Graham v. Holder

Filing 79

ORDER - IT IS ORDERED that Defendant's Motion for Summary Judgment (Doc. 70 ) is granted. IT IS FURTHER ORDERED that Plaintiff's motion for summary judgment (Doc. 43 ) is denied, that Plaintiff's motion requesting to register on PAC ER (Doc. 46 ) is denied, that Plaintiff's motion to vacate the Court's order (Doc 47 ) is denied, and that Defendant's motion to strike Plaintiff's supplement to Plaintiff's motion for summary judgment (Doc. 74 ) is den ied, as all these motions are deemed moot. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment in favor of Defendant and against Plaintiff. IT IS FINALLY ORDERED that the Clerk of the Court shall close this case. (See document for further details). Signed by Senior Judge James A Teilborg on 9/27/13. (LAD)

1

WO

2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA
8
9

Linden Winston Graham,

10

No. CV 12-00066-PHX-JAT

Plaintiff,

11

ORDER

v.

12

Eric H. Holder, Jr., Att’y Gen.,

13

Defendant.

14
15

Pending before the Court are Plaintiff’s motion for summary judgment (Doc. 43),

16

Plaintiff’s motion requesting to register on PACER (Doc. 46), Plaintiff’s motion to vacate

17

the Court’s order (Doc. 47), Defendant’s motion for summary judgment (Doc. 70), and

18

Defendant’s motion to strike Plaintiff’s supplement to Plaintiff’s motion for summary

19

judgment (Doc. 74). The Court grants Defendant’s motion for summary judgment (Doc.

20

70) and denies the remaining motions for the following reasons.

21

I.

BACKGROUND

22

In removal proceedings before an immigration judge, Plaintiff claimed he is a

23

United States citizen by birth in the United States Virgin Islands. The Department of

24

Homeland Security (“DHS”), however, alleged Plaintiff was also known as Winston

25

George Graham and was a citizen of Jamaica. On November 16, 2004, the immigration

26

judge found Plaintiff failed to establish he is a native and citizen of the United States and

27

that DHS met its burden of showing Plaintiff was not born in the United States, but in

28

Jamaica, and the judge ordered him removed.

On April 28, 2005, the Board of

1

Immigration Appeals (“Board”) found the immigration judge’s determination was not

2

clearly erroneous, and it therefore dismissed Plaintiff’s appeal. Plaintiff subsequently

3

filed a petition for review with the United States Court of Appeals for the Ninth Circuit,

4

but his petition was dismissed for failure to prosecute on September 13, 2006. Following

5

reinstatement of the petition before the Court of Appeals and the appointment of pro bono

6

counsel, Plaintiff, who was removed to Jamaica in 2006, submitted new evidence in

7

support of his contention that he was not Winston George Graham or a citizen of Jamaica.

8

See (Doc. 1 at 3). On January 9, 2012, after briefing and oral argument, the Court of

9

Appeals concluded there was a material issue of fact with regard to Plaintiff’s nationality

10

and transferred his case to this Court for a de novo determination of his nationality

11

pursuant to section 242(b)(5) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

12

1252(b)(5). See (id. at 1-4).

13

On March 22, 2012, Plaintiff requested that his counsel no longer represent him.

14

(Docs. 18 & 19). Plaintiff then requested that the Court grant Plaintiff new counsel.

15

(Doc. 20). On April 23, 2012, the Court granted Plaintiff’s requests and appointed pro

16

bono counsel for Plaintiff. (Doc. 24). On January 22, 2013, Plaintiff again requested that

17

his counsel be removed from the case and he be allowed to proceed pro se. (Doc. 37).

18

That Court granted Plaintiff’s latest request to remove counsel and following discovery,

19

on July 8, 2013, Defendant filed the pending motion for summary judgment (Doc. 70)

20

before the Court and a statement of facts in support of the motion (Doc. 71). Plaintiff

21

filed a response (Doc. 73) and Defendant filed a reply (Doc. 77).

22

II.

ANALYSIS

23

The Ninth Circuit Court of Appeals transferred Plaintiff’s citizenship claim to this

24

Court for “a new hearing on the nationality claim as if an action had been brought in the

25

district court under section 2201 of Title 28 [the provision for declaratory judgment].”

26

INA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B). Accordingly, in a de novo hearing on

27

citizenship, Plaintiff seeks a declaratory judgment finding that he is a United States

28

Citizen. Sanchez-Martinez v. INS, 714 F.2d 72, 74 n.1 (9th Cir. 1983). Plaintiff therefore
-2-

1

has the burden of proving his citizenship by a preponderance of the evidence in order to

2

prevail. 28 U.S.C. § 2201; Sanchez-Martinez, 714 F.2d at 74 n.1; Yee Tung Gay v. Rusk,

3

290 F.2d 630, 631 (9th Cir. 1961) (plaintiffs seeking declaration of citizenship had burden

4

of establishing their citizenship by a “fair preponderance of the evidence”); see Mondaca-

5

Vega v. Holder, 718 F.3d 1075, 1081 (9th Cir. 2013) (citing Ayala-Villanueva v. Holder,

6

572 F.3d 736, 737 n.3 (9th Cir. 2009) (noting, inter alia, “[e]vidence of foreign birth [in

7

removal proceedings] gives rise to a rebuttable presumption of alienage”)). Given the

8

multiple pending motions, the sole issue the Court need determine is whether Plaintiff is

9

able to establish that there is a genuine issue of material fact regarding Plaintiff’s United

10

States citizenship.

11

A.

Summary Judgment Standard

12

Defendant argues that there is no issue of material fact regarding Plaintiff’s claim

13

of United States citizenship by birth because there is no evidence demonstrating Plaintiff

14

was born in the United State Virgin Islands or anywhere else in the United States. (Doc.

15

70 at 3). Summary judgment is only appropriate when “the movant shows that there is no

16

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

17

of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely

18

disputed must support that assertion by . . . citing to particular parts of materials in the

19

record,” or by “showing that materials cited do not establish the absence or presence of a

20

genuine dispute, or that an adverse party cannot produce admissible evidence to support

21

the fact.” Id. 56(c)(1)(A)&(B). Thus, summary judgment is mandated “against a party

22

who fails to make a showing sufficient to establish the existence of an element essential to

23

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex

24

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

25

Initially, the movant bears the burden of pointing out to the Court the basis for the

26

motion and the elements of the causes of action upon which the non-movant will be

27

unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to

28

the non-movant to establish the existence of material fact. Id. The non-movant “must do
-3-

1

more than simply show that there is some metaphysical doubt as to the material facts” by

2

“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’”

3

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting

4

Fed. R. Civ. P. 56(e) (1963) (amended 2010)). In the summary judgment context, the

5

Court construes all disputed facts in the light most favorable to the non-moving party.

6

Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

7

The mere existence of some alleged factual dispute between the parties will not

8

defeat an otherwise properly supported motion for summary judgment; the requirement is

9

that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

10

242, 247-48 (1986). A material fact is any factual issue that might affect the outcome of

11

the case under the governing substantive law. Id. at 248. A material fact is “genuine” if

12

the evidence is such that a reasonable jury could return a verdict for the non-moving party.

13

Id.

14

At the summary judgment stage, the trial judge’s function is to determine whether

15

there is a genuine issue for trial. There is no issue for trial unless there is sufficient

16

evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at

17

249-250. If the evidence is merely colorable or is not significantly probative, the judge

18

may grant summary judgment. Id.

19

In this case, Plaintiff has failed to file a controverting statement of facts and abide

20

by Local Rule of Civil Procedure (“LRCiv”) 56.1(b).

21

opposing the motion for summary judgment, the non-movant, to file a controverting

22

statement of facts in addition to their response to the motion for summary judgment.

23

LRCiv 56.1(b). In the controverting statement of facts the non-movant must address

24

every one of the material facts that the moving party put forth. Id. Further, the rule

25

requires that any additional facts that establish a genuine issue of material fact that the

26

non-movant proffers must “be set forth in [ ] separately numbered paragraph[s] and must

27

refer to [ ] specific admissible portion[s] of the record where the fact[s] find[ ] support.”

28

Id. “Failure of the non-moving party to comply with LRCiv 56.1(b) is ground for the
-4-

This rule requires the party

1

Court to disregard a controverting statement of facts and deem as true the moving party’s

2

separate statement of facts in support of the motion for summary judgment.” Breeser v.

3

Menta Grp., Inc., NFP, CV 10-1592-PHX-JAT, 2013 WL 1177651, at *2 (D. Ariz. Mar.

4

21, 2013) (citing Szaley v. Pima Cnty., 371 Fed. Appx. 734, 735 (9th Cir. 2010)).

5

Even if the Court were to consider the additional facts Plaintiff has raised in his

6

response, see e.g., (Doc. 73 at 3) (alleging he voted in California); (id.) (alleging he was

7

part of the witness protection program); (id.) (alleging the Government fraudulently

8

redacted any information regarding Plaintiff’s United States citizenship); (id. at 5)

9

(alleging the Government stated Plaintiff’s father died in the United States), he has failed

10

to support these alleged facts by reference to specific admissible portions of the record in

11

compliance with LRCiv 56.1(b). Essentially, Plaintiff has offered no proof of the factual

12

allegations he has made. Further, Plaintiff has failed to set forth controverting and

13

additional facts in numbered paragraphs pursuant to LRCiv 56.1(b). “A district court does

14

not have a duty to search for evidence that would create a factual dispute.” Breeser, 2013

15

WL 1177651 at *3 (citing Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007)). “The

16

Court’s scrutiny of material statements of facts applies equally to the party seeking

17

summary judgment and the party opposing it. Where a party offers a legal conclusion or

18

statement of fact without proper evidentiary support, the Court will not consider that

19

statement.” Id. (quoting Phillips v. Quality Terminal Servs., LLC, 855 F.Supp.2d 764,

20

771 (N.D. Ill. 2012)).

21

The Court will consider Plaintiff’s arguments but the Court will not consider

22

Plaintiff’s factual assertions that are not supported anywhere in the record. See Fed. R.

23

Civ. P. 56(c)(1)(A)&(B).

24

B.

Citizenship

25

“There are ‘two sources of citizenship, and two only: birth and naturalization[.]’”

26

Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169

27

U.S. 649, 702 (1898)). Plaintiff contends he was born in the United States Virgin Islands

28

in 1959 and that his father was a United States citizen. (Doc. 73 at 3); (Doc. 70-1 at 3);
-5-

1

see INA § 101(a)(38), 8 U.S.C. §§ 1101(a)(38) (the term “United States” generally

2

includes the “Virgin Islands of the United States”); INA § 301(a), 8 U.S.C. § 1401(a) (“a

3

person born in the United States, and subject to the jurisdiction thereof” shall be a national

4

and citizen of the United States at birth”).

5

naturalized. Thus, to demonstrate he is a United States citizen, Plaintiff must establish by

6

a preponderance of the evidence that is a citizen by birth.

He does not contend that he has been

7

Plaintiff can prove citizenship by birth by showing either that he was born in the

8

United States, Miller, 523 U.S. at 424, or citizenship by acquisition1, see 8 U.S.C. §

9

1401(g). Citizenship by acquisition concerns a person born outside the United States to a

10

citizen of the United States. “The applicable law for transmitting citizenship to a child

11

born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of

12

the child’s birth.” Anderson v. Holder, 673 F.3d 1089, 1097 (9th Cir. 2012) (quoting

13

Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990)). The citizenship law in effect at the

14

time of Plaintiff’s alleged birth in 1959 was the one enacted by § 301 of the INA of 1952,

15

Pub. L. No. 82–414, 66 Stat. 163, 236, codified at 8 U.S.C. § 1401(a)(7) (1952). That

16

section (“Former § 1401(a)(7)”) conferred U.S. citizenship at birth on any

23

person born outside the geographical limits of the United
States and its outlying possessions of parents one of whom is
an alien, and the other a citizen of the United States who,
prior to the birth of such person, was physically present in the
United States or its outlying possessions for a period or
periods totaling not less than ten years, at least five of which
were after attaining the age of fourteen years: Provided, That
any periods of honorable service in the Armed Forces of the
United States by such citizen parent may be included in
computing the physical presence requirements of this
paragraph.

24

1.

17
18
19
20
21
22

25
26
27
28

Plaintiff Cannot Establish Citizenship by Acquisition

1

With regard to citizenship by birth, “the Fourteenth Amendment of the Constitution
guarantees that every person ‘born in the United States, and subject to the jurisdiction
thereof, becomes at once a citizen of the United States, and needs no naturalization.’ 169
U.S., at 702, 18 S.Ct., at 477. Persons not born in the United States acquire citizenship
by birth only as provided by Acts of Congress. Id., at 703, 18 S.Ct., at 477–478.”
Miller, 523 U.S. at 423-24.
-6-

1

In this case former section 1401(a)(7) is inapplicable because Plaintiff claims he

2

was born in the United States Virgin Islands and not born abroad. Further, even if this

3

section were applicable, Plaintiff has proffered no evidence that his father was ever a

4

United States citizen, let alone that he was a citizen before Plaintiff’s birth who was

5

physically present in the United States for at least ten years, at least five of which were

6

after the age of fourteen. See 8 U.S.C. § 1401(a)(7) (1952). Consequently, Plaintiff has

7

failed to establish a material issue of fact over whether he is entitled to citizenship by

8

acquisition.

9

Rather, the evidence offered by Defendant shows Plaintiff’s father was born in

10

Belize, and visited the United States on various occasions, but never resided in this

11

country. (Doc. 71 at 4 ¶ 22); (Doc. 77-1 at 1); (Doc. 77-2 at 1-2); (Doc. 77-3 at 1).

12

Plaintiff has offered no evidence to create an issue of fact showing his father was born in

13

the United States Virgin Islands. Nor has Plaintiff offered any evidence showing his

14

father was ever present in the United States prior to Plaintiff’s birth, let alone physically

15

present for the duration of time required to transmit citizenship. Finally, Plaintiff has not

16

alleged that his mother was ever a United States citizen, nor would the facts support such

17

a claim. See (Doc. 71 at 3 ¶¶ 12, 13, 17) (Plaintiff’s mother was born in Belize, she was a

18

citizen of British Honduras, and she never travelled outside Belize).

19

Accordingly, Plaintiff has made no legal or factual argument that he is a United

20

States citizen by birth under former section 1401(a)(7) or any other subsection of former

21

section 1401.

22
23

2.

Plaintiff Cannot Establish Citizenship by Birth in the United
States

24

The only other way for Plaintiff to show citizenship by birth is to show he was born

25

in the United States. See Miller, 523 U.S. at 423-24. Plaintiff alleges he was born in the

26

United States Virgin Islands. (Doc. 73 at 3); (Doc. 70-1 at 3). However, Plaintiff has

27

offered no evidence of any kind that he has ever been to the United States Virgin Islands

28

or that he was born there. In spite of discovery requests by Defendant, Plaintiff has not
-7-

1

produced any birth certificate, medical records, or school records establishing his birth or

2

presence in the United States Virgin Islands at any time.

3

requests, Plaintiff declared he did not possess, nor could he obtain, any documents: (1)

4

relating to his legalized birth certificate; (2) relating to his parents’ birth, residence, or

5

death; (3) showing he was the child of his parents; or (4) relating to his medical records

6

during his first year of life. (Doc. 70-1 at 7-8, 10). Indeed, Plaintiff admitted he “did not

7

request[ ] a birth certificate or ma[k]e an effort to obtain a birth certificate.” (Id. at 12).

8

He also did not produce any documents in response to Defendant’s request for documents

9

relating to his parents’ entry into and/or presence in the United States between 1955 and

10

1965. (Id. at 7, 10). Significantly, although he claims he applied for a social security

11

number in 1986, and that he applied for a United States passport in 1986, (id. at 4-5, 12),

12

Plaintiff failed to produce any documentation supporting these claims.

13

producing evidence of his birthplace, Plaintiff made vague, unsubstantiated assertions

14

claiming to have been born on a plantation in West Christiansted, St. Croix, United States

15

Virgin Islands. (Id. at 3). As he can have no personal recollection of the circumstances of

16

his own birth, Plaintiff’s assertion is based solely on his claim that he was told of the date

17

and place of his birth by his father. (Id. at 3, 5). However, Plaintiff failed to substantiate

18

his claim with any evidence. He proffered no statement from his father to that effect, nor

19

any evidence concerning his father. Further, Defendant has presented evidence showing

20

the United States Virgin Islands’ Bureau of Vital Statistics, at its separate locations in

21

both St. Croix and St. John, has no records relating to Plaintiff. (Doc. 71 at 11 ¶ 83). In

22

sum, Plaintiff has failed to provide any evidence—documentary, testimonial, or

23

otherwise—supporting his claim of birth in the United States Virgin Islands, and he has

24

therefore failed to establish his claim of United States citizenship by a preponderance of

25

the evidence. Liberty Lobby, 477 U.S. at 248; see Rassano v. INS, 377 F.2d 971, 973 (7th

26

Cir. 1967) (noting lack of documentary evidence to support allegations of citizenship in

27

finding that no genuine issue of material fact existed regarding claim of citizenship).

28

Defendant is therefore entitled to judgment as a matter of law. Id.
-8-

In response to discovery

Instead of

1

While Plaintiff has offered no evidence to support his claim, Defendant has

2

presented substantial evidence showing Plaintiff was in fact born in Belize. Plaintiff has

3

acknowledged that he was born on August 31, 1959, and that his mother was named

4

Phyllis McCoy. (Doc. 71 at 1-2 ¶¶ 1, 6). Defendant has presented Plaintiff’s birth

5

certificate under the name “Linsden Winston Graham,” and indicating a date of birth of

6

August 31, 1959, obtained from the Belizean Bureau of Vital Statistics. (Id. at ¶¶ 1, 84).

7

Defendant has presented a criminal record for Plaintiff in Belize, which included

8

Plaintiff’s matching fingerprints and indicated he was born in Belize. (Id. at ¶¶ 26, 27, 28,

9

30). Defendant has offered evidence establishing that Plaintiff’s father is Ernest McCoy,

10

and that Plaintiff’s parents, Ernest McCoy and Phyllis Graham were married on

11

September 15, 1962, three years after Plaintiff was born. (Doc. 70 at 10). Evidence

12

shows both of Plaintiff’s parents were natives and citizens of British Honduras, which

13

later became the independent nation of Belize. (Id. at 11).

14

Ernest and Phyllis McCoy had three children in addition to Plaintiff and that Phyllis

15

Graham has at least three living siblings. (Id.). Further, evidence shows Plaintiff has used

16

numerous names during his life and that his aunt, Geraldine Graham (“Geraldine”),

17

referred to Plaintiff as both “Linden” and “Linsden.” (Id.). Plaintiff’s younger sister

18

Brenda Leslie, two of his maternal aunts, Geraldine and Rachel Jones, and his maternal

19

uncle Phillip Graham, all identified photographs of Plaintiff as being their relative,

20

Linsden Graham, and stated he was born in Belize. (Id. at 12-13).

Evidence also shows that

21

Accordingly, Defendant has offered substantial evidence showing Plaintiff’s given

22

name is Linsden Winston Graham, that he was born in Belize on August 31, 1959, and

23

that neither of his parents were United States Citizens. Plaintiff has failed to meet his

24

burden to show that there is a genuine dispute regarding these facts. Therefore, Defendant

25

is entitled to judgment as a matter of law.

26

III.

Based on the foregoing,

27
28

CONCLUSION

//
-9-

1
2

IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 70) is
granted.

3

IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment

4

(Doc. 43) is denied, that Plaintiff’s motion requesting to register on PACER (Doc. 46) is

5

denied, that Plaintiff’s motion to vacate the Court’s order (Doc. 47) is denied, and that

6

Defendant’s motion to strike Plaintiff’s supplement to Plaintiff’s motion for summary

7

judgment (Doc. 74) is denied, as all these motions are deemed moot.

8
9

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment in
favor of Defendant and against Plaintiff.

10

IT IS FINALLY ORDERED that the Clerk of the Court shall close this case.

11

Dated this 27th day of September, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 10 -