Hilario Rivas v. Janet Napolitano, et al

Filing

FILED OPINION (HARRY PREGERSON, KIM MCLANE WARDLAW and CARLOS T. BEA) AFFIRMED IN PART; VACATED IN PART; REMANDED. Each party shall bear its own costs on appeal. Judge: HP Authoring, Judge: CTB Concurring & dissenting. FILED AND ENTERED JUDGMENT. [8152335]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



HILARIO RIVAS,
Plaintiff-Appellant,
v.
JANET NAPOLITANO, Director, U.S.
Department of Homeland Security;
MICHAEL AYTES, Acting Director
of U.S. Citizenship and
Immigration Services; DAVID
DOUGLAS, USCIS Los Angeles
Field Office Director, Los Angeles
District Office USCIS; ERIC H.
HOLDER JR., U.S. Attorney
General; HILLARY RODHAM
CLINTON, U.S. Department of
State; RAYMOND MCGARTH, U.S.
Consul General for Ciudad Juarez,
Mexico,
Defendants-Appellees.



No. 09-56843
D.C. No.
2:09-cv-03287VBF-MAN
OPINION



Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted April 25, 2012*
Pasadena, California
Filed April 25, 2012

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: Harry Pregerson, Kim McLane Wardlaw, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Bea

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COUNSEL
Brian D. Lerner and Christopher A. Reed, Law Offices of
Brian D. Lerner, APC, Long Beach, California, for the
plaintiff-appellant.
Scott M. Marconda, Office of Immigration Litigation, District
Court Section, U.S. Department of Justice, Washington, D.C.,
for the defendants-appellees.

OPINION
PREGERSON, Circuit Judge:
Hilario Alfonso Rivas (“Rivas”) and his daughter Lorena
Rivas appeal the district court’s order granting Defendants’
motion to dismiss for lack of subject matter jurisdiction. Rivas
submitted an application for an immigrant visa based on an
approved I-130 petition filed by his daughter. The United
States Consulate in Ciudad Juarez, Mexico, denied Rivas’s
immigrant visa application. Rivas moved the district court for
an order compelling the Defendants to act upon Rivas’s Permission to Reapply for Admission (“Form I-601”) and his let-

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ter requesting reconsideration of the denial of his Application
for Immigrant Visa and Alien Registration Form.1 The district
court found that the doctrine of consular nonreviewability
deprived the court of subject matter jurisdiction to review the
consular official’s discretionary decisions. The district court
also found that it had no jurisdiction under the Mandamus
Act, 28 U.S.C. § 1361, the Administrative Procedure Act
(“APA”), 5 U.S.C. § 551 et seq., or the Declaratory Judgment
Act, 5 U.S.C. § 702. We affirm in part, vacate in part, and
remand to the district court.
I.

Consular Nonreviewability

[1] Federal courts are generally without power to review
the actions of consular officials. Li Hing of Hong Kong, Inc.
v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). However, at least
two exceptions to this rule exist. First, a court has jurisdiction
to review a consular official’s actions “when [the] suit challenges the authority of the consul to take or fail to take an
action as opposed to a decision within the consul’s discretion.” Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997).
Second, the court has jurisdiction to review a consular official’s actions when the government denies a visa without a
“facially legitimate and bona fide reason.” Bustamante v.
Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008).
II.

Rivas’s Form I-601

[2] The district court correctly concluded that neither of
the exceptions to the doctrine of consular nonreviewability
apply to Rivas’s Form I-601. See Li Hing of Hong Kong, 800
F.2d at 971. The district court concluded that the Defendants
submitted evidence that shows that a consular officer rejected
Rivas’s Form I-601 on February 5, 2008, and Rivas does not
1

Although Rivas styled his letter to the Consular General as a “Motion
to Reopen,” the letter is not a “Motion” but instead constitutes a request
for reconsideration of his visa application.

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contend otherwise. Because the consular official was required
only to accept or reject Rivas’s Form I-601, and he rejected
it, Patel’s “fail to take action” exception does not permit us
to entertain Rivas’s Form I-601 claim.
[3] Nor did the district court err by finding that there is a
“facially legitimate and bona fide reason” for the consular
official’s rejection of Rivas’s Form I-601. The consular official based his decision to reject Rivas’s immigrant visa application on Rivas’s purported admission to violating
Immigration and Nationality Act (“INA”) § 212(a)(6)(E),
which provides that “[a]ny alien who at any time knowingly
has encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E). While
Rivas contends that he never admitted to violating
§ 212(a)(6)(E), in his complaint, however, he admits to being
arrested on such a charge. Moreover, Rivas also “failed to
allege that the consular official did not in good faith believe
the information he had.” Bustamante, 531 F.3d at 1062. Thus,
the consular official had a “facially legitimate and bona fide
reason” for rejecting Rivas’s Form I-601. Id. at 1060. We
therefore affirm the district court’s dismissal of Rivas’s
claims as to the Form I-601 for lack of subject matter jurisdiction.
III.

Rivas’s Request for Reconsideration

The district court erred, however, in its finding that the doctrine of consular nonreviewability applies to the consulate’s
inaction on Rivas’s request for reconsideration. The “facially
legitimate and bona fide reason” exception does not apply to
Rivas’s request for reconsideration because the government
took no action on the request.2 For the same reason, however,
2

Unlike the Form I-601, Rivas’s letter requesting reconsideration of his
immigrant visa application was never acted upon because the government
claims not to have received it. Rivas, however, claims that he submitted

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the “fail to take action” exception described in Patel may
apply.
The regulation found at 22 C.F.R. § 42.81(e), that governs
the procedure in refusing individual visas, is applicable here.
It states:
Reconsideration of refusal. If a visa is refused, and
the applicant within one year from the date of refusal
adduces further evidence tending to overcome the
ground of ineligibility on which the refusal was
based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be
required.
(emphasis added). The mandatory language used in the regulation makes the act of reconsideration non-discretionary
when the applicant within a one year period from the denial
of a visa “adduces further evidence tending to overcome the
ground of ineligibility on which the refusal was based . . . .”
Id. Once this is done, consular officials have a duty to reconsider a case and must take action.
[4] Because 22 C.F.R. § 42.81(e) by its plain terms
imposes a nondiscretionary, ministerial duty to reconsider the
denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility,
the district court has subject matter jurisdiction under the
Mandamus Act where the government fails to comply with
the regulation. See 28 U.S.C. § 1361; Patel, 134 F.3d at 931.
Moreover, because the consulate’s attention to requests for
the letter and offers a United States Postal Service Label/Receipt Number
and a “signed-for” signature as proof that it was received. The district
court’s order assumes, without deciding, that the U.S. Consulate accepted
Rivas’s letter. We leave it to the district court to make this factual determination.

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reconsideration that fall within 22 C.F.R. § 42.81(e) is legally
required, that action may be compelled under the APA. See
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63
(2004) (the “only agency action that can be compelled under
the APA is action legally required”). Similarly, because resolution of claims for mandamus relief would require implementation of federal regulations, thereby providing a federal
question, violations of 22 C.F.R. § 42.81(e) give rise to subject matter jurisdiction under the Declaratory Judgment Act.
See Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158,
1161-62 (9th Cir. 2005).
Rivas submitted his request for reconsideration on August
5, 2008, less than one year after the January 2, 2008 refusal
of his visa application. With his request for reconsideration,
Rivas submitted records showing arrests—but not convictions
—for conspiracy to commit alien smuggling and for harboring
illegal aliens. The original rejection of Rivas’s immigration
visa application was premised on Rivas’s alleged admission
to alien smuggling, in violation of INA § 212(a)(6)(E). Defendants, however, have failed to provide any evidence regarding
the details of Rivas’s purported admission,3 nor attempted to
prove that the supposed admission was valid.4 See Pazcoguin
v. Radcliffe, 292 F.3d 1209, 1215-16 (9th Cir. 2002). Rivas
may have admitted only to a 1974 arrest for attempted smuggling, not to conduct that constitutes the essential elements of
the crime.
3

Nor does the government provide any proof that Rivas admitted to
attempting to smuggle someone other than his spouse, parent, son, or
daughter, thereby making him ineligible for a humanitarian waiver under
8 U.S.C. § 1182(d)(11).
4
The BIA has adopted a three part test for the acceptance of an admission in the immigration context: (1) the admitted conduct must constitute
the essential elements of the crime; (2) the applicant must have been provided with a definition and the essential elements of the offense prior to
his admission; and (3) the admission must be voluntary. See Pazcoguin,
292 F.3d at 1215-16. We express no opinion on whether the BIA standard
applies to the consular interview context.

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If it is true that his admission was only as to the arrest, and
there is no evidence that Rivas actually committed, or was
convicted of, alien smuggling, then Rivas has submitted “evidence tending to overcome the ground of ineligibility on
which the refusal was based” and his case must be reconsidered. 22 C.F.R. § 42.81(e).5 On the other hand, if it is true that
Rivas admitted his arrest in his consular interview, then the
additional evidence submitted by Rivas would not tend to
overcome the ground of ineligibility on which his refusal was
based, 22 C.F.R. § 42.81(e) would not apply, and we would
lack jurisdiction over his appeal.
[5] The record on appeal is insufficient for us to determine
whether jurisdiction exists in this case because there is no evidence as to what Rivas actually said in his consular interview.6
Because the jurisdictional questions in this appeal overlap
completely with the merits of the question remaining in this
case (namely, whether the consulate violated 22 C.F.R.
§ 42.81(e)), dismissal for lack of subject matter jurisdiction
was not appropriate. Such a dismissal is proper only “where
it appears beyond doubt that the plaintiff can prove no set of
5

Defendants’ argument that 22 C.F.R. § 42.81(e) does not compel
reconsideration of applications where an applicant was deemed to have an
“unwaivable ineligibility” is unconvincing. Persons convicted of murder
have a non-waivable ineligibility for a visa, but if an applicant found ineligible on the basis of a murder conviction could later submit evidence that
the conviction had been vacated, such evidence would tend to overcome
the ground of ineligibility. In any event, Rivas would be eligible for a
humanitarian waiver under 8 U.S.C. § 1182(d)(11) if he attempted to
smuggle his spouse, parent, son, or daughter. If Rivas had produced evidence that any smuggling he had admitted to was of a spouse, parent, son,
or daughter, such a submission would clearly fall within the boundaries of
22 C.F.R. § 42.81(e).
6
The only evidence offered by Defendants on this point is the Declaration of Santiago M. Burciaga, which states that “the consular officer determined that Mr. Rivas Lopez is inadmissible as a matter of law, having
admitted to a violation of 8 U.S.C. § 1182(a)(6)(E).” This hearsay statement is insufficient to prove that Rivas in fact admitted to the alleged violation.

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facts in support of his claim which would entitle him to
relief.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.
1987) (citation and quotation marks omitted). Therefore, we
vacate the district court’s dismissal of Rivas’s claims concerning the request for reconsideration and remand for the district
court to determine in the first instance whether the court has
jurisdiction. “To the extent that the jurisdictional facts are disputed on remand, the parties should be allowed to conduct
discovery for the limited purpose of establishing jurisdictional
facts before the claims can be dismissed.” Siderman de Blake
v. Republic of Argentina, 965 F.2d 699, 713 (9th Cir. 1992).
Because disputes exist over (1) whether the consulate
received Rivas’s letter containing his motion to reopen and
(2) whether Rivas admitted to smuggling in his consular interview on January 2, 2008, “the intertwined jurisdictional facts
must be resolved at trial by the trier of fact.” Rosales v. U.S.,
824 F.2d 799, 803 (9th Cir. 1987).
***
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Rivas’s claims as to Form I-601 and
VACATE that part of the district court’s order dismissing
Rivas’s claims as to his request for reconsideration. We
REMAND for the district court to consider whether it has
jurisdiction under the Mandamus Act, the APA, and the
Declaratory Judgment Act. We remand to the district court for
further proceedings consistent with the views expressed in
this opinion. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.

BEA, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the district court correctly
concluded that the doctrine of consular nonreviewability pre-

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vents the federal courts from reviewing Rivas’ Permission to
Reapply for Admission (“Form I-601”). But I would conclude, as did the district court, that because Rivas admitted he
violated the law which prohibits alien smuggling, consular
nonreviewability also deprives us of subject matter jurisdiction to review Rivas’ letter requesting reconsideration of the
denial of his Application for Immigrant Visa and Alien Registration Form (“Reconsideration Letter”). Thus, I respectfully
dissent.
As the majority states, the federal courts generally do not
have jurisdiction to review the actions of consular officials. Li
Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.
1986). This is known as the doctrine of consular nonreviewability. As an exception to the doctrine, a court has jurisdiction
to review consular actions “when [the] suit challenges the
authority of the consul to take or fail to take an action as
opposed to a decision within the consul’s discretion.” Patel v.
Reno, 134 F.3d 929, 931-32 (9th Cir. 1997). Federal regulations govern the procedure in refusing individual visas:
Reconsideration of refusal. If a visa is refused, and
the applicant within one year from the date of refusal
adduces further evidence tending to overcome the
ground of ineligibility on which the refusal was
based, the case shall be reconsidered. In such circumstance, an individual application fee shall not be
required.
22 C.F.R. § 42.81(e) (emphasis added).
Rivas’ visa application was denied because he admitted to
a violation of alien smuggling laws in his consular interview.
In his Reconsideration Letter, Rivas submitted documents to
the consulate showing that Rivas was arrested for conspiracy
to commit alien smuggling. The documents also show that
Rivas was not convicted of alien smuggling. But did the documents “tend[ ] to overcome the ground of ineligibility” on

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which the denial of Rivas’ visa was based? Quite the contrary:
Rivas failed to rebut his own admission he had smuggled
aliens into the United States.
Rivas then filed an action in mandamus, declaratory relief
and other claims in the Central District of California.
Nowhere in the complaint does Rivas deny smuggling aliens.
In the facts section, Rivas states that he “was ordered
deported on June 2, 1973,” and that when he returned to the
United States in 1974, he “was arrested for conspiracy to
commit alien smuggling and harboring aliens.” (emphasis
added.) Indeed, Rivas appears to admit some violation of law
in his complaint: “The one incidence of removal in 1974
should be afforded little weight . . . Plaintiff has provided
show [sic] the government with evidence that he has been
rehabilitated and has been law abiding in the years following
this incident.”
Defendants filed a Motion to Dismiss under, inter alia, Fed.
R. Civ. P. 12(b)(1). Defendants’ main argument was straightforward:
There is nothing to adjudicate . . . Because the consular officer determined that Mr. Rivas was involved
in alien smuggling of persons other than his spouse,
parent, so, or daughter, he did not qualify [for a visa]
. . . The Court is without jurisdiction under the doctrine of consular nonreviewability to review the
actions of the consular officer in denying the visa
application, and lacks jurisdiction to compel the
State Department to reopen its decision to deny the
visa.
In support of the Motion to Dismiss, Defendants submitted
the declaration of Santiago M. Burciaga, the Chief of Immigrant Visas at the Ciudad Juarez consulate (“Burciaga Declaration”).1 Burciaga stated: “[Rivas] was denied an immigrant
1

In reviewing a motion to dismiss for lack of subject matter jurisdiction,
the court may consider “affidavits or any other evidence properly before

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visa on January 2, 2008. The consular officer determined that
[Rivas] is inadmissible as a matter of law, having admitted to
a violation of 8 U.S.C. § 1182(a)(6)(E).”23 Rivas filed an
opposition to the Motion to Dismiss, but did not object to, or
even mention, the Burciaga Declaration. He merely concluded
that “the record does not establish that he is inadmissible
under section 212(a)(6)(E) of the [INA].” Nor did Rivas claim
on appeal it was error to admit into evidence the Burciaga
Declaration.
The nondiscretionary duty to reconsider a visa refusal,
under 22 C.F.R. § 42.81(e), is triggered only when the applicant adduces evidence tending to overcome the ground of
ineligibility. The ground of ineligibility upon which the visa
refusal was based was that Rivas had violated the law prohibiting alien smuggling. The evidence Rivas adduced to overcome that ground was that although he had been arrested for
alien smuggling, he had not been convicted of alien smuggling.
The problem with the sufficiency of his proof is that 8
U.S.C. § 1182(a)(6)(E) does not make ineligible for visas only
those who have been convicted of alien smuggling. It bars
those who have committed alien smuggling, regardless
whether they have escaped conviction. Unfortunately for him,
the court.” Sommatino v. United States, 255 F.3d 704, 710 n.3 (9th Cir.
2001).
2
8 U.S.C. § 1182(a)(6)(E) provides: “Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien
to enter or to try to enter the United States in violation of law is inadmissible.”
3
Regarding Rivas’ admission, the consular official also determined that
“no waiver provision exists” under 8 U.S.C. § 1182(d)(11). Such discretionary waivers are available “if the alien has encouraged, induced,
assisted, abetted, or aided only an individual who at the time of such
action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.” Id.

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Rivas had already admitted he had committed alien smuggling
in violation of section 1182(a)(6)(E), prior to his Reconsideration Letter.
The sole remaining point to be discussed is whether the
record evidence proves that Rivas indeed did admit to alien
smuggling.
The majority opinion’s arguments that Rivas did not admit
to alien smuggling are unconvincing.
First, the majority states that Defendants “have failed to
provide any evidence regarding the details of Rivas’s purported admission.” Majority Op. at 4402. But if the evidence
in the record shows that Rivas admitted to violating the alien
smuggling statute, what further “details” would be relevant to
a consular official’s decision not to grant a visa account the
applicant violated the law against alien smuggling?4 The
majority does not grace us with what “details” are necessary
to support Rivas admission nor, of course, any case or statute
authority that requires such “details.”
The majority next states that Defendants have failed to
prove that Rivas’ admission was “valid.” Majority Op. at
4402 (citing Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215-16
(9th Cir. 2002).5 Pazcoguin dealt with admissions made by
4

The majority also criticizes the government for failing to “provide any
proof that Rivas admitted to attempting to smuggle someone other than his
spouse, parent, son, or daughter, thereby making him inelgible for a
humanitarian waiver under 8 U.S.C. § 1182(d)(11).” Majority Op. at 4402
fn. 3. Wrong. The Burciaga Declaration explicitly states that “no waiver
provision exists per INA § 212(d)(11) (8 U.S.C. § 1182(d)(11).”
5
Pazcoguin asked whether petitioner “admit[ted] committing acts which
constitute the essential elements . . . of a violation of . . . any law or regulation of . . . a foreign country relating to a controlled substance . . . .” 292
F.3d at 1213 (edits in original). The petitioner was granted an immigrant
visa as the unmarried son of a lawful permanent resident, but upon entry
to the United States, an IJ found him excludable based on statements
admitting marijuana use while in the Philippines. Id. at 1212. The BIA dismissed petitioner’s appeal, and the Ninth Circuit denied the petition for
review, holding Pazcoguin’s admission valid. Id. at 1219.

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aliens in the deportation context. In that context, BIA case law
established three requirements for valid admissions: the
admitted conduct must constitute the essential elements of a
crime, the party making the admission must have been provided with a definition and essential elements of the crime,
and the admission must be voluntary. Id. In the context of the
immigration courts, where there are detailed procedural safeguards, such requirements are understandable. However, the
majority has not presented any authority for the proposition
that such requirements apply to the conduct of consular officers interviewing visa applicants.6 Consular interviews are
very different from deportation proceedings, a fact highlighted by the doctrine of consular nonreviewability. The consulate’s discretionary decision whether to grant a visa is
unlike an Immigration Judge’s decision, based on detailed
laws and regulations, whether an alien is to be deported.
As was the case with its requirement of “details” to validate
the admission, the majority fails to state what provision of law
requires the government to prove that an admission of facts
establishing inadmissibility before a consular official is
“valid”—much less what constitutes the elements of when an
admission is “valid.” Certainly, Pazcoguin is of no help to
such an argument. Besides taking place in a totally different
context, Pazcoguin’s admission was valid enough to exclude
him from admission even after he had been granted a visa.
See infra note 5. If general standards by which an admission
can be questioned as “valid” are invoked—such as force,
coercion or hoodwinking—I can see nothing in the record to
suggest that Rivas was so dealt with by the Juarez consular
officials. Certainly, the majority do not cite any such record
evidence, nor did Rivas even claim that to be the fact in his
district court papers or his brief on appeal.
6

The majority states: “We express no opinion on whether the BIA standard applies to the consular interview context.” Majority Op. at 4402 fn.
4. If that is so, why cite Pazcoguin?

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Indeed, Rivas did not say one word about his admission of
alien smuggling detailed in Burciaga’s declaration. Not in the
district court; not in his briefs on appeal. Even Rivas does not
claim his admission to alien smuggling is not “valid.” It is
thus quite difficult to understand the majority’s dismissal of
Rivas’ admission on the ground it was not proved “valid,”
whatever that might mean.
The majority criticizes the Burciaga Declaration as a “hearsay statement [that] is insufficient to prove that Rivas in fact
admitted to the alleged violation.” Majority Op. at 4403 fn. 6.
First, the majority’s characterization of the Burciaga Declaration as “hearsay” is plainly and demonstrably wrong. Rivas’
admission is not hearsay. Under Fed. R. Evid. 801(d)(2)(A),
a statement “offered against an opposing party” that “was
made by the party” is not hearsay. Rivas’ admission, offered
against him here, is an “admission by a party-opponent,” and
is thus not hearsay under the Federal Rules of Evidence.
The majority would have a better argument if it characterized Burciaga’s statement as lacking foundation or personal
knowledge. Under Fed R. Evid. 602, “[a] witness may testify
to a matter only if evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter.” Indeed, the Burciaga Declaration mentions “[t]he consular officer” who interviewed Rivas. Since it appears
ambiguous whether Burciaga, who is the Chief of Immigrant
Visas at the Ciudad Juarez Consulate, was that “consular officer” who himself interviewed Rivas, Burciaga may have
lacked personal knowledge of Rivas’ admission.
However, Rivas never objected to the admission of the Burciaga Declaration on grounds of lack of personal knowledge,
nor indeed on any other grounds. Thus, it became permissible
evidence on the Motion to Dismiss for lack of subject matter
jurisdiction. See, e.g., Pfingston v. Ronan Engineering Co.,
284 F.3d 999, 1003 (9th Cir. 2002) (“In order to preserve a

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hearsay objection, a party must either move to strike the affidavit or otherwise lodge an objection with the district court.”).
Further, had Rivas objected to the Burciaga Declaration
below, Defendants could perhaps have cured any deficiencies
by submitting an affidavit from the consular officer who actually interviewed Rivas, if he was someone other than Burciaga. Rivas’ failure so to object deprived Defendants of that
opportunity.
Next, the majority’s characterization of the Burciaga Declaration as “insufficient” to prove Rivas’ admission is puzzling.
Majority Op. at 4403. The majority devotes one sentence to
dismissing the Burciaga Declaration, so it is difficult to divine
what it means by “insufficient.” Does the majority mean that
one witness to Rivas’ admission is insufficient proof? Surely
that is incorrect. It is axiomatic that the testimony of one credible witness is sufficient to prove the truth of any fact testified
to. See, e.g., 3 Fed. Jury Prac. & Instr. § 10454 (“The weight
of the evidence is not necessarily determined by the number
of witnesses . . . You may find the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.”); Fifth
Circuit Pattern Jury Instructions (Civil Cases), Instruction No.
3.1 (2009) (“The testimony of a single witness may be sufficient to prove any fact, even if a greater number of witnesses
may have testified to the contrary, if after considering all the
other evidence you believe that single witness.”).7
Last, the majority notes that where the “jurisdictional questions in this appeal overlap completely with the merits of the
question remaining in this case . . . , dismissal for lack of sub7

I can think of only one crime for which the testimony of more than one
witness is required, and that is because of the explicit mandate of the
United States Constitution. “No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.” U.S. Const. art. III, § 3, cl. 1. Treason is not
at issue here.

Case: 09-56843

4412

04/25/2012

ID: 8152335

DktEntry: 38-1

Page: 17 of 17

RIVAS v. NAPOLITANO

ject matter jurisdiction was not appropriate.” Majority Op. at
4403. It is true that the merits of this case overlap with the
jurisdictional question: both issues hinge on whether the consulate had a nondiscretionary duty to act based on additional
materials submitted by Rivas. But the case the majority cites
for its conclusion that dismissal is not warranted actually supports quite the opposite conclusion. In Roberts v. Corrothers,
we said:
A court may not resolve genuinely disputed facts
where the question of jurisdiction is dependent on
the resolution of factual issues going to the merits.
In such a case, the district court assumes the truth of
allegations in a complaint or habeas petition, unless
controverted by undisputed facts in the record.
812 F.2d 1173, 1177 (9th Cir. 1987) (citations and quotation
marks omitted) (emphasis added). Whether Rivas admitted to
alien smuggling is not a genuinely disputed fact, but rather an
admitted-by-petitioner undisputed fact in this record.
***
For the above reasons, I would affirm the district court’s
order dismissing Rivas’ claims for lack of subject matter
jurisdiction.