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Tiznado-Reyna v. Holder

United States District Court, D. Arizona

June 8, 2016

Esteban Tiznado-Reyna, Petitioner,
v.
Eric Himpton Holder, Jr., Respondent.

          ORDER

          Jennifer G. Zipps United States District Judge

         Pending before the Court is a Motion for Summary Judgment filed by Respondent Attorney General Loretta E. Lynch on September 17, 2015. (Doc. 50.) Petitioner Esteban Tiznado-Reyna filed a response to the Motion on October 19, 2015 and Petitioner timely replied. (Docs. 56, 62.) Respondent seeks summary judgment on Plaintiff’s claim of United States citizenship under 8 U.S.C. § 1252(b)(5). For the reasons stated herein, the Court will deny the Motion.

         FACTUAL / PROCEDURAL BACKGROUND[1]

         Petitioner Esteban Tiznado-Reyna was born in Sasabe, Sonora, Mexico in April of 1974. (RSOF 1; PSOF 1.) Petitioner claims to be a United States citizen through his father, Jesus Diego Tiznado, whom he states was born in Topawa, Arizona on the Tohono O’odham reservation on November 12, 1922. (Doc. 50, p. 2; Doc. 56, p. 1; PCSOF 1.) The Tohono O’odham Nation is a Native American tribe comprised of approximately 28, 000 members with a reservation of 4, 460 square miles located west of Tucson, Arizona and spanning the U.S.-Mexico border for approximately 75 miles. See Tohono O’odham Nation, About (2014), http://www.tonation-nsn.gov/aboutton.aspx; see also Press Release, Tohono O’odham Nation Opposes New Immigration Law (May 20, 2010), available at www.tonation-nsn.gov. Historically, the Tohono O’odham tribe inhabited an area that encompassed northern Mexico but was eventually divided by the border between the United States and Mexico. See Tohono O’odham Nation, History & Culture (2014), http://www.tonation-nsn.gov/historyculture.aspx.

         Children born at home on the Tohono O’odham reservation in the 1920s were not issued birth certificates. (RSOF 22; PSOF 22.) On October 26, 1979, the State of Arizona issued Jesus Tiznado a delayed birth certificate that stated that he was born in Topawa, Arizona on November 12, 1922. (RSOF 6; PSOF 6.) Jesus Tiznado’s delayed birth certificate was based on four pieces of documentary evidence: (1) his certificate of baptism, which states his place of birth was Topawa, Arizona; (2) his school records, which indicate that he began attending school in the United States on October 29, 1928; (3) the birth certificate of his daughter, Adelaida Tiznado Reyna, which indicates that she was born in Topawa, Arizona; and (4) an affidavit from his friend, Francisco Moreno, dated January 11, 1977. (RSOF 7; PSOF 7.)

         Petitioner moved to the United States with his family in 1979 when he was five years old, and remained in the United States until he was removed to Mexico on March 17, 2000 by order of an immigration judge (“IJ”). (RSOF 34; PSOF 34.) Petitioner has been removed from the United States to Mexico three additional times since then. (RSOF 33; PSOF 33.)

         Petitioner has been charged with illegal re-entry on two occasions. On May 21, 2002, he was convicted on a guilty plea of illegal reentry after deportation. (RSOF 35; PSOF 35.) On June 21, 2006, Petitioner was indicted for criminal re-entry; he was acquitted of that charge on April 24, 2008 after a jury trial. (RSOF 38; PSOF 38.)

         On December 18, 2011, Petitioner reentered the United States and was placed in removal proceedings for a fifth time. (RSOF 41; PSOF 41.) The Department of Homeland Security reinstated his prior order of removal with the issuance of a Notice to Appear on April 13, 2012. (Id.) On February 8, 2013, an IJ found Petitioner removable under 8 U.S.C. § 1182(a)(6)(A)(i) and denied Petitioner’s motion to terminate proceedings based upon his claim of U.S. citizenship. (RSOF 42; PSOF, 42.) On appeal, the Board of Immigration Appeals adopted and affirmed the IJ’s decision. (RSOF 43; PSOF 43.) Petitioner filed a timely appeal in the United States Court of Appeals for the Ninth Circuit. (RSOF 44; PSOF 44.) On June 11, 2014, the Ninth Circuit Court of Appeals issued an Order finding that a genuine issue of material fact exists as to Petitioner’s citizenship and transferred the proceedings to the United States District Court for the District of Arizona for de novo review of Tiznado-Reyna’s citizenship claim pursuant to 8 U.S.C. § 1252(b)(5)(B). (Id.)

         APPLICABLE STANDARDS

         A. Summary Judgment Standard of Review

         In deciding a motion for summary judgment, the Court views the evidence and all justifiable inferences in the light most favorable to the party opposing the motion. See Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). Material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-25. Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party merely needs to point out to the Court the absence of evidence supporting its opponent’s claim; it does not need to disprove its opponent’s claim. Id. at 325; see also Fed. R. Civ. P. 56(c). If a moving party has made this showing, the non-moving party may not rest upon the mere allegations or denials of the adverse party’s pleading, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248-49; see also Fed. R. Civ. P. 56(c); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). To meet this burden, the non-moving party must only show “sufficient evidence supporting the claimed factual dispute… to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

         B. Burden of Proof for Citizenship Claims under 8 U.S.C. § 1252(b)(5).

         The government “bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence.” Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th Cir. 2015). When, however, the government offers evidence of foreign birth, a rebuttable presumption of alienage arises, shifting the burden to the alleged citizen to prove citizenship. Id. Upon production by a petitioner of “substantial credible evidence” of the citizenship claim, this presumption bursts and the burden shifts back to the government to “prov[e] the respondent removable by clear and convincing evidence.” Id.

         Accordingly, in order to prevail on its summary judgment motion, the government must demonstrate that there is no genuine issue of material fact as to Petitioner’s citizenship. Conversely, to survive summary judgment, Petitioner must demonstrate that a reasonable jury could conclude based on substantial, credible evidence that Petitioner acquired U.S. citizenship through his father’s birth in Arizona.

         ANALYSIS

         Respondent moves for summary judgment on the grounds that there is no genuine issue of material fact as to Petitioner’s nationality claim under 8 U.S.C. § 1252(b)(5)(B); Respondent contends that Petitioner cannot meet his burden of proving that his father, Jesus Tiznado, was born in the United States. Petitioner argues that Respondents are not entitled to summary judgment because (1) the Ninth Circuit’s Order transferring this matter to this Court precludes the granting of summary judgment; and (2) a genuine issue of material fact exists as to Petitioner’s citizenship claim.

         The Court concludes that the Ninth Circuit’s decision to transfer this matter is not determinative of the summary judgment motion, which this Court must review de novo. The Court also concludes that a genuine issue of material fact exists as to Petitioner’s citizenship claim because a reasonable jury could find by a preponderance of the evidence that Petitioner acquired citizenship through his father.

         A. The Ninth Circuit’s Order is Not Determinative ...


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