Zuniga-Hurtado v. Holder

Filing 117

ORDER that Petitioner German Zuniga-Hurtado's 114 Motion to Amend Judgment, or, in the alternative, Motion for New Trial is DENIED. Signed by Judge G Murray Snow on 7/24/2013.(LFIG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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German
Zuniga,

Zuniga-Hurtado

aka

Herman

No. CV-12-01927-PHX-GMS
ORDER

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Petitioner,

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v.

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Eric H. Holder, Jr., Attorney General,

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Respondent.

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Pending before the Court is Petitioner German Zuniga–Hurtado’s Motion to

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Amend Judgment pursuant to Rule 52(b), or in the alternative, Motion for a New Trial

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pursuant to Rule 59. (Doc. 114.) For the reasons discussed below, Petitioner’s Motion is

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denied.

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Motions under Rule 52(b) are designed to correct findings of fact which are

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central to the ultimate decision; the Rule is not intended to serve as a vehicle for a

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rehearing. ATS Prods. Inc. v. Ghiorso, No. C10-4880 BZ, 2012 WL 1067547 at *1 (N.D.

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Cal. Mar. 28, 2012); Davis v. Mathews, 450 F.Supp. 308, 318 (E.D. Cal. 1978). They are

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granted to correct manifest errors of law or fact or to address newly discovered evidence

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or intervening case law. Ghiorso, 2012 WL 1067547 at *1. A motion to amend cannot be

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used to “introduce evidence that was available at trial but was not proffered, to relitigate

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old issues, to advance new theories, or to secure a rehearing on the merits.” Fontenot v.

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Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986). Furthermore, a motion to

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amend is properly denied where the proposed ground would not affect the outcome of the

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case or is immaterial to the court’s conclusions. Weyerhaeuser Co. v. Atropos Island, 777

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F.2d 1344, 1352 (9th Cir. 1985).

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Similarly, motions for a new trial under Rule 59 are granted only for (1) manifest

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error of law, (2) manifest error of fact, or (3) newly discovered evidence. Brown v.

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Wright, 588 F.2d 708 (9th Cir. 1978) (citing 6A Moore's Federal Practice § 59.07 at 59–

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94). In addition, “[h]armless errors encountered during the course of a proceeding are not

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proper grounds for new trial or amendment of a judgment.” Rygg v. Cnty. of Maui, 122 F.

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Supp. 2d 1140, 1158 (D. Haw. 2000).

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As an initial matter, Petitioner’s premise for the Motion is incorrect. Petitioner

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bases his argument on two assertions: (1) he presented credible evidence that his mother

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had the requisite five-year presence in the United States from which he acquired

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citizenship, and (2) Respondent’s evidence was insufficient to rebut this showing.

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However, as stated in the Court’s Order of May 1, 2013, Petitioner failed to present

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credible evidence that his mother was in the United States for a five-year period between

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1936 and 1961. (Doc. 112 at 6.) Petitioner’s evidence consisted of vague memories from

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his mother’s children that in no way established a definitive five-year presence in the

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country. (Id.) While Maria Magana testified that, in her recollection, the time her mother

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spent in the United States “had to be more than five years,” she did not support this

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assertion with any specific dates or personal memories. (Doc. 107 at 67:11–17.) Indeed,

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as Magana herself testified, any specific dates that would have supported this time span

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would have been hearsay, as they were told to her by her father, (id. at 63:8–16), and she

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was born in 1959, only two years before Petitioner was born, so she would have been

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incapable of summoning memories that her mother spent a total of five years in the

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United States by 1961, (id. at 51:19–20).

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Petitioner’s other arguments are similarly unavailing. Petitioner first appears to

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argue that the handwritten statements in Jorge and Ruben Hurtado Zuniga’s

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naturalization applications lacked foundation because no witness was able to identify
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who made them. However, Respondent introduced the applications as business records,

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and established through Charles Berkley Harrell that the applications were made in the

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regular course of business. Petitioner objects that no evidence was introduced as to the

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writer of the handwritten notations at the end of the application. (Doc. 114 at 4.) Harrell

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testified that the handwritten notations on applications were the “standard practice and

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policy of adjudicators” and that the markings on the applications in question were made

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by the officer who conducted the interview. (Tr. at 108:4–13.) This is sufficient

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foundation for the handwritten statements.

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Petitioner further argues that Harrell should not have been allowed to testify at all

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because Respondent failed to disclose him as a witness under Rule 26. Rule 26 requires

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each party to disclose the identities of individuals likely to have discoverable information

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on the basis of the information reasonably available to each party at the time. Fed. R. Civ.

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P. 26(a)(1)(E). At trial, Respondent indicated that Harrell only came to its attention

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during the litigation subsequent to Petitioner’s subpoena. (Tr. at 94:24–95:2.)

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Furthermore, it is undisputed that Harrell was deposed and subject to cross-examination.

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(Id. at 95:3–7.) As such, the Court’s decision to allow Harrell to testify was not a

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manifest error of law.

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Petitioner also argues that this Court gave “more weight to the statements [in the

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applications] than those statements were due” because neither of them “established that

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Maria Hurtado Zuniga was exclusively in Mexico from 1932 to 1967.” (Doc. 114 at 5.)

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Petitioner confuses the burden of proof. It is Petitioner’s burden to prove his citizenship

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by a preponderance of the evidence. It is not Respondent’s burden to prove that

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Petitioner’s mother spent the entire period between 1932 to 1967 outside of the United

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States, nor is this fact relevant to the inquiry—the only relevant fact is whether

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Petitioner’s mother spent a total of five years in the United States during that time span.

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Petitioner asserts that the fact of his siblings’ naturalization does not lead logically

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to the conclusion that they could not have acquired citizenship through their mother.

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However, as stated in this Court’s previous Order, testimony at trial established that a
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naturalization application cannot be granted if the applicant’s mother had the requisite

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physical presence to transmit citizenship. (Doc. 112 at 5.) Petitioner’s assertion is simply

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incorrect. Petitioner also claims that his siblings and parents did not know there was an

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option to acquire citizenship through their mother. However, as established through

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testimony at trial, Petitioner’s siblings stated on their naturalization applications that their

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mother was born in California, and any immigration adjudicator would, upon seeing this

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fact, “have had a fiduciary responsibility to ask the question of how long the mother

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resided in the United States in order to determine if the person was already a citizen.” (Tr.

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at 113:22–114:1.) Petitioner’s siblings’ ignorance of the possibility of becoming a citizen

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through their mother’s citizenship is therefore not persuasive.

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Petitioner finally argues that the Court erred in failing to allow him to object to

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designated deposition testimony included in the Proposed Final Pretrial Order. (Doc. 114

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at 7.) Even if this were a valid or meritorious argument to be made at this stage, the

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Court’s previous Order did not rely on any of the designated deposition testimony; rather,

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it focused on the testimony at trial and on the parties’ post-trial briefing. Any error on this

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ground is therefore harmless.

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IT IS THEREFORE ORDERED that Petitioner German Zuniga–Hurtado’s

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Motion to Amend Judgment, or, in the alternative, Motion for a New Trial (Doc. 114) is

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DENIED.

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Dated this 24th day of July, 2013.

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