 796 (9th Cir. 1997).

The Petition for Review is DENIED.