Olivas v. Whitford et al

Filing 250

ORDER Denying 235 Motion to Supplement The Record Filed by Respondents. Signed by Judge William Q. Hayes on 8/22/19. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OSCAR OLIVAS,

Case No.: 14-cv-1434-WQH-BLM
Petitioner,

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ORDER

v.
BILLY WHITFORD, Port Director of
Calexico West Port of Entry, Customs
and Border Protection; PETE FLORES,
Director of Field Operations, San Diego
Field Office, Customs and Border
Protection; R. GIL KERLIKOWSKE,
Commissioner of Customs and Border
Protection; JEH JOHNSON, Secretary
of Homeland Security; JOHN KERRY,
Secretary of State,

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Respondents.

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HAYES, Judge:

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The matters before the Court are the Petition for Writ of Habeas Corpus and

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Complaint for Declaratory and Injunctive Relief filed by Petitioner (ECF No. 1) and the

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Motion to Supplement the Record filed by Respondents (ECF No. 235).

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I.

PROCEDURAL BACKGROUND

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On June 12, 2014, Petitioner filed a “Petition for a Writ of Habeas Corpus and

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Complaint for Declaratory and Injunctive Relief,” naming as Respondents two local
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Customs and Border Patrol (CBP) officials, the Commissioner of the CBP, the Secretary

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of Homeland Security, and the Secretary of State. (ECF No. 1 ). Petitioner brings a claim

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for habeas relief pursuant to 28 U.S.C. § 2241 on the grounds that he is “a natural-born

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U.S. citizen” who was “unlawfully exiled to Mexico” when “CBP officials unlawfully

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refused to allow him to enter the United States.” Id. ¶¶ 1–2. Petitioner brings the following

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four claims: (1) Right of U.S. Citizen to Return to United States under the Fifth and

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Fourteenth Amendments and the Non-Detention Act; (2) Right of U.S. Citizen Against

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Unlawful Detention under the Fifth and Fourteenth Amendments and the Non-Detention

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Act; (3) Violation of Fifth Amendment (Procedural Due Process); and (4) Violation of

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Fifth Amendment (Substantive Due Process). Petitioner asserts jurisdiction under § 2241,

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“§ 1331 (federal question),” “§§ 2201–02 (declaratory relief),” “Federal Rule of Civil

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Procedure 65 (injunctive relief), and the Fifth and Fourteenth Amendments to the U.S.

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Constitution.” Id. at 4. Petitioner requests that this Court: “Issue a writ of habeas corpus

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ordering Defendants to allow Plaintiff to enter the United States without detaining him,”

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“Declare the Plaintiff is a U.S. citizen,” “Declare that any order directing or authorizing

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Plaintiff’s removal from the United States was entered in violation of the Due Process

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Clause of the Fifth Amendment and/or other applicable law and is therefore null and void,”

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and “Enjoin Defendants and their officers, agents, servants, employees, attorneys, and/or

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successors from prohibiting Plaintiff from entering the United States and/or detaining him

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at or after such entry . . . .” Id. at 20–21.

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On June 16, 2014, the Court ordered Respondents to show cause why the Petition
should not be granted. (ECF No. 5).

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On July 8, 2014, Respondents filed a return to the Petition. (ECF No. 12). In the

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Return, Respondents allege that “[o]n December 17, 2010, Petitioner’s mother, Ms. Olivas-

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Cervantes, was interviewed by a consular officer at the U.S. Consulate in Ciudad Juarez,

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Mexico.” Id. at 2. “During the interview, Ms. Olivas-Cervantes signed an affidavit stating

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that Petitioner was not born in Los Angeles, but was born in a clinic in Tijuana, Mexico.”

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Id. at 3. “On or about August 22, 2011, Petitioner applied for admission to the United
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States at the Calexico Port of Entry, claiming he was a U.S. citizen.” Id. at 4. “The CBP

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officer who was processing Petitioner’s application for admission prepared documentation

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to commence removal proceedings before an Immigration Judge (‘IJ’) . . . [t]wo notices to

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Appear (‘NTA’) were prepared, and both appeared to have been ‘cancelled,’ under 8 C.F.R.

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§ 239.2 prior to the commencement of proceedings.” Id. at 5.

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On July 22, 2014, Petitioner filed a traverse. (ECF No. 15).

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On August 14, 2014, the Court issued an amended Order denying a motion to dismiss

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the Petition, referring the matter for expedited discovery, and stating, “The Court finds that

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the Petition adequately alleges a colorable claim of citizenship, and subject-matter

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jurisdiction exists in this Court.” (ECF No. 23).

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On March 2, 2015, the Court denied a motion to dismiss filed by Respondents on

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the ground that 8 U.S.C. §1252(e)(3) deprives the Court of subject matter jurisdiction. The

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Court found that judicial review of Petitioner’s claim is not precluded by § 1252(e)(3)

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“because it is not a challenge to the validity of expedited removal proceedings” and “[t]here

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is no allegation that a removal proceeding took place or that an order was issued.” (ECF

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No. 72 at 13).

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In August of 2015, the parties filed supplemental briefing regarding the standard and

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burden of proof. (ECF Nos. 96, 99, 102, 104, 105, 108). On November 2, 2015, the Court

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issued an Order ruling on motions in limine and stating:

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Petitioner has asserted a non-frivolous claim of U.S. citizenship and this Court
has jurisdiction pursuant to 28 U.S.C. § 2241 over Petitioner’s habeas petition
challenging his exclusion from the United States. See Flores-Torres v.
Mukasey, 548 F.3d 708, 712–13 (9th Cir. 2008) (finding that the court had
habeas jurisdiction where petitioner challenged his detention in the absence
of a final order of removal).
Pursuant to 28 U.S.C. § 2243, Petitioner is entitled to an evidentiary hearing
to prove the disputed fact that he was born in El Monte, California and that he
is entitled to an order allowing him to enter and remain in the United States.
The Court will hold an evidentiary hearing to “summarily hear and determine”
the disputed fact of petitioner’s place of birth and citizenship. 28 U.S.C. §
2243.

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Petitioner bears the burden of establishing, by a preponderance of the
evidence, that he is being unlawfully excluded from the United States because
he is a citizen of the United States by birth. See Snook v. Wood, 89 F.3d 605
(9th Cir. 1996) (“It is the petitioner’s burden to prove his custody in violation
of the Constitution, laws or treaties of the United States.”). See also Berenyi
v. District Director, Immigration & Naturalization Serv., 385 U.S. 630, 670–
71 (1967) (finding that when a person outside of the United States seeks a
declaration of citizenship, “[h]e is the moving party, affirmatively asking the
Government to endow him with all the advantages of citizenship. . . . [I]t has
been universally accepted that the burden is on the alien applicant to show his
eligibility for citizenship in every respect.”).
(ECF No. 126 at 3–4). The Court further noted,
In the immigration context the government brings the action to remove a noncitizen who is currently residing in the United States or to expatriate a current
citizen and therefore the burden of proof may shift to the government. See
e.g., Perez v. Brownell, 356 U.S. 44, 47 n. 2 (1958) (“The Government must
prove the act of expatriation on which the denial [of a declaration of
nationality] was based by ‘clear, unequivocal, and convincing’ evidence . . .
.” (internal citations and quotation marks omitted)); Lim v. Mitchell, 431 F.2d
197, 199 (9th Cir. 1970) (shifting the burden from Plaintiff to the government
to rebut Plaintiff’s evidence of citizenship when Plaintiff was living in the
United States and had previously been given a certificate of identity as a
citizen after a hearing before the Board of Special Inquiry).

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Id. at 4 n.1. The Court held a four-day evidentiary hearing beginning on November 12,

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2015. (ECF Nos. 135, 137–39).

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On June 28, 2016, the Court denied the Petition, concluding that “Petitioner has not

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met his burden to prove that he is being unlawfully excluded from the United States

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because he is a citizen of the United States by birth.” (ECF No. 167 at 39).

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On August 16, 2017, the Court ordered entry of judgment in favor of Respondents

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and against Petitioner as to all claims in this action, concluding that the Court lacked

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jurisdiction over the remaining claims. (ECF No. 212).

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On November 29, 2018, the Court of Appeals vacated this Court’s August 16, 2017

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Order, stating, “The district court erred in requiring Olivas to bear the burden of proving

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his citizenship by a preponderance of the evidence. Instead, as we held in Mondaca-Vega
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v. Lynch, a burden-shifting framework applies in alienage determination cases.” Olivas v.

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Salazar, 743 F. App’x 890, 890–91 (9th Cir. 2018) (citing Mondaca-Vega v. Lynch, 808

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F.3d 413 (9th Cir. 2015)); ECF No. 230 (same). The Court of Appeals remanded to this

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Court to weigh the evidence using the Mondaca-Vega framework, “in which the

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government presents evidence of alienage, the petitioner responds with substantial credible

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evidence of citizenship, and then the burden shifts back to the government to prove alienage

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by clear and convincing evidence.” Id. at 891. The Court of Appeals rejected the

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government’s argument that Mondaca-Vega applies only in removal proceedings, not in

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this action for habeas and declaratory relief. Id. at 890 n.1. The Court of Appeals stated,

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Olivas was served with a Notice to Appear (“NTA”), which should have
triggered a hearing before an immigration judge. But because the government
failed for over two years to file the NTA with the immigration court, no
hearing was ever scheduled. After repeated unsuccessful attempts to inquire
about the status of his hearing, on June 12, 2014, Olivas filed this suit seeking
determination of his citizenship status. . . .
[T]he government concedes that had it commenced removal proceedings by
filing the NTA, as it admits at oral argument that it was required to do, see 8
C.F.R. §§ 1235.3(b)(5), 1235.6, 1003.13, 1003.14(a), Mondaca-Vega would
squarely control. Olivas claims that for two years, he called the government’s
hotline number weekly, and visited the border at least seven times, to inquire
about a hearing. He claims that agents threatened him with detention if he
persisted. The government may not benefit from its own negligence.

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Id. at 890 & n.1.

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On May 8, 2019, Respondents filed the Motion to Supplement the Record, on the
grounds that additional evidence is necessary to identify the correct basis of subject matter
jurisdiction and apply the burden-shifting framework on remand. (ECF No. 235).

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On May 9, 2019, Respondents filed supplemental briefing on the Petition. (ECF No.
238).
On May 22, 2019, Petitioner filed a response in opposition to the Motion to
Supplement the Record. (ECF No. 242).

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On May 22, 2019, Petitioner filed a response in opposition to Respondents’

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supplemental briefing on the Petition. (ECF No. 241).

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On June 19, 2019, Respondents filed a reply in support of the Motion to Supplement
the Record. (ECF No. 246).

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On June 19, 2019, Respondents filed a reply in support of their supplemental briefing
on the Petition. (ECF 247).

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On July 11, 2019, the Court heard oral argument. (ECF No. 248).

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II.

MOTION TO SUPPLEMENT THE RECORD

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Respondents request that the Court admit for all purposes, under the residual hearsay

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exception of Federal Rule of Evidence 807(a), the affidavit signed by Delia Perez,

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Petitioner’s mother, at the U.S. Consulate in Ciudad Juarez on December 17, 2010 (the

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Juarez Statement), which the Court previously admitted for impeachment purposes only.1

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Respondents contend that the Court should receive additional documents because the Court

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of Appeals “changed the basis of subject matter jurisdiction and flipped the burden of

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proof.” (ECF No. 246 at 2). Respondents contend that the requirements of the residual

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hearsay exception are satisfied because the Juarez Statement has numerous equivalent

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circumstantial guarantees of trustworthiness and contains direct, freestanding evidence of

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the material fact of Petitioner’s birthplace. Respondents contend that admitting the Juarez

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Statement is in the interest of justice because the State of California amended Petitioner’s

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birth certificate to indicate the falsity of Petitioner’s original birth certificate based on the

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Juarez Statement. Respondents contend that the conclusion of the Court of Appeals, that

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this Court did not abuse discretion by admitting the Juarez Statement for impeachment

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only, “is orbiter dictum and lacks context” because neither party challenged this Court’s

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Rule 807(a) provides: “Under the following circumstances, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803
or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as
evidence of a material fact; (3) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the
purposes of these rules and the interests of justice.” Fed. R. Evid. 807(a).
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evidentiary rulings on appeal. Id. Respondents assert that the Juarez Statement is more

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probative than Perez’s trial testimony because the Juarez Statement occurred when Perez

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“was caught off guard, after forty years, when confronted with the inconsistencies in the

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birth registration and her story about the circumstances of [Petitioner’s] birth.” Id. at 6.

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Petitioner contends that Respondents waived the argument that the Juarez Statement

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satisfies the residual hearsay exception by failing to raise the residual hearsay exception

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before this Court or the Court of Appeals. Petitioner contends that Respondents are

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precluded from pursuing the residual hearsay exception at this stage in the litigation.

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Petitioner contends that the conclusion of the Court of Appeals, that this Court did not

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abuse discretion by admitting the Juarez Statement for impeachment only, constitutes the

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law of the case. Petitioner contends that no departure from the law of the case is justified

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under the circumstances.

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requirements are not satisfied. Petitioner asserts that the affidavit is not more probative

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than any other evidence because Perez was available to testify and did testify. Petitioner

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contends that admitting the affidavit is not in the interests of justice because Respondents

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had the opportunity to investigate and prove its case and failed to produce evidence of

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foreign birth.

Petitioner contends that the residual hearsay exception

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In addition, Respondents request that the Court admit documents related to the

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CBP’s August 23, 2011 determination that Petitioner was inadmissible; in particular, the

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cover page, form I-860, form I-296, form I-862, form I-213, and a TECS printout.2

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Respondents assert that they seek admission of the documents “to establish the basis of this

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Court’s subject matter jurisdiction and not for the truth of the matters stated therein.” (ECF

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No. 235-1). Respondents contend that the documents demonstrate that the exclusive basis

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of the Court’s jurisdiction in this case is 8 U.S.C. § 1252(e)(2)(A) by showing that

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“[T]he Treasury Enforcement Communication System (‘TECS’) . . . is an investigative tool of the
Department of Homeland Security that keeps track of individuals entering and exiting the country and of
individuals involved in or suspected to be involved in crimes.” United States v. Cotterman, 709 F.3d 952,
958 & n.3 (9th Cir. 2013).
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Petitioner was processed for expedited removal proceedings pursuant to a determination of

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inadmissibility. Respondents contend that the documents are now relevant to subject

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matter jurisdiction because the Court of Appeals “has, in effect, reversed this Court’s prior

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ruling” that subject matter jurisdiction is proper under general § 2241 habeas. (ECF No.

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246 at 4). Respondents contend that the records are admissible as administrative records.

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Respondents assert that the entire administrative record was identified in the pretrial order,

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and that Respondents seek to admit documents selected from that record.

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Petitioner contends that the Court should not admit the documents because

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Respondents had a full and fair opportunity to offer all available evidence regarding

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Petitioner’s citizenship, and the Court ordered Respondents to do so. Petitioner contends

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that the references to Mondaca-Vega and an expedited removal regulation in the remand

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order do not convert this case into a proceeding for review of an expedited removal order.

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Petitioner asserts that the references confirm that Petitioner is entitled to a de novo judicial

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determination of citizenship.

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advance an expedited removal theory or properly identify the documents. Petitioner asserts

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that he was determined inadmissible and “released to Mexico” without any sort of removal

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order.

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acknowledged on appeal, that Petitioner was not in removal proceedings. Petitioner asserts

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that the Court previously determined at the evidentiary hearing that the I-213 and TECS

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printout were not admissible for the truth of the matter asserted. Petitioner contends that

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the documents are inadmissible because they are irrelevant, lack foundation, and contain

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multiple levels of hearsay. Petitioner contends that the business records hearsay exception

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does not apply to government agency records and the public records exception does not

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apply to statements of third parties without a legal duty to report.

Petitioner asserts that Respondents did not previously

Petitioner asserts that the Court of Appeals confirmed, and Respondents

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The Court of Appeals has stated that “a district court is limited by this court’s remand

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in situations where the scope of the remand is clear.” Mendez-Gutierrez v. Gonzales, 444

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F.3d 1168, 1172 (9th Cir. 2006). In remanding this case, the Court of Appeals directed this

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Court “to apply the burden-shifting framework set forth in Mondaca-Vega” for purposes
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of determining whether Petitioner is an “alien.” Olivas, 743 F. App’x at 891. The Court

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of Appeals further stated, “The district court did not abuse its discretion in admitting Delia

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Perez’s out-of-court statement solely for impeachment purposes. In the district court and

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now on appeal, the government has identified no hearsay exception that would apply.” Id.

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The Court finds that the scope of the remand is clear and limited to weighing the

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evidence in accordance with Mondaca-Vega. Cf. Abdulrafi v. Lockyer, 121 F. App’x 226,

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227 (9th Cir. 2005) (stating expressly that appellant was permitted to supplement the

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record; remanding to the district court “to reconsider its denial of Abdulrafi’s petition in

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light of this new evidence”); see also Creech v. Ramirez, No. 1:99-CV-00224-BLW, 2017

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WL 1129938, at *11 (D. Idaho Mar. 24, 2017) (“[T]his case is before this Court on a limited

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remand. It is not a free-for-all. Specifically, there is no language in the Ninth Circuit’s order

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suggesting that the Court of Appeals empowered this Court to reopen the record and accept

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additional, post-remand evidence.”). In addition, the transcript of the October 22, 2015

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hearing reflects the following statements regarding the burden of proof and the presentation

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of evidence:

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THE COURT: . . . . And what I would envision is that . . . the petitioner would
go forward with all the evidence that you have, whatever evidence that you
have that you think is relevant to your burden, you put it all on; you don’t hold
anything back; you put everything on that you think you should put on, and
then the respondent goes forward; they put on all the evidence that they have,
and then at the conclusion, if you have any rebuttal you put that on.
And then at some point I would indicate, all right, here’s the legal matter;
here’s the burden that you had; and whether it is I agree with the Government
or I agree with you, it is either you have met it or you haven’t met it, and it is
not the case that that is going to have any impact on the presentation of
evidence.
If you have a burden, you go forward with all the evidence that you have, and
then Mr. Bettwy, he puts on evidence that he puts on, and if you have rebuttal,
you put it on . . . whether I agree with the Government or I agree with you[,]
that that legal determination would not affect the presentation of evidence. Do
you agree?
MS. RIVERA: I agree with that, Your Honor.
THE COURT: Do you agree, Mr. Bettwy?
MR. BETTWY: Yes, Your Honor.
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THE COURT: All right. . . . I wanted to avoid . . . a situation where petitioner
puts their case on, the Government -- respondent puts their case on, and
suppose there is no rebuttal, and then I conclude -- suppose I was to conclude
that the Government was right. What I didn’t want to happen is the petitioner
would be in the position to say, oh, wait a minute, I didn’t think that; we
thought we had the burden to go forward with some evidence; we went
forward with some evidence, and then the burden shifted to them, and had we
known that you were going to put the burden on us for the entirety of the case,
we had this other evidence we would have put on, and, you know, we were
misled by your, you know, your failure to rule. And so I don’t want there to
be, you know, misunderstanding . . . .
[I]s it fair to say that petitioner is in agreement that it doesn’t matter with
respect to the presentation of evidence whether the Court determines the
Government is right on the burden or the Court determines the petitioner is
right on the burden. That legal decision obviously may affect the outcome of
the case, but it will not have any impact on the presentation of the evidence.
Do you agree?
MS. RIVERA: That’s right, Your Honor, with respect to the presentation of
evidence at trial.
THE COURT: You agree as well, Mr. Bettwy?
MR. BETTWY: I believe -- yes, Your Honor. With respect -- from the
Government’s point of view, I suppose I would be thinking wors[t] case
scenario is we have the burden of proving by clear and convincing evidence,
but it would not affect -- we wouldn’t be holding back with that thought
otherwise . . . .
(ECF No. 222 at 31–33). The record reflects that the parties have had the opportunity to
present all available evidence and agreed that the burden of proof would not affect the
presentation of the evidence. The record reflects that the Court declined to consider the
Juarez Statement or the I-213 report for the truth of the matter asserted. See ECF 167 at
36 n.11; ECF No. 147 at 26:12–13. The record does not provide grounds to disturb the

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Court’s previous evidentiary rulings. The record does not provide grounds to depart from

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the Court’s previous orders stating that subject matter jurisdiction in this matter is pursuant

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to § 2241, based on Petitioner’s non-frivolous claim of U.S. citizenship and the absence of

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a final order of removal. See ECF No. 126 at 3. The mandate of the Court of Appeals does

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not require reconsideration of evidentiary rulings or subject matter jurisdiction in this case.

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Respondent’s motion to supplement the record is denied.

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III.

ANALYSIS ON REMAND

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Respondents contend that the government’s burden of proof at the first step of the

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Mondaca-Vega framework, in the context of this case, has not been established by case

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law. Respondents contend that the government’s initial burden is necessarily less than

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clear and convincing evidence because the government usually bears the burden of clear

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and convincing evidence when removing or deporting a person, and the government

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usually bears no burden of proof when a person seeks admission to the United States.

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Respondents contend that the government’s initial burden is necessarily less than clear and

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convincing evidence because, in cases analogous to this case, the government bears a clear

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and convincing evidence burden only when there has been a prior determination of

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citizenship. Respondents contend that the Court of Appeals necessarily agreed with this

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Court’s conclusion that there was no prior citizenship determination in this case.

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Respondents contend that, if there was a prior citizenship determination, the Court of

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Appeals would have remanded for Respondents to prove that Petitioner is not a citizen by

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clear and convincing evidence, rather than remanding for application of the Mondaca-Vega

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framework. Respondents contend that the government’s burden in this case is satisfied by

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Petitioner’s judicial admissions and the evidence on the record.

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Petitioner contends that the first step of the Mondaca-Vega framework requires the

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government to provide direct admissible evidence that Petitioner was born in Mexico.

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Petitioner contends that there is no legal distinction between deportation proceedings and

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inadmissibility proceedings; rather, both deportation and exclusion occur in removal

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proceedings, in which the government has the burden of proof by clear and convincing

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evidence.

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citizenship determination was necessarily displaced because the Court of Appeals cited Lee

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Hon Lung v. Dulles—a case in which the government had the burden of proof of clear and

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convincing evidence because there was a prior citizenship determination. (ECF No. 241

Petitioner contends that this Court’s conclusion that there was no prior

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at 42–43 (citing 261 F.2d 719, 724 (9th Cir. 1958))). Petitioner contends that Respondents

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fail to carry the government’s burden of clear and convincing evidence because the

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evidence in this case is scant, indirect, and inconclusive.

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impeaching testimony that Petitioner was born in the United States does not provide

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evidentiary value in support of the government’s case. Petitioner contends that any absence

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of evidence cuts against Respondents, who bear the burden of proof at this stage in the

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litigation.

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Petitioner contends that

Once a petition for a writ of habeas corpus is filed in federal court pursuant to 28

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U.S.C. § 2241, the court must comply with the procedures set forth by 28 U.S.C. § 2243:

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A court, justice or judge entertaining an application for a writ of habeas corpus
shall forthwith award the writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled thereto. . . .
The person to whom the writ or order is directed shall make a return certifying
the true cause of detention. . . .
The applicant or the person detained may, under oath, deny any of the facts
set forth in the return or allege any other material facts.
The return and all suggestions made against it may be amended, by leave of
court, before or after being filed.
The court shall summarily hear and determine the facts, and dispose of the
matter as law and justice require.

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28 U.S.C. § 2243. The Court previously determined that Petitioner was entitled to an
evidentiary hearing regarding the disputed fact of Petitioner’s birthplace. Based on the
evidence presented at the evidentiary hearing, the Court will “summarily hear and
determine” the disputed fact of Petitioner’s birthplace and citizenship. See 28 U.S.C. §
2243. The findings of fact in this case, set forth in the Court’s previous order, were not
disturbed by the Court of Appeals and are not repeated here. See ECF No. 167 at 4–27.
Petitioner claims in his habeas petition that he was born in Los Angeles in 1969 and
that, in 2011, CBP officials unlawfully refused to allow him to enter the United States and
removed him to Mexico, where he now resides. (ECF No. 1 ¶ 1–2, 13, 44). “[T]he habeas
petitioner generally bears the burden of proof.” Garlotte v. Fordice, 515 U.S. 39, 46
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(1995). However, in this case, the Court of Appeals remanded with instructions to apply

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the framework set forth in Mondaca-Vega to resolve the disputed fact of Petitioner’s

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birthplace and adjudicate Petitioner’s claims for relief pursuant to 28 U.S.C. § 2241, 28

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U.S.C. §§ 2201–02, Rule 65, and the Fifth and Fourteenth Amendments. Olivas, 743 F.

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App’x at 891.3

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The Mondaca-Vega court set forth the following framework:

7

The government bears the ultimate burden of establishing all facts supporting
deportability by clear, unequivocal, and convincing evidence. . . . When,
however, the government offers evidence of foreign birth, a rebuttable
presumption of alienage arises, shifting the burden to the alleged citizen to
prove citizenship. . . . Upon production by a petitioner of substantial credible
evidence of the citizenship claim, this presumption bursts and the burden
shifts back to the government to prove the respondent removable by clear and
convincing evidence.

8
9
10
11
12
13

Id. at 419 (quotations and alterations omitted). In addition, the remand order states that the

14

government has the burden to set forth “evidence which is clear, unequivocal, and

15

convincing,” when “one has, over a long period of years, acted in reliance upon a decision

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. . . admitting him as a citizen of the United States . . . .” Olivas, 743 F. App’x at 890–91

17

(citing Lung, 261 F.2d at 724). The plaintiff in Lung was born in 1899 in Hawaii and, in

18

1924, immigration authorities “rendered a decision admitting [the plaintiff] as a Hawaiian-

19

born citizen of the United States.” 261 F.2d at 720. In 1957, the government denied the

20

plaintiff’s passport application, and he brought an action seeking a declaratory judgment

21

of citizenship. Id. The Court of Appeals stated that the plaintiff was “required to establish

22

his citizenship by a fair preponderance of the evidence,” “the ordinary burden of proof

23

resting on plaintiffs in civil actions,” which was satisfied in that case by the 1924 decision

24

admitting the plaintiff as a citizen. Id. The Court of Appeals held that the government

25
26

In Mondaca-Vega, the Court of Appeals reviewed a removal proceedings order, stating, “[O]ur alienagedetermination cases often describe the government’s burden as proof by clear, unequivocal, and
convincing evidence. . . . We use the term ‘alienage determination’ to refer to adjudications made pursuant
to 8 U.S.C. § 1252(b)(5)(B) and 8 U.S.C. § 1503(a).” 808 F.3d at 418, 420 & n.6.
3

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could rebut the plaintiff’s evidence only by “clear, unequivocal, and convincing” evidence.

2

Id.

3

In both Mondaca-Vega and Lung, the government had a clear and convincing

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evidentiary burden at one or more stages in the analysis.

5

government starts out with a clear and convincing evidentiary burden, is relieved of that

6

burden if the presumption applies, and is left with that burden if the petitioner shows

7

substantial credible evidence of citizenship. 808 F.3d at 419. In Lung, the government

8

started out with no burden and had a clear and convincing evidentiary burden after the

9

plaintiff demonstrated his citizenship by a preponderance using the prior determination of

10

In Mondaca-Vega, the

citizenship. 261 F.2d at 720.

11

The Court commences the assessment of Petitioner’s birthplace by applying the first

12

step of Mondaca-Vega framework to determine whether “the government presents

13

evidence of alienage.” Olivas, 743 F. App’x at 890. Regarding the first step of the

14

framework, “the government must prove alienage by clear, convincing, and unequivocal

15

evidence of foreign birth before the burden shifts to the respondent.”

16

Immigration & Naturalization Serv., 54 F.3d 605, 608 (9th Cir. 1995) (quotations omitted);

17

see also Tiznado-Reyna v. Barr, 753 F. App’x 431, 432 (9th Cir. 2019).4 The court in

18

Murphy stated,

Murphy v.

[T]he “foreign born” presumption [i]s a special case where alienage is
established by unrebutted direct proof by the alien’s own testimony at the
hearing or admission in evidence of an authenticated foreign birth certificate.
...
[T]he government here produced no foreign birth certificate for Murphy. Nor
did Murphy admit in sworn testimony at the hearing that he was a foreignborn alien. The government merely set out its prima facie case of alienage
based on circumstantial evidence. Prima facie evidence is “evidence which, if
unexplained or uncontradicted, is sufficient to sustain a judgment in favor of
the issue which it supports, but which may be contradicted by other evidence.”

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20
21
22
23
24
25
26
27
28

4

The Mondaca-Vega court discussed the second and third steps of the framework. 808 F.3d at 417–18.
The Mondaca-Vega court did not expressly apply the first step; the petitioner had an authentic Mexican
birth certificate and had stated under oath that he was born in Mexico and was a Mexican citizen. Id.
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2
3
4

The presumption established by a prima facie case does not reduce the
government’s burden of persuasion, but merely requires the opponent to go
forward with evidence. . . . The burden of persuasion remains on the
government at all times to establish alienage by clear and convincing evidence
....

5

54 F.3d 605, 609–10 (9th Cir. 1995) (quoting Black’s Law Dictionary 1190 (6th ed. 1990));

6

see also Garcia v. Holder, 472 F. App’x 467, 468 (9th Cir. 2012).

7

In this case, the evidence in the record does not include a foreign birth certificate or

8

statement by Petitioner that he was born in a country other than the United States. The

9

government relies upon impeachment and circumstantial evidence to carry the burden to

10

prove alienage by clear and convincing evidence and shift the burden to Petitioner. The

11

Court concludes that the government’s evidence is not sufficient to create the presumption

12

of alienage in this case. See Murphy, 54 F.3d at 608 (requiring “unrebutted direct proof by

13

the alien’s own testimony at the hearing or admission in evidence of an authenticated

14

foreign birth certificate”); see also Mondaca-Vega, 808 F.3d at 417, 419 (applying burden-

15

shifting framework where undisputed evidence included Mexican birth certificate and the

16

petitioner’s prior sworn statements of Mexican birth and citizenship); Corona-Palomera v.

17

Immigration & Naturalization Serv., 661 F.2d 814, 818 (9th Cir. 1981) (concluding

18

immigration judge properly applied burden-shifting alienage presumption when

19

uncontested evidence included Mexican birth certificate); Tiznado-Reyna, 753 F. App’x at

20

432 (affirming application of burden-shifting alienage presumption when evidence

21

included the undisputed fact of petitioner’s foreign birth). The burden of persuasion does

22

not shift to Petitioner at the first step of Mondaca-Vega.

23

Respondents have the burden to establish that Petitioner is an alien by clear and

24

convincing evidence. See Olivas, 743 F. App’x 890 (“[T]he burden shifts back to the

25

government to prove alienage by clear and convincing evidence.”) (emphasis added).

26

Clear and convincing evidence corresponds to “‘an abiding conviction that the truth of the

27

factual contentions’ at issue is ‘highly probable.’” Mondaca-Vega, 808 F.3d at 422

28

(quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)); see also Therasense, Inc. v.
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Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (stating that clear and

2

convincing evidence of intent to deceive can be established with “indirect and

3

circumstantial evidence” if intent to deceive is “the single most reasonable inference able

4

to be drawn from the evidence” and there are not “multiple reasonable inferences that may

5

be drawn”); Binion on Behalf of Binion v. Chater, 108 F.3d 780, 789 (7th Cir. 1997) (“If

6

evidence beyond a reasonable doubt is almost jet black on the black/white scale, clear and

7

convincing evidence . . . requires a dark charcoal shade.”).

8

In this case, Respondents rely upon the following statements to show that Petitioner

9

was not born in the United States: Petitioner’s grandmother stated on her visa application

10

that she was living in Mexico on the date Petitioner was born; and Petitioner stated to

11

immigration authorities that Perez, his mother, had previously claimed that he was born in

12

Mexico. Respondents rely upon the following testimony: Perez’s sister, Hortencia Garcia,

13

testified that she was not pregnant while Perez was pregnant, which is inconsistent with

14

the undisputed fact that Hortencia Garcia was pregnant and living in Los Angeles during

15

Perez’s pregnancy; and Perez’s sister, Anastacia Ontiveros, testified that the midwife who

16

delivered Petitioner lived in Tijuana, which is consistent with Perez stating in the Juarez

17

Statement that Petitioner was born in Tijuana. Respondents rely upon the following

18

evidence related to Petitioner’s birth certificate: the birth certificate states that Petitioner

19

was born at his aunt and uncle’s home, which is inconsistent with Perez’s testimony that

20

Petitioner was born at her parents’ home; and the birth certificate lacks the signature of an

21

attendant other than Petitioner’s mother, which is inconsistent with the undisputed fact that

22

Petitioner’s mother was not the sole attendant of Petitioner’s birth. Respondents rely upon

23

the following evidence related to Petitioner’s baptism: Petitioner’s aunts testified that

24

Petitioner was baptized as an infant, which is consistent with the family custom to baptize

25

children within weeks or months after birth, and inconsistent with the undisputed fact that

26

Petitioner was baptized in the United States at nine years old. Respondents rely upon

27

evidence that Perez registered with the Social Security Administration three months after

28

Petitioner was born and registered Petitioner’s birth five months after Petitioner was born.
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Respondents rely upon the lack of evidence related to Petitioner’s prenatal care, which is

2

inconsistent with the family custom to obtain prenatal care.

3

The inconsistencies in prior statements and testimony, and the anomalies related to

4

Petitioner’s childhood records, supported the initial conclusion of the Court that Petitioner

5

failed to carry his burden demonstrate his citizenship by a preponderance; however, the

6

facts in the record do not carry the burden imposed upon the government by the Court of

7

Appeals in this case. See also ECF No. 249 at 34:6–15 (“THE COURT: . . . . [I]f the

8

burden doesn’t shift . . . with respect to your view of the evidence, then what happens? If

9

the burden doesn’t shift back and remains with the government -- MR. BETTWY: . . . . [I]f

10

the government does not satisfy the first step -- THE COURT: Yes. MR. BETTWY: -- in

11

the framework, then the government hasn’t met its burden of showing that he is an alien.”).

12

IV.

CONCLUSION

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Petitioner brought a claim for habeas relief pursuant to § 2241 on the grounds that

14

he is “a natural-born U.S. citizen” who was “unlawfully exiled to Mexico” when “CBP

15

officials unlawfully refused to allow him to enter the United States.” (ECF No. 1 ¶¶ 1–2).

16

“Under the Fourteenth Amendment, all people born in the United States are citizens of the

17

United States.” Rivera v. Ashcroft, 394 F.3d 1129, 1136–37 (9th Cir. 2005). The Fifth

18

Amendment entitles Petitioner to judicial review of his “non-frivolous claim of citizenship”

19

because the government lacks authority to remove a citizen from the United States. “If, as

20

[Petitioner] plausibly contends, he is a citizen forced to live outside U.S. borders, he is

21

clearly subject to greater restraints than other citizens.” Rivera, 394 F.3d at 1136,

22

superseded by statute on other grounds as stated in Iasu v. Smith, 511 F.3d 881, 886 (9th

23

Cir. 2007) (“Effective May 11, 2005, the REAL ID Act . . . eliminat[ed] all district court

24

habeas jurisdiction over orders of removal.”). The Court exercises § 2241 subject-matter

25

jurisdiction in this case “[b]ecause [Petitioner] has a colorable citizenship claim” and this

26

case “do[es] not involve” a “final order[] of removal.” See Flores-Torres, 548 F.3d at 711

27

(distinguishing Iasu). The Court previously concluded that Petitioner was “required to

28

establish his citizenship by a fair preponderance of the evidence,” “the ordinary burden of
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proof resting on plaintiffs in civil actions.” See Lung, 261 F.2d at 720. In this case, the

2

government does not seek to remove a non-citizen or to expatriate a current citizen, see

3

Perez, 356 U.S. at 47 n. 2; Lim, 431 F.2d at 199, and “the habeas petitioner generally bears

4

the burden of proof,” see Garlotte, 515 U.S. at 46; Snook, 89 F.3d at 605; Berenyi, 385

5

U.S. at 670–71.

6

However, the Court of Appeals found that the government negligently failed to

7

commence removal proceedings and directed this Court to apply a case in which the

8

plaintiff “ha[d], over a long period of years, acted in reliance upon a decision . . . admitting

9

him as a citizen of the United States.” Olivas, 743 F. App’x at 890–91, 890 n.1 (quoting

10

Lung, 261 F.2d at 724). The Court of Appeals concluded that this case is an “alienage

11

determination case[]” subject to a legal standard that ordinarily governs judicial review of

12

removal proceedings and imposes a burden of proof on the government. Id. This Court

13

finds that Respondents have failed to carry the burden of proof that was imposed on the

14

government under the circumstances of this case, as determined by the Court of Appeals.

15

Respondents have failed to overcome Petitioner’s claim that he is entitled to habeas relief

16

on the grounds that excluding him from the United States violates his constitutional rights

17

as a natural-born U.S. citizen.

18

The Court has “broad discretion . . . in fashioning the judgment granting relief to a

19

habeas petitioner.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see also Preiser v.

20

Rodriguez, 411 U.S. 475, 487 (1973) (“[T]he federal habeas corpus statute does not deny

21

the federal courts power to fashion appropriate relief other than immediate release. Since

22

1874, the habeas corpus statute has directed the courts to determine the facts and dispose

23

of the case summarily, as law and justice require.”) (quotations omitted). Congress has

24

instructed the Court to “summarily hear and determine the facts, and dispose of the matter

25

as law and justice require.” 28 U.S.C. § 2243; see also Hilton, 481 U.S. at 775 (“[T]he

26

Court interpreted the predecessor of § 2243 as vesting a federal court ‘with the largest

27

power to control and direct the form of judgment to be entered in cases brought up before

28

it on habeas corpus.’”) (quoting In re Bonner, 151 U.S. 242, 327 (1894)).
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IT IS HEREBY ORDERED that Petitioner is entitled to prevail on his claim for

2

habeas relief on the grounds that excluding him from the United States violates his

3

constitutional rights as a natural-born U.S. citizen. Respondents are not entitled to exclude

4

Petitioner from the United States on the grounds that Petitioner is not a natural-born U.S.

5

citizen.

6

IT IS FURTHER ORDERED that Petitioner’s requests for a declaration invalidating

7

orders removing Petitioner from the United States and a declaration of citizenship pursuant

8

to 28 U.S.C. §§ 2201–02, as well as Petitioner’s request that the Court enjoin Respondents

9

from prohibiting Petitioner’s entry pursuant to Rule 65, are denied as moot.

10
11
12

IT IS FURTHER ORDERED that the Motion to Supplement the Record filed by
Respondents (ECF No. 235) is DENIED.
Dated: August 22, 2019

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