Mendoza v. Garland

• Court: District Court, S.D. California
• Decided: February 7, 2023
• Docket: 3:21-cv-01968
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO ALVAREZ MENDOZA, Case No.: 21-cv-1968-LL-MDD

12 Petitioner, ORDER GRANTING 13 v. RESPONDENT’S MOTION FOR SUMMARY JUDGMENT 14 MERRICK B. GARLAND,

15 Respondent. [ECF No. 18] 16 17 18 19 Pending before the Court is Respondent Merrick B. Garland’s Motion for Summary 20 Judgment. ECF No. 18. Petitioner has opposed the Motion (ECF No. 21), and Respondent 21 has replied (ECF No. 22). The Motion has been fully briefed and is suitable for submission 22 without oral argument. For the reasons set forth below, the Motion is GRANTED. 23 I. BACKGROUND 24 a. Procedural Background 25 On June 11, 1990, Petitioner was convicted of violating California Health and Safety 26 Code section 11360(a), for the sale of marijuana. ECF No. 18-2 at ¶ 2; ECF No. 18-11 at 27 2. Accordingly, the former Immigration and Naturalization Service (INS) charged 28 Petitioner with deportability under former section 241(a)(2)(A)(iii) of the Immigration and 1 Nationality Act for his conviction. ECF No. 18-11 at 2-3. On March 3, 1992, the INS filed 2 an order to show cause articulating Petitioner’s charge of deportability with the United 3 States Immigration Court in Los Angeles, California. Id. at 3. 4 Petitioner’s proceedings were “administratively closed” after he failed to appear for 5 his December 21, 1992, deportation hearing. Id. On March 1, 2019, the Department of 6 Homeland Security (DHS) re-calendared the proceedings in the Adelanto Immigration 7 Court and detained Petitioner in the Adelanto ICE Processing Center. Id. On June 18, 2019, 8 DHS filed an additional charge of deportability under section 241(a)(2)(B)(i) of the 9 Immigration and Nationality Act, alleging that that Petitioner was also convicted, on 10 August 8, 1988, of violating California Health and Safety Code section 11360(a) for 11 possessing cocaine. ECF No. 18-2 at ¶ 46; ECF No. 18-11 at 2. In October 2019, Petitioner 12 was moved to the Otay Mesa Detention Center, and his case was also moved to the Otay 13 Mesa Immigration Court. ECF No. 18-11 at 3. During his proceedings, Petitioner claimed 14 that he is a United States citizen and sought relief under former section 212(c) of the 15 Immigration and Nationality Act. Id. at 3-4. 16 On September 1, 2020, U.S. Immigration Judge James DeVitto found that Petitioner 17 failed to meet his burden of demonstrating he was a United States citizen and declined 18 relief under former section 212(c). ECF No. 18-2 at ¶ 8; ECF No. 18-11 at 11-12. 19 Accordingly, the Otay Mesa Immigration Court ordered Petitioner to be deported back to 20 Mexico. ECF No. 18-11 at 13. On July 21, 2021, the court order was appealed to the Ninth 21 Circuit Court of Appeals, and the appellate court granted a temporary stay of removal. ECF 22 No. 1-4. On October 20, 2021, Respondent filed an Unopposed Motion to Transfer the 23 Citizenship Claim to the United States District Court for the Southern District of California. 24 ECF No. 1-15. On November 18, 2021, the Ninth Circuit Court of Appeals granted 25 Respondent’s motion and transferred this case to the present Court, pursuant to 8 U.S.C. 26 27 28 1 section 1252(b)(5)(B) , to review Petitioner’s citizenship claim de novo. ECF No. 1; ECF 2 No. 18-2 at ¶ 11. 3 b. Factual Background 4 Petitioner was born in Mexico. ECF No. 18-2 at ¶ 1. Petitioner claims to have 5 acquired United States citizenship at birth from his mother Sara, who Petitioner claims 6 acquired United States citizenship at birth from her mother, Elena. ECF No. 18-1 at 7; ECF 7 No. 21 at 2. 8 Elena was born on June 26, 1923, in Merced, California. ECF No. 18-2 at ¶ 7. 9 Thereafter, Elena moved back to Mexico with her father and lived there until 1965. Id. at 10 ¶ 12. Elena’s father was a “Bracero” or seasonal worker in the United States; while he 11 worked in the United States, his children, including Elena, would stay with him. Id. at ¶ 12 13. Elena’s father worked as a Bracero for an unspecified amount of time. Id. 13 Elena married her first husband Liborio Vargas in Mexico. Id. at ¶ 14. Elena gave 14 birth to four children with Liborio in Mexico starting in 1943. Id. at ¶¶ 14-15. Elena was 15 married to Liborio until he was struck by lightning and died. Id. at ¶ 16. 16 A man named Odilon Alvarez kidnapped Elena and her children, and forcibly took 17 them to live with him in Aguanato, Mexico. Id. at ¶ 21. Odilon sexually assaulted Elena. 18 Id. Elena attempted to return to her father’s house after her kidnapping, but her family did 19 not accept her. Id. at ¶ 22. After that, Elena remained with Odilon. Id. A certified Mexican 20 marriage certificate indicates that Elena and Odilon were married on August 14, 1950. Id. 21 at ¶ 23. Elena had three children with Odilon, who were all born in Mexico between 1951 22 to 1960. Id. at ¶ 25, 26, 27. Elena’s children’s birth certificates list Elena and Odilon as the 23 parents, and list them as married. Id. 24 25 1 8 U.S.C. section 1252(b)(5)(B) states, “[i]f the petitioner claims to be a national of the United States and 26 the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial 27 district in which the petitioner resides 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, United States 28 1 On August 1, 1951, Sara was born to Elena and Odilon, in Mexico. Id. at ¶ 25. At 2 some point thereafter, while Elena was still breastfeeding Sara, Elena began traveling to 3 the United States to work. Id. at ¶ 29. During this period of time, Elena still resided in 4 Mexico but traveled intermittently to United States, for an unspecified amount of time until 5 Sara was a teenager. Id. at ¶ 30. 6 In May 1968, when Sara was seventeen years old, she gave birth to Guillermo, the 7 Petitioner. Id. at ¶ 36. Sara was not married to Guillermo’s father, and he is not listed on 8 his birth certificate. Id. at ¶ 37. In 1979, Sara submitted an immigrant visa application on 9 behalf of herself and Petitioner in which she listed her place of residence from 1967 until 10 1977 as Mexico. Id. at ¶¶ 40, 41. On January 12, 1979, Petitioner became a lawful 11 permanent resident of the United States. Id. at ¶ 42. 12 II. LEGAL STANDARD 13 Under Federal Rules of Civil Procedure Rule 56, “[t]he court shall grant summary 14 judgment if the movant shows that there is no genuine dispute as to any material fact and 15 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 16 material if it “might affect the outcome of the suit under governing law.” Anderson v. 17 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Substantive law determines “which facts 18 are critical and which facts are relevant.” Id. Further, a dispute is genuine “if the evidence 19 is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citation 20 omitted). When ruling on a summary judgment motion, the court must view “the inferences 21 to be drawn from the underlying facts . . . in the light most favorable to the party opposing 22 the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 23 (citation omitted). 24 The moving party bears the initial burden of “informing the district court of the basis 25 for its motion, and identifying those portions of ‘the pleadings, depositions, answers to 26 interrogatories, and admissions on file, together with the affidavits, if any,’ which it 27 believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 28 Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Further, once the moving 1 party satisfies this initial burden, the nonmoving party must identify specific facts showing 2 that there is a genuine dispute for trial. Celotex, 477 U.S. at 324. The opposing party “must 3 do more than simply show that there is some metaphysical doubt as to the material facts.” 4 Matsushita Elec. Indus. Co., 475 U.S. at 586 (citations omitted). Thus, “Rule 56(e) . . . 5 requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by 6 the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific 7 facts showing that there is a genuine issue for trial’” Celotex, 477 U.S. at 324 (quoting Fed. 8 R. Civ. P. 56(e)). The non-moving party cannot oppose a properly supported summary 9 judgment motion by “rest[ing] upon mere allegations or denials of his pleading.” Anderson, 10 477 U.S. at 256. 11 A court may consider evidence as long as it is “admissible at trial.” Fraser v. 12 Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). “Admissibility at trial” depends not on the 13 evidence’s form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 14 2001) (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence 15 “bears the burden of proof of admissibility.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 16 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party 17 seeking admission must direct the district court to “authenticating documents, deposition 18 testimony, bearing on attribution, hearsay exceptions and exemptions, or other evidentiary 19 principles under which the evidence in question could be deemed admissible….” In re 20 Oracle Corp. Sec., Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). 21 III. DISCUSSION 22 a. Genuine Dispute of Material Fact 23 Here, as an initial matter, Petitioner failed to follow the Court’s Chambers Rules, as 24 Petitioner did not respond to Respondent’s Statement of Undisputed Facts. See Honorable 25 Linda Lopez’s United States District Judge Civil Chambers Rules. Specifically, Civil 26 Chambers Rule 3(F) requires the opposing party to respond to the “separate statement” 27 indicating whether a fact is disputed or undisputed. Id. at 3(F). Failing to indicate whether 28 a fact is disputed or undisputed allows the Court to consider the fact as undisputed. Id. (“If 1 any opposing party fails to indicate whether a fact is disputed or undisputed, the Court will 2 consider the fact undisputed.”). Accordingly, in light of Petitioner’s failure to comply with 3 the Court’s Chamber Rules, the Court deems admitted all facts in Respondent’s Statement 4 of Undisputed Facts. See also Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing 5 specifically to challenge the facts identified in the defendant’s statement of undisputed 6 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the 7 [defendant’s] statement.”); Brito v. Barr, No. 18cv97-KJM-DB, 2020 WL 4003824 at *6 8 (E.D. Cal. July 15, 2020) (“It is the court’s prerogative to treat such a failure to respond as 9 an outright admission”) (internal citation omitted). 10 In resolving the instant Motion for Summary Judgment, the question before this 11 Court is whether, crediting Petitioner’s evidence and drawing all reasonable inferences in 12 his favor, a reasonable trier of fact could find that he had established the elements of his 13 citizenship claim by a preponderance of the evidence. Giha v. Garland, 12 F.4th 922, 932 14 (9th Cir. 2021). Based on the record and undisputed facts before the Court, the Court finds 15 that there is no genuine question of material fact regarding Petitioner’s citizenship for the 16 reasons set forth below. 17 b. Petitioner’s Citizenship 18 Although Petitioner was born in Mexico (ECF No. 18-2 at ¶ 1), he claims to have 19 acquired United States citizenship at birth from his mother Sara, who he claims acquired 20 United States citizenship at birth from her mother, Elena. ECF No. 18-1 at 2; ECF No. 21 21 at 2. “There are ‘two sources of citizenship, and two only: birth and naturalization.’” Miller 22 v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 23 649, 702 (1898)). “Persons not born in the United States acquire citizenship by birth only 24 as provided by Acts of Congress.” 523 U.S. at 423. The appropriate statute to apply in a 25 citizenship claim is “the statute that was in effect ‘at the time the critical events giving rise 26 to the eligibility occurred.’” Giha, 12 F.4th at 932 (quoting Minasyan v. Gonzales, 401 27 F.3d 1069, 1075 (9th Cir. 2005)). 28 1 Here, the critical event in which Petitioner relies on is his mother Sara’s 2 naturalization. The naturalization statute in effect when Sara was born governs. Sara was 3 born in 1951 (ECF No. 18-2 at ¶ 25); thus, The Nationality Act of 1940 is the appropriate 4 statute. The applicable section depends on whether Sara was born in or out of wedlock. If 5 Elena was married when Sara was born, section 201(g) applies (8 U.S.C. § 601(g)) 6 (repealed)), and if Elena was not married when Sara was born, section 205 applies (8 U.S.C. 7 § 605 (repealed)). After demonstrating Sara’s naturalization, Petitioner must prove his own 8 citizenship. Petitioner’s citizenship claim is also determined by the statute in effect at the 9 time of his birth, in 1968, which is the Immigration and Nationality Act section 309(c). 10 ECF No. 18-2 at ¶ 36; 8 U.S.C. § 1409(c).2 The Immigration and Nationality Act section 11 309(c) applies to nationality cases where the mother is a citizen, and the child is born out 12 of wedlock. 8 U.S.C. § 1409(c). 13 i. Burden of Proof in Removal Proceedings 14 The Ninth Circuit has established a burden-shifting framework for removal 15 proceedings: 16 The government bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence. When, 17 however, the government offers evidence of foreign birth, a rebuttable 18 presumption of alienage arises, shifting the burden to the alleged citizen to prove citizenship. Upon production by a petitioner of substantial credible 19 evidence of the citizenship claim, this presumption bursts and the burden 20 shifts back to the government to prove the respondent removable by clear and convincing evidence. 21

22 23 24

25 26 2 8 U.S.C. section 1409(c) states, “a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother 27 had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of 28 1 Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th Cir. 2015) (internal quotations and 2 citations omitted); see also Giha, 12 F.4th at 932 (the party opposing removal bears the 3 burden of proving citizenship by a preponderance of the evidence). 4 Here, Respondent and Petitioner both agree that Petitioner “bears the burden to 5 present substantial credible evidence of citizenship by proving to this Court, by a 6 preponderance of the evidence, that he is a citizen” because Petitioner was born in Mexico. 7 ECF No. 18-1 at 8, 14; ECF No. 21 at 5. If Petitioner satisfies his burden, then Respondent 8 must prove that Petitioner “is removable by clear and convincing evidence.” Mondaca- 9 Vega, 808 F.3d at 419. 10 ii. Sara’s Citizenship Under Former 8 U.S.C. § 605 11 Respondent and Petitioner disagree on whether former 8 U.S.C. section 601(g) or 12 section 605 applies to Petitioner’s citizenship claim because they disagree on whether 13 Elena was married when Sara was born. If Elena was married when Sara was born, former 14 8 U.S.C. § 601(g) applies, and if Elena was not married when Sara was born, former 8 15 U.S.C. § 605 applies. 16 Respondent argues that “all documentary evidence and deposition testimony 17 confirm[] that Elena was legally married to Sara’s father, Odilon, when Sara was born.” 18 ECF No. 18-1 at 16. Respondent further argues that “[a]s a result, former § 605 does not 19 apply to Guillermo’s claim that Sara acquired U.S. citizenship from Elena, and instead 20 former § 601(g) applies requiring Guillermo to show Elena satisfied the 10-year U.S. 21 residence requirement.” Id. Petitioner argues that former section 605 is the applicable 22 statute because “[b]ased on the testimonial evidence provided by Guillermo and his family 23 . . . Elena was not married at the time of Sara’s birth.” ECF No. 21 at 7. “For that reason, 24 the Court should apply former § 605 to Guillermo’s claim that Sara acquired U.S. 25 citizenship from Elena, rather than the former § 601(g), requiring Guillermo to show Elena 26 satisfied the 10-year U.S. residence requirement.” Id. 27 The Court finds that former 8 U.S.C. § 605 does not apply in this case because the 28 evidence supports that Elena was married to Odilon when Sara was born. First, it is 1 undisputed that a certified copy of a marriage certificate indicates that Elena and Odilon 2 were married on August 14, 1950. ECF No. 18-2 at ¶ 23; ECF No. 18-16. It is also 3 undisputed that Sara was born on August 1, 1951. ECF No.18-2 at ¶ 25. Thus, the certificate 4 indicates the couple was married prior to Sara’s birth. Additionally, it is undisputed that 5 the documentary evidence of all three birth certificates of Elena and Odilon’s children state 6 that the two were married. Id. at ¶¶ 25, 26, 27. Further, it is undisputed that Odilon’s death 7 certificate indicates he was married at the time of his death (Id. at ¶ 28), and that Elena 8 stated she was married on a petition to classify status of alien relative she submitted on 9 behalf of Sara in 1978. Id. at ¶ 33. The aforementioned evidence demonstrates that Elena 10 and Odilon were married at the time of Sara’s birth. Further, Petitioner fails to dispute or 11 provide contrary evidence showing that Elena and Odilon were never married. 12 Petitioner relies on the testimonial evidence provided by his family in support of his 13 argument that Elena and Odilon were never married. Petitioner argues: 14 Elena’s first child, Maria, testified that she witnessed Odilon kidnap Elena. SUF 48. She also never witnessed a marriage ceremony. SUF 48. Elena’s 15 second child with Odilon, Aurora, testified that she did not know if her parents 16 were married. SUF 49. Odilon Jr., Elena’s third child, stated that he did not recall if his parents ever talked about being married. SUF 51. Maricela 17 Gutierrez Solorio, Aurora’s daughter, testified that Elena mentioned being 18 married to Odilon against her will. SUF 24.

19 ECF No. 21 at 8. However, even when the evidence is taken in the light most favorable to 20 Petitioner (Matsushita Elec. Indus. Co., 475 U.S. at 587), the evidence, at best, 21 demonstrates that either his family was unaware of the marriage or that Elena was forced 22 to marry. Notably, the testimonial evidence does not prove that Elena and Odilon were not 23 married. Even assuming as true that Elena was forced to marry Odilon, Petitioner fails to 24 provide any evidence or controlling law to support that the marriage was legally void or 25 nullified. 26 In sum, Petitioner’s evidence is insufficient to permit a reasonable trier of fact, by a 27 preponderance of evidence, to conclude that Elena was not married at the time of Sara’s 28 1 birth. Therefore, Petitioner’s claim that Sara acquired U.S. citizenship at birth under former 2 § 605 fails. Because former § 605 does not apply in this case, the Court will next analyze 3 whether Petitioner sufficiently demonstrates that there is a genuine question material fact 4 regarding whether he acquired citizenship under former section 601(g). 5 iii. Sara’s Citizenship Under Former 8 U.S.C. § 601(g) 6 The pertinent portion of former 8 U.S.C. section 601(g) states that the following 7 shall be a national and citizen of the United States: 8 A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such 9 person, has had ten years’ residence in the United States or one of its outlying 10 possessions, at least five of which were after attaining the age of sixteen years, the other being an alien. 11

12 8 U.S.C. 601(g) (repealed). Accordingly, Petitioner must sufficiently demonstrate that 13 there is a genuine question of material fact, by a preponderance of the evidence (Giha, 12 14 F.4th at 932), that Elena resided in the United States for a minimum of ten years and that 15 five of those years occurred after she turned sixteen. “The place of general abode shall be 16 deemed the place of residence.” 8 U.S.C. § 504 (1940) (repealed). 17 Respondent argues “all documentary evidence and deposition testimony confirm[] 18 that Guillermo has failed to show that Elena satisfied the ten year U.S. residence 19 requirement with five of those ten years of residence attained after Elena turned 16 years 20 old.” ECF No. 18-1 at 19. Petitioner argues that he has met his burden “in showing by a 21 preponderance of the evidence that Sara acquired U.S. citizenship from Elena at birth.” 22 ECF No. 21 at 9. 23 Respondent argues that the Court should exclude as inadmissible hearsay the 24 deposition testimony of Petitioner, Odilon Jr., Aurora, and Maricela. ECF No. 18-1 at 20. 25 Specifically, Respondent argues that “the Court should exclude as inadmissible hearsay the 26 deposition testimony of Guillermo, Aurora, Odilon Jr., and Maricela because they cannot 27 have personal knowledge of Elena’s residence before 1951 when all of them were born 28 after 1951.” ECF No. 18-1 at 20 (citing SUF 24, 36, 26, 27; see also Fed. R. Civ. P. 1 56(c)(4); Fed. R. Evidence 602, 701). Respondent also argues that “the strength of Maria’s 2 personal knowledge of events prior to 1951 is uncertain where she was eight years old at 3 the time, and she admitted she did not know or remember specific details or facts from that 4 time period.” ECF No. 18-1 at 20 (citing SUF 14, 54; see also Fed. R. Civ. P. 56(c)(4)). 5 Notwithstanding these objections, Respondent argues that “neither Guillermo nor any of 6 his family members could provide exact dates or even approximate time periods of Elena’s 7 U.S. residence prior to Sara’s birth in 1951 responding to most questions about her 8 residence that they did not have knowledge of the matter.” ECF No. 18-1 at 22 (citing SUF 9 55). In response, Petitioner contends that the disputed deposition testimony should not be 10 excluded as inadmissible hearsay “because of its highly probative value when so few 11 records exist of Elena’s residence in the United States.” ECF No. 21 at 10. 12 Once Respondent raised a hearsay objection as to Guillermo, Aurora, Odilon, Jr. and 13 Maricela’s deposition testimony, the burden rested on Petitioner to either show how this 14 deposition testimony was admissible as presented or that it could be presented in an 15 admissible form at trial. See Lizarraga-Davis v. Transworld Sys., No. 18-cv-04081-BLF, 16 2022 WL 4485813, at *6 (N.D. Cal. Sep. 27, 2022); Rockstrom v. Spokane Cnty., No. 2:18- 17 CV-197-RMP, 2019 WL 5256920, at *1 (E.D. Wash. Apr. 24, 2019) (“If a party objects to 18 evidence presented on a motion for summary judgment, it functions much like an objection 19 at trial; that is, the burden is on the proponent to show that the evidence is admissible as 20 presented or can be presented in an admissible form.”). Here, Petitioner has done neither. 21 Indeed, Petitioner’s conclusory argument the deposition testimony should not be excluded 22 simply because it is “highly probative” in nature is unsupported by citations to any legal 23 authority. A proper exercise of judicial restraint mandates that the Court not “manufacture 24 arguments” on Petitioner’s behalf. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). 25 Even assuming that the disputed testimony could be presented in an admissible form 26 at trial, it fails to raise a genuine issue of material fact as to whether Elena resided in the 27 United States for a period of ten years under the requirements of former 8 U.S.C. § 601(g) 28 for the reasons set forth below. First, it is undisputed that Elena was born in Merced, 1 California on June 26, 1923. ECF No. 18-2 at ¶ 7. It is also undisputed that Elena signed 2 and affirmed under oath on an Affidavit of Support in 1979 that she resided in Mexico 3 from 1928 to 1965. Id. at ¶ 32. The Affidavit of Support was submitted to United States 4 immigration authorities in 1979 when she petitioned for her children to immigrate to the 5 United States. Id. The Affidavit also indicates Elena resided in the United States from 1923 6 to 1928. ECF No. 18-13. Petitioner’s argument in the Response to Respondent’s Motion 7 for Summary Judgment that “[t]he Court should consider that Elena was illiterate and did 8 not speak English, based on the testimonial evidence of Guillermo and his family 9 members” is without merit. ECF No. 21 at 9. Notably, Petitioner conceded to the validity 10 of the Affidavit, as he failed to respond to the Respondent’s Statement of Undisputed Facts. 11 See Docket; see also Beard v. Banks, 548 U.S. at 527. Viewing this evidence in the light 12 most favorable to Petitioner (Matsushita Elec. Indus. Co., 475 U.S. at 587), Elena resided 13 in the United States for approximately five years prior to Sara’s birth, not the required ten 14 years. 15 There is further undisputed evidence that Sara resided in Mexico during the period 16 indicated in the Affidavit and after Elena turned sixteen (after 1939). For example, it is 17 undisputed that Elena married her first husband before 1943 in Mexico (ECF No. 18-2 at 18 ¶ 14), and all four children with her first husband were also born in Mexico after 1943. Id. 19 at ¶ 15. Petitioner also concedes that “Elena did not travel by herself or with her family to 20 the United States, during her marriage to Liborio in the 1940’s.” Id. at ¶ 18. Additionally, 21 it is undisputed that Sara was born in Mexico, further corroborating that at the time of 22 Sara’s birth Elena resided in Mexico. Id. at ¶ 25. Thus, the undisputed evidence 23 demonstrates that Elena’s “general abode” was in Mexico, not in the United States, and 24 that she did not reside in the United States for a minimum of five years after her sixteenth 25 birthday. 26 Petitioner relies on a United States Census Bureau record that Petitioner claims 27 “reflects that Elena and her family lived in Oregon in 1930.” ECF No. 21 at 9 (citing ECF 28 No. 18-2 at ¶ 53). Setting aside the document’s authenticity and viewing this evidence in 1 the light most favorable to Petitioner (Matsushita Elec. Indus. Co., 475 U.S. at 587), the 2 Census record can only prove that Elena resided in Oregon in 1930 and not that she resided 3 within the United States for a period of ten years. Further, the census record predates 4 Elena’s sixteenth birthday, as Elena was born in 1923 and would not be sixteen until 1939, 5 and thus does not support the required notion that she resided in the United States for at 6 least five years after turning sixteen. 7 Petitioner also relies on Odilon’s Jr testimonial evidence indicating that Elena’s 8 father was a Bracero for about twenty years. ECF No. 21 at 9. Petitioner argues that: 9 Guillermo’s family members testified that Elena went back to Mexico after her birth in the United States. She then came back to live in the United States 10 [at] a young age while her father who worked as a bracero for years. Odilon, 11 Jr. testified during his deposition that Elena’s father worked as a bracero for about twenty years. Although Guillermo’s family members could not provide 12 specific dates regarding her residence, considering the testimony in a light 13 most favorable to Guillermo, Elena would have accumulated enough time to satisfy the standard. 14

15 Id. Although it is undisputed that Elena’s father was a Bracero in the United States and that 16 Elena would join her father intermittently in the United States while he worked, Petitioner 17 concedes that this period of time was “unspecified.” ECF No. 18-2 at ¶ 13. It would be a 18 significant inferential leap to find that Elena’s father worked as Bracero in the United States 19 for twenty years and that Elena resided with her father during this period of time. The 20 evidence that Petitioner submits “establishes only that this set of events could conceivably 21 have occurred; it does not give rise to a reasonable inference that it did in fact occur.” 22 Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1061 (9th Cir. 2011). “To survive 23 summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, 24 not sweeping conclusory allegations.” Id.; O.S.C. Corp. v. Apple Comput., Inc., 792 F.2d 25 1464, 1466-67 (9th Cir. 1986) (the court must “scrutinize the evidence and reasonable 26 inferences to determine whether there is sufficient probative evidence to permit a finding 27 in favor of the opposing party based on more than mere speculation, conjecture, or 28 fantasy”) (internal quotation marks omitted) (emphasis added). 1 Thus, Petitioner has failed to present sufficient evidence to permit a reasonable trier 2 || of fact to find, by a preponderance of the evidence, that Elena resided in the United States 3 || for a period of ten years, much less that she resided at least five years in the United States 4 her sixteenth birthday. Accordingly, Petitioner has failed to present sufficient 5 evidence to permit a reasonable trier of fact to find, by a preponderance of the evidence, 6 his mother Sara acquired citizenship from her mother Elena at birth under former 8 7 ||U.S.C. § 605(g). Because Petitioner’s citizenship claim hinges on the citizenship of his 8 mother, Petitioner has also failed to present sufficient evidence to permit a reasonable trier 9 || of fact to find, by preponderance of the evidence, that he acquired citizenship at birth from 10 || Sara pursuant to 8 U.S.C. section 1409(c). In sum, based on the record and undisputed facts 11 before the Court, the Court finds that there is no genuine issue of material fact regarding 12 || Petitioner’s citizenship. 13 IV. CONCLUSION 14 For the reasons set forth herein, the Court GRANTS Respondent’s Motion for 15 ||Summary Judgment. Respondent shall submit a proposed judgment within fourteen (14) 16 || days of this Order. 17 IT IS SO ORDERED. 18 || Dated: February 7, 2023 NO 19 Je 20 Honorable Linda Lopez 51 United States District Judge 22 23 24 25 26 27 28

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