1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OSCAR OLIVAS, Case No.: 14-cv-1434-WQH-BLM
12 Petitioner, ORDER 13 v. 14 BILLY WHITFORD, Port Director of Calexico West Port of Entry, Customs 15 and Border Protection; PETE FLORES, 16 Director of Field Operations, San Diego Field Office, Customs and Border 17 Protection; R. GIL KERLIKOWSKE, 18 Commissioner of Customs and Border Protection; JEH JOHNSON, Secretary 19 of Homeland Security; JOHN KERRY, 20 Secretary of State, 21 Respondents. 22 HAYES, Judge: 23 The matters before the Court are the Petition for Writ of Habeas Corpus and 24 Complaint for Declaratory and Injunctive Relief filed by Petitioner (ECF No. 1) and the 25 Motion to Supplement the Record filed by Respondents (ECF No. 235). 26 I. PROCEDURAL BACKGROUND 27 On June 12, 2014, Petitioner filed a “Petition for a Writ of Habeas Corpus and 28 1 Customs and Border Patrol (CBP) officials, the Commissioner of the CBP, the Secretary 2 of Homeland Security, and the Secretary of State. (ECF No. 1 ). Petitioner brings a claim 3 for habeas relief pursuant to 28 U.S.C. § 2241 on the grounds that he is “a natural-born 4 U.S. citizen” who was “unlawfully exiled to Mexico” when “CBP officials unlawfully 5 refused to allow him to enter the United States.” Id. ¶¶ 1–2. Petitioner brings the following 6 four claims: (1) Right of U.S. Citizen to Return to United States under the Fifth and 7 Fourteenth Amendments and the Non-Detention Act; (2) Right of U.S. Citizen Against 8 Unlawful Detention under the Fifth and Fourteenth Amendments and the Non-Detention 9 Act; (3) Violation of Fifth Amendment (Procedural Due Process); and (4) Violation of 10 Fifth Amendment (Substantive Due Process). Petitioner asserts jurisdiction under § 2241, 11 “§ 1331 (federal question),” “§§ 2201–02 (declaratory relief),” “Federal Rule of Civil 12 Procedure 65 (injunctive relief), and the Fifth and Fourteenth Amendments to the U.S. 13 Constitution.” Id. at 4. Petitioner requests that this Court: “Issue a writ of habeas corpus 14 ordering Defendants to allow Plaintiff to enter the United States without detaining him,” 15 “Declare the Plaintiff is a U.S. citizen,” “Declare that any order directing or authorizing 16 Plaintiff’s removal from the United States was entered in violation of the Due Process 17 Clause of the Fifth Amendment and/or other applicable law and is therefore null and void,” 18 and “Enjoin Defendants and their officers, agents, servants, employees, attorneys, and/or 19 successors from prohibiting Plaintiff from entering the United States and/or detaining him 20 at or after such entry . . . .” Id. at 20–21. 21 On June 16, 2014, the Court ordered Respondents to show cause why the Petition 22 should not be granted. (ECF No. 5). 23 On July 8, 2014, Respondents filed a return to the Petition. (ECF No. 12). In the 24 Return, Respondents allege that “[o]n December 17, 2010, Petitioner’s mother, Ms. Olivas- 25 Cervantes, was interviewed by a consular officer at the U.S. Consulate in Ciudad Juarez, 26 Mexico.” Id. at 2. “During the interview, Ms. Olivas-Cervantes signed an affidavit stating 27 that Petitioner was not born in Los Angeles, but was born in a clinic in Tijuana, Mexico.” 28 Id. at 3. “On or about August 22, 2011, Petitioner applied for admission to the United 1 States at the Calexico Port of Entry, claiming he was a U.S. citizen.” Id. at 4. “The CBP 2 officer who was processing Petitioner’s application for admission prepared documentation 3 to commence removal proceedings before an Immigration Judge (‘IJ’) . . . [t]wo notices to 4 Appear (‘NTA’) were prepared, and both appeared to have been ‘cancelled,’ under 8 C.F.R. 5 § 239.2 prior to the commencement of proceedings.” Id. at 5. 6 On July 22, 2014, Petitioner filed a traverse. (ECF No. 15). 7 On August 14, 2014, the Court issued an amended Order denying a motion to dismiss 8 the Petition, referring the matter for expedited discovery, and stating, “The Court finds that 9 the Petition adequately alleges a colorable claim of citizenship, and subject-matter 10 jurisdiction exists in this Court.” (ECF No. 23). 11 On March 2, 2015, the Court denied a motion to dismiss filed by Respondents on 12 the ground that 8 U.S.C. §1252(e)(3) deprives the Court of subject matter jurisdiction. The 13 Court found that judicial review of Petitioner’s claim is not precluded by § 1252(e)(3) 14 “because it is not a challenge to the validity of expedited removal proceedings” and “[t]here 15 is no allegation that a removal proceeding took place or that an order was issued.” (ECF 16 No. 72 at 13). 17 In August of 2015, the parties filed supplemental briefing regarding the standard and 18 burden of proof. (ECF Nos. 96, 99, 102, 104, 105, 108). On November 2, 2015, the Court 19 issued an Order ruling on motions in limine and stating: 20 Petitioner has asserted a non-frivolous claim of U.S. citizenship and this Court has jurisdiction pursuant to 28 U.S.C. § 2241 over Petitioner’s habeas petition 21 challenging his exclusion from the United States. See Flores-Torres v. 22 Mukasey, 548 F.3d 708, 712–13 (9th Cir. 2008) (finding that the court had habeas jurisdiction where petitioner challenged his detention in the absence 23 of a final order of removal). 24 Pursuant to 28 U.S.C. § 2243, Petitioner is entitled to an evidentiary hearing to prove the disputed fact that he was born in El Monte, California and that he 25 is entitled to an order allowing him to enter and remain in the United States. 26 The Court will hold an evidentiary hearing to “summarily hear and determine” the disputed fact of petitioner’s place of birth and citizenship. 28 U.S.C. § 27 2243. 28 1 Petitioner bears the burden of establishing, by a preponderance of the evidence, that he is being unlawfully excluded from the United States because 2 he is a citizen of the United States by birth. See Snook v. Wood, 89 F.3d 605 3 (9th Cir. 1996) (“It is the petitioner’s burden to prove his custody in violation of the Constitution, laws or treaties of the United States.”). See also Berenyi 4 v. District Director, Immigration & Naturalization Serv., 385 U.S. 630, 670– 5 71 (1967) (finding that when a person outside of the United States seeks a declaration of citizenship, “[h]e is the moving party, affirmatively asking the 6 Government to endow him with all the advantages of citizenship. . . . [I]t has 7 been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect.”). 8
9 (ECF No. 126 at 3–4). The Court further noted, 10 In the immigration context the government brings the action to remove a non- citizen who is currently residing in the United States or to expatriate a current 11 citizen and therefore the burden of proof may shift to the government. See 12 e.g., Perez v. Brownell, 356 U.S. 44, 47 n. 2 (1958) (“The Government must prove the act of expatriation on which the denial [of a declaration of 13 nationality] was based by ‘clear, unequivocal, and convincing’ evidence . . . 14 .” (internal citations and quotation marks omitted)); Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970) (shifting the burden from Plaintiff to the government 15 to rebut Plaintiff’s evidence of citizenship when Plaintiff was living in the 16 United States and had previously been given a certificate of identity as a citizen after a hearing before the Board of Special Inquiry). 17
18 Id. at 4 n.1. The Court held a four-day evidentiary hearing beginning on November 12, 19 2015. (ECF Nos. 135, 137–39). 20 On June 28, 2016, the Court denied the Petition, concluding that “Petitioner has not 21 met his burden to prove that he is being unlawfully excluded from the United States 22 because he is a citizen of the United States by birth.” (ECF No. 167 at 39). 23 On August 16, 2017, the Court ordered entry of judgment in favor of Respondents 24 and against Petitioner as to all claims in this action, concluding that the Court lacked 25 jurisdiction over the remaining claims. (ECF No. 212). 26 On November 29, 2018, the Court of Appeals vacated this Court’s August 16, 2017 27 Order, stating, “The district court erred in requiring Olivas to bear the burden of proving 28 his citizenship by a preponderance of the evidence. Instead, as we held in Mondaca-Vega 1 v. Lynch, a burden-shifting framework applies in alienage determination cases.” Olivas v. 2 Salazar, 743 F. App’x 890, 890–91 (9th Cir. 2018) (citing Mondaca-Vega v. Lynch, 808 3 F.3d 413 (9th Cir. 2015)); ECF No. 230 (same). The Court of Appeals remanded to this 4 Court to weigh the evidence using the Mondaca-Vega framework, “in which the 5 government presents evidence of alienage, the petitioner responds with substantial credible 6 evidence of citizenship, and then the burden shifts back to the government to prove alienage 7 by clear and convincing evidence.” Id. at 891. The Court of Appeals rejected the 8 government’s argument that Mondaca-Vega applies only in removal proceedings, not in 9 this action for habeas and declaratory relief. Id. at 890 n.1. The Court of Appeals stated, 10 Olivas was served with a Notice to Appear (“NTA”), which should have triggered a hearing before an immigration judge. But because the government 11 failed for over two years to file the NTA with the immigration court, no 12 hearing was ever scheduled. After repeated unsuccessful attempts to inquire about the status of his hearing, on June 12, 2014, Olivas filed this suit seeking 13 determination of his citizenship status. . . . 14 [T]he government concedes that had it commenced removal proceedings by filing the NTA, as it admits at oral argument that it was required to do, see 8 15 C.F.R. §§ 1235.3(b)(5), 1235.6, 1003.13, 1003.14(a), Mondaca-Vega would 16 squarely control. Olivas claims that for two years, he called the government’s hotline number weekly, and visited the border at least seven times, to inquire 17 about a hearing. He claims that agents threatened him with detention if he 18 persisted. The government may not benefit from its own negligence.
19 Id. at 890 & n.1. 20 On May 8, 2019, Respondents filed the Motion to Supplement the Record, on the 21 grounds that additional evidence is necessary to identify the correct basis of subject matter 22 jurisdiction and apply the burden-shifting framework on remand. (ECF No. 235). 23 On May 9, 2019, Respondents filed supplemental briefing on the Petition. (ECF No. 24 238). 25 On May 22, 2019, Petitioner filed a response in opposition to the Motion to 26 Supplement the Record. (ECF No. 242). 27 28 1 On May 22, 2019, Petitioner filed a response in opposition to Respondents’ 2 supplemental briefing on the Petition. (ECF No. 241). 3 On June 19, 2019, Respondents filed a reply in support of the Motion to Supplement 4 the Record. (ECF No. 246). 5 On June 19, 2019, Respondents filed a reply in support of their supplemental briefing 6 on the Petition. (ECF 247). 7 On July 11, 2019, the Court heard oral argument. (ECF No. 248). 8 II. MOTION TO SUPPLEMENT THE RECORD 9 Respondents request that the Court admit for all purposes, under the residual hearsay 10 exception of Federal Rule of Evidence 807(a), the affidavit signed by Delia Perez, 11 Petitioner’s mother, at the U.S. Consulate in Ciudad Juarez on December 17, 2010 (the 12 Juarez Statement), which the Court previously admitted for impeachment purposes only.1 13 Respondents contend that the Court should receive additional documents because the Court 14 of Appeals “changed the basis of subject matter jurisdiction and flipped the burden of 15 proof.” (ECF No. 246 at 2). Respondents contend that the requirements of the residual 16 hearsay exception are satisfied because the Juarez Statement has numerous equivalent 17 circumstantial guarantees of trustworthiness and contains direct, freestanding evidence of 18 the material fact of Petitioner’s birthplace. Respondents contend that admitting the Juarez 19 Statement is in the interest of justice because the State of California amended Petitioner’s 20 birth certificate to indicate the falsity of Petitioner’s original birth certificate based on the 21 Juarez Statement. Respondents contend that the conclusion of the Court of Appeals, that 22 this Court did not abuse discretion by admitting the Juarez Statement for impeachment 23 only, “is orbiter dictum and lacks context” because neither party challenged this Court’s 24 25 1 Rule 807(a) provides: “Under the following circumstances, a hearsay statement is not excluded by the 26 rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as 27 evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the 28 1 evidentiary rulings on appeal. Id. Respondents assert that the Juarez Statement is more 2 probative than Perez’s trial testimony because the Juarez Statement occurred when Perez 3 “was caught off guard, after forty years, when confronted with the inconsistencies in the 4 birth registration and her story about the circumstances of [Petitioner’s] birth.” Id. at 6. 5 Petitioner contends that Respondents waived the argument that the Juarez Statement 6 satisfies the residual hearsay exception by failing to raise the residual hearsay exception 7 before this Court or the Court of Appeals. Petitioner contends that Respondents are 8 precluded from pursuing the residual hearsay exception at this stage in the litigation. 9 Petitioner contends that the conclusion of the Court of Appeals, that this Court did not 10 abuse discretion by admitting the Juarez Statement for impeachment only, constitutes the 11 law of the case. Petitioner contends that no departure from the law of the case is justified 12 under the circumstances. Petitioner contends that the residual hearsay exception 13 requirements are not satisfied. Petitioner asserts that the affidavit is not more probative 14 than any other evidence because Perez was available to testify and did testify. Petitioner 15 contends that admitting the affidavit is not in the interests of justice because Respondents 16 had the opportunity to investigate and prove its case and failed to produce evidence of 17 foreign birth. 18 In addition, Respondents request that the Court admit documents related to the 19 CBP’s August 23, 2011 determination that Petitioner was inadmissible; in particular, the 20 cover page, form I-860, form I-296, form I-862, form I-213, and a TECS printout.2 21 Respondents assert that they seek admission of the documents “to establish the basis of this 22 Court’s subject matter jurisdiction and not for the truth of the matters stated therein.” (ECF 23 No. 235-1). Respondents contend that the documents demonstrate that the exclusive basis 24 of the Court’s jurisdiction in this case is 8 U.S.C. § 1252(e)(2)(A) by showing that 25
26 2 “[T]he Treasury Enforcement Communication System (‘TECS’) . . . is an investigative tool of the 27 Department of Homeland Security that keeps track of individuals entering and exiting the country and of individuals involved in or suspected to be involved in crimes.” United States v. Cotterman, 709 F.3d 952, 28 1 Petitioner was processed for expedited removal proceedings pursuant to a determination of 2 inadmissibility. Respondents contend that the documents are now relevant to subject 3 matter jurisdiction because the Court of Appeals “has, in effect, reversed this Court’s prior 4 ruling” that subject matter jurisdiction is proper under general § 2241 habeas. (ECF No. 5 246 at 4). Respondents contend that the records are admissible as administrative records. 6 Respondents assert that the entire administrative record was identified in the pretrial order, 7 and that Respondents seek to admit documents selected from that record. 8 Petitioner contends that the Court should not admit the documents because 9 Respondents had a full and fair opportunity to offer all available evidence regarding 10 Petitioner’s citizenship, and the Court ordered Respondents to do so. Petitioner contends 11 that the references to Mondaca-Vega and an expedited removal regulation in the remand 12 order do not convert this case into a proceeding for review of an expedited removal order. 13 Petitioner asserts that the references confirm that Petitioner is entitled to a de novo judicial 14 determination of citizenship. Petitioner asserts that Respondents did not previously 15 advance an expedited removal theory or properly identify the documents. Petitioner asserts 16 that he was determined inadmissible and “released to Mexico” without any sort of removal 17 order. Petitioner asserts that the Court of Appeals confirmed, and Respondents 18 acknowledged on appeal, that Petitioner was not in removal proceedings. Petitioner asserts 19 that the Court previously determined at the evidentiary hearing that the I-213 and TECS 20 printout were not admissible for the truth of the matter asserted. Petitioner contends that 21 the documents are inadmissible because they are irrelevant, lack foundation, and contain 22 multiple levels of hearsay. Petitioner contends that the business records hearsay exception 23 does not apply to government agency records and the public records exception does not 24 apply to statements of third parties without a legal duty to report. 25 The Court of Appeals has stated that “a district court is limited by this court’s remand 26 in situations where the scope of the remand is clear.” Mendez-Gutierrez v. Gonzales, 444 27 F.3d 1168, 1172 (9th Cir. 2006). In remanding this case, the Court of Appeals directed this 28 Court “to apply the burden-shifting framework set forth in Mondaca-Vega” for purposes 1 of determining whether Petitioner is an “alien.” Olivas, 743 F. App’x at 891. The Court 2 of Appeals further stated, “The district court did not abuse its discretion in admitting Delia 3 Perez’s out-of-court statement solely for impeachment purposes. In the district court and 4 now on appeal, the government has identified no hearsay exception that would apply.” Id. 5 The Court finds that the scope of the remand is clear and limited to weighing the 6 evidence in accordance with Mondaca-Vega. Cf. Abdulrafi v. Lockyer, 121 F. App’x 226, 7 227 (9th Cir. 2005) (stating expressly that appellant was permitted to supplement the 8 record; remanding to the district court “to reconsider its denial of Abdulrafi’s petition in 9 light of this new evidence”); see also Creech v. Ramirez, No. 1:99-CV-00224-BLW, 2017 10 WL 1129938, at *11 (D. Idaho Mar. 24, 2017) (“[T]his case is before this Court on a limited 11 remand. It is not a free-for-all. Specifically, there is no language in the Ninth Circuit’s order 12 suggesting that the Court of Appeals empowered this Court to reopen the record and accept 13 additional, post-remand evidence.”). In addition, the transcript of the October 22, 2015 14 hearing reflects the following statements regarding the burden of proof and the presentation 15 of evidence: 16 THE COURT: . . . . And what I would envision is that . . . the petitioner would go forward with all the evidence that you have, whatever evidence that you 17 have that you think is relevant to your burden, you put it all on; you don’t hold 18 anything back; you put everything on that you think you should put on, and then the respondent goes forward; they put on all the evidence that they have, 19 and then at the conclusion, if you have any rebuttal you put that on. 20 And then at some point I would indicate, all right, here’s the legal matter; here’s the burden that you had; and whether it is I agree with the Government 21 or I agree with you, it is either you have met it or you haven’t met it, and it is 22 not the case that that is going to have any impact on the presentation of evidence. 23 If you have a burden, you go forward with all the evidence that you have, and 24 then Mr. Bettwy, he puts on evidence that he puts on, and if you have rebuttal, you put it on . . . whether I agree with the Government or I agree with you[,] 25 that that legal determination would not affect the presentation of evidence. Do 26 you agree? MS. RIVERA: I agree with that, Your Honor. 27 THE COURT: Do you agree, Mr. Bettwy? 28 MR. BETTWY: Yes, Your Honor. 1 THE COURT: All right. . . . I wanted to avoid . . . a situation where petitioner puts their case on, the Government -- respondent puts their case on, and 2 suppose there is no rebuttal, and then I conclude -- suppose I was to conclude 3 that the Government was right. What I didn’t want to happen is the petitioner would be in the position to say, oh, wait a minute, I didn’t think that; we 4 thought we had the burden to go forward with some evidence; we went 5 forward with some evidence, and then the burden shifted to them, and had we known that you were going to put the burden on us for the entirety of the case, 6 we had this other evidence we would have put on, and, you know, we were 7 misled by your, you know, your failure to rule. And so I don’t want there to be, you know, misunderstanding . . . . 8 [I]s it fair to say that petitioner is in agreement that it doesn’t matter with 9 respect to the presentation of evidence whether the Court determines the Government is right on the burden or the Court determines the petitioner is 10 right on the burden. That legal decision obviously may affect the outcome of 11 the case, but it will not have any impact on the presentation of the evidence. Do you agree? 12 MS. RIVERA: That’s right, Your Honor, with respect to the presentation of 13 evidence at trial. THE COURT: You agree as well, Mr. Bettwy? 14 MR. BETTWY: I believe -- yes, Your Honor. With respect -- from the 15 Government’s point of view, I suppose I would be thinking wors[t] case scenario is we have the burden of proving by clear and convincing evidence, 16 but it would not affect -- we wouldn’t be holding back with that thought 17 otherwise . . . .
18 (ECF No. 222 at 31–33). The record reflects that the parties have had the opportunity to 19 present all available evidence and agreed that the burden of proof would not affect the 20 presentation of the evidence. The record reflects that the Court declined to consider the 21 Juarez Statement or the I-213 report for the truth of the matter asserted. See ECF 167 at 22 36 n.11; ECF No. 147 at 26:12–13. The record does not provide grounds to disturb the 23 Court’s previous evidentiary rulings. The record does not provide grounds to depart from 24 the Court’s previous orders stating that subject matter jurisdiction in this matter is pursuant 25 to § 2241, based on Petitioner’s non-frivolous claim of U.S. citizenship and the absence of 26 a final order of removal. See ECF No. 126 at 3. The mandate of the Court of Appeals does 27 28 1 not require reconsideration of evidentiary rulings or subject matter jurisdiction in this case. 2 Respondent’s motion to supplement the record is denied. 3 III. ANALYSIS ON REMAND 4 Respondents contend that the government’s burden of proof at the first step of the 5 Mondaca-Vega framework, in the context of this case, has not been established by case 6 law. Respondents contend that the government’s initial burden is necessarily less than 7 clear and convincing evidence because the government usually bears the burden of clear 8 and convincing evidence when removing or deporting a person, and the government 9 usually bears no burden of proof when a person seeks admission to the United States. 10 Respondents contend that the government’s initial burden is necessarily less than clear and 11 convincing evidence because, in cases analogous to this case, the government bears a clear 12 and convincing evidence burden only when there has been a prior determination of 13 citizenship. Respondents contend that the Court of Appeals necessarily agreed with this 14 Court’s conclusion that there was no prior citizenship determination in this case. 15 Respondents contend that, if there was a prior citizenship determination, the Court of 16 Appeals would have remanded for Respondents to prove that Petitioner is not a citizen by 17 clear and convincing evidence, rather than remanding for application of the Mondaca-Vega 18 framework. Respondents contend that the government’s burden in this case is satisfied by 19 Petitioner’s judicial admissions and the evidence on the record. 20 Petitioner contends that the first step of the Mondaca-Vega framework requires the 21 government to provide direct admissible evidence that Petitioner was born in Mexico. 22 Petitioner contends that there is no legal distinction between deportation proceedings and 23 inadmissibility proceedings; rather, both deportation and exclusion occur in removal 24 proceedings, in which the government has the burden of proof by clear and convincing 25 evidence. Petitioner contends that this Court’s conclusion that there was no prior 26 citizenship determination was necessarily displaced because the Court of Appeals cited Lee 27 Hon Lung v. Dulles—a case in which the government had the burden of proof of clear and 28 convincing evidence because there was a prior citizenship determination. (ECF No. 241 1 at 42–43 (citing 261 F.2d 719, 724 (9th Cir. 1958))). Petitioner contends that Respondents 2 fail to carry the government’s burden of clear and convincing evidence because the 3 evidence in this case is scant, indirect, and inconclusive. Petitioner contends that 4 impeaching testimony that Petitioner was born in the United States does not provide 5 evidentiary value in support of the government’s case. Petitioner contends that any absence 6 of evidence cuts against Respondents, who bear the burden of proof at this stage in the 7 litigation. 8 Once a petition for a writ of habeas corpus is filed in federal court pursuant to 28 9 U.S.C. § 2241, the court must comply with the procedures set forth by 28 U.S.C. § 2243: 10 A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to 11 show cause why the writ should not be granted, unless it appears from the 12 application that the applicant or person detained is not entitled thereto. . . . The person to whom the writ or order is directed shall make a return certifying 13 the true cause of detention. . . . 14 The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts. 15 The return and all suggestions made against it may be amended, by leave of 16 court, before or after being filed. The court shall summarily hear and determine the facts, and dispose of the 17 matter as law and justice require. 18 28 U.S.C. § 2243. The Court previously determined that Petitioner was entitled to an 19 evidentiary hearing regarding the disputed fact of Petitioner’s birthplace. Based on the 20 evidence presented at the evidentiary hearing, the Court will “summarily hear and 21 determine” the disputed fact of Petitioner’s birthplace and citizenship. See 28 U.S.C. § 22 2243. The findings of fact in this case, set forth in the Court’s previous order, were not 23 disturbed by the Court of Appeals and are not repeated here. See ECF No. 167 at 4–27. 24 Petitioner claims in his habeas petition that he was born in Los Angeles in 1969 and 25 that, in 2011, CBP officials unlawfully refused to allow him to enter the United States and 26 removed him to Mexico, where he now resides. (ECF No. 1 ¶ 1–2, 13, 44). “[T]he habeas 27 petitioner generally bears the burden of proof.” Garlotte v. Fordice, 515 U.S. 39, 46 28 1 (1995). However, in this case, the Court of Appeals remanded with instructions to apply 2 the framework set forth in Mondaca-Vega to resolve the disputed fact of Petitioner’s 3 birthplace and adjudicate Petitioner’s claims for relief pursuant to 28 U.S.C. § 2241, 28 4 U.S.C. §§ 2201–02, Rule 65, and the Fifth and Fourteenth Amendments. Olivas, 743 F. 5 App’x at 891.3 6 The Mondaca-Vega court set forth the following framework: 7 The government bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence. . . . When, 8 however, the government offers evidence of foreign birth, a rebuttable 9 presumption of alienage arises, shifting the burden to the alleged citizen to prove citizenship. . . . Upon production by a petitioner of substantial credible 10 evidence of the citizenship claim, this presumption bursts and the burden 11 shifts back to the government to prove the respondent removable by clear and convincing evidence. 12
13 Id. at 419 (quotations and alterations omitted). In addition, the remand order states that the 14 government has the burden to set forth “evidence which is clear, unequivocal, and 15 convincing,” when “one has, over a long period of years, acted in reliance upon a decision 16 . . . admitting him as a citizen of the United States . . . .” Olivas, 743 F. App’x at 890–91 17 (citing Lung, 261 F.2d at 724). The plaintiff in Lung was born in 1899 in Hawaii and, in 18 1924, immigration authorities “rendered a decision admitting [the plaintiff] as a Hawaiian- 19 born citizen of the United States.” 261 F.2d at 720. In 1957, the government denied the 20 plaintiff’s passport application, and he brought an action seeking a declaratory judgment 21 of citizenship. Id. The Court of Appeals stated that the plaintiff was “required to establish 22 his citizenship by a fair preponderance of the evidence,” “the ordinary burden of proof 23 resting on plaintiffs in civil actions,” which was satisfied in that case by the 1924 decision 24 admitting the plaintiff as a citizen. Id. The Court of Appeals held that the government 25
26 3 In Mondaca-Vega, the Court of Appeals reviewed a removal proceedings order, stating, “[O]ur alienage- 27 determination cases often describe the government’s burden as proof by clear, unequivocal, and convincing evidence. . . . We use the term ‘alienage determination’ to refer to adjudications made pursuant 28 1 could rebut the plaintiff’s evidence only by “clear, unequivocal, and convincing” evidence. 2 Id. 3 In both Mondaca-Vega and Lung, the government had a clear and convincing 4 evidentiary burden at one or more stages in the analysis. In Mondaca-Vega, the 5 government starts out with a clear and convincing evidentiary burden, is relieved of that 6 burden if the presumption applies, and is left with that burden if the petitioner shows 7 substantial credible evidence of citizenship. 808 F.3d at 419. In Lung, the government 8 started out with no burden and had a clear and convincing evidentiary burden after the 9 plaintiff demonstrated his citizenship by a preponderance using the prior determination of 10 citizenship. 261 F.2d at 720. 11 The Court commences the assessment of Petitioner’s birthplace by applying the first 12 step of Mondaca-Vega framework to determine whether “the government presents 13 evidence of alienage.” Olivas, 743 F. App’x at 890. Regarding the first step of the 14 framework, “the government must prove alienage by clear, convincing, and unequivocal 15 evidence of foreign birth before the burden shifts to the respondent.” Murphy v. 16 Immigration & Naturalization Serv., 54 F.3d 605, 608 (9th Cir. 1995) (quotations omitted); 17 see also Tiznado-Reyna v. Barr, 753 F. App’x 431, 432 (9th Cir. 2019).4 The court in 18 Murphy stated, 19 [T]he “foreign born” presumption [i]s a special case where alienage is established by unrebutted direct proof by the alien’s own testimony at the 20 hearing or admission in evidence of an authenticated foreign birth certificate. 21 . . . [T]he government here produced no foreign birth certificate for Murphy. Nor 22 did Murphy admit in sworn testimony at the hearing that he was a foreign- 23 born alien. The government merely set out its prima facie case of alienage based on circumstantial evidence. Prima facie evidence is “evidence which, if 24 unexplained or uncontradicted, is sufficient to sustain a judgment in favor of 25 the issue which it supports, but which may be contradicted by other evidence.” 26 27 4 The Mondaca-Vega court discussed the second and third steps of the framework. 808 F.3d at 417–18. The Mondaca-Vega court did not expressly apply the first step; the petitioner had an authentic Mexican 28 1 The presumption established by a prima facie case does not reduce the government’s burden of persuasion, but merely requires the opponent to go 2 forward with evidence. . . . The burden of persuasion remains on the 3 government at all times to establish alienage by clear and convincing evidence . . . . 4
5 54 F.3d 605, 609–10 (9th Cir. 1995) (quoting Black’s Law Dictionary 1190 (6th ed. 1990)); 6 see also Garcia v. Holder, 472 F. App’x 467, 468 (9th Cir. 2012). 7 In this case, the evidence in the record does not include a foreign birth certificate or 8 statement by Petitioner that he was born in a country other than the United States. The 9 government relies upon impeachment and circumstantial evidence to carry the burden to 10 prove alienage by clear and convincing evidence and shift the burden to Petitioner. The 11 Court concludes that the government’s evidence is not sufficient to create the presumption 12 of alienage in this case. See Murphy, 54 F.3d at 608 (requiring “unrebutted direct proof by 13 the alien’s own testimony at the hearing or admission in evidence of an authenticated 14 foreign birth certificate”); see also Mondaca-Vega, 808 F.3d at 417, 419 (applying burden- 15 shifting framework where undisputed evidence included Mexican birth certificate and the 16 petitioner’s prior sworn statements of Mexican birth and citizenship); Corona-Palomera v. 17 Immigration & Naturalization Serv., 661 F.2d 814, 818 (9th Cir. 1981) (concluding 18 immigration judge properly applied burden-shifting alienage presumption when 19 uncontested evidence included Mexican birth certificate); Tiznado-Reyna, 753 F. App’x at 20 432 (affirming application of burden-shifting alienage presumption when evidence 21 included the undisputed fact of petitioner’s foreign birth). The burden of persuasion does 22 not shift to Petitioner at the first step of Mondaca-Vega. 23 Respondents have the burden to establish that Petitioner is an alien by clear and 24 convincing evidence. See Olivas, 743 F. App’x 890 (“[T]he burden shifts back to the 25 government to prove alienage by clear and convincing evidence.”) (emphasis added). 26 Clear and convincing evidence corresponds to “‘an abiding conviction that the truth of the 27 factual contentions’ at issue is ‘highly probable.’” Mondaca-Vega, 808 F.3d at 422 28 (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)); see also Therasense, Inc. v. 1 Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (stating that clear and 2 convincing evidence of intent to deceive can be established with “indirect and 3 circumstantial evidence” if intent to deceive is “the single most reasonable inference able 4 to be drawn from the evidence” and there are not “multiple reasonable inferences that may 5 be drawn”); Binion on Behalf of Binion v. Chater, 108 F.3d 780, 789 (7th Cir. 1997) (“If 6 evidence beyond a reasonable doubt is almost jet black on the black/white scale, clear and 7 convincing evidence . . . requires a dark charcoal shade.”). 8 In this case, Respondents rely upon the following statements to show that Petitioner 9 was not born in the United States: Petitioner’s grandmother stated on her visa application 10 that she was living in Mexico on the date Petitioner was born; and Petitioner stated to 11 immigration authorities that Perez, his mother, had previously claimed that he was born in 12 Mexico. Respondents rely upon the following testimony: Perez’s sister, Hortencia Garcia, 13 testified that she was not pregnant while Perez was pregnant, which is inconsistent with 14 the undisputed fact that Hortencia Garcia was pregnant and living in Los Angeles during 15 Perez’s pregnancy; and Perez’s sister, Anastacia Ontiveros, testified that the midwife who 16 delivered Petitioner lived in Tijuana, which is consistent with Perez stating in the Juarez 17 Statement that Petitioner was born in Tijuana. Respondents rely upon the following 18 evidence related to Petitioner’s birth certificate: the birth certificate states that Petitioner 19 was born at his aunt and uncle’s home, which is inconsistent with Perez’s testimony that 20 Petitioner was born at her parents’ home; and the birth certificate lacks the signature of an 21 attendant other than Petitioner’s mother, which is inconsistent with the undisputed fact that 22 Petitioner’s mother was not the sole attendant of Petitioner’s birth. Respondents rely upon 23 the following evidence related to Petitioner’s baptism: Petitioner’s aunts testified that 24 Petitioner was baptized as an infant, which is consistent with the family custom to baptize 25 children within weeks or months after birth, and inconsistent with the undisputed fact that 26 Petitioner was baptized in the United States at nine years old. Respondents rely upon 27 evidence that Perez registered with the Social Security Administration three months after 28 Petitioner was born and registered Petitioner’s birth five months after Petitioner was born. 1 Respondents rely upon the lack of evidence related to Petitioner’s prenatal care, which is 2 inconsistent with the family custom to obtain prenatal care. 3 The inconsistencies in prior statements and testimony, and the anomalies related to 4 Petitioner’s childhood records, supported the initial conclusion of the Court that Petitioner 5 failed to carry his burden demonstrate his citizenship by a preponderance; however, the 6 facts in the record do not carry the burden imposed upon the government by the Court of 7 Appeals in this case. See also ECF No. 249 at 34:6–15 (“THE COURT: . . . . [I]f the 8 burden doesn’t shift . . . with respect to your view of the evidence, then what happens? If 9 the burden doesn’t shift back and remains with the government -- MR. BETTWY: . . . . [I]f 10 the government does not satisfy the first step -- THE COURT: Yes. MR. BETTWY: -- in 11 the framework, then the government hasn’t met its burden of showing that he is an alien.”). 12 IV. CONCLUSION 13 Petitioner brought a claim for habeas relief pursuant to § 2241 on the grounds that 14 he is “a natural-born U.S. citizen” who was “unlawfully exiled to Mexico” when “CBP 15 officials unlawfully refused to allow him to enter the United States.” (ECF No. 1 ¶¶ 1–2). 16 “Under the Fourteenth Amendment, all people born in the United States are citizens of the 17 United States.” Rivera v. Ashcroft, 394 F.3d 1129, 1136–37 (9th Cir. 2005). The Fifth 18 Amendment entitles Petitioner to judicial review of his “non-frivolous claim of citizenship” 19 because the government lacks authority to remove a citizen from the United States. “If, as 20 [Petitioner] plausibly contends, he is a citizen forced to live outside U.S. borders, he is 21 clearly subject to greater restraints than other citizens.” Rivera, 394 F.3d at 1136, 22 superseded by statute on other grounds as stated in Iasu v. Smith, 511 F.3d 881, 886 (9th 23 Cir. 2007) (“Effective May 11, 2005, the REAL ID Act . . . eliminat[ed] all district court 24 habeas jurisdiction over orders of removal.”). The Court exercises § 2241 subject-matter 25 jurisdiction in this case “[b]ecause [Petitioner] has a colorable citizenship claim” and this 26 case “do[es] not involve” a “final order[] of removal.” See Flores-Torres, 548 F.3d at 711 27 (distinguishing Iasu). The Court previously concluded that Petitioner was “required to 28 establish his citizenship by a fair preponderance of the evidence,” “the ordinary burden of 1 proof resting on plaintiffs in civil actions.” See Lung, 261 F.2d at 720. In this case, the 2 government does not seek to remove a non-citizen or to expatriate a current citizen, see 3 Perez, 356 U.S. at 47 n. 2; Lim, 431 F.2d at 199, and “the habeas petitioner generally bears 4 the burden of proof,” see Garlotte, 515 U.S. at 46; Snook, 89 F.3d at 605; Berenyi, 385 5 U.S. at 670–71. 6 However, the Court of Appeals found that the government negligently failed to 7 commence removal proceedings and directed this Court to apply a case in which the 8 plaintiff “ha[d], over a long period of years, acted in reliance upon a decision . . . admitting 9 him as a citizen of the United States.” Olivas, 743 F. App’x at 890–91, 890 n.1 (quoting 10 Lung, 261 F.2d at 724). The Court of Appeals concluded that this case is an “alienage 11 determination case[]” subject to a legal standard that ordinarily governs judicial review of 12 removal proceedings and imposes a burden of proof on the government. Id. This Court 13 finds that Respondents have failed to carry the burden of proof that was imposed on the 14 government under the circumstances of this case, as determined by the Court of Appeals. 15 Respondents have failed to overcome Petitioner’s claim that he is entitled to habeas relief 16 on the grounds that excluding him from the United States violates his constitutional rights 17 as a natural-born U.S. citizen. 18 The Court has “broad discretion . . . in fashioning the judgment granting relief to a 19 habeas petitioner.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see also Preiser v. 20 Rodriguez, 411 U.S. 475, 487 (1973) (“[T]he federal habeas corpus statute does not deny 21 the federal courts power to fashion appropriate relief other than immediate release. Since 22 1874, the habeas corpus statute has directed the courts to determine the facts and dispose 23 of the case summarily, as law and justice require.”) (quotations omitted). Congress has 24 instructed the Court to “summarily hear and determine the facts, and dispose of the matter 25 as law and justice require.” 28 U.S.C. § 2243; see also Hilton, 481 U.S. at 775 (“[T]he 26 Court interpreted the predecessor of § 2243 as vesting a federal court ‘with the largest 27 power to control and direct the form of judgment to be entered in cases brought up before 28 it on habeas corpus.’”) (quoting In re Bonner, 151 U.S. 242, 327 (1894)). 1 IT IS HEREBY ORDERED that Petitioner is entitled to prevail on his claim for 2 ||habeas relief on the grounds that excluding him from the United States violates his 3 || constitutional rights as a natural-born U.S. citizen. Respondents are not entitled to exclude 4 || Petitioner from the United States on the grounds that Petitioner is not a natural-born U.S. 5 || citizen. 6 IT IS FURTHER ORDERED that Petitioner’s requests for a declaration invalidating 7 || orders removing Petitioner from the United States and a declaration of citizenship pursuant 8 |/to 28 U.S.C. §§ 2201-02, as well as Petitioner’s request that the Court enjoin Respondents 9 || from prohibiting Petitioner’s entry pursuant to Rule 65, are denied as moot. 10 IT IS FURTHER ORDERED that the Motion to Supplement the Record filed by 11 ||Respondents (ECF No. 235) is DENIED. 12 || Dated: August 22, 2019 BME: Me Z. Ma 13 Hon. William Q. Hayes 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28