United States District Court, D. Arizona
ORDER AND OPINION [Re: Motion at Docket 44]
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED.
Defendant Eric H. Holder, Jr., United States Attorney General ("Defendant" or "Government"), filed a motion for summary judgment at docket 44. Defendant's statement of facts in support of the motion is at docket 45. Plaintiff Guadalupe Caballero ("Plaintiff" or "Caballero") filed a response at docket 48. Her response to Defendant's statement of facts is at docket 49, with supporting materials at dockets 50 and 51. Defendant's reply is at docket 52, and his reply to Plaintiff's additional facts is at docket 53. Oral argument was not requested and would not assist the court.
In September of 2007, Caballero pleaded guilty to Attempted Transportation of Marijuana for Sale and was given four years of supervised probation. Four years later Caballero was arrested for a probation violation, and the Government initiated removal proceedings.
During removal proceedings, Caballero claimed U.S. citizenship through acquisition. That is, while she was born in Mexico, she argued that she acquired U.S. citizenship through her father, Ramon Montoya, whom she asserted had acquired citizenship through his father, Roberto Montoya. However, Caballero later indicated that she was unable to provide sufficient evidence to rebut the presumption of alienage. The immigration judge therefore found that Caballero was removable.
Caballero did not raise the issue of acquired citizenship in her unsuccessful appeal to the Board of Immigration Appeals ("BIA"). She also did not raise the issue of citizenship in her petition for review with the Court of Appeals. The Court of Appeals, however, transferred the matter to this court for a de novo review of Caballero's citizenship claim pursuant to 8 U.S.C. § 1252 (b)(5)(B). Under § 1252(b)(5)(B) this court must make a decision on the issue of citizenship as if this action had been brought as a declaratory judgment action.
The parties conducted further discovery. The Government subsequently filed the pending motion for summary judgment, arguing that there is no genuine issue of material fact concerning Caballero's paternal grandfather's residency in the United States and her father's physical presence in the United States which would allow her to assert acquired citizenship.
III. STANDARD OF REVIEW
Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Ultimately, "summary judgment will not lie if the... evidence is such that a reasonable jury could return a verdict for the nonmoving party." However, summary judgment is mandated under Rule 56(c) "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
The moving party has the burden of showing that there is no genuine dispute as to any material fact. Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant. However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.
The Court of Appeals transferred Caballero's citizenship claim to this court pursuant to 8 U.S.C. § 1252(b)(5)(B) for a new hearing. Under §1252(b)(5)(B) the court is directed to make a decision on the citizenship claim "as if [it] had been brought in the district court under [the declaratory judgment statute]." Thus, while Caballero is the respondent in the removal proceedings, in this action Caballero is effectively a plaintiff seeking a declaratory judgment ...