Tapia-Felix v. Lynch

Filing 107

ORDERED, ADJUDGED, AND DECLARED that Respondent has shown by clear and convincing evidence that Petitioner is not a national of the United States. FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly, terminate this action, and transmit a copy of the Order to the Clerk of Court for the Ninth Circuit Court of Appeals. Signed by Judge Steven P Logan on 3/10/17. (SJF)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Leonardo Tapia-Felix, 9 10 Petitioner, vs. 11 12 Loretta E. Lynch, U.S. Attorney General, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-15-01464-PHX-SPL ORDER 15 This proceeding has been transferred to this Court for de novo review of Petitioner 16 Leonardo Tapia-Felix‘s citizenship claim. Having carefully reviewed the evidence and 17 the arguments of counsel, as presented at trial and in their written submissions, the Court 18 issues the following findings of fact and conclusions of law pursuant to Rule 52 of the 19 Federal Rules of Civil Procedure. 20 I. Findings of Fact1 21 Petitioner Leonardo Tapia-Felix was born on June 16, 1972. Petitioner’s mother, 22 Rosa Maria Felix (“Felix”), was born in San Luis Rio Colorado, Sonora, Mexico on April 23 5, 1957, and Petitioner’s father, Leonardo Tapia-Ambriz (“Tapia-Ambriz”), who is now 24 deceased, was born on April 27, 1938. At the time of Petitioner’s birth, Felix was 15 25 years old and Tapia-Ambriz was 34. On July 24, 1972, Petitioner’s birth was registered in Mexico. The registration of 26 27 1 28 Although the parties contest whether Petitioner is a U.S. citizen, the vast majority of the evidence in this case is undisputed and has been stipulated to by the parties. 1 birth listed his birthplace as San Luis Colorado, Sonora, Mexico, and was signed by both 2 Felix and Tapia-Ambriz, as well as by Petitioner’s maternal grandmother, Marcelina 3 Felix, and his paternal aunt, Lilia Tapia, who signed as witnesses. 4 Growing up, Petitioner lived in both Mexico and the United States. In September 5 of 1990, Felix and Tapia-Ambriz signed a registration of birth in California, which listed 6 Petitioner’s birthplace as Santa Ana, California. Adelina Tapia, who is married to Tapia- 7 Ambriz’s brother, Sergio Tapia, also signed the registration as a supporting witness. On 8 November 2, 1990, a Delayed Registration of Birth was issued. 9 On May 16, 2007, Petitioner obtained a United States passport. In 2008, 10 Petitioner’s daughter, Blanca Nayeli Tapia Ochoa (“Ochoa”), obtained a certificate of 11 U.S. citizenship based on her derivative status through Petitioner. 12 In 2008, Petitioner was charged with an unrelated crime in state court. At that 13 time, an immigration check was performed that revealed he had been encountered by 14 immigration officials on April 28, 1987 and on August 21, 1998. During those 15 encounters, he had been determined to be a citizen of Mexico and was issued an alien 16 registration number. An investigation pursued, and in 2009, immigration authorities 17 obtained a copy of Petitioner’s Mexican registration of birth, Mexican birth certificate, 18 and Mexican National Registration Card that was issued on September 10, 2000. On 19 January 13, 2011, U.S. Department of Homeland Security Special Agent Brian Wakefield 20 interviewed Petitioner’s mother at her residence, which was conducted in the Spanish 21 language. Wakefield also wrote a sworn statement in the Spanish language on Felix’s 22 behalf, as he was illiterate. Felix signed the statement. The statement is purported to 23 memorialize Felix’s interview and attests, among other things, that Petitioner was born in 24 Mexico and was taken to the United States when he was 40 days old. 25 On February 15, 2012, the U.S. Department of State issued a letter to Petitioner 26 informing him that, having considered Petitioner’s Mexican birth certificate and Felix’s 27 2011 statement, his United States passport was revoked. Ochoa’s citizenship has not been 28 revoked. 2 1 On July 31, 2012, Petitioner was placed in removal proceedings, to which 2 Petitioner asserted a claim of United States citizenship in response. In November 2012, 3 an Affidavit to Amend a Record was submitted by two special agents to the California 4 Office of Vital Records, which was appended to Petitioner’s California Delayed 5 Registration of Birth. The affidavit stated “Delayed Reg. of Birth obtained fraudulently. 6 Registrant’s original Mexican birth certificate obtained by U.S. Dept. of State.” (Exh. 7 62.) 8 While his removal proceedings were ongoing, on May 8, 2012, Petitioner, through 9 counsel, petitioned the Superior Court in San Luis Rio Colorado, Sonora, Mexico for an 10 order declaring his Mexican birth certificate to be null and void. The petition was granted 11 and the court entered a judgment of nullification that became final on December 11, 12 2012. The registration of birth was annotated by the Office of Civil Registry to reflect the 13 court’s judgment on December 13, 2012. 14 After several rounds of hearings and decisions, on May 10, 2013, an immigration 15 judge ordered Petitioner removed to Mexico. Petitioner appealed, and the case was 16 remanded by the Board of Immigration Appeals (“BIA”) to allow Petitioner to offer 17 additional evidence in support of his citizenship claim. Following a hearing on remand, 18 on June 24, 2014, the immigration judge again found Petitioner to be removable as 19 charged, and the decision was affirmed by the BIA on December 12, 2014. Petitioner 20 sought review of that decision by the Ninth Circuit Court of Appeals. The Ninth Circuit 21 found a genuine issue of material fact existed as to Petitioner’s claim of United States 22 citizenship, and the case was transferred to this Court for a de novo review of his 23 citizenship claim. 24 On December 1, 2016, a bench trial on the merits of this action was held. The 25 Court heard the testimony of Petitioner, Felix, Agent Wakefield, Avelina Tapia, and 26 Sergio Tapia. 27 28 3 1 II. Conclusions of Law2 2 A. Burden of Proof 3 At issue is a judicial determination of the nationality of Petitioner, in the nature of 4 a declaratory judgment claim brought under 28 U.S.C. § 2201(a). See 8 U.S.C. § 5 1252(b)(5)(B) (if a “petitioner claims to be a national of the United States and the court 6 of appeals finds that a genuine issue of material fact about the petitioner’s nationality is 7 presented, the court shall transfer the proceeding to the district court… for a new hearing 8 on the nationality claim and a decision on that claim as if an action had been brought in 9 the district court under section 2201 of Title 28”). 10 There are “two sources of citizenship, and two only: birth and naturalization.” 11 Miller v. Albright, 523 U.S. 420, 423-34 (1998). Here, Petitioner claims only citizenship 12 by birth. Respondent Loretta E. Lynch (the “Government”) has presented evidence of 13 Petitioner’s foreign birth that gives rise to a rebuttable presumption of alienage, shifting 14 the burden to Petitioner to establish a valid claim to citizenship. See Mondaca-Vega v. 15 Lynch, 808 F.3d 413, 419 (9th Cir. 2015); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 16 n. 3 (9th Cir. 2009); Chau v. INS, 247 F.3d 1026, 1029 n. 5 (9th Cir. 2001). The parties 17 have stipulated that because Petitioner was issued a U.S. passport and his daughter 18 obtained a certificate of U.S. citizenship based on his purported status as a U.S. citizen, 19 Petitioner has produced “substantial credible evidence” of his U.S. citizenship. See 20 Mondaca-Vega v. Lynch, 808 F.3d at 419. Therefore, the parties agree that the ultimate 21 burden rests with the Government to prove that Petitioner is removable by clear, 22 unequivocal, and convincing evidence.3 Id. 23 2 24 25 To the extent any the Court’s conclusions of law are more properly characterized as findings of fact, they should be treated as such. See Fed. Trade Comm’n v. Money Now Funding LLC, No. CV-13-01583-PHX-ROS, 2014 WL 11515626, at *2 (D. Ariz. Dec. 10, 2014). 3 26 27 28 “Respondent disagrees with Mondaca-Vega and believes that case’s holding shifting the burden of proof to the Government to be contrary to applicable statutes and precedents, and that its transplantation of burdens of proof in administrative removal proceedings to a § 1252(b)(5)(B) district-court nationality hearing to be improper. Nevertheless, Respondent acknowledges that, at this time, under Mondaca-Vega, the Government arguably has the burden of proof…” (Doc. 85 at 7, § F.) 4 1 “Clear and convincing evidence requires greater proof than preponderance of the 2 evidence. To meet this higher standard, a party must present sufficient evidence to 3 produce ‘in the ultimate factfinder an abiding conviction that the truth of its factual 4 contentions are highly probable.’” Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th 5 Cir. 2004) (internal citations omitted). See also Mondaca-Vega, 808 F.3d at 422 (holding 6 that the Government’s burden to establish alienage by “clear, unequivocal, and 7 convincing” evidence signifies the same intermediate standard as “clear and 8 convincing”). “Evidence only clearly and convincingly supports a conclusion when it 9 does so in the aggregate considering all the pertinent evidence in the record, and despite 10 the evidence that fairly detracts from that conclusion.” Whitmore v. Dep’t of Labor, 680 11 F.3d 1353, 1368 (Fed. Cir. 2012). 12 B. The Government Has Carried Its Burden 13 The Court finds that the evidence presented by the Government is clear, 14 unequivocal, and convincing evidence of Petitioner’s alienage, and that evidence is 15 sufficient to warrant disregard of the evidence of U.S. citizenship furnished by Petitioner. 16 Mondaca-Vega, 808 F.3d at 420; Lee Hon Lung v. Dallas, 261 F.3d 719, 724 (9th Cir. 17 1958). 18 The Government has offered evidence which includes, among other things: 19 Petitioner’s Mexican birth certificate; a Mexican Clave Única de Registro de Población 20 card; documents from Petitioner’s A-file relating to Petitioner’s historical encounters 21 with immigration officials and investigative reports; and the citizenship application 22 packet of Petitioner’s daughter, which includes her Mexican birth certificate that lists 23 Petitioner’s nationality as Mexican. However, at the heart of the Court’s conclusion is 24 Petitioner’s authenticated Mexican registration of birth. 25 The authenticity and admissibility of Petitioner’s Mexican registration of birth, 26 along with its corresponding translation, is undisputed. The registration of birth, recorded 27 39 days after Petitioner’s birth, provides that he was born on June 16, 1972 at 3:00 a.m. 28 in San Luis Rio Colorado, Mexico. It states that Petitioner was the first born child of 5 1 Felix, who was a 15 year old homemaker, and Tapia-Ambriz, who was a 34 year old day 2 laborer. The registration reflects that Felix and Tapia-Ambriz resided together in Mexico, 3 but were not married. The registration of birth was witnessed by Felix’s mother and 4 Tapia-Ambriz’s sister. 5 The Mexican registration of birth bears sufficient indicia of trustworthiness and is 6 close in time, if not contemporaneous, as to be conclusive evidence of Petitioner’s birth 7 in Mexico. See Coronoa-Paloma v. INS, 661 F.3d 814 (9th Cir. 1981); Zerri v. Gonzales, 8 471 F.3d 342 (2nd Cir. 2006); Venercion v. INS, 791 F.2d 778, 779-80 (9th Cir. 1986); 9 Mah Toi v. Brownell, 219 F.2d 642, 644 (9th Cir. 1955) (“Neither law nor reason justifies 10 holding an order to be of greater evidentiary value than a certificate in establishing the 11 place and time of birth when such facts are in issue in a proceeding concerned with 12 United States citizenship.”); Pinto-Vidal v. Attorney General of U.S., 680 F. Supp. 861, 13 862 (S.D. Tex. 1987) (finding a Mexican birth certificate was a contemporaneous record 14 of birth where it indicated that the birth had been registered on April 18, 1967, 39 days 15 after the petitioner was born on March 10, 1967); Liacakos v. Kennedy, 195 F. Supp. 630, 16 631 (D. D.C. 1961) (“a record of birth contemporaneously made by governmental 17 authority in official records would be almost conclusive evidence of birth.”). The 18 Mexican registration of birth contains specific information that forms a coherent and 19 reliable account of Petitioner’s birth, and the other facts contained within the record of 20 registration are consistent with the evidence presented in this case. 21 Petitioner has offered a copy of a Mexican judgment nullifying the Mexican 22 registration of birth and birth certificate, which the Court finds is facially valid. The 23 judgment however is not entitled to comity. Nor does it cast doubt on the validity of 24 Petitioner’s Mexican registration. Unlike here, no evidence was provided before the 25 Mexican court that contradicted Petitioner’s position; the Government did not have notice 26 or an opportunity to be heard in the Mexican proceeding. See Int’l Transactions, Ltd. v. 27 Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589, 594 (5th Cir. 2003) (a 28 foreign court’s judgment on a matter is conclusive and entitled to comity when the 6 1 relevant parties had an opportunity to be heard).4 The Mexican court did not engage in 2 the same legal determination. (See Exh. 7, p. 7 (stating that the determination was 3 whether the evidence tended to support the petitioner’s position).) Nor did the Mexican 4 court consider the same body of evidence. For example, the judgment reflects that it was 5 supported by the testimony of PATRICIA BECERRA LUNA and ALICIA GARCIA JIMENEZ, who at the hearing of October Five, two thousand and twelve… stated that they know for a fact the LEONARDO TAPIA FELIX WAS BORN IN THE City of Santa Ana, Orange County, California, and that he was registered again in this City due to his parents’ ignorance, who believed that by so doing he would obtain dual citizenship. 6 7 8 9 10 (Exh. 7, p. 9.) These named individuals did not testify before this Court, nor are they 11 claimed to have been among those present at or near the time of Petitioner’s birth. 12 Therefore, they could not have known with certainty that Petitioner was born in the 13 United States. See United States v. Lopez, 762 F.3d 852, 863 (9th Cir. 2014) (“Personal 14 knowledge means knowledge produced by the direct involvement of the senses.”). 15 The Court also finds that the purported documentary evidence of Petitioner’s birth 16 in the United States does not displace the evidentiary value of the valid Mexican birth 17 record. Petitioner’s California delayed registration of birth was issued almost twenty 18 years after his birth. While a delayed registration of birth can be probative of a claim of 19 United States citizenship even in the face of a contemporaneously filed foreign birth 20 certificate, the strength of the record depends on the evidence relied upon by the state 21 officials who issued it. See Reyes v. Neelly, 264 F.2d 673, 675 (5th Cir. 1959) (when a 22 certificate is based upon evidence furnished by a plaintiff, the certificate can “have no 23 greater standing or force than that evidence on which the determination was based”); 24 Nagle v. Dong Ming, 26 F.2d 438, 439 (9th Cir. 1928) (“Public record of a birth, if 25 4 26 27 28 Further, giving preclusive effect to the Mexican judgment finding that Petitioner was born in California would be contrary to the United States’ exclusive authority over the regulation of immigration. See Montemurro v. Immigration and Naturalization Service, 409 F.2d 832, 832 (9th Cir. 1969) (“under comity - as contrasted with full faith and credit - our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons”). 7 1 contemporaneously made pursuant to law, would be entitled to great weight; but, in the 2 absence of a special statute, a record made, as in the case here, 25 years after the event 3 has no legal status, and is without substantial probative value. The verified statement 4 upon which it was entered may be considered as an affidavit, but the record itself is 5 without efficacy.”); see also Mah Toi v. Brownell, 219 F.2d 642, 643 (9th Cir. 1955) 6 (rejecting state’s delayed birth certificate as conclusive proof of birth); Bustamante- 7 Barrera v. Gonzales, 447 F.3d 388, 400 (5th Cir. 2006) (citizenship “is determined by 8 federal law; it is not dependent on the law of any particular state.” (emphasis in 9 original)). 10 Here, the delayed registration of birth reflects that the registering officials relied 11 on a baptismal certificate that showed Petitioner had been baptized on December 17, 12 1972 at Our Lady Queen of Angels Church in Los Angeles, California, and was born in 13 Santa Ana, California on June 16, 1972. (See Exhs. 1, 72.) This evidence is uncertain in 14 both authenticity and evidentiary trustworthiness.5 No evidence surrounding the creation 15 of the baptismal register or the certificate of baptism has been offered. No copy of the 16 baptismal register has been provided, and the certificate of baptism itself is merely an 17 unauthenticated copy of a testimonial record. 18 The certificate of baptism, which does not contain a seal, is a black and white copy 19 of a form that appears to have been completed by typewriter. Therein, a “Rev. Albert 20 Vazquez CMF” is purported to summarize information appearing “from the Baptismal 21 Register of [the] Church.” At the bottom of the document, the “[c]urator of the files,” 22 whose name is illegible, certifies by signature that the document is a copy of the original 23 certificate kept in the parish files. Notably, “Rev. Albert Vazquez CMF” did not sign the 24 certificate of baptism. Nor does the certificate contain the signature of “Rev. Eugenio 25 Ortega,” who purportedly baptized Petitioner on December 17, 1972. The document does 26 not indicate who recorded the baptism, or the date on which it was recorded in the 27 5 28 The state’s reliance on the baptismal record does not have a preclusive effect in these proceedings. Nor is the Government’s stipulation to the fact of baptism binding on the findings of this Court. 8 1 baptismal register. The document does not reflect what date the unnamed curator certified 2 the copy. Most troublesome is the fact that the copy of the certificate of baptism that is 3 before this Court is not, and could not be, the baptismal certificate that was provided to 4 the Office of the State Registrar in 1990. In the certificate, “Rev. Albert Vazquez CMF” 5 summarizes information in the registrar as it appeared on August 26, 2002. The 6 California delayed registration of birth however reflects that it relied on a baptismal 7 certificate that was issued on August 6, 1987. In the absence of any verifiable evidence, 8 these factors collectively give rise to a reasonable inference that the baptismal record is 9 not what is purports to be and is fraudulent. 10 Thus, the record is absent any credible documentary evidence issued in close 11 proximity to the time of Petitioner’s birth that might detract from the evidentiary value of 12 Petitioner’s Mexican birth certificate. Petitioner has no contemporaneous United States 13 birth certificate. The earliest record of presence in the United States outside of 14 Petitioner’s baptism is his encounter with immigration officials in April 1987 – 15 years 15 after he was born. This further discredits the veracity of the baptismal record itself and 16 undercuts the reliability of the delayed registration of birth. Petitioner’s encounter in 17 1987 preceded the issuance of the baptismal certificate, which was obtained several 18 months later in August 1987.6 Indeed, Petitioner’s testified that when he was 15 or 16 19 years old - in 1987 or 1988 - he started having problems crossing the border, and asked 20 his father to help him obtain paperwork.7 (Tr. 103:20 – 140:16.) 21 The remainder of documentary evidence in the record is either not suggestive of 22 Petitioner’s birth in the United States, or was derivatively obtained by use of Petitioner’s 23 baptismal record or delayed registration of birth. Thus, in viewing the documentary 24 evidence of record, there is no documentary evidence that detracts from Petitioner’s valid 25 Mexican birth certificate. 26 6 27 Absent the record of baptism, there is no evidence of record that shows Felix was present in the United States in 1972. 7 28 While Petitioner testified that his father hired an attorney to register his birth in California, no explanation as to how the certificate of baptism was obtained. 9 1 Further, the testimonial evidence offered does not displace or undermine the 2 evidentiary effect of Petitioner’s valid Mexican birth record. The Court does not find that 3 the testimony offered by Felix to be credible. See Mondaca-Vega v. Lynch, 808 F.3d at 4 427. Felix testified that she came with Tapia-Ambriz to the United States when she was 5 three months pregnant with Petitioner. At the time of Petitioner’s birth, Felix and Tapia- 6 Ambriz were living at an unidentified location in Oxnard, California. On the day of his 7 birth, Tapia-Ambriz took Felix and his sister in law, Avelina Tapia, to Santa Ana, 8 California to run an errand. Felix testified that Tapia-Ambriz then dropped the two 9 women off at a house, which was either owned or inhabited by a woman named Domita 10 Perez.8 Felix does not know why she was left at the house. In any event, she testified that 11 she gave birth to Petitioner later that evening. Domita, Avelina, and an unknown woman 12 were present at the time of birth. Felix testified that Tapia-Ambriz returned to the house 13 approximately four days later, at which point he drove Felix and Petitioner to Oxnard.9 14 Sometime thereafter, Petitioner’s grandparents took him to a hospital. Felix further 15 testified that when Petitioner was 39 days old, she and Tapia-Ambriz took him to Mexico 16 to register his birth because Tapia-Ambriz wanted Petitioner to have dual citizenship. In 17 1990, at the request of Tapia-Ambriz, Felix traveled to California to register Petitioner’s 18 birth. 19 The Court does not find Felix’s testimony regarding the circumstances 20 surrounding Petitioner’s birth to be credible. Felix’s account was vague and disjointed. 21 For example, the Court is unable to glean from her testimony exactly where she and 22 Tapia-Ambriz lived at the time Petitioner was born. Felix testified that when they came to 23 the United States, they lived for “a while [at] his mom and dad’s and then [they] went to 24 8 25 26 27 28 Petitioner’s California Delayed Registration of Birth reflects that a Domita Perez “assisted” with the birth; her “whereabouts [] unknown.” (Exh. 1.) The fact that the preparer of the delayed registration of birth notes that this information is unknown in itself “generates some suspicion about the trustworthiness of the information.” In re E.D.R., 772 A.2d 1156, 1160 (D.C. 2001). 9 Avelina testified that she was picked up from the house by her husband Sergio Tapia. Sergio testified that he picked up Avelina from the house in Santa Ana the day after Petitioner was born. 10 1 some friends’ houses. [They went] different places. [They] were not steadily in one 2 place.” (Tr. 156:19-21.) The lack of specificity in Felix’s description of Petitioner’s birth 3 was markedly dissimilar to the vast majority of her testimony. For example, unlike the 4 story of Petitioner’s birth, Felix offered detailed, specific facts surrounding her interview 5 with Agent Wakefield; she clearly and confidently testified as to what he had said to her, 6 what she said to him, and what she was thinking or feeling at the time. See Mondaca- 7 Vega v. Holder, 718 F.3d 1075, 1085 (9th Cir. 2013) (“trial courts are generally permitted 8 to evaluate credibility of testimony by assessing its level of detail”) adhered to on reh’g 9 en banc sub nom. Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015); Sparkman v. 10 Comm’r, 509 F.3d 1149, 1156 (9th Cir. 2007) (“The Tax Court, describing [a witness’] 11 testimony as ‘vague, contrived, and non-credible,’ plainly did not believe her, and the 12 Tax Court, like any other court, may disregard uncontradicted testimony by a taxpayer 13 where it finds that testimony lacking in credibility.” (some internal quotation marks 14 omitted)). 15 The unexplained inconsistences in her account also lead the Court to find her story 16 of Petitioner’s birth in the United States to be improbable. See Mondaca-Vega v. Holder, 17 718 F.3d at 1085 (“It is well settled that a fact-finder may rely on inconsistencies to 18 support an adverse credibility determination”); United States v. McCarty, 648 F.3d 820, 19 829 (9th Cir. 2011). The Government has presented the contemporaneous birth certificate 20 of America Tapia, Felix’s daughter, who was born in a hospital in Oxnard, California the 21 year after Petitioner was born. (Exh. 78.)10 On one hand, Felix was unable to identify 22 where she lived in Oxnard at the time of Petitioner’s birth, and testified that she did not 23 go to the hospital with Petitioner after he was born because Petitioner’s grandparents 24 “said [Felix] was very young and Leonardo the father… could get in trouble” due to her 25 age. (Tr. 160: 4-6.)11 Yet, when questioned with regard to America’s birth, Felix 26 10 27 11 28 The authenticity of the record is undisputed. The Court also observes that although Felix testified that Petitioner’s grandparents took him to the hospital after he was born, no hospital records or other post-natal records have been provided to the Court. The absence of supporting documentary evidence from 11 1 responded that at “[t]hat time [she] was at the home of Leonardo Tapia Ambriz’s mom 2 and dad and when [she] went into labor, they took [her] to the hospital.” (Tr. 162: 12-14.) 3 Similarly, Felix did not offer a credible explanation regarding Petitioner’s 4 registration in Mexico that undermines the Court’s confidence that it is evidence of his 5 alienage. Felix testified that Tapia-Ambriz took Petitioner to Mexico to register his birth 6 because he wanted him to obtain dual citizenship. Yet, Petitioner’s birth was not also 7 registered in the United States at that time.12 Felix was unable to offer any explanation as 8 to why dual citizenship in Mexico was pursued for Petitioner, but not for his sister who 9 was born in the United States the following year. The testimony of expert witness 10 Gretchen Kuhner does not compel a different outlook. Kuhner testified that there are a 11 variety of reasons why parents register U.S. born children in Mexico which make it a 12 common practice, such as for extended travel in Mexico, for fear that they will be in 13 trouble for removing a child to Mexico, or in order for the child to be admitted to school. 14 While Kuhner’s testimony is credible, it is not probative in this case. Felix did not testify 15 that Petitioner was registered in response to some occurrence in Mexico; Petitioner was 16 residing in the United States, was taken to Mexico for the purpose of being registered 17 there, and was returned to the United States immediately thereafter. In fact, the only 18 specific testimony Felix offered on the subject was just the opposite; Felix testified that 19 no documentation was required when Petitioner was later enrolled in school in Mexico. 20 To the extent Kuhner testified that it is common for Mexican families to register the birth 21 of U.S. born children in Mexico because it is generally misconceived that they can, that 22 testimony is not admissible. See U.S. v. Bahena-Cardenas, 411 F.3d 1067, 1078-79 (9th 23 24 the time of Petitioner’s birth further undermines Felix’s account in light of the record that was made of America’s birth. 25 12 26 27 28 Felix previously testified in immigration court that she did not register Petitioner in the United States at the time of birth because she did not have immigration status. However, she was unable to provide any explanation as to why Tapia-Ambriz, who did have immigration status, did not register Petitioner’s birth in the U.S. at the same time he registered Petitioner’s birth in Mexico. (IJ Tr. 75:2-21 (Sep. 21, 2012).) Again, this reasoning cannot be reconciled with the hospital birth and contemporaneous registration of America the following year. 12 1 Cir. 2005). 2 The Court’s conclusion that Felix’s testimony concerning Petitioner’s Mexican 3 registration is less than credible is reinforced by her admission that she signed two 4 conflicting registrations of birth – one which stated Petitioner was born in Mexico, and 5 one filed eighteen years later stating that he was born in the United States. Felix was 6 unable to explain why Petitioner’s birth was registered in the United States in 1990, and 7 the statements that Felix does offer in connection with the delayed registration of birth 8 only give rise to further suspicion. For example, Felix testified that in 1988 she began her 9 paperwork to become a lawful permanent resident, and moved to Yuma, Arizona. (IJ Tr. 10 53:6-114 (Sept. 21, 2012).) In a sworn statement submitted in support of Blanca’s 11 citizenship application, Felix stated that she had been a resident of the U.S since 1989, 12 and in 1992, Petitioner had been residing with her in Yuma, Arizona. (Exh. 72.) Yet, in 13 the delayed registration of birth issued in 1990, Felix stated that she was living in 14 Mexico. 15 The Court also heard the testimony of Avelina and Sergio Tapia, who were offered 16 as percipient witnesses. While Avelina’s testimony was consistent with Felix’s account, it 17 does not detract from the evidence that shows Petitioner was born in Mexico. Avelina’s 18 limited testimony was cursory and conclusory. She offered no specific independent facts 19 or personal observations that make Felix’s vague and improbable account more plausible. 20 Therefore, her testimony is not credited as evidence of Petitioner’s birth in Mexico. Nor 21 is Sergio’s testimony entitled to any evidentiary weight. While Sergio testified that he 22 picked Avelina up the day after Petitioner was born, he did not testify that he was present 23 for the birth or encountered Petitioner or Felix at that time. See United States v. Lopez, 24 762 F.3d 852, 863 (9th Cir. 2014) (“Personal knowledge means knowledge produced by 25 the direct involvement of the senses.”). 26 Therefore, because the testimonial evidence of Petitioner’s birth in the United 27 States is neither credible nor corroborated by any reliable documentary evidence, it does 28 not undermine the Court’s confidence in the Government’s evidence that proves he was 13 1 not. See DeBrown v. DOJ, 18 F.3d 774 (9th Cir. 1994) (finding mother’s testimony and 2 affidavits from two witnesses to birth did not rebut Mexican birth certificate); Pinto-Vidal 3 v. Attorney General of the United States, 680 F. Supp. 861 (S.D. Tex. 1987) (finding 4 father’s testimony that he filed a false Mexican registration of birth and a baptismal 5 certificate did not rebut Mexican birth certificate). 6 Lastly, the Court observes that it does not assess the credibility of Agent 7 Wakefield nor weighs the evidentiary value of Felix’s 2011 sworn statement. Assuming 8 without deciding that the sworn statement written by Agent Wakefield on Felix’s behalf 9 was not an accurate memorialization of their interview, that finding would say little about 10 what was said. And an inverse reading of Felix’s 2011 statement, which Petitioner 11 maintains should be read to support his claim that he was taken to Mexico from the 12 United States when he was 40 days old, would be entitled to no greater weight than 13 Felix’s already discredited testimony. Likewise, if assuming that the sworn statement was 14 an accurate memorialization of Felix’s interview and was made of her own volition, it 15 would not bolster the Government’s case. The Court has found Felix not to be credible. 16 For the same reasons Felix’s testimony does not serve as evidence of Petitioner’s birth in 17 California, her 2011 statement cannot be accepted as a reliable account that proves that 18 Petitioner was born in Mexico. 19 After considering all the pertinent evidence in the record, and weighing the 20 evidence that fairly detracts from its conclusion, the Court finds that the Government’s 21 evidence clearly and convincingly supports a conclusion that Petitioner was not born in 22 the United States. 23 III. Having conducted an evidentiary hearing and a de novo review of the complete 24 25 Conclusion record pursuant to 8 U.S.C. § 1252(b)(5)(B), 26 IT IS ORDERED, ADJUDGED, AND DECLARED that Respondent has 27 shown by clear and convincing evidence that Petitioner is not a national of the United 28 States. 14 1 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 2 accordingly, terminate this action, and transmit a copy of the Order to the Clerk of Court 3 for the Ninth Circuit Court of Appeals. 4 Dated this 10th day of March, 2017. 5 6 Honorable Steven P. Logan United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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