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Alexander v. Sessions

United States District Court, D. Arizona

April 11, 2017

Roger Alexander, Petitioner,
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent.

          ORDER

          David G. Campbell, United States District Judge

         Petitioner Roger Alexander appealed a final order of removal issued by the Board of Immigration Appeals (“BIA”). Doc. 33-2. The Ninth Circuit found that there are genuine issues of material fact regarding Petitioner's nationality, and transferred the matter to this Court under 8 U.S.C. § 1252(b)(5)(B). Doc. 33. During a conference call with the Court, counsel for the parties expressed disagreement on the burden of proof to be applied in this proceeding. The Court requested memoranda from the parties regarding the relevant burden of proof. Docs. 39, 40, 41. The Court will apply the burden of proof outlined below.

         I. Section 1252(b)(5)(B).

         “[O]nce removal proceedings have been initiated, a petition for review under 8 U.S.C. § 1252(b)(5) is the only avenue by which a person may seek a judicial determination of his or her status as a national of the United States.” Chau v. I.N.S., 247 F.3d 1026, 1028 n.2 (9th Cir. 2001). Under this provision:

If the petitioner claims to be a national of the United States and 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 . . . 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.

8 U.S.C.A. § 1252(b)(5)(B).

         The Ninth Circuit retains jurisdiction over the petition, holding it in abeyance while it “refer[s] proceedings to the district court for the sole purpose of resolving a ‘genuine issue of material fact.'” Mondaca-Vega v. Lynch, 808 F.3d 413, 424 (9th Cir. 2015), cert. denied, 137 S.Ct. 36 (2016); see also Anderson v. Holder, 673 F.3d 1089, 1093 (9th Cir. 2012). The Ninth Circuit has expressed doubt as to whether a district court's conclusions under § 1252(b)(5)(B) are “separately appealable[, ]” emphasizing instead that such conclusions are a component of the judicial review of an order of removal. See Anderson v. Holder, 673 F.3d at 1093-94; Rose v. Sessions, No. 11-73778, 2017 WL 655776, at *2 (9th Cir. Feb. 17, 2017).

         II. Mondaca-Vega Burden Shifting.

         There has been some disagreement about the appropriate standard to be applied by the district court in a referred matter under § 1252(b)(5)(B). In 2015, the Ninth Circuit, sitting en banc, found no error where the district court, “[a]fter finding the petitioner had introduced sufficient evidence that he is a U.S. citizen, . . . shifted the burden to the government to rebut by ‘clear, unequivocal, and convincing' evidence[.]” Mondaca-Vega, 808 F.3d at 417. The district court in Mondaca-Vega had concluded that “[t]he petitioner bears the initial burden of proving United States citizenship by a preponderance of the evidence.” Mondaca-Vega v. Holder, No. CV-04-339-FVS, 2011 WL 2746217, at *9 (E.D. Wash. July 14, 2011). On review, the Ninth Circuit majority made no reference to the preponderance of the evidence standard mentioned by the district court. Instead, in describing the general standards that apply in such cases, the majority stated that the petitioner had the burden of producing “substantial credible evidence, ” after which the burden would shift to the government to produce clear, unequivocal, and convincing evidence:

The government “bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence.” Chau v. INS, 247 F.3d 1026, 1029 n. 5 (9th Cir. 2001). 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.” Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)[.]

Id. at 419.

         Thus, although the primary question in Mondaca-Vega was whether “clear, unequivocal, and convincing evidence” is tantamount to proof beyond a reasonable doubt (the majority said no, the standard is the same as the traditional “clear and convincing” evidence), the Court of Appeals endorsed a three-part burden-shifting approach under § 1252(b)(5)(B): (1) if the government offers evidence of foreign birth, (2) the petitioner must present “substantial credible evidence” of citizenship, (3) after which the government must counter with clear and convincing evidence. Id. at 419-20.

         Mondaca-Vega did not describe the level of proof required to meet the “substantial credible evidence” standard. In another immigration removal case, however, the Ninth Circuit explained that “[s]ubstantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir. 2007) (citation and quotation marks omitted); Rose, 2017 WL 655776, at *2 (“Substantial evidence is more than a mere scintilla, but less than a preponderance.”) (citation, quotation marks, and alterations omitted).

         The government argues that petitioner should be required in this case to prove his citizenship by a preponderance of the evidence. The government's briefing is not clear on whether the government views this as the only burden in the case, with Petitioner succeeding or failing on whether he can present a preponderance of the evidence, or whether the government is simply arguing that the second step of the three-step process described above requires a preponderance of the evidence. As the government argues in its reply that this is his “initial burden” (Doc. 41 at 6), ...


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