Montijo-Valdez v. Holder

Filing 54

ORDER: Petitioner is not a citizen of the United States by birth.IT IS ORDERED granting the Government's 47 Motion for Summary Judgment. IT IS FURTHER ORDERED that the Clerk of the Court shall file a copy of this Order with the Ninth Circuit Court of Appeals. Signed by Senior Judge James A Teilborg on 8/5/2014.(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sergio Montijo-Valdez,
Petitioner,

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ORDER

v.

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No. CV-13-00125-PHX-JAT

Eric H. Holder, Jr., Att’y Gen.,

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Respondent.

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Pending before the Court is United States Attorney General Eric H. Holder, Jr.’s

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(the “Government’s”) Motion for Summary Judgment (the “Motion”).1 (Doc. 47). The

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Court now rules on the Motion.

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I.

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BACKGROUND
For purposes of the Court’s resolution of the pending Motion, the Court considers

the relevant facts and background, viewed in Petitioner’s favor,2 to be as follows.

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Petitioner’s father, Hector Castro Montijo, was born in Mexico on January 18,

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1949. (The Government’s Statement of Facts (“SOF”), Doc. 48 ¶ 3). Hector derived

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United States citizenship from his father, Petitioner’s grandfather. (Petitioner’s

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Additional Statement of Facts (“ASOF”), Doc. 52 at 10–11 ¶ 13). Petitioner’s mother,

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Petitioner notes that the Motion exceeds seventeen pages in violation of Local
Rule 7.2(e). (Doc. 51 at 1 n.1). Because striking the excess pages in the Motion would
not affect the outcome of the Order, the Court declines to do so.
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In the summary judgment context, the Court construes all disputed facts in the
light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075
(9th Cir. 2004).

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Maria Elena Valdez de Montijo was also born in Mexico. (SOF ¶ 2). Hector attended

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grade school in Mexico until he was around 15 years old. (Petitioner’s Response to the

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Government’s Statement of Facts (“CSOF”), Doc. 52 ¶ 9). As early as 1965, Hector

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began traveling to and from the United States. (ASOF ¶ 1).

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Beginning in either 1967 or 1968, Hector began working “in the fields” in the

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United States. (Doc. 52-2 at 6–7; ASOF ¶ 3). In 1968, Hector and Maria Elena began

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living together in Mexico. (SOF ¶ 15). While living with Maria Elena, Hector performed

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seasonal work in both Mexico and the United States. (SOF ¶ 16; CSOF ¶ 15; ASOF ¶ 5).

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Hector continued this seasonal work past the time Petitioner was born in 1979. (ASOF

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¶ 4). Hector worked in the United States anywhere from two to eight months of each

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year. (ASOF ¶ 6).

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On January 11, 1979, Petitioner was born in Guaymas, Sonora, Mexico. (SOF

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¶ 31). When Petitioner was born, Hector was domiciled in Poblado Morelos, Mexico.

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(SOF ¶ 32). On December 1, 1983, the former Immigration and Naturalization Service

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(“INS”) approved Hector’s citizenship application and issued a Certificate of Citizenship

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to Hector. (SOF ¶ 35). The Certificate of Citizenship noted that Hector was a United

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States citizen at birth and that he resided in Empalme, Sonora, Mexico. (SOF ¶ 35).

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On March 4, 1989, Petitioner immigrated to the United States as a lawful

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permanent resident. (SOF ¶ 43). On October 5, 2009, Petitioner’s father, Hector, died.

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(SOF ¶ 45). On September 27, 2011, Petitioner was convicted of transporting illegal

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aliens for profit, a class A felony. (Doc. 15-5 at 2–3). Sometime thereafter, the

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Government initiated removal proceedings against Petitioner. (See Doc. 48-1 at 3–6).

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On March 8, 2012, an immigration judge found that Petitioner did not establish

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any claim to derivative United States citizenship and found Petitioner to be removable.

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(Id. at 4). Petitioner appealed to the Board of Immigration Appeals (“BIA”). (See id. at 3–

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6). The BIA agreed with the immigration judge’s determination that Petitioner did not

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establish any derivative citizenship claim through Hector and dismissed the appeal. (Id. at

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4). Petitioner petitioned the Ninth Circuit Court of Appeals for review of the BIA’s

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decision. (See Doc. 15-1). The Ninth Circuit Court of Appeals found that “a genuine

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issue of material fact exist[ed] as to [P]etitioner’s claim of United States citizenship” and

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transferred the case to this Court for a de novo review of Petitioner’s citizenship claim.

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(Id. at 1).

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II.

LEGAL STANDARD

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Summary judgment is appropriate when “the movant shows that there is no

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

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

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

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record, including depositions, documents, electronically stored information, affidavits, or

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declarations, stipulations . . . admissions, interrogatory answers, or other materials,” or by

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“showing that materials cited do not establish the absence or presence of a genuine

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dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Id. 56(c)(1)(A), (B). Thus, summary judgment is mandated “against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s

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

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

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

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

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

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

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

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

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

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Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the

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

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare

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assertions, standing alone, are insufficient to create a material issue of fact and defeat a

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motion for summary judgment. Id. at 247–48. Further, because “[c]redibility

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determinations, the weighing of the evidence, and the drawing of legitimate inferences

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from the facts are jury functions, not those of a judge, . . . [t]he evidence of the

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nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor” at

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the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co.,

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398 U.S. 144, 158–59 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999)

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(“Issues of credibility, including questions of intent, should be left to the jury.”) (internal

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citations omitted).

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III.

ANALYSIS

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Petitioner argues that the Court “should deny [the Government’s] Motion . . .

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because genuine issues of material fact exist regarding [the Petitioner’s] derivative

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citizenship claim.” (Doc. 51 at 2). Petitioner alleges that his citizenship derives from his

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father, Hector. (Id.).

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Under the burden-shifting framework for removal proceedings articulated by the
Ninth Circuit Court of Appeals,
[T]he [Government] 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
[Government] then bears the ultimate burden of proving the
[petitioner] removable by clear and convincing evidence.
Mondaca-Vega v. Holder, 718 F.3d 1075, 1081 (9th Cir. 2013) (quoting AyalaVillanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)). In a de novo hearing on
citizenship, the petitioner seeking a “declaratory judgment finding that he is a United
States citizen . . . has the burden of proving his citizenship by a preponderance of the
evidence in order to prevail.” Graham v. Holder, No. CV-12-00066-PHX-JAT,
2013 WL 5445525, at *1 (D. Ariz. Sept. 30, 2013) (citing 28 U.S.C. § 2201; SanchezMartinez v. Immigration & Naturalization Serv., 714 F.2d 72, 74 n.1 (9th Cir. 1983); Yee
Tung Gay v. Rusk, 290 F.2d 630, 631 (9th Cir. 1961)).
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“There are ‘two sources of citizenship, and two only: birth and naturalization[.]’”

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

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169 U.S. 649, 702 (1898)). Petitioner does not contend that he has been naturalized.

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Thus, to demonstrate that he is a United States citizen, Petitioner must establish by a

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

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

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United States, Miller, 523 U.S. at 424, or that he has derivative citizenship, see

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8 U.S.C. § 1401(g). It is uncontested that Petitioner was born in Mexico. (Doc. 48-1 at 8–

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9). As a result, Petitioner can only prove citizenship through derivative citizenship.

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Derivative citizenship concerns a person born outside the United States to a citizen of the

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United States. “The applicable law for transmitting citizenship to a child born abroad

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when one parent is a U.S. citizen is the statute that was in effect at the time of the child’s

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

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Schultz, 901 F.2d 782, 783 (9th Cir. 1990)). The citizenship law in effect at the time of

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Petitioner’s birth in 1979 was the one enacted by § 301 of the Immigration and

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Nationality Act (“INA”) of 1952, Pub. L. No. 82-414, 66 Stat. 163, 236, codified at

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8 U.S.C. § 1401(a)(7) (1952). That section (“Former § 1401(a)(7)”) conferred United

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States citizenship at birth on any

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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.
Applying Former § 1401(a)(7) to this case, Petitioner must demonstrate by a
preponderance of the evidence that Hector, a United States citizen and Petitioner’s father,
was physically present in the United States for ten years between January 18, 1949
(Hector’s date of birth) and January 11, 1979 (Petitioner’s date of birth), five years of
which must have been after Hector’s fourteenth birthday on January 18, 1963. See id. The
Government argues that Petitioner fails to satisfy his burden because he lacks adequate
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evidence. (See Doc. 47). The Court agrees.

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In addition to documentary evidence, credible testimony and written declarations

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can provide a basis for a petitioner to establish a parent’s physical presence in the United

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States. See Vera-Villegas v. Immigration & Naturalization Serv., 330 F.3d 1222, 1225

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(9th Cir. 2003). In support of his contention that Hector was physically present in the

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United States for ten years, at least five of which after he was fourteen years old,

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Petitioner presents testimonial evidence from Petitioner’s mother, Maria Elena, and

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Petitioner’s two uncles, Gerardo Castro Montijo and Oscar Castro Montijo. (See Docs.

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52-1, 52-2).3

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In reviewing Petitioner’s testimonial evidence, the earliest date that “Hector could

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have first come to the United States” is 1965. (Doc. 51 at 6; ASOF ¶ 1). Furthermore, the

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longest time Hector ever stayed in the United States in a given year was “around seven or

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eight months.” (Id.; ASOF ¶ 6). Even if the Court assumed that Hector spent eight

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months of every year in the United States from January 1965 until January 1979,

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Petitioner only shows that Hector was physically present in the United States for 113

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months4 instead of the statutory requirement of 10 years (or 120 months). The Court’s

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estimate is the most favorable inference the Court can make given the testimonial

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evidence and it resolves all factual contradictions5 in favor of Petitioner. Because

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The Government argues that the Court should not consider some of this evidence
because it “lacks foundation in personal knowledge” and is “inadmissible hearsay.” (Doc.
53 at 10). This Court has held that evidence that lacks foundation or contains hearsay
statements is admissible “if offered in opposition to [a] motion [for summary judgment.]”
Quanta Indem. Co. v. Amberwood Dev., Inc., No. CV-11-01807-PHX-JAT,
2014 WL 1246144, at *2 (D. Ariz. Mar. 26, 2014). As a result, the Court overrules the
Government’s objection to the Court’s review of Petitioner’s evidence.
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The Court reaches this calculation by multiplying eight months by the fourteen
years between 1965 and 1978 that Hector is assumed to have been physically present in
the United States. The Court then adds one month for January 1979.
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In particular, the Court’s estimate assumes Oscar’s statement that Hector worked
for eight months of the year in the United States (Doc. 52-1 at 26) to mean every year
between 1965 (the year Gerardo estimated Hector first traveled to the United States (id. at
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begin working in the United States until 1968, (see id. at 25–26), and despite Maria Elena
stating that Hector was only in the United States for two months during 1967 (ASOF ¶ 6;
Doc. 52-2 at 8).
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Petitioner has not provided any specific facts showing that Hector was physically present

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in the United States for 120 months prior to Petitioner’s birth, Petitioner has raised no

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genuine issue for trial. Petitioner notes that “[u]nder a similar version of a derivative

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citizenship statute that requires a parent to have ten years’ ‘residence’ rather than

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‘physical presence,’ the Ninth Circuit Court of Appeals held that when the petitioner’s

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father was physically present in the United States for nine months of the year . . . he

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satisfied the residency requirement.” (Id. at 6–7) (citing Alcarez-Garcia v. Ashcroft,

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293 F.3d 1155, 1157–58 (9th Cir. 2002)). As Petitioner notes, Alcarez-Garcia concerns

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the evidence necessary to establish residence rather than physical presence and,

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therefore, is not relevant to Petitioner’s burden of establishing physical presence per

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Former § 1401(a)(7). As a result, Petitioner’s derivative citizenship claim pursuant to

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Former § 1401(a)(7) fails as a matter of law.6

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED Petitioner is not a citizen of the United States by birth.

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IT IS ORDERED granting the Government’s Motion for Summary Judgment.

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(Doc. 47).
IT IS FURTHER ORDERED that the Clerk of the Court shall file a copy of this
Order with the Ninth Circuit Court of Appeals.
Dated this 5th day of August, 2014.

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Because the Court concludes Petitioner has not presented any evidence from
which a reasonable juror could find in his favor, the Court need not consider Petitioner’s
objections to the Government’s evidence. (See Doc. 51 at 3–4).
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