United States District Court, D. Arizona
G. Campbell, United States District Judge
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.
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).
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).
Mondaca-Vega Burden Shifting.
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.
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.
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).
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), ...