United States District Court, D. Arizona
Honorable Steven P. Logan, United States District Judge
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.
Findings of Fact
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.
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.
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.
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
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.
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.
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.
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,
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.
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)
Conclusions of Law 
Burden of Proof
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”).
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