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Tapia-Felix v. Barr

United States District Court, D. Arizona

May 15, 2019

Leonardo Tapia-Felix, Petitioner,
William P. Barr, U.S. Attorney General, Respondent.


          Honorable Steven P. Logan, United States District Judge

         On October 28, 2016, this proceeding was transferred to this Court for de novo review of Petitioner Leonardo Tapia-Felix's (the “Petitioner”) citizenship claim. Having carefully reviewed the evidence and the arguments of counsel as presented during the bench trial, the mandate of the Court of Appeals for the Ninth Circuit, and the written submissions provided to the Court since the case's remand (Docs. 114, 119, 122), the Court issues the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

         I. Findings of Fact[1]

         Petitioner Leonardo Tapia-Felix was born on June 16, 1972. Petitioner's mother, Rosa Maria Felix (“Felix”), was born in San Luis Rio Colorado, Sonora, Mexico on April 5, 1957, and Petitioner's father, Leonardo Tapia-Ambriz (“Tapia-Ambriz”), who is now deceased, was born on April 27, 1938. At the time of Petitioner's birth, Felix was 15 years old and Tapia-Ambriz was 34.

         On July 24, 1972, Petitioner's birth was registered in Mexico. The registration of birth listed his birthplace as San Luis Colorado, Sonora, Mexico, and was signed by both Felix and Tapia-Ambriz, as well as by Petitioner's maternal grandmother, Marcelina Felix, and his paternal aunt, Lilia Tapia, who signed as witnesses.

         Growing up, Petitioner lived in both Mexico and the United States. In September of 1990, Felix and Tapia-Ambriz signed a registration of birth in California, which listed Petitioner's birthplace as Santa Ana, California. Adelina Tapia, who is married to Tapia-Ambriz's brother, Sergio Tapia, also signed the registration as a supporting witness. The delayed registration of birth reflects that the registering officials relied on a baptismal certificate that showed Petitioner had been born on June 16, 1972 in Santa Ana, California, and baptized on December 17, 1972 at Our Lady Queen of Angels Church in Los Angeles, California. (Doc. 77-2 at 28) On November 2, 1990, a Delayed Registration of Birth was issued.

         On May 16, 2007, Petitioner obtained a United States passport. In 2008, Petitioner's daughter, Blanca Nayeli Tapia Ochoa (“Ochoa”), obtained a certificate of U.S. citizenship based on her derivative status through Petitioner.

         In 2008, Petitioner was charged with an unrelated crime in state court. At that time, an immigration check was performed that revealed he had been encountered by immigration officials on April 28, 1987 and on August 21, 1998. During those encounters, he had been determined to be a citizen of Mexico and was issued an alien registration number. An investigation pursued, and in 2009, immigration authorities obtained a copy of Petitioner's Mexican registration of birth, Mexican birth certificate, and Mexican National Registration Card that was issued on September 10, 2000. On January 13, 2011, U.S. Department of Homeland Security Special Agent Brian Wakefield interviewed Petitioner's mother at her residence, which was conducted in the Spanish language. Wakefield also wrote a sworn statement in the Spanish language on Felix's behalf, as she was illiterate. Felix signed the statement. The statement is purported to memorialize Felix's interview and attests, among other things, that Petitioner was born in Mexico and was taken to the United States when he was 40 days old.

         On February 15, 2012, the U.S. Department of State issued a letter to Petitioner informing him that, having considered Petitioner's Mexican birth certificate and Felix's 2011 statement, his United States passport was revoked. Ochoa's citizenship has not been revoked.

         On July 31, 2012, Petitioner was placed in removal proceedings, to which Petitioner asserted a claim of United States citizenship in response. In November 2012, an Affidavit to Amend a Record was submitted by two special agents to the California Office of Vital Records, which was appended to Petitioner's California Delayed Registration of Birth. The affidavit stated “Delayed Reg. of Birth obtained fraudulently. Registrant's original Mexican birth certificate obtained by U.S. Dept. of State.” (Exh. 62.)

         While his removal proceedings were ongoing, on May 8, 2012, Petitioner, through counsel, petitioned the Superior Court in San Luis Rio Colorado, Sonora, Mexico for an order declaring his Mexican birth certificate to be null and void. The petition was granted and the court entered a judgment of nullification that became final on December 11, 2012. The registration of birth was annotated by the Office of Civil Registry to reflect the court's judgment on December 13, 2012.

         After several rounds of hearings and decisions, on May 10, 2013, an immigration judge ordered Petitioner removed to Mexico. Petitioner appealed, and the case was remanded by the Board of Immigration Appeals (“BIA”) to allow Petitioner to offer additional evidence in support of his citizenship claim. Following a hearing on remand, on June 24, 2014, the immigration judge again found Petitioner to be removable as charged, and the decision was affirmed by the BIA on December 12, 2014. Petitioner sought review of that decision by the Ninth Circuit Court of Appeals. The Ninth Circuit found a genuine issue of material fact existed as to Petitioner's claim of United States citizenship, and the case was transferred to this Court for a de novo review of his citizenship claim.

         On December 1, 2016, a bench trial on the merits of this action was held. The Court heard the testimony of Petitioner, Felix, Agent Wakefield, Avelina Tapia, and Sergio Tapia. On March 10, 2017, the Court issued an Order (the “Trial Order”) finding that Petitioner was not a national of the United States of America (Doc. 107). Petitioner appealed the Trial Order (Doc. 109), and the Court of Appeals for the Ninth Circuit vacated the Trial Order and remanded the case (the “Mandate”) for further consideration of (i) the stipulation between Respondent William P. Barr (the “Government”) and Petitioner regarding Petitioner's baptism and (ii) the expert witness testimony of Gretchen Kuhner. (Doc. 112-2)

         II. Conclusions of Law [2]

         A. Burden of Proof

         At issue is a judicial determination of the nationality of Petitioner, in the nature of a declaratory judgment claim brought under 28 U.S.C. § 2201(a). See 8 U.S.C. § 1252(b)(5)(B) (if a “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”).

         There are “two sources of citizenship, and two only: birth and naturalization.” Miller v. Albright, 523 U.S. 420, 423-34 (1998). Here, Petitioner claims only citizenship by birth. The Government has presented evidence of Petitioner's foreign birth that gives rise to a rebuttable presumption of alienage, shifting the burden to Petitioner to establish a valid claim to citizenship. See Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th Cir. 2015); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n. 3 (9th Cir. 2009); Chau v. INS, 247 F.3d 1026, 1029 n. 5 (9th Cir. 2001). The parties have stipulated that because Petitioner was issued a U.S. passport and his daughter obtained a certificate of U.S. citizenship based on his purported status as a U.S. citizen, Petitioner has produced “substantial credible evidence” of his U.S. ...

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