Mondaca-Vega v. Holder

Filing

FILED OPINION (HARRY PREGERSON, SUSAN P. GRABER and CONSUELO M. CALLAHAN) DENIED. Judge: HP Dissenting, Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8603957]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR MONDACA -VEGA ,
Petitioner,

No. 03-71369

v.

Agency No.
A019-263-384

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 19, 2012—San Francisco, California
Filed April 25, 2013
Before: Harry Pregerson, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Pregerson

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SUMMARY*

Immigration
The panel denied Salvador Mondaca-Vega’s petition for
review of the district court’s findings, following a bench trial
pursuant to 8 U.S.C. § 1105a(a)(5) (now 8 U.S.C.
§ 1252(b)(5)), that he is not a United States citizen.
The panel held that the proper standard of review of the
district court’s findings of fact on petitioner’s nationality
claim is for clear error. The panel held that Lim v. Mitchell,
431 F.2d 197 (9th Cir. 1970), which would require de novo
review, has been effectively overruled because it relied on
cases that the Supreme Court subsequently repudiated. The
panel also held that the district court correctly placed the
burden on petitioner to prove his citizenship by a
preponderance of the evidence, and then properly shifted the
ultimate burden of proof to the government to prove by clear
and convincing evidence that he was removable.
The panel held that the district court’s key finding, that
petitioner is Salvador Mondaca-Vega, who was born in
Mexico and who never became a United States citizen, is not
clearly erroneous under the “clear and convincing” standard
of proof.
Dissenting, Judge Pregerson would find that petitioner is
an American citizen and would grant the petition. Judge
Pregerson wrote that the majority erred in holding that
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Pullman-Standard v. Swint, 456 U.S. 273 (1982) and
Anderson v. City of Bessemer City, 470 U.S. 564 (1985)
impliedly overruled the long line of Supreme Court and Ninth
Circuit cases holding that this court is required to
independently review citizenship cases. Judge Pregerson
would find that the government did not meet its burden to
prove by clear, unequivocal, and convincing evidence that
petitioner is not an American citizen.

COUNSEL
Martha H. Rickey, Northwest Immigrant Rights Project,
Granger, Washington; and Matt Adams, Northwest
Immigrant Rights Project, Seattle, Washington, for Petitioner.
Katherine E.M. Goettel, United States Department of Justice,
Civil Division, Office of Immigration Litigation, Washington,
D.C., for Respondent.

OPINION
GRABER, Circuit Judge:
Who is Petitioner? Is he Reynaldo Carlon Mondaca, a
native and citizen of the United States, or is he Salvador
Mondaca-Vega, a native and citizen of Mexico? The district
court determined that Petitioner is Salvador Mondaca-Vega
and, accordingly, that he is not a United States citizen.
Reviewing the district court’s findings for clear error and
finding none, we now deny the petition for review.

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FACTUAL AND PROCEDURAL BACKGROUND

We first reviewed Petitioner’s final order of removal in
2003. In considering his claim of citizenship,1 we noted
genuine issues of fact. Therefore, pursuant to 8 U.S.C.
§ 1105a(a)(5)—which now appears with only minimal
modifications at 8 U.S.C. § 1252(b)(5)—we transferred the
matter to the United States District Court for the Eastern
District of Washington to resolve Petitioner’s claim of United
States citizenship. Mondaca-Vega v. Ashcroft, 104 F. App’x
627 (9th Cir. 2004) (unpublished).
The district court held a bench trial, after which it made
extensive findings of fact. As the case reaches us, these
relevant underlying facts are undisputed:
On June 3, 1931, Salvador Mondaca-Vega was born to
Felix Mondaca and Josefa Vega in Mahone, Mexico.
Salvador’s birth was registered in El Fuerte, Sinaloa, Mexico,
later that month.
On July 17, 1931, Renoldo Mondaca was born to Marin
Mondaca and Antonia Carlon in Imperial, California.
Both birth certificates are in evidence, and both are
genuine.
No matter where he was born, Petitioner grew up in El
Fuerte, Sinaloa, Mexico. He traveled from Mexico to the

1

Petitioner also challenged some of the Board of Immigration Appeal’s
procedures, but those claims are moot after the district court proceedings
on the nationality claim.

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United States when he was about 20 years old, or in about
1951.
In 1952, a person claiming to be Salvador Mondaca
applied for a Social Security card. The applicant listed Felis
Mondaca as his father and Josefa Vega as his mother and
gave a birth date of April 13, 1931. His application was
rejected because he failed to establish United States
citizenship.
On May 11, 1953, a person named Salvador
Mondaca-Vega was served with a warrant by the Immigration
and Naturalization Service (“INS”) while detained in the
King County, Washington, jail. On May 19, the person who
had been served with the warrant was fingerprinted; the prints
are Petitioner’s.
On May 22, 1953, Petitioner was deported from the
United States under the name Salvador Mondaca-Vega.
On May 23, 1953, someone applied for a Social Security
card in Calexico, California, under the name Reynaldo C.
Mondaca. Handwriting analysis suggests, but does not firmly
establish, that it was Petitioner who signed the application.
The Social Security Administration issued a Social Security
card to Petitioner under the name Reynaldo C. Mondaca. He
has consistently used that Social Security number ever since.
Nonetheless, he continued to use the name Salvador
Mondaca-Vega even after receiving the Social Security card
in 1953. On September 15, 1954, for example, the INS
issued a warrant for the detention of Petitioner, who was
being held by the Yakima County, Washington, sheriff, under
the name Salvador Mondaca-Vega. While in custody,

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Salvador Mondaca-Vega was fingerprinted. The fingerprints
taken on that occasion are Petitioner’s.
On September 20, 1954, Petitioner gave a sworn, signed
statement to an INS official in Seattle. Therein he averred
that his name is Salvador Mondaca-Vega, that he was born on
“April 16, 1931, at El Puerte [sic], Sin., Mexico,” and that he
was a citizen of Mexico. He also stated that he had never
been lawfully admitted to the United States for any purpose
and that he had entered the United States “several times since
about 1949.” He admitted to having been “apprehended in
California a number of times and granted voluntary
departures to Mexico.” He also agreed that he had been
deported once on May 22, 1953. On September 20, 1954,
Petitioner was again granted voluntary removal to Mexico
under the name Salvador Mondaca-Vega.
In 1959, Petitioner began a relationship with the woman
whom he eventually married. They had nine children
together, of whom the first six were born in Mexico. The
children’s baptismal and birth records that are in evidence
show the father’s name as Reynaldo Mondaca.
On January 11, 1966, Petitioner was deported under yet
another name, Jose Valdez-Vega. In 1969, he was referred to
on his FBI Rap Sheet as Salvador Vega-Mondaca. At some
point, he appears to have stopped using the name Salvador
Mondaca-Vega altogether.
In the 1970s, Petitioner obtained certificates of citizenship
for four of his children, supported by an affidavit under the
name Reynaldo Mondaca. He also filed a relative immigrant
visa petition on behalf of his wife and two of his children,
again under the name Reynaldo Mondaca. The petition was

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approved, and the INS adjusted the status of the wife and one
of his children to that of lawful permanent resident.
On April 27, 1998, the Secretary of State issued a United
States passport to Petitioner under the name Reynaldo Carlon
Mondaca. Petitioner lost the passport and obtained a
replacement in 2005; but his passport was revoked in 2011.
Petitioner gave no explanation for why he used the name
“Salvador Mondaca-Vega” or why he continued to do so after
obtaining a social security card under the name “Reynaldo
Mondaca.” Nor did he provide any explanation for why he
stopped using the name “Salvador Mondaca-Vega” and
started using a different name.
After the bench trial, the district court ruled that Petitioner
had carried his initial burden of proving citizenship by a
preponderance of the evidence, because the INS had
determined that his wife and foreign-born children were
entitled to derivative adjustment of status and citizenship
through him and because the Secretary of State had issued
him a passport. Then the court shifted the burden to the
government to rebut Petitioner’s claim of citizenship by
“clear and convincing” evidence that the foregoing
determinations of citizenship were a product of fraud or error.
The court concluded that the government had carried its
heavy burden because, among other reasons, it was “highly
probable” that Petitioner’s 1954 sworn and signed statement
was truthful. Accordingly, the district court ruled that
Petitioner is not a United States citizen.
After the district court resolved the citizenship claim, we
issued an order to show cause why we “should not adopt the
district court’s findings and conclusions and deny the petition

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for review.” Mondaca-Vega v. Holder, No. 03-71369 (9th
Cir. Aug. 19, 2011) (order). Petitioner timely filed a showcause brief to challenge the district court’s decision.
STANDARD OF APPELLATE REVIEW
At the outset, the parties dispute the standard of review
that we should apply to the district court’s findings of fact.
Classic findings of fact lie at the heart of this case: Where
was Petitioner born? Which birth certificate is his? Is his
testimony credible? A legal consequence—United States
citizenship—depends on the answer to those questions, but
the law is not in doubt; only the facts are.
The government contends that Federal Rule of Civil
Procedure 52(a)(6) prohibits us from setting aside a district
court’s finding of fact unless it is clearly erroneous.
Petitioner counters that we should, instead, follow Lim v.
Mitchell, 431 F.2d 197 (9th Cir. 1970), and review de novo
the factual findings relating to his citizenship claim.
Interpretation of the Federal Rules of Civil Procedure is a
question of law, Jenkins v. Whittaker Corp., 785 F.2d 720,
736 (9th Cir. 1986), with respect to which we must follow
circuit precedent unless it is inconsistent with intervening
decisions of the Supreme Court or of this court sitting en
banc, Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir.
2003) (en banc). For the reasons that we will explain, Lim no
longer is good law, and we must review the district court’s
findings of fact for clear error.
Lim involved an application for a certificate of
citizenship. We wrote that, in such a case, we “must make an
independent determination as to whether the evidence
introduced by” the government sufficed to satisfy its burden

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of proof, and we undertook to “re-examine the facts.” Lim,
431 F.2d 199, 200 n.4; see also United States v. Delmendo,
503 F.2d 98, 100 n.2 (9th Cir. 1974) (“In reviewing
denaturalization based on claims that naturalization was
illegally or fraudulently obtained, we are not bound by the
district court’s findings even if they are not clearly
erroneous.” (citing Bechtel v. United States, 176 F.2d 741,
744 (9th Cir. 1949)).
Both Lim and Bechtel relied on Knauer v. United States,
328 U.S. 654 (1946). There, the Supreme Court had held, in
the context of a denaturalization proceeding, that the
reviewing court “reexamine[s] the facts to determine whether
the United States has carried its burden of proving . . . that the
citizen who is sought to be restored to the status of an alien
obtained his naturalization certificate illegally.” Id. at
657–58. Knauer, in turn, relied on Baumgartner v. United
States, 322 U.S. 665 (1944). In that case, the Court had held
that, because “[f]inding so-called ultimate ‘facts’ more
clearly implies the application of standards of law[,] . . . the
conclusion that may appropriately be drawn from the whole
mass of evidence is not always the ascertainment of the kind
of ‘fact’ that precludes consideration by this Court.” Id. at
671.2 The Supreme Court has since cabined much of the core
of Baumgartner:

2

Knauer and Baumgartner are the first in a line of cases extending
through Fedorenko v. United States, 449 U.S. 490, 506 (1981) (“[I]n
reviewing denaturalization cases, we have carefully examined the record
ourselves.” (citing Costello v. United States, 365 U.S. 265, 269–70 (1961);
Chaunt v. United States, 364 U.S. 350, 353 (1960); Nowak v. United
States, 356 U.S. 660, 663 (1958))).

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[T]his Court has on occasion itself indicated
that findings on “ultimate facts” are
independently reviewable. In Baumgartner v.
United States, 322 U.S. 665 (1944), the issue
was whether or not the findings of the two
lower courts satisfied the clear-andconvincing standard of proof necessary to
sustain a denaturalization decree. The Court
held that the conclusion of the two lower
courts that the exacting standard of proof had
been satisfied was not an unreviewable
finding of fact but one that a reviewing court
could independently assess. The Court
referred to the finding as one of “ultimate”
fact, which in that case involved an appraisal
of the strength of the entire body of evidence.
The Court said that the significance of the
clear-and-convincing proof standard “would
be lost” if the ascertainment by the lower
courts whether that exacting standard of proof
had been satisfied on the whole record were to
be deemed a “fact” of the same order as all
other “facts not open to review here.” Id. at
671.
....
Whatever Baumgartner may have meant
by its discussion of “ultimate facts,” it surely
did not mean that whenever the result in a
case turns on a factual finding, an appellate
court need not remain within the constraints
of Rule 52(a). Baumgartner’s discussion of
“ultimate facts” referred not to pure findings

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of fact—as we find discriminatory intent to be
in this context—but to findings that “clearly
[imply] the application of standards of law.”
[Id.]
Pullman-Standard v. Swint, 456 U.S. 273, 286 n.16 (1982)
(emphasis added) (alteration in original).
And the Supreme Court has rejected Baumgartner’s
remaining reasoning. Baumgartner stated:
[A] “finding of fact” may be the ultimate
judgment on a mass of details involving not
merely an assessment of the trustworthiness of
witnesses but other appropriate inferences that
may be drawn from living testimony which
elude print. The conclusiveness of a “finding
of fact” depends on the nature of the materials
on which the finding is based.
322 U.S. at 670–71 (emphasis added). But in Anderson v.
City of Bessemer City, 470 U.S. 564 (1985), the Court held
that the clearly erroneous standard applies
even when the district court’s findings do not
rest on credibility determinations, but are
based instead on physical or documentary
evidence or inferences from other facts. To
be sure, various Courts of Appeals have on
occasion asserted the theory that an appellate
court may exercise de novo review over
findings not based on credibility
determinations. This theory has an impressive
genealogy, having first been articulated in an

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opinion written by Judge Frank and
subscribed to by Judge Augustus Hand, but it
is impossible to trace the theory’s lineage
back to the text of Rule 52(a), which states
straightforwardly that “findings of fact shall
not be set aside unless clearly erroneous.”
That the Rule goes on to emphasize the
special deference to be paid credibility
determinations does not alter its clear
command: Rule 52(a) “does not make
exceptions or purport to exclude certain
categories of factual findings from the
obligation of a court of appeals to accept a
district court’s findings unless clearly
erroneous.”

Id. at 574 (citations omitted) (quoting Pullman-Standard,
456 U.S. at 287).
The dissent correctly notes that an echo of Baumgartner’s
reasoning can be heard in the Supreme Court’s decisions
regarding review of facts in the First Amendment context. In
Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 514 (1984), the Supreme Court held that “the
clearly-erroneous standard of [Rule 52(a)] does not prescribe
the standard of review to be applied in reviewing a
determination of actual malice in a case governed by [New
York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964)].”
Even there, though, the court limited its exception to Rule
52(a)’s general standard to the unique, substantive principle
of First Amendment law that was at issue in that case. See
Bose Corp., 466 U.S. at 514 n.31 (noting that there are “many
findings of fact in a defamation case that are irrelevant to the
constitutional standard . . . to which the clearly-erroneous

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standard of Rule 52(a) is fully applicable”). The Supreme
Court has given us no reason to extend Bose Corp.’s narrow
holding to this unrelated context.
In short, Lim and its progeny relied on implications drawn
from Knauer and Baumgartner that the Supreme Court
subsequently repudiated in Pullman-Standard and Anderson.
Because Lim is clearly irreconcilable with Pullman-Standard
and Anderson, it has been effectively overruled. See Miller,
335 F.3d at 900 (“[I]ssues decided by the higher court need
not be identical in order to be controlling. Rather, the
relevant court of last resort must have undercut the theory or
reasoning underlying the prior circuit precedent in such a way
that the cases are clearly irreconcilable. . . . In future cases of
such clear irreconcilability, a three-judge panel of this court
and district courts should consider themselves bound by the
intervening higher authority and reject the prior opinion of
this court as having been effectively overruled.”).
Having concluded that Lim does not compel de novo
review, we next must decide what standard does apply. The
district court held a bench trial pursuant to 8 U.S.C.
§ 1252(b)(5)(B), which provides for trial of a nationality
claim by the district court, “as if an action had been brought
in the district court under [the Declaratory Judgment Act].”
Rule 52(a) unambiguously requires that, in an action thus
tried by the court instead of a jury, the court “find the facts
specially” and that, on review, those factual findings be set
aside only if “clearly erroneous.” Fed. R. Civ. P. 52(a)(1),
(6). The Supreme Court’s decisions in Pullman-Standard and
Anderson make clear that there is no exception to that rule
merely because the facts found are determinative of
Petitioner’s ultimate claim. Nor have we found any other
applicable exception to Rule 52(a)’s general requirement that

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we review a court’s findings of fact in a civil case for clear
error. Accordingly, review for clear error is required. See,
e.g., Republic W. Ins. Co. v. Spierer, Woodward, Willens,
Denis & Furstman, 68 F.3d 347, 350 (9th Cir. 1995)
(applying “clearly erroneous” standard to review of district
court’s factual findings in declaratory judgment action).3
Before reviewing the district court’s findings of fact under
this standard, though, we consider another preliminary issue:
whether the district court applied the correct burden of proof.
DISTRICT COURT’S ALLOCATION OF
THE BURDEN OF PROOF4
Both Petitioner and the government contend that the
district court erred with respect to the parties’ burdens of
proof. In Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir.
2009), we set forth a burden-shifting framework for removal
proceedings:

3

W e acknowledge that the First Circuit, in United States v.
Zajanckauskas, 441 F.3d 32, 37–38 (1st Cir. 2006), held that clear-error
review does not apply to a district court’s factual findings in a
denaturalization proceeding. For the reasons explained in text, we find
our sister court’s reasoning unpersuasive.
4

“The selection of the appropriate burden of proof is a question of law
reviewed de novo.” Taisho Marine & Fire Ins. Co. v. M/V Sea-Land
Endurance, 815 F.2d 1270, 1274 (9th Cir. 1987). De novo review applies
not only to the assignment or allocation of the burden, Molski v. Foley
Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1046, 1048 (9th Cir.
2008), but also to the quantum of proof required, United States v. Gill,
280 F.3d 923, 929–31 (9th Cir. 2002).

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[T]he DHS [Department of Homeland
Security] bears the burden of establishing by
clear, unequivocal, and convincing evidence,
all facts supporting deportability. Evidence of
foreign birth gives rise to a rebuttable
presumption of alienage, shifting the burden
to the alleged citizen to prove citizenship.
Upon his production of substantial credible
evidence in support of his citizenship claim,
the presumption of alienage is rebutted. The
DHS then bears the ultimate burden of
proving the respondent removable by clear
and convincing evidence.
Id. at 737 n.3 (citations omitted).
The government first argues that the district court failed
to place the burden on Petitioner to prove his citizenship by
a preponderance of the evidence before shifting the burden of
proof to the government. We are not persuaded that the
district court erred.
The court properly looked first to Petitioner’s evidence of
citizenship. In addition to introducing a passport, Petitioner
produced a genuine United States birth certificate and
presented corroborating testimony from family members to
support his averment that he is the person identified on that
birth certificate. That information constituted “substantial
credible evidence in support of [Petitioner’s] citizenship
claim” and was therefore sufficient under Ayala-Villanueva.
Id. Any presumption of alienage was thereby rebutted, and
the government then bore the “ultimate burden” of proving
that Petitioner was removable. Id.

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Next, Petitioner contends that the district court erred in
requiring the government to prove alienage only by “clear
and convincing” evidence instead of “clear, unequivocal, and
convincing” evidence. (Emphasis added.) According to
Petitioner, the term “unequivocal” raises the government’s
burden to something higher than the clear-and-convincing
standard—perhaps equal to or even higher than the level of
proof “beyond a reasonable doubt” that is required to support
a criminal conviction. We reject Petitioner’s argument and
hold that the two formulations of the government’s burden of
proof in removal proceedings are indistinguishable.
It is true, as Petitioner points out, that in at least two cases
we have articulated the government’s burden for disproving
citizenship as “clear, unequivocal, and convincing” evidence,
without expressly equating that formulation to the more
common “clear and convincing” standard. Lim, 431 F.2d at
199; Lee Hon Lung v. Dulles, 261 F.2d 719, 723–24 (9th Cir.
1958) (equating the stated standard of proof with the “rule
which obtains in denaturalization cases” (citing
Schneiderman v. United States, 320 U.S. 118, 123, 125
(1943))). In many cases, though, we have used the two
phrases interchangeably to describe a single standard. See,
e.g., United States v. Arango, 670 F.3d 988, 992 (9th Cir.
2012) (using the two formulations interchangeably);
Ayala-Villanueva, 572 F.3d at 737 n.3 (same); Lopez-Chavez
v. INS, 259 F.3d 1176, 1180–81 (9th Cir. 2001) (same);
Friend v. Reno, 172 F.3d 638, 646 (9th Cir. 1999) (describing
Schneiderman as setting forth a “clear and convincing”
standard); Murphy v. INS, 54 F.3d 605, 608–10 (9th Cir.
1995) (using the two formulations interchangeably and
explaining the standard by quoting Modern Federal Jury
Instructions, Model Civil Jury Instructions for the Ninth
Circuit § 5.02, 9-27 (Ninth Circuit Jury Committee 1993)).

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Indeed, we have found no post-Anderson case in which we
differentiated “clear and convincing” from “clear,
unequivocal, and convincing.”
Petitioner contends that the Supreme Court differentiated
the two standards in Addington v. Texas, 441 U.S. 418, 432
(1979), and that the term “unequivocal” heightens the burden
of proof. We do not read Addington to require the
government to meet a unique burden of proof in citizenship
matters.
In Addington, the Court considered the standard of proof
required under the Due Process Clause of the Fourteenth
Amendment to support an individual’s involuntary and
indefinite civil commitment for mental illness. Id. at 419–20.
The trial court had instructed the jury to complete a verdict
form that asked whether “clear, unequivocal and convincing
evidence” supported the commitment. Id. at 421. The
Supreme Court held that due process required “clear and
convincing” evidence in civil commitment proceedings and
that the trial court’s “clear, unequivocal, and convincing”
satisfied that minimum. Id. at 433. The Court did not decide
whether the word “unequivocal” necessarily set the standard
higher than the constitutional requirement. Rather, it
remanded the case to allow the state courts to determine
whether, as a matter of state law, the two formulations were
equivalent. Id.
In reaching its result, the Addington opinion suggested
that, whatever Texas state law might require, federal law
generally recognizes a “continuum” containing only “three
standards or levels of proof.” Id. Specifically, it identified
the “mere preponderance of the evidence” standard; the
“beyond a reasonable doubt” standard; and an “intermediate

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standard, which usually employs some combination of the
words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing.’” Id.
at 423–24 (emphases added). As one example of a case in
which the intermediate standard applies, Addington cited
Schneiderman, the denaturalization case. Id. at 432. Thus,
the Addington decision expressly recognized that, in
citizenship cases, the necessary level of proof reflects the
general intermediate standard—one that certainly falls below
the “beyond a reasonable doubt” standard of proof applied in
criminal prosecutions. Moreover, the Court, by resting its
reasoning on the premise that three standards are generally
recognized, implicitly precluded Petitioner’s argument that a
semantic variation in how the intermediate standard is
articulated changes its substantive requirements.
Two years later, in California ex rel. Cooper v. Mitchell
Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981) (per
curiam), the Supreme Court again observed that “[t]hree
standards of proof are generally recognized” under federal
law. With respect to the intermediate standard, “[t]he precise
verbal formulation . . . varies, and phrases such as ‘clear and
convincing,’ ‘clear, cogent, and convincing,’ and ‘clear,
unequivocal, and convincing’ have all been used.” Id. at 93
n.6. As in Addington, the Court declined to recognize any
distinction among the various formulations of the
intermediate standard.
Indeed, the Supreme Court itself has used the phrases
“clear, unequivocal, and convincing” and “clear and
convincing” interchangeably. In Baumgartner, the Court
emphasized “the importance of clear, unequivocal, and
convincing proof” to permit denaturalization. 322 U.S. at 671
(emphasis added) (internal quotation marks omitted). Yet in
Anderson, the Court characterized Baumgartner as presenting

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the issue “whether or not the findings of the two lower courts
satisfied the clear-and-convincing standard of proof
necessary to sustain a denaturalization decree.” 456 U.S. at
286 n.16 (emphasis added).
For those reasons, we hold that the two formulations of
the government’s burden in removal proceedings that have
appeared in our cases both require the same intermediate
quantum of proof.5 In sum, then, the district court did not err
in shifting the burden of proof to the government, nor did it
err in selecting the “clear and convincing” formulation when
assigning the level of proof that the government had to meet.
DISTRICT COURT’S FINDINGS OF FACT
Finally, we turn to Petitioner’s claim that the district court
erred in finding that he is Salvador Mondaca-Vega, a native
and citizen of Mexico. As we have held, we review the
court’s factual findings for clear error.
[A] finding is “clearly erroneous” when
although there is evidence to support it, the
reviewing court on the entire evidence is left
with the definite and firm conviction that a
mistake has been committed. . . . If the
district court’s account of the evidence is
plausible in light of the record viewed in its
5

The parties do not dispute what constitutes “clear and convincing”
evidence, if that standard applies. Generally, “clear and convincing”
evidence requires more than a mere preponderance of the evidence. It
consists of evidence that “indicat[es] that the thing to be proved is highly
probable or reasonably certain.” United States v. Jordan, 256 F.3d 922,
930 (9th Cir. 2001) (alteration in original) (quoting Black’s Law
Dictionary 577 (7th ed. 1999)).

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entirety, the court of appeals may not reverse
it even though convinced that had it been
sitting as the trier of fact, it would have
weighed the evidence differently. Where
there are two permissible views of the
evidence, the factfinder’s choice between
them cannot be clearly erroneous.

Anderson, 470 U.S. at 573–74 (internal quotation marks
omitted); see also United States v. Hinkson, 585 F.3d 1247,
1261 (9th Cir. 2009) (en banc) (“[T]he scope of our review
limits us to determining whether the trial court reached a
decision that falls within any of the permissible choices the
court could have made. In other words, the Supreme Court’s
precedent convinces us that any ‘definite and firm conviction’
of the reviewing court must still include some measure of
deference to the trial court’s factual determinations.”).
Credibility findings demand even greater deference.
Anderson, 470 U.S. at 575; see also Allen v. Iranon, 283 F.3d
1070, 1078 n.8 (9th Cir. 2002). When applying this standard
of review, we necessarily incorporate an understanding of the
appropriate burden of proof in the district court. See
Marsellus v. Comm’r, 544 F.2d 883, 885 (5th Cir. 1977)
(holding that a finding of fraud may be reversed only for clear
error, but that the finding must be judged in view of the “clear
and convincing” burden of proof); see also MacDonald v.
Kahikolu, Ltd., 581 F.3d 970, 976 (9th Cir. 2009) (reviewing
for clear error the district court’s finding that the evidence
clearly and convincingly established a fact); EEOC v.
Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir.
1984) (reviewing for clear error the district court’s factual
conclusion that a party had sustained its burden of proving
that a statutory provision applied).

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That said, some of the challenged findings are not
findings at all. For example, the district court opined that the
most probable reason for Petitioner’s transition from using
the name Salvador Mondaca-Vega to using the name
Reynaldo Carlon Mondaca was his marriage, and his desire
to obtain benefits that could flow to him and his family from
using the name of a United States citizen. This observation
is not so much a finding as it is a part of the court’s reasoning
when deciding that Petitioner was not a credible witness. Nor
was this observation a necessary, or even a particularly
important, reason why the court disbelieved Petitioner.
Petitioner does not challenge the accuracy of the other
reasons that the district court gave: that Petitioner routinely
used the name Salvador Mondaca-Vega throughout the 1950s
and 1960s, that he began to use the name Reynaldo C.
Mondaca later, that he offered no explanation whatsoever for
why he stopped using one name and started using the other,
and that his testimony in court was inconsistent with his
earlier testimony before an immigration judge.6
Some of the dispute centers on how the district court
chose to weigh evidence, and on which evidence it chose to
address explicitly in its decision. These arguments essentially
recapitulate Petitioner’s request for us to reweigh the
evidence anew, which we may not do.
Some of the challenged findings are not clearly erroneous.
We will discuss four examples.
1. The district court found that Petitioner accepted
voluntary departure “ten to twenty times” under the name
6

The same reasoning obtains with respect to the district court’s
conjecture as to the reasons why Petitioner took various other actions.

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Salvador Mondaca-Vega. In support, the court cited the
parties’ agreed fact: “At his 1998 immigration court hearing,
Petitioner stated that he accepted voluntary departure ten to
twenty times.”
Petitioner disputes the finding that linked all the
departures to the name Salvador Mondaca-Vega because he
accepted voluntary departure under a different name, “Jose
Vega-Valdez,” at least once. We are not persuaded.
Petitioner admitted that he had accepted voluntary
departure “ten to twenty times” and that he went by Salvador
Mondaca-Vega during the relevant time period. Moreover,
Petitioner’s fingerprints are associated with FBI records that
document his deportation or voluntary departure on at least
five separate occasions, four of which occurred under the
name Salvador Mondaca-Vega. Notwithstanding a single
aberration—the admitted use of an alias for one voluntary
departure—the district court reasonably inferred that
Petitioner did accept voluntary departure ten to twenty times
under the name Salvador Mondaca-Vega. See United States
v. Bucher, 375 F.3d 929, 931 (9th Cir. 2004) (“[F]acts and
reasonable inferences from those facts are the province of the
trier of fact.”). We see no clear error.
2. Likewise, the district court did not clearly err in
finding that Petitioner was deported in July 1953 under the
name Salvador Mondaca-Vega. Petitioner unquestionably
was detained in July 1953. It was reasonable for the court to
infer that he also was deported then, in view of his admission
that he was removed on several occasions under that name.
3. Similarly, we see no clear error in the district court’s
adverse credibility finding with respect to Petitioner’s wife.

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She was unable to testify in the district court because she died
before trial. For that reason, the district court relied on her
1994 sworn statement and the transcript of her 1998
testimony before the immigration judge. The district court’s
adverse credibility determination rested on, among other
things, inconsistencies in her initial sworn statement, which
twice stated that Petitioner was born in Mexico, and a lack of
intimate details in that testimony. Those grounds, which the
record bears out, suffice to support the adverse credibility
determination under the deferential standard of review
enunciated in Rule 52(a)(6).
It is well settled that a fact-finder may rely on
inconsistencies to support an adverse credibility
determination. See, e.g., Berry v. Astrue, 622 F.3d 1228,
1235 (9th Cir. 2010) (holding that “inconsistencies . . .
adequately support the [administrative law judge’s (“ALJ”)]
adverse credibility finding”); see also United States v.
McCarty, 648 F.3d 820, 829 (9th Cir. 2011) (observing that
the district court “based its credibility determination on
inconsistencies in [a witness’] testimony”). Here, the trial
court identified inconsistencies that were particularly
significant because they involved the very fact at issue—the
place of Petitioner’s birth.
In addition, trial courts are generally permitted to evaluate
credibility of testimony by assessing its level of detail. See
Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)
(holding that the level of detail in testimony is a “relevant
factor” in the “totality of the circumstances” test of credibility
employed by immigration judges); see also Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (allowing an ALJ
to employ “ordinary techniques of credibility evaluation,”
which include discrediting “vague” testimony); Sparkman v.

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Comm’r, 509 F.3d 1149, 1156 (9th Cir. 2007) (“The Tax
Court, describing [a witness’] testimony as ‘vague, contrived,
and non-credible,’ plainly did not believe her, and the Tax
Court, like any other court, may disregard uncontradicted
testimony by a taxpayer where it finds that testimony lacking
in credibility.” (some internal quotation marks omitted)).
4. The court permissibly took judicial notice of distances
between geographical points. A “court may take judicial
notice of undisputed geographical facts.” Muckleshoot Tribe
v. Lummi Indian Tribe, 141 F.3d 1355, 1358 n.4 (9th Cir.
1998).
Nevertheless, Petitioner correctly identifies a few findings
that are clearly erroneous: that Petitioner was deported in
July 1951, September 1951, and November 1952 (the
government concedes error as to these specific dates); and
that in 1953 one had to present a birth certificate in order to
obtain a Social Security card (as to which there is no evidence
in the record, and no document of which the court could take
judicial notice).7
The crucial question then becomes whether the essential
findings—that Petitioner is Salvador Mondaca-Vega, who
was born in Mexico and who never became a United States
citizen—are clearly erroneous when those erroneous findings
are taken out of the mix. We easily conclude that, taken in
the context of the entire record and the findings as a whole,
the errors pertain to inconsequential points. See Societe
Generale de Banque v. Touche Ross & Co. (In re U.S. Fin.

7

A judge may not take judicial notice in reliance on personal
experience. United States v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th Cir.
2007). That is what occurred here.

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Sec. Litig.), 729 F.2d 628, 630 (9th Cir. 1984) (noting that we
may affirm in reliance on any evidence in the record that
supports the trial court’s judgment). In view of the many
undisputed facts and the additional non-erroneous subordinate
findings, we hold that the district court’s key finding, that
Petitioner is Salvador Mondaca-Vega, is not clearly erroneous
under the “clear and convincing” standard of proof.
Petition DENIED.

PREGERSON, Circuit Judge, dissenting:
The Supreme Court has long held that when the priceless
right of United States citizenship is at stake, the government
must prove its case by clear, unequivocal, and convincing
evidence. Integral to the government’s heavy burden of
proof, the Supreme Court established that we are required to
independently review such cases and must scrutinize the
record ourselves in order to safeguard the right of citizenship.
Our precedents have faithfully and consistently followed the
Supreme Court’s instructions.
On dubious grounds, the majority declares that in
Pullman-Standard v. Swint, 456 U.S. 273 (1982) and
Anderson v. City of Bessemer City, N.C., 470 U.S. 564
(1985), the Supreme Court impliedly overruled the long line
of Supreme Court and Ninth Circuit cases holding that we are
required to independently review citizenship cases. See
Fedorenko v. United States, 449 U.S. 490 (1981); Costello v.
United States, 365 U.S. 265 (1961); Chaunt v. United States,
364 U.S. 350 (1960); Nowak v. United States, 356 U.S. 660
(1958); Knauer v. United States, 328 U.S. 654 (1946);

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Baumgartner v. United States, 322 U.S. 665 (1944); United
States v. Delmendo, 503 F.2d 98 (9th Cir. 1974); Lim v.
Mitchell, 431 F.2d 197 (9th Cir. 1970); Stacher v. United
States, 258 F.2d 112 (9th Cir. 1958).
The majority concludes that when the government seeks
to revoke citizenship or to deport a petitioner who claims to
be a citizen, Federal Rules of Civil Procedure Rule 52(a)’s
clear error standard of review applies.
I disagree.
Independent review is required. Here, the government has
not met its burden to prove by clear, unequivocal, and
convincing evidence that Petitioner is not an American
citizen.
I. THE RIGHT OF CITIZENSHIP
“Citizenship in the United States of America is among our
most valuable rights.” Gorbach v. Reno, 219 F.3d 1087, 1098
(9th Cir. 2000) (en banc). It is the right that “protects our
life, liberty, and property from arbitrary deprivation.” Id.
What is more, all of the opportunities we seek to pass onto
our children, “depend on [our children’s] secure rights to stay
in this country and enjoy its guarantees of life, liberty, and
property, and the domestic peace and prosperity that flow
from those guarantees.” Id. at 1099.
“[T]o deprive a person of his [or her] American
citizenship is an extraordinarily severe penalty.” Klapprott
v. United States, 335 U.S. 601, 612 (1949). “To deport one
who so claims to be a citizen obviously deprives him of
liberty,” and “[i]t may result also in loss of both property and
life, or of all that makes life worth living.” Ng Fung Ho v.
White, 259 U.S. 276, 284 (1922). Proceedings determining
the loss of citizenship place “the fate of a human being . . . at

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stake.” Knauer v. United States, 328 U.S. 654, 659 (1946)
(comparing denaturalization to deportation).
II. THE GOVERNMENT’S BURDEN OF PROOF
I believe that the majority gives short shrift to the policies
that underlay the government’s burden of proof and the
Supreme Court’s formulation of that burden for citizenship
cases. Because of “grave consequences to the citizen,” to
revoke his or her citizenship “the evidence must indeed be
‘clear, unequivocal, and convincing’ and not leave ‘the issue
in doubt.’” Chaunt v. United States, 364 U.S. 350, 353
(1960) (quoting Schneiderman v. United States, 320 U.S. 118,
125, 158 (1943)). This is a “heavy” burden of proof.
Fedorenko v. United States, 449 U.S. 490, 505 (1981).1
The government’s burden of proof in deportation
proceedings is identical to the burden of proof in
denaturalization proceedings. This is so because the Supreme
Court has analogized deportation to denaturalization and
concluded that “[n]o less a burden of proof is appropriate in
deportation proceedings.” Woodby v. INS, 385 U.S. 276,
285–86 (1966) (finding “many resident aliens have lived in
this country longer and established stronger family, social,
and economic ties here than some who have become

1

Our citizenship cases have consistently described the “clear,
unequivocal, and convincing” burden of proof in accordance with the
Supreme Court’s characterization as a heavy burden which does not leave
the issue in doubt. See, e.g., United States v. Arango, 670 F.3d 988, 992
(9th Cir. 2012) (citizenship case stating that the “clear, unequivocal, and
convincing” burden of proof is a “heavy burden”; the government’s
evidence “must not leave the issue in doubt” (internal quotations and
citations omitted)); United States v. Dang, 488 F.3d 1135, 1139 (9th Cir.
2007) (same); Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970) (same).

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naturalized citizens”); Alocozy v. USCIS, 704 F.3d 795, 799
(9th Cir. 2012). In deportation proceedings concerning a
petitioner’s claim of United States citizenship, the
government bears the “ultimate burden” of establishing
foreign birth by “clear, unequivocal, and convincing
evidence.”2 Chau v. INS, 247 F.3d 1026, 1029 n.5 (9th Cir.
2001); Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir.
2009).
The Supreme Court has emphasized that the high burden
of proof in citizenship cases acknowledges that “[n]ew
relations and new interests flow, once citizenship has been
granted.” Baumgartner v. United States, 322 U.S. 665, 675
(1944). In Baumgartner, the Supreme Court rejected the
government’s attempt to “make[] an alien out of a man ten
years after he was admitted to citizenship.” Id. at 677. In this
case, the government seeks to revoke citizenship claimed by
an eighty-one year old man who contends he was born an
American citizen and whose children all derived citizenship
or legal permanent resident status through him over thirtyfive years ago. The “[s]evere consequences” arising from the
loss of citizenship may be “aggravated when the person has
enjoyed his citizenship for many years.” Costello v. United
States, 365 U.S. 265, 269 (1961). All the blessings of United
States citizenship “should not be undone unless the proof is

2

In 1961, Congress enacted 8 U.S.C. § 1105a(a)(5), which now appears
with minimal modification at 8 U.S.C. § 1252(b)(5), that codified judicial
review of deportation orders “in which the person subject to deportation
claims to be a United States citizen.” Agosto v. INS, 436 U.S. 748,
752–53 (1978). “In carving out this class of cases, Congress was aware
of [the Supreme Court’s] past decisions holding that the Constitution
requires that there be some provision for de novo judicial determination
of claims to American citizenship in deportation proceedings.” Id. at 753;
see, e.g., Ng Fung Ho, 259 U.S. at 285.

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compelling that [citizenship] which was granted was [not
properly] obtained.” Baumgartner, 322 U.S. at 675.
III. STANDARD OF APPELLATE REVIEW
A. The Crucial Role of Independent Review in
Citizenship Cases
The majority fails to recognize that our exercise of
independent review in citizenship cases plays a crucial role in
assuring that the government’s heavy burden of proof has
been met. In Baumgartner, the Supreme Court instructed that
the government’s heavy burden to revoke citizenship “would
be lost” if the lower courts’ determination “whether that
exacting standard of proof had been satisfied” was not open
to independent review by the appellate court. Baumgartner,
322 U.S. at 671 (internal citation omitted). Consequently, the
appellate court must make its own determination whether “the
evidence . . . measure[s] up to the standard of proof which
must be applied to [a denaturalization] case.” Id. at 672.
Baumgartner explained that this standard of appellate review
“is usually differentiated from review of ordinary questions
of fact by being called review of a question of law.” Id. at
671.
Independent appellate review is justified, much like the
government’s heavy burden of proof, in light of the valuable
rights at stake. See Edward H. Cooper, Civil Rule 52(a):
Rationing and Rationalizing the Resources of Appellate
Review, 63 Notre Dame L. Rev. 645, 668 (1988) (“The
sweeping review practiced in Baumgartner was explained in
part on the basis of the same policies as require clear
proof. . . . [T]he Court was surely right to take a close look.”).
The Supreme Court has emphasized that because “[t]he issue

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in [denaturalization] cases is so important to the liberty of the
citizen[,] the weight normally given concurrent findings of
two lower courts does not preclude reconsideration here.”
Chaunt v. United States, 364 U.S. 350, 353 (1960). “For
denaturalization, like deportation, may result in the loss ‘of
all that makes life worth living.’” Knauer, 328 U.S. at 659
(quoting Ng Fung Ho, 259 U.S. at 284). If the law were
otherwise, “valuable rights” would be vulnerable to “the
political temper of majority thought and the stresses of the
times.” Id. at 658–59 (internal quotations and citation
omitted).
Since Baumgartner, an unbroken line of Supreme Court
cases has held that when citizenship is at stake, the appellate
court makes an independent review of the record to determine
whether the government met its heavy burden to present
clear, unequivocal, and convincing evidence to prove its case.
See, e.g., Fedorenko, 449 U.S. at 506 (explaining “in
reviewing denaturalization cases, we have carefully examined
the record ourselves” (citations omitted)); Costello v. United
States, 365 U.S. 265, 272 (1961) (“examin[ing] the record to
determine if the evidence leaves ‘the issue in doubt’”);
Chaunt, 364 U.S. at 353 (stating reconsideration is
appropriate given the rights at stake); Nowak v. United States,
356 U.S. 660, 661-62 (1958) (explaining “[w]here citizenship
is at stake the Government carries [a] heavy burden” and “it
becomes our duty to scrutinize the record with the utmost
care”); Knauer, 328 U.S. at 657 (“We reexamine the facts to
determine whether the United States has carried its burden of
proving [denaturalization] by ‘clear, unequivocal, and
convincing’ evidence, which does not leave ‘the issue [of
citizenship] in doubt. . . .’” (citation omitted)).

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Our circuit precedent accordingly holds that when
citizenship is at stake, “[we] must make an independent
determination as to whether the evidence introduced by the
[government] was ‘clear, unequivocal, and convincing.’”
Lim, 431 F.2d at 199 (citation omitted). In Lim v. Mitchell,
we reviewed an action initiated by petitioner Lim against the
Attorney General of the United States for a judgment
declaring Lim to be a citizen of the United States. Id. at
198–99. We did not hesitate to apply the independent
appellate review that had been established in denaturalization
precedents because the denial of Lim’s claim to citizenship
was “in its consequences ‘more serious than a taking of one’s
property, or the imposition of a fine or other penalty.’” Id. at
199 (quoting Schneiderman, 320 U.S. at 122).3 In our view,
a judgment declaring a petitioner to be a non-citizen has the
same “practical effect . . . [as] a decision favorable to the
Government in a denaturalization case” because “the
individual is stripped of . . . the ‘priceless benefits’ which
derive from the status of citizenship.” Lee Hon Lung v.
Dulles, 261 F.2d 719, 720, 724 (9th Cir. 1958) (quoting
Schneiderman, 320 U.S. at 122).4 Thus, under Lim, a
3
A person “may pursue a citizenship claim in two ways.” Lopez v.
Holder, 563 F.3d 107,110 (9th Cir. 2009) (internal quotations and citation
omitted). A person may: (1) “assert citizenship as a defense to a removal
proceeding,” if unsuccessful, and after exhausting administrative
remedies, he may petition for a judicial declaration of citizenship under
8 U.S.C. § 1252(b); or (2) “seek proof of citizenship by filing an
application for citizenship under 8 U.S.C. § 1452(a),” if it is denied, and
after exhausting administrative remedies, he may petition for a judicial
declaration of citizenship under 8 U.S.C. § 1503. Id. This case concerns
the former, Lim concerned the latter.

4

In one exception, we applied Rule 52(a) instead of independent review
under Lim in reviewing a petition under 8 U.S.C. § 1105a(a)(5) on the
grounds that there “ha[d] been no prior determination of citizenship” upon

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judgment declaring a petitioner to be a non-citizen, as we
have here, is subject to independent review.5
Of course, we have likewise held that “[i]n reviewing
denaturalization . . . , we are not bound by the district court’s
findings even if they are not clearly erroneous.” United
States v. Delmendo, 503 F.2d 98, 100 n.2. (9th Cir. 1974)
(citation omitted). Instead, “[w]e must come to our own
conclusion as to the facts.” Stacher v. United States,
258 F.2d 112, 120 (9th Cir. 1958).

which “both the petitioner and the government had relied for many years.”
Sanchez-Martinez v. INS, 714 F.2d 72, 73-74 (9th Cir. 1983). That
exception is not applicable here because the government made prior
determinations of citizenship through granting Petitioner’s family
derivative citizenship based on Petitioner’s citizenship and by also issuing
Petitioner a passport. See 22 U.S.C. § 2705 (stating a valid passport “shall
have the same force and effect as proof of United States citizenship as
certificates of naturalization or of citizenship”); Lim, 431 F.2d at 198
(noting government had issued petitioner a passport as a citizen and
petitioner’s wife and daughter had obtained derivative citizenship through
petitioner).
5

In denaturalization cases, the consequence is the revocation of
citizenship. In deportation cases such as this, the consequence of
erroneously deporting a petitioner— is the exile of an American citizen.
It is inconceivable that the potential exile of an American citizen is any
less deserving of independent review. Cf. Kwock Jan Fat v. White,
253 U.S. 454, 464 (1920) (“It is better that many . . . immigrants should
be improperly admitted than that one natural born citizen of the United
States should be permanently excluded from his country.”). In fact, the
Supreme Court has found that the “immediate hardship of deportation is
often greater than that inflicted by denaturalization” when the deportee is
an alien, let alone a deportee claiming to be an American citizen. See
Woodby, 385 U.S. at 286.

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B. Pullman-Standard v. Swint and Anderson v. City of
Bessemer City, N.C. Did Not Overrule Independent
Appellate Review for Citizenship Cases
Despite the Supreme Court’s steadfast history of
independent review for citizenship cases, the majority
believes that Pullman-Standard v. Swint, 456 U.S. 273 (1982)
and Anderson v. City of Bessemer City, N.C., 470 U.S. 564
(1985) impliedly overruled these precedents and require us
now to apply deferential review under Rule 52(a).6 But how
can this be so? For nearly seventy years the rule has been
that independent appellate review is required to ensure that
the government has met its high burden of proof when
citizenship is at stake because of the significant rights and the
severe consequences involved.
Neither Pullman-Standard nor Anderson implicitly
overruled this well-established precedent for three reasons:
(1) Pullman-Standard and Anderson held that a question of
fact is subject to clear error review under Rule 52(a), but
Baumgartner established that whether the government has
met its heavy burden to revoke citizenship is a question of
law; (2) the Supreme Court continues to rely on
Baumgartner’s reasoning in distinguishing between questions
of fact subject to Rule 52(a), and questions of law deserving
independent appellate review; and (3) the Supreme Court’s
nearly seventy years of precedents requiring independent
review for citizenship cases weigh heavily against the
majority’s conclusion that these precedents have been

6

Rule 52(a) provides that for an action tried by the court instead of by
a jury, the court must “find the facts specially,” and on review, those
factual findings will be set aside only if “clearly erroneous.” Fed. R. Civ.
P. 52(a)(1), (6).

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impliedly overruled and swept away. I now address each
point in turn.
First, the majority incorrectly presumes that Baumgartner,
which established independent review for citizenship cases,
involves a question of fact like Pullman-Standard and
Anderson. It does not.
The Supreme Court has acknowledged “‘the vexing
nature’” of the distinction between questions of fact and
questions of law. Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 501 (1984) (quoting Pullman-Standard,
456 U.S. at 288). Nevertheless, the difficulty in drawing the
line “does not . . . diminish its importance.” Id. “[T]he
practical truth [is] that the decision to label an issue a
‘question of law,’ a ‘question of fact,’ or a ‘mixed question of
law and fact’ is sometimes as much a matter of allocation as
it is of analysis.” Miller v. Fenton, 474 U.S. 104, 113–14
(1985). When Congress has not expressly spoken, “the
fact/law distinction at times has turned on a determination
that . . . one judicial actor is better positioned than another to
decide the issue in question.” Id. at 114. “Where the line is
drawn varies according to the nature of the substantive law at
issue.” Bose Corp., 466 U.S. at 501 n.17.
Baumgartner is an example of the Court making a
determination, where Congress has not spoken, to designate
an issue a question of fact or law. In Baumgartner, the Court
articulated its standard of independent appellate review for
what it described as a finding of “ultimate ‘facts,’” which
“clearly implies the application of standards of law.”
Baumgartner, 322 U.S. at 671. The Court noted that “the
conclusion that may appropriately be drawn from the whole
mass of evidence is not always the ascertainment of the kind

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of ‘fact’ that precludes consideration by this Court.” Id. At
times, independent review, which is typically called “review
of a question of law,” is needed to review a finding that
implies the application of standards of law. Id. Independent
appellate review is particularly needed to review “broadly
social judgments—judgments lying close to opinion
regarding the whole nature of our Government and the duties
and immunities of citizenship.’” Id.
Baumgartner concluded that a judgment concerning the
loss of citizenship requires independent review. Id. The
“importance of clear, unequivocal, and convincing proof, on
which to [revoke citizenship] would be lost if the
ascertainment by the lower courts whether that exacting
standard of proof had been satisfied on the whole record were
to be deemed a fact of the same order as all other facts, not
open to review here.” Id. (internal quotations and citation
omitted).
Baumgartner thus described whether the
government has met its heavy burden as a question of law in
light of the Court’s determination that the appellate court is
best suited to safeguard the precious right of citizenship. See
Cooper, supra, 63 Notre Dame L. Rev. at 668 (explaining
Baumgartner involved “law application”).
In contrast, Pullman-Standard only held that the Federal
Rules of Civil Procedure Rule 52(a) is applicable to “a pure
question of fact,” there, the finding of intentional
discrimination. 456 U.S. at 288–89. Likewise, Anderson
held that “[b]ecause a finding of intentional discrimination is
a finding of fact,” the district court’s finding of
discrimination is reviewed for clear error under Rule 52(a).
Anderson, 470 U.S. at 573. In Pullman-Standard and
Anderson the nature of the question at hand was clear.
Congress has expressly provided that “the question of

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intentional discrimination under § 703(h) [of Title VII of the
Civil Rights Act of 1964] is a pure question of fact.”
Pullman-Standard, 456 U.S. at 286 n.16 (emphasis added).
Importantly, Pullman-Standard expressly distinguished
Baumgartner as not involving a question of fact. PullmanStandard explained that “Baumgartner’s discussion of
‘ultimate facts’ referred not to pure findings of fact—as we
find discriminatory intent to be in this context—but to
findings that ‘clearly impl[y] the application of standards of
law.’” Pullman-Standard, 456 U.S. at 286 n.16 (alteration in
original) (quoting Baumgartner, 322 U.S. at 671). PullmanStandard emphasized “discriminatory intent . . . is not a
question of law and not a mixed question of law and fact.”
Id. at 289. Therefore, in Pullman-Standard and Anderson,
the Supreme Court did not hold that Rule 52(a) applies to
findings that imply the application of standards of law, as we
have in this case, because no such finding involving law was
before the Court.7 Nor does Pullman-Standard and Anderson
tell us anything about where the Court draws the line between
a question of fact and law in citizenship cases because
Pullman-Standard and Anderson involved a different area of
substantive law—not the loss of citizenship.
Pullman-Standard and Anderson thus had nothing to do
with the independent appellate review required for citizenship
cases and did not implicitly overrule the Supreme Court’s
citizenship precedents. See Agostini v. Felton, 521 U.S. 203,
237 (1997) (cautioning courts against concluding that “recent

7

Rule 52(a) does not apply to conclusions of law. Fed. R. Civ. P.
52(a)(1), (6). Moreover, Pullman-Standard expressly stated that it was
not addressing the applicability of Rule 52(a) to “mixed questions of law
and fact.” Pullman-Standard, 456 U.S. at 289 n.19.

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cases have, by implication, overruled an earlier precedent”).
Indeed, after Pullman-Standard and Anderson, the Supreme
Court has continued to emphasize “the unusually high burden
of proof in denaturalization cases” with reference to
Baumgartner. See Kungys v. United States, 485 U.S. 759,
776 (1988) (citing Baumgartner, 322 U.S. at 670;
Schneiderman, 320 U.S. at 158).
Second, the majority ignores that the Supreme Court has
continued to apply Baumgartner’s reasoning in carving out
substantive issues from the scope of Rule 52(a). In Bose
Corp. v. Consumers Union of United States, Inc., the
Supreme Court addressed the proper standard of appellate
review for the “determination that a false statement was made
with the kind of ‘actual malice’”8 required in certain
defamation actions. 466 U.S. at 487.
The Supreme Court’s prior “cases raising First
Amendment issues . . . ha[d] repeatedly held that an appellate
court has an obligation to make an independent examination
of the whole record” to ensure that the judgment did not
violate the right of free speech. Id. at 499 (internal quotations
and citation omitted). The Court rejected the argument that
Rule 52(a) eviscerates the appellate court’s well-established
independent review. Id. at 499–514. Independent appellate
review for First Amendment cases “reflects a deeply held
conviction that judges . . . must exercise such review in order
to preserve the precious liberties established and ordained by
the Constitution.”
Id. at 510–11.
Consequently,
notwithstanding Rule 52(a), an appellate court “must exercise

8

Actual malice is “‘knowledge that [a statement] was false or with
reckless disregard of its truth or falsity.’” Bose Corp., 466 U.S. at 491
(citation omitted).

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independent judgment and determine whether the record
establishes actual malice with convincing clarity.” Id. at 514;
see also Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011)
(quoting Bose in determining that reviewing courts make an
“independent examination of the whole record” in First
Amendment cases).
Bose demonstrates that the Supreme Court continues to
embrace the heart of Baumgartner’s reasoning in making the
distinction between a question of fact—and a question of law
deserving independent review. As in Baumgartner, although
the Supreme Court has referred to “actual malice as [an]
‘ultimate fact,’” actual malice constitutes a finding implying
the application of standards of law. Bose Corp., 466 U.S. at
498 n.15; id. at 500–11 (listing cases where the court
independently reviewed actual malice to ensure that the
constitutional standard had been met). Bose quoted
Baumgartner’s explanation of when independent review is
justified for findings implying the application of standards of
law:
[T]he conclusion that may appropriately be
drawn from the whole mass of evidence is not
always the ascertainment of the kind of ‘fact’
that precludes consideration by [the appellate
court]. Particularly is this so where a decision
here for review cannot escape broadly social
judgments—judgments lying close to opinion
regarding the whole nature of our Government
and the duties and immunities of citizenship.
Id. at 500 n.16 (citation omitted) (quoting Baumgartner,
322 U.S. at 670–71 and citing Pullman-Standard, 456 U.S.
286–87 n.16).

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Bose concluded that whether actual malice has been
established is a question of law in light of the Court’s
determination that the appellate court must safeguard First
Amendment rights. Id. at 500–11; see also Harte-Hanks
Commc’ns v. Connaughton, 491 U.S. 657, 685 (1989) (stating
“whether the evidence in the record in a defamation case is
sufficient to support a finding of actual malice is a question
of law” (emphasis added)). Echoing the same principles in
Baumgartner and its progeny, the Supreme Court emphasized
that “the rule of independent review assigns to judges a
constitutional responsibility that cannot be delegated to the
trier of fact, whether the factfinding function be performed in
the particular case by a jury or by a trial judge.” Bose Corp.,
466 U.S. at 501.
Just as independent review in First Amendment cases
preserves the right of free speech established by the
Constitution, independent review in citizenship cases
preserves the “most precious right” of citizenship that “is
expressly guaranteed by the Fourteenth Amendment to the
Constitution.” Kennedy v. Mendoza-Martinez, 372 U.S. 144,
159 (1963). Thus, Bose and its progeny tell us that the long
history of an appellate court’s obligation to conduct an
independent review to protect the right of citizenship remains
intact despite Rule 52(a).9

9

The majority mischaracterizes Bose as narrowly applying independent
review. Maj. at 12–13. The scope of independent review is governed by
the constitutional issue at hand. Bose Corp., 466 U .S. at 499–514;
Baumgartner, 322 U.S. at 671. W hile independent review in Bose
pertains to the constitutional issue of whether actual malice has been
established, in citizenship cases independent review is necessarily broader
because the constitutional issue is whether the burden of revoking
citizenship has been met— the primary and only issue in this case.

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Third, the majority disregards the Supreme Court’s
admonition that “[v]ery weighty considerations underlie the
principle that courts should not lightly overrule past
decisions.” Miller v. Fenton, 474 U.S. 104, 115 (1985)
(internal quotations and citation omitted); see also Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989) (instructing that “[i]f a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions”).
For instance, in Miller v. Fenton, the Supreme Court held
that “an unbroken line of cases, coming to this Court . . .
forecloses the Court of Appeals’ conclusion that the
‘voluntariness’ of a [criminal defendant’s] confession merits
something less than independent federal consideration.”
474 U.S. at 112. The Supreme Court emphasized that “nearly
a half century of unwavering precedent weighs heavily
against any suggestion that we now discard the settled rule in
this area.” Id. at 115. Similarly, in Ornelas v. United States,
the Supreme Court resolved a circuit split and held that under
the Fourth Amendment, review of a warrantless search
requires “independent appellate review of the[] ultimate
determinations of reasonable suspicion and probable cause,”
which was the approach “consistent with the position we have
taken in past cases.” 517 U.S. 690, 695, 697 (1996). The
Court underscored that in its prior precedents, the Court
“ha[s] never, when reviewing a probable-cause or
reasonable-suspicion determination ourselves, expressly
deferred to the trial court’s determination.” Id. So too in
Bose, the Supreme Court “reaffirm[ed] the principle of
independent appellate review [for First Amendment cases]

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41

that we have applied uncounted times before.” Bose Corp.,
466 U.S. at 514.
The majority has failed to give due consideration to the
over seventy years of unbroken precedents from the Supreme
Court in citizenship cases. Time and time again, the Supreme
Court has emphasized the preciousness and importance of
citizenship and the crucial role of an appellate court’s
independent review. Had the Supreme Court intended to
overrule the appellate court’s deep rooted obligation to
protect the right of citizenship, it would have said so.
C. The First Circuit Has Held the Supreme Court’s
Citizenship Cases Have Not Been Overruled
In direct contrast to the majority’s conclusion, our sister
circuit, the First Circuit has concluded that independent
review for denaturalization cases has not been overruled.
Almost sixty years ago, the First Circuit held that
Baumgartner did not suggest “that we might reverse only
when we were of the opinion that the district court was
‘clearly erroneous’ in its conclusion” that the government has
met its heavy burden of proof. Cufari v. United States,
217 F.2d 404, 408 (1st Cir. 1954). Instead, “[i]t is the duty of
the court upon review of [denaturalization] cases . . . to
examine the evidence in order to ascertain whether it meets
[the requisite] high standard of proof.” Baghdasarian v.
United States, 220 F.2d 677, 680 (1st Cir. 1955).
The First Circuit affirmed independent review after
Pullman-Standard and Anderson. In United States v.
Zajanckauskas, “after looking at several Supreme Court cases
in which the Court made clear that denaturalization cases are
of an unusual nature,” the First Circuit affirmed that in

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denaturalization cases, “‘while we accord weight to a district
court’s findings . . . , we do not weight those findings as
heavily as we would in other cases of a civil nature.’”
441 F.3d 32, 37–38 (1st Cir. 2006) (quoting Cufari, 217 F.2d
at 408). In so holding, the First Circuit expressly held that the
Supreme Court’s citizenship precedents “are still valid and
have not been overruled in any way,” and noted that
Anderson “[had] nothing to do with denaturalization.” Id. at
38 n.5. I agree with the First Circuit’s sound reasoning.
For the foregoing reasons, I cannot accept the majority’s
conclusion that Pullman-Standard and Anderson
overruled—by implication—Baumgartner and its progeny.
It follows that our precedent, Lim v. Mitchell, which relies on
Baumgartner’s progeny, controls the appellate standard of
review in this case. Thus, we are required to conduct an
independent review of the evidence in the record to determine
whether that evidence is sufficient to satisfy the government’s
heavy burden to show by clear, unequivocal, and convincing
evidence that Petitioner is a Mexican citizen, not a United
States citizen. See supra Part III.A; United States v. Gay,
967 F.2d 322, 327 (9th Cir. 1992) (holding a “three-judge
panel . . . cannot reconsider or overrule the decision of a prior
panel” unless “an intervening Supreme Court decision
undermines an existing precedent of the Ninth Circuit, and
both cases are closely on point” (internal quotations and
citation omitted)).
IV. THE GOVERNMENT FAILED TO PROVE ITS
CASE BY CLEAR, UNEQUIVOCAL, AND
CONVINCING EVIDENCE
The district court correctly determined that Petitioner
carried his initial burden of proving by a preponderance of the

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evidence that he is an American citizen by the name of
Reynaldo Mondaca. Petitioner’s evidence demonstrating that
he is Reynaldo Mondaca was as follows:
Petitioner testified that he is Reynaldo Mondaca Carlon,
born in Imperial, California, on July 17, 1931 to parents
Antonia Carlon and Marin Mondaca. Petitioner presented an
authentic birth certificate for Reynaldo Mondaca Carlon.
Although born in California, Petitioner’s parents took him
back to Mexico, where he grew up in El Fuerte, Sinaloa,
Mexico. Petitioner did not learn to speak English, only
Spanish. In Mexico, Petitioner worked with his parents as a
farmer.
When Petitioner was around 20 years old, he came back
to the United States for the first time. In the United States,
Petitioner worked in the fields, primarily with people from
Mexico.
Petitioner then returned to Mexico. He learned that he
was an American citizen when he was given his birth
certificate by his mother. Petitioner used his birth certificate
to come back to the United States, specifically, California and
Washington.
It is undisputed that Reynoldo Mondaca applied for a
social security card on May 23, 1953. The application
indicated that his parents were Antonia Carlon and Marin
Mondaca and that he was born on July 17, 1931, in Imperial,
California. The parties also stipulated that “[a]ccording to
handwriting analyses provided by experts for both parties, . . .
the signature on the application (‘Reynaldo C. Mondaca’)

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appears to be made by Petitioner.”10 Petitioner’s social
security card is under the name Reynaldo Mondaca, and
Petitioner has always used the Social Security number
associated with the card. Petitioner qualifies for Social
Security benefits.
Petitioner met his wife (now deceased) in El Fuerte,
Mexico. Petitioner and his wife had nine children, three of
whom were born in the United States. Petitioner presented a
marriage certificate and baptismal certificates for his
children, all of which indicate that he is Reynaldo Mondaca.
Petitioner’s passport, issued by the U.S. Department of State,
is also under the name Reynaldo Mondaca.
For several years after Petitioner and his wife were
married, Petitioner’s wife and children lived in Mexico, while
Petitioner worked in California. Petitioner would return to
Mexico about once a year to spend time with his family.
Eventually, Petitioner brought his entire family to the United
States.
In 1977, Petitioner’s six children born in Mexico obtained
United States citizenship or Lawful Permanent Resident
status through Petitioner’s status as a United States citizen.
Also in 1977, Petitioner’s wife became a Legal Permanent
Resident based on Petitioner’s status as a United States
citizen.

10
In 1952 someone claiming to be Salvador Mondaca-Vega applied for
a social security card, but the government did not present any evidence
tying that application to Petitioner. Unlike Reynaldo Mondaca’s
application, Salvador Mondaca-Vega’s application does not contain a
signature.

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Because Petitioner established a prima facie case that he
is an American citizen named Reynaldo Mondaca, the
government was required to present clear, unequivocal, and
convincing evidence that Petitioner was not who he claimed
to be. Specifically, the government claimed that Petitioner is
a Mexican citizen named Salvador Mondaca-Vega, who was
born in El Mahone, Sinaloa, Mexico on June 3, 1931.11
Upon review of the record, I do not believe that the
government met its high burden. The district court made
numerous findings that are either not supported by the record
or are based on speculation. Here are some examples.
1. As the majority recognizes and both parties agree,
there is no evidence in the record to support the district
court’s findings that Petitioner was deported in July 1951,
September 1951, and November 1952. Maj. at 24.
2. The majority concedes that the district court engaged
in speculation when it determined that Petitioner was required
to present his birth certificate when applying for a social
security card in May 1953. Maj. at 24. That speculation is
problematic. It led the district court to incorrectly conclude
that Petitioner did not rightfully possess an authentic United
States birth certificate.
The district court incorrectly reasoned that Petitioner
would have had to obtain his birth certificate before applying

11
The government contends that the “ultimate issue in this case is
whether Petitioner is Salvador Mondaca-Vega . . . or Reynaldo Mondaca
Carlon.” See also Maj. at 25 (holding that “the district court’s key
finding, that Petitioner is Salvador M ondaca-Vega, is not clearly
erroneous”).

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for his social security card. The district court took judicial
notice of geographical distances to conclude that “[i]t would
have been extremely difficult, if not impossible” for
Petitioner to have retrieved a birth certificate from his mother
in El Fuerte, prior to applying for a social security card in
Calexico, California, on May 23, 1953. From there, the
district court concluded that Petitioner must have obtained his
Reynaldo Mondaca birth certificate “at some location near the
border between the United States and Mexico on either May
22nd or May 23rd.” There is no evidence in the record to
support the district court’s conclusion that Petitioner obtained
his birth certificate in this manner. Rather, the only evidence
in the record is that Petitioner obtained his birth certificate
from his mother.
3. The district court further speculated that when
Petitioner was detained by INS, Petitioner always had his
birth certificate, and that Petitioner’s failure to identify
himself as Reynaldo Mondaca was “inexplicable.” The
district court seemed to believe that this is contrary to how an
American citizen would act. But Petitioner, who does not
speak English, stated he used an alias when he did not have
his birth certificate and U.S. passport with him to show his
United States citizenship. The district court speculated when
it assumed what someone in Petitioner’s position would or
would not have done in the early 1950s. See Chawla v.
Holder, 599 F.3d 998, 1006 (9th Cir. 2010) (holding that the
“BIA’s disbelief of Chawla’s decision . . . was based on
speculation and conjecture about what someone in Chawla’s
position would or would not do”); Zhou v. Gonzales,
437 F.3d 860, 865 (9th Cir. 2006) (holding that the IJ’s
“disbelief of Zhou’s testimony was . . . based on speculation
and conjecture about Zhou’s position in Chinese society and
what someone in that position would or would not do”).

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4. The district court also speculated that each time
Petitioner was deported it was contrary to his financial
interest, and thus, implausible that he would not have
identified himself as an American citizen. The district court
speculated that on July 28, 1953, it was “a busy time of year
for an agricultural laborer,” and thus, it would “not [have
been] in the petitioner’s financial interest to be removed from
the United States at this time.” Similarly, the district court
presumed that when Petitioner was detained on September
15, 1954, there was “a great deal of agricultural work,” and
it “was in the petitioner’s financial interest to remain in the
United States.” There is no evidence in the record to support
the district court’s findings regarding the employment
opportunities for a farm worker, Petitioner’s financial
motives, or how conditions at the border were controlled in
the early 1950s. See United States v. Berber-Tinoco,
510 F.3d 1083, 1091 (9th Cir. 2007) (“A trial judge is
prohibited from relying on his personal experience to support
the taking of judicial notice.” (internal quotations and citation
omitted)); Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th
Cir. 2002) (holding that “the IJ improperly substituted her
own hypothesis for the evidence in the record” when she
acknowledged that “Paramasamy was afraid to return to Sri
Lanka” but “then speculated about Paramasamy’s ‘real’
motives” including “‘the anticipation of better job
opportunities’”).
5. Finally, the district court speculated that Petitioner
began using the name Reynaldo Mondaca because of his
marriage and his desire to obtain benefits. Not only is this
finding not supported by the record, but the evidence
demonstrates that Petitioner used his name Reynaldo
Mondaca in 1953, almost twenty years prior to his marriage,
when he applied for a social security card.

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V. CONCLUSION

The majority incorrectly applies clear error review
because of its erroneous conclusion that independent review
for citizenship cases has been implicitly overruled. On
review of the record, because of the numerous findings based
on speculation and findings unsupported by evidence, the
government failed to prove by clear, unequivocal, and
convincing evidence that Petitioner is a Mexican citizen
whose name is Salvador Mondaca-Vega. See, e.g., Lim,
431 F.2d at 200 (holding that “although there was some
evidence tending to show that appellant’s family name was
Jew rather than Lim, [the government] did not meet its
burden of proving [attainment of citizenship through] fraud
or error by clear, unequivocal and convincing evidence”). In
fact, where, as here, there is “conflicting evidence” it cannot
be said that the government has carried its burden to prove by
evidence “which does not leave the issue in doubt” that
Petitioner is Salvador Mondaca-Vega, and not Reynaldo
Mondaca. Schneiderman, 320 U.S. at 158 (internal
quotations omitted). Notably, the government did not present
any evidence that anyone other than Petitioner has ever
claimed to be Reynaldo Mondaca.
Even if the proper appellate standard of review here is for
clear error, the district court clearly erred in finding that the
government met its burden. The majority contends that there
was no clear error because “[s]ome of the challenged findings
are not clearly erroneous” and that the “errors pertain to
inconsequential points.” Maj. at 21, 24.12 As discussed

12

The majority relies on Societe Generale de Banque v. Touche Ross &
Co. (In re U.S. Fin. Sec. Litig.), 729 F.2d 628 (9th Cir. 1984), to conclude
that it may affirm the district court on any evidence that supports the

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above, however, the district court’s erroneous findings are
numerous and central to the district court’s conclusion that
the government proved its case. I do not believe that the
remaining findings are sufficient to satisfy the government’s
burden to prove by clear, unequivocal, and convincing
evidence that Petitioner is Salvador Mondaca-Vega, a
Mexican citizen. Thus, Petitioner is who he claims to be, an
American citizen, Reynaldo Mondaca. I would GRANT the
petition. Therefore, I dissent.

district court’s judgment. Maj. at 24–25. In that case, the “basis for the
court’s decision provid[ed] a sufficient understanding of the issues without
a remand for further findings.” In re U.S. Fin. Sec. Litig., 729 F.3d at 630.
I do not believe that, absent the speculative and clearly erroneous findings,
the basis of the district court’s decision remains clear in this case.

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