NO. 03-71369 IN THE UNITED STATES COURT OF …cdn.ca9.uscourts.gov/datastore/uploads/enbanc/03-71369pfr.pdf · Lim v. Mitchell, 431 F.2d 197 ... See also Nunez-Reyes v. Holder, 646

NO. 03-71369

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SALVADOR MONDACA-VEGA

A 019 263 384

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General

Respondent.

PETITION FOR REVIEW OF

BOARD OF IMMIGRATION APPEALS FINAL ORDER

PETITION FOR REHEARING WITH SUGGESTION FOR

REHEARING EN BANC

Matt Adams

Martha H. Rickey

Northwest Immigrant Rights Project

615 Second Ave., Ste. 400

Seattle, WA 98104

Tel. (206) 957-8611

Attorneys for Petitioner

Case: 03-71369 07/01/2013 RESTRICTED ID: 8688382 DktEntry: 116-1 Page: 1 of 26

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………

I. INTRODUCTION .................................................................... 1

II. REASONS FOR GRANTING REHEARING ........................... 2

A) The Panel’s Decision Rejects Controlling Precedent as to the

Applicable Standard of Review. ......................................................................... 2

B) The Panel’s Decision Deviates from Controlling Precedent in

Applying the Burden of Proof, Equating a “Clear and Convincing”

Standard, with a “Clear, Convincing & Unequivocal” Standard. ................10

C) Application of the Proper Standard to the Facts Requires the

Panel’s Decision to be Reversed. .......................................................................14

III. CONCLUSION ................................................................... 18

CERTIFICATE OF COMPLIANCE TO FED. R. APP. 32(A)(7)(C)

AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369........... 19

CERTIFICATE OF SERVICE ..................................................... 20

ADDENDUM ................................................................................ 21


iii

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 U.S. 418 (1979) ......................................................... 10, 11

Anderson v. City of Bessemer City, 470 U.S. 564 (1985) ................................. 3, 4, 6

Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) .................................................. 5

Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) .....................................13

Baumgartner v. United States, 322 U.S. 665 (1944) .......................... 3, 4, 6, 7, 8, 12

Bechtel v. United States, 176 F.2d 741 (9th Cir. 1949) ............................................. 3

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984).....................8, 9

California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981)

..............................................................................................................................10

Chaunt v. United States, 364 U.S. 350 (1960) ................................................ 3, 7, 17

Corona-Palomera v. INS, 661 F.2d 814 (9th Cir. 1981) .........................................13

Costello v. United States, 365 U.S. 265 (1961) ......................................................... 3

Demirchyan v. Holder, 641 F.3d 1141 (9th Cir. 2011) ............................................. 5

Fedorenko v. United States, 449 U.S. 490 (1981) ............................................ 1, 3, 7

Frank v. Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) ................................................. 5

Iran v. INS, 656 F.2d 469 (9th Cir.1981) .................................................................13

Klapprott v. United States, 335 U.S. 601, 617 (1949) .............................................13

Knauer v. United States, 328 U.S. 654 (1946) ................................. 1, 3, 6, 7, 14, 15

Kungys v. U.S., 485 U.S. 759 (1988) .......................................................................13

Lee Hon Lung v. Dulles, 261 F.2d 719 (9th Cir. 1958) ...........................................10

Lim v. Mitchell, 431 F.2d 197 (9th Cir.1970) ................................................. 1, 3, 10


iv

Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) ............................... 4

Mondaca-Vega v. Holder, --F.3d--, No. 03-71369 (9th Cir. April 25, 2013) . 1, 4, 6,

10, 11, 12, 14, 15, 21

Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) ............................................................13

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................. 8

Ng Fung Ho v. White, 259 U.S. 276 (1922) .................................................... 5, 6, 15

Nowak v. United States, 356 U.S.660 (1958) ......................................................3, 16

Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) .............................. 2

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........................................ 3, 4, 8, 9

Rivera v. Ashcroft, 394 F.3d 1129 (9th Cir. 2005) ..............................................5, 17

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...........2, 9

Schneiderman v. United States, 320 U.S. 118 (1943) .............................. 6, 7, 12, 15

Stacher v. United States, 258 F.2d 112 (9th Cir. 1958) ............................................. 3

Trop v. Dulles, 356 U.S. 86, 92 (1958) ....................................................................17

United States v. Delmendo, 503 F.2d 98 (9th Cir. 1974) ........................................... 3

United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) ................................1, 9

Woodby v. INS, 385 U.S. 276 (1966) ............................................................ 1, 11, 12

Statutes

8 U.S.C. § 1229a(c)(3)(A) .......................................................................................12

8 U.S.C. § 1252(b)(5)(B) ........................................................................................... 5

Other Authorities

H. Doc. 99-63 (1985) ................................................................................................. 9

The New Oxford American Dictionary, 368 (2d ed. 2005)......................................11


v

Rules

Fed.R.Civ.P. 52(a)(6) .................................................................................... 3, 4, 8, 9


1

I. INTRODUCTION

Petitioner Reynaldo Mondaca, a.k.a. Salvador Mondaca-Vega (“Petitioner”

or “Mr. Mondaca”), seeks panel rehearing with suggestion for rehearing en banc of

the Court’s opinion. Mondaca-Vega v. Holder, --F.3d--, No. 03-71369 (9th Cir.

April 25, 2013). As pointed out in the dissenting opinion, the Panel’s holding

conflicts with controlling precedent of the United States Supreme Court and this

Court, which directs a contrary result as to the standard of review that must be

applied to the district court’s findings of fact. See, e.g., Knauer v. United

States, 328 U.S. 654 (1946); Fedorenko v. United States, 449 U.S. 490 (1981); Lim

v. Mitchell, 431 F.2d 197 (9th Cir.1970). Similarly, the Panel’s decision directly

conflicts with an existing opinion by the First Circuit Court of Appeals. See

United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006). Consideration by the

full court is therefore necessary to secure and maintain uniformity of the Court’s

decisions.

Moreover, the Panel’s holding conflicts with controlling precedent of the

Supreme Court in applying the burden of proof, erroneously equating “clear,

unequivocal, and convincing” evidence as being the same as the “clear and

convincing” standard. See Woodby v. INS, 385 U.S. 276 (1966).


2

II. REASONS FOR GRANTING REHEARING

A) The Panel’s Decision Rejects Controlling Precedent as to the Applicable

Standard of Review.

The Panel erred in deviating from controlling case law from the Supreme Court

(and from this Court) based on its supposition that the Supreme Court had

implicitly rejected its prior case law, even though the cases the Panel relied on did

not address the standard of review in citizenship or denaturalization issues. The

Panel’s assumption violates a clear principal previously established by the

Supreme Court: “If a precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989). See also Nunez-Reyes v. Holder, 646

F.3d 684, 692 (9th Cir. 2011) (en banc) (“As a circuit court, even if ‘recent

Supreme Court jurisprudence has perhaps called into question the continuing

viability of [its precedent], we are bound to follow a controlling Supreme Court

precedent until it is explicitly overruled by that Court.’” (citation omitted)).

However, the majority did precisely what the Supreme Court stated must not occur

-- the majority claimed the authority to announce that Supreme Court precedent,

which is directly on point, is no longer controlling.


3

The panel found that in reviewing the district court’s findings, its standard of

review is constrained by Fed.R.Civ.P. 52(a)(6), which states that a reviewing court

may only set aside factual findings that are clearly erroneous. However, as the

dissenting opinion clearly explains, a long and venerable line of cases from the

Supreme Court establishes that where the government seeks to strip an individual

of their United States citizenship, or to deport someone despite their claim of U.S.

citizenship, the Court of Appeals is required to provide independent review. See

Fedorenko, 449 U.S. at 506; Costello v. United States, 365 U.S. 265

(1961); Chaunt v. United States, 364 U.S. 350 (1960); Nowak v. United States, 356

U.S. 660 (1958); Knauer, 328 U.S. 654; Baumgartner v. United States, 322 U.S.

665 (1944). As one would expect, this Court has up until now applied that same

standard. See United States v. Delmendo, 503 F.2d 98 (9th Cir.1974); Lim, 431

F.2d 197; Stacher v. United States, 258 F.2d 112 (9th Cir.1958); Bechtel v. United

States, 176 F.2d 741, 744 (9th Cir. 1949).

However, the majority cites to Pullman-Standard v. Swint, 456 U.S. 273

(1982), to assert that “[t]he Supreme Court has since cabined much of the core of

Baumgartner,” and further asserts that it need not abide by controlling precedent

from this Court because “Lim and its progeny relied on implications drawn from

Knauer and Baumgartner that the Supreme Court subsequently repudiated in

Pullman–Standard and Anderson. Because Lim is clearly irreconcilable with


4

Pullman–Standard and Anderson, it has been effectively overruled.” Mondaca-

Vega, slip op. at 8, 13.1

However, the cases relied on by the majority do not overturn or repudiate

Baumgartner, let alone address any of its progeny. Instead, they clarified that the

standard addressed in Baumgartner is specific to its context, citizenship cases

where the exacting burden of proof is directly tied into the standard of review, and

does not provide justification for such searching review in other contexts. The

Supreme Court explained in Pullman-Standard,

Whatever Baumgartner may have meant by its discussion of “ultimate

facts,” it surely did not mean that whenever the result in a case turns on a

factual finding, an appellate court need not remain within the constraints of

Rule 52(a). Baumgartner's discussion of “ultimate facts” referred not to pure

findings of fact-as we find discriminatory intent to be in this context-but to

findings that “clearly impl[y] the application of standards of law.”

456 U.S. at 286 (citation omitted). In contrast, the Court in Pullman-Standard held

that Rule 52(a) controlled because the question at issue under the statute was a

“pure question of fact . . . unmixed with legal considerations.” Id. at 286 n.16. The

Supreme Court clearly distinguished Baumgartner’s discussion of “ultimate facts”

as an appraisal of the strength of the entire body of evidence in a denaturalization

case. Id. Thus, not only does Pullman-Standard not overturn Baumgartner, it

1 As this Court previously explained, the test to determine whether prior

controlling case law has been overruled is if “the relevant court of last resort must

have undercut the theory or reasoning underlying the prior circuit precedent in

such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d

889, 899 (9th Cir. 2003) (en banc).


5

acknowledges one of the primary distinguishing features of that case—an exacting

standard of proof requiring independent review of the facts.

In Ng Fung Ho v. White, 259 U.S. 276 (1922), the Supreme Court considered a

challenge to an executive order of deportation issued against residents who claimed

to be U.S. citizens. Justice Brandeis, writing for the unanimous Court, held that

the executive had no jurisdiction to order the deportation of a citizen: “The claim

of citizenship is thus a denial of an essential jurisdictional fact.” 259 U.S. at 284;

see also Rivera v. Ashcroft, 394 F.3d 1129, 1136 (9th Cir. 2005) (same); Frank v.

Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) (“Until the claim of citizenship is

resolved, the propriety of the entire proceeding is in doubt.”).

Moreover, in the instant case the Court of Appeals has remanded the

proceedings to the district court pursuant to 8 U.S.C. § 1252(b)(5)(B), as a

mechanism for additional fact-finding. But the Court of Appeals retains original

jurisdiction, and with it the obligation to determine its own jurisdiction de novo.

“[W]e never relinquished jurisdiction over [the original petition for review] when

we transferred it for a limited purpose to the district court.” Anderson v. Holder,

673 F.3d 1089, 1093-94 (9th Cir. 2012) (citing Demirchyan v. Holder, 641 F.3d

1141, 1143 (9th Cir. 2011)). Thus, the Court retains its obligation to ensure that

DHS has carried its burden to present clear, unequivocal and convincing evidence

that leaves no doubt as to Petitioner’s citizenship claim. See Schneiderman v.


6

United States, 320 U.S. 118, 125 (1943). As such, the Court’s obligation to review

the findings of fact, independently determining whether DHS has met its burden, is

no different from when Mr. Mondaca first filed a petition for review from the

BIA’s final order.

The majority also asserts that “the Supreme Court has rejected

Baumgartner’s remaining reasoning” in Anderson v. City of Bessemer City, 470

U.S. 564 (1985), citing to the issue of factual findings predicated on credibility

determinations as compared to factual finding based on physical or documentary

evidence. Mondaca-Vega, slip op. at 11-12. But that certainly is not the remaining

reasoning proffered by Baumgartner, Knauer, and its progeny for providing

independent review at the appellate level. Rather, the primary reason, which the

majority fails to address, is that the right at issue, citizenship in this country, is not

only derived from the constitution but is so special that “[t]o deport one who so

claims to be a citizen obviously deprives him of liberty,” and “[i]t may result also

in loss of both property and life, or of all that makes life worth living.” Ng Fung

Ho, 259 U.S. at 284.

The Supreme Court’s decision in Baumgartner was followed two years later

by its holding in Knauer, which reaffirmed that the fundamental reason for de novo

review in citizenship cases is that citizenship is a special right which is protected

by a demanding burden of proof:


7

When denaturalization is sought on this (Baumgartner v. United States,

supra), as well as on other grounds (Schneiderman v. United States, supra),

the standard of proof required is strict. We do not accept even concurrent

findings of two lower courts as conclusive. We reexamine the facts to

determine whether the United States has carried its burden of proving by

‘clear, unequivocal, and convincing’ evidence, which does not leave ‘the

issue in doubt,’ that the citizen who is sought to be restored to the status of

an alien obtained his naturalization certificate illegally.

Knauer, 328 U.S. at 657-58 (citations omitted).

Similarly, in Fedorenko the Supreme Court clarified that precisely because

American citizenship is precious, and “its loss can have severe and unsettling

consequences,” the Government carries a heavy burden, presenting evidence that

must be clear, convincing, and unequivocal, that does not leave the issue in doubt.

449 U.S. at 505-06. For those same reasons, in reviewing denaturalization cases,

“we have carefully examined the record ourselves.” Id.

In Chaunt the Supreme Court explained again that the appellate court’s

responsibility to provide a searching review of the facts is based on the rights at

issue, which go to the very nature of our government:

The issue in these cases is so important to the liberty of the citizen that the

weight normally given concurrent findings of two lower courts does not

preclude reconsideration here, for we deal with ‘judgments lying close to

opinion regarding the whole nature of our government and the duties and

immunities of citizenship.’

Chaunt, 364 U.S. at 353 (quoting Baumgartner, 322 U.S. at 671). Indeed, in

Chaunt the Supreme court cites to the same language in Baumgartner that is later

cited approvingly in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485


8

(1984), a decision which postdates Pullman-Standard, further clarifying that

Supreme Court did not regard its earlier decision in Pullman-Standard as rejecting

the holding in Baumgartner.

In Bose Corp., the Supreme Court again emphasized the need for a searching

review of facts that necessarily implicate First Amendment protections, affirming

such review where “the constitutional values protected by the rule make it

imperative that judges—and in some cases judges of this Court—make sure that it

is correctly applied.” 466 U.S. at 501-02. This case reaffirms, after Pullman-

Standard, a long line of Supreme Court cases recognizing independent review in

appellate decisions of factual findings that guarantee similar constitutional rights.

See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964) (free

expression).

Not only was Bose Corp. issued after Pullman-Standard, further evidencing

its continuing vitality, but as the dissenting opinion in this case also points out,

Bose Corp. provides yet another example where the Supreme Court has clarified

that that the reach of the clearly erroneous standard under Rule 52(a) is not all

encompassing. Rather, where certain constitutional rights are at issue, the

appellate courts retain independent review of the facts. Thus, there is even less

basis to assert that Rule 52(a) should be applied to citizenship cases

notwithstanding the long line of controlling case law to the contrary.


9

In 1985, following the Supreme Court decisions in Bose Corp. and Pullman-

Standard, among others, Rule 52 was amended to clarify that it was not intended to

distinguish oral from documentary evidence-based findings of fact. See H. Doc.

99-63, at 20-22 (1985) (noting that “the Supreme Court has not clearly resolved the

issue.”). However, the rule did nothing to modify the exception reaffirmed in Bose

Corp., that a more searching review is applicable in order to preserve certain

constitutional rights. And more specific to the instant case, the Committee let pass

without comment the Supreme Court’s long-established exception to Rule 52(a)

requiring independent appellate review of factual findings by lower courts in

citizenship and denaturalization cases.

Ultimately, even if the Panel believes that Rule 52(a) should be read to

apply to all appellate cases, it is clear that the Supreme Court has not taken that

position to this point. Instead of abiding by controlling precedent, the majority

usurps the “prerogative of the Supreme Court” to declare that its prior case law is

no longer binding. Rodriguez de Quijas, 490 U.S. at 484.2

2 In determining that it would no longer abide by the Supreme Court’s case law

controlling citizenship determinations, the Panel’s holding also created a direct

conflict with another circuit. The First Circuit clarified that the special standard of

review is based on the fact that the Supreme Court “made clear that

denaturalization cases are of an unusual nature.” See Zajanckauskas, 441 F.3d at

37-38, n.5 (“The government urges us to abandon the standard articulated

in Cufari and adhere to the more deferential standard articulated in Fed.R.Civ.P.

52(a). However, the Supreme Court cases which the government cites in support of

its position have nothing to do with denaturalization.”).


10

B) The Panel’s Decision Deviates from Controlling Precedent in Applying

the Burden of Proof, Equating a “Clear and Convincing” Standard,

with a “Clear, Convincing & Unequivocal” Standard.

The Panel also deviates from controlling case law to reach its holding that

there is but one “intermediate” evidentiary standard, equating “clear, convincing

and unequivocal” evidence with evidence that is only “clear and convincing.”

Mondaca-Vega, slip op. at 18. The failure to reverse the district court for not

applying the correct standard is especially important because as noted in the

previous section, it ties directly into the rationale provided by the Supreme Court

for providing a searching, independent review of the record.

The Panel’s decision acknowledges “that in at least two cases we have

articulated the government’s burden for disproving citizenship as ‘clear,

unequivocal, and convincing’ evidence, without expressly equating that

formulation to the more common ‘clear and convincing’ standard.” Id. at 16

(citing Lim, 431 F.2d at 199; Lee Hon Lung v. Dulles, 261 F.2d 719, 723-24 (9th

Cir. 1958)). However, the Panel then cites Addington v. Texas, 441 U.S. 418, 432

(1979), and California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454

U.S. 90, 93 (1981), for the proposition that there are three discrete evidentiary

standards: mere preponderance, clear and convincing, and beyond a reasonable

doubt. Id. at 17. Thus, the Panel concluded that the District Court did not err in


11

only applying a “clear and convincing” standard instead of a more demanding,

“clear, convincing and unequivocal” standard. Id. at 8.

The Supreme Court in Addington discussed a “continuum” with “three

standards or levels of proof.” 441 U.S. at 433. Yet the Panel overstates the

holding in Addington to assert that “federal law generally recognizes a ‘continuum’

containing only ‘three standards or levels of proof.’” Mondaca-Vega, slip op. at 17

(emphasis added). This assertion contradicts the Supreme Court’s plain language:

a continuum necessarily includes a scale of varying degrees, as opposed to three

distinct, discrete levels.3

In Woodby, the Supreme Court reiterated that “[i]n denaturalization cases the

Court has required the Government to establish its allegations by clear,

unequivocal, and convincing evidence.” 385 U.S. at 285. The Court further noted

that this “standard of proof is no stranger to the civil law”, but also that “[t]his

standard, or an even higher one, has traditionally been imposed in cases involving

allegations of civil fraud, and in a variety of other kinds of civil cases involving

such issues as adultery, illegitimacy of a child born in wedlock, lost wills, oral

contracts to make bequests, and the like.” Id. at 285 n.18 (emphasis added). This

3 A “continuum” is defined as: a continuous sequence in which adjacent elements

are not perceptibly different from each other, although the extremes are quite

distinct: <at the fast end of the fast-slow continuum>; [mathematics] the set of real

numbers. The New Oxford American Dictionary, 368 (2d ed. 2005).


12

explanation of the different standards applicable in civil proceedings, directly

contradicts the Panel’s holding that there are only three discrete standards

applicable.

It is also noteworthy that in Woodby, the Supreme Court reversed the Second

and Sixth Circuit Courts of Appeals for applying a standard of proof requiring a

showing of only “reasonable, substantial and probative evidence” rather than

“clear, convincing and unequivocal” evidence. 385 U.S. at 279-81, 286. Yet, 8

U.S.C. § 1229a(c)(3)(A), clearly equates “clear and convincing evidence” with

“reasonable, substantial and probative evidence,” the standard that was rejected in

Woodby and replaced with the higher standard of “clear, convincing, and

unequivocal.” This further demonstrates that the Court of Appeals erred in failing

to hold the district court to the proper standard of proof.

Moreover, as the dissent explains in this case, the majority ignores the

Supreme Court’s clear precedent which explains why there is such a high

evidentiary burden placed on the government in citizenship and denaturalization

cases. See Mondaca-Vega, slip op. at 27 n.1 (citations omitted). Indeed, the

Supreme Court in Schneiderman and Baumgartner,

required a burden of proof for denaturalization which in effect

approximates the burden demanded for conviction in criminal cases,

namely, proof beyond a reasonable doubt of the charges alleged as

cause for denaturalization. This was in itself and to that extent

recognition that ordinary civil procedures . . . do not suffice for

denaturalization and all its consequences.


13

Klapprott v. United States, 335 U.S. 601, 617 (1949) (J. Rutledge, concurring).4

In addition, both the Panel and the district court erred in determining that

Petitioner had the initial burden of producing evidence to demonstrate his

citizenship, applying the burden-shifting approach laid out in Ayala-Villanueva v.

Holder, 572 F.3d 736, 738 n.3 (9th Cir. 2009). However, that case and others

applying this burden-shifting approach involve individuals who conceded that they

were born abroad, but nonetheless claimed to have derived or acquired U.S.

citizenship. Case law clarifies that if someone was born abroad there is a

presumption of “alienage.” Corona-Palomera v. INS, 661 F.2d 814 (9th Cir.

1981). However, case law is equally clear that this presumption does not operate

where the individual claims to be born in the United States. See Murphy v. INS, 54

F.3d 605, 609 (9th Cir. 1995) (“The BIA decisions on which the government relies

to support the respondent’s burden to prove citizenship by a preponderance of the

evidence are inapposite. In each case, the respondent’s foreign birth was an

undisputed fact, but the respondent attempted to prove derivative citizenship based

upon a parent's alleged United States citizenship.”). The government must

establish “alienage” before the burden-shifting presumption applies. See id. (citing

Iran v. INS, 656 F.2d 469, 471 (9th Cir.1981)). Given that Petitioner claims

4 The Supreme Court again applied this demanding standard again in Kungys v.

U.S., 485 U.S. 759, 776 (1988).


14

birthright citizenship, he should not have been assigned the initial burden of

presenting evidence that he is a citizen.

C) Application of the Proper Standard to the Facts Requires the Panel’s

Decision to be Reversed.

The Panel failed to apply the proper evidentiary standard to determine

whether DHS carried its burden to bring forward clear, unequivocal, and

convincing evidence that does not leave the issue of Petitioner’s citizenship in

doubt. The Panel brushes aside the district court’s repeated speculation and

conjecture as “not findings at all” but rather “part of the court’s reasoning when

deciding that Petitioner was not a credible witness.” Mondaca-Vega, slip op. at 21.

Yet as the Supreme Court has clarified, “[w]here the fate of a human being is at

stake, we must not leave the [deciding issue] to conjecture.” Knauer, 328 U.S. at

659.

For example, as the dissent notes, the record not only does not support the

district court’s speculation as to when Petitioner began using the name Reynaldo

Mondaca, it directly contradicts it. Mondaca-Vega, slip op. at 21. Similarly, the

majority chose to highlight and affirm the district court’s judicial notice of

distances between geographical points without examining whether this distance

supported the inferences made by the court. Id. at 24. It failed to acknowledge

that the distance was only relevant to support further conjecture, that in 1953 one


15

had to present a birth certificate in order to obtain a Social Security card. There is

nothing in the record to support an assumption that Petitioner returned to his

parent’s home at that time to get a birth certificate.

Several other errors were acknowledged only by the dissent, including the

district court’s improper speculation regarding: Petitioner’s possession of his birth

certificate; what someone in Petitioner’s position would or would not have done in

the early 1950s; and what may or may not have been in Petitioner’s financial

interest. See id. at 46-47. Once again, the Panel failed to hold the government to

its burden to produce evidence. Speculation cannot justify a decision to strip

anyone of their precious right to birthright citizenship. The judiciary must hold the

executive to the highest standard of proof. See, e.g., Ng Fung Ho, 259 U.S. at 284-

85; Schneiderman, 320 U.S. at 122; Knauer, 328 U.S. at 659.

In affirming the district court’s adverse credibility finding regarding

Petitioner’s deceased wife, the Panel ignores the fact that the immigration judge,

who unlike the district court had the opportunity to observe her demeanor and

witness her live testimony, declined to make an adverse credibility finding. See

Mondaca-Vega, slip op. at 23; E.R. v.2 at 181-82. In the underlying administrative

proceedings the government introduced no evidence to contradict her consistent

testimony that she always knew Petitioner as “Reynaldo,” even when they were


16

living in the town he grew up in Mexico, and that he had always represented to her

that he had been born in the United States.

Despite acknowledging that someone named Reynaldo Mondaca is indeed a

U.S. citizen born in California, the very year Petitioner asserts that he was born,

the government introduced no evidence whatsoever that any other person had ever

claimed to be Reynaldo. Cf. Nowak v. United States, 356 U.S.660, 665 n.3 (1958)

(“The gap in the Government’s proof cannot be filled in such tenuous fashion.”).

In addition, the Panel failed to even acknowledge that the Mexican birth certificate

introduced by the government had been hunted down by the government in

Mexico, and that there was absolutely no evidence that Petitioner had ever used or

been in possession of that document. See E.R. v.2 at 156.

Further, the Panel did not even address the district court’s erroneous finding

that “[n]either the INS nor the United States Attorney questioned his assertion that

his name is Reynaldo Carlon Mondaca” when Petitioner was arrested and

criminally charged with alien smuggling in 1980. See E.R. v.1 at 8. There was

absolutely no evidence to support the district court’s finding. Indeed, by 1980,

Petitioner was well known to INS and law enforcement and his fingerprints linked

him to a person previously ordered deported as a citizen of Mexico. Yet, the

government criminally prosecuted him as a U.S. citizen in 1980, seven years after

a full-scale INS investigation into his identity in 1973 and approval of his family


17

petitions in 1977. He was again held for an investigation into his identity and

immigration status in 1983. Then in 1994, with no new evidence, an INS officer

ignored the prior findings and decided to charge Petitioner as a deportable

Mexican. See E.R. v.2 at 119-26, 144-46, 155, 174-76.

By failing to apply the appropriate standard of review, in order to ensure that

the government had presented clear, convincing and unequivocal evidence, the

Panel failed to acknowledge what is at stake in this case: birthright citizenship,

affecting not just Petitioner, but the settled lives of his adult children, all with

established families and careers. The government has repeatedly reaffirmed his

U.S. citizenship, for over a thirty-year period. An INS officer arbitrarily decided to

charge him as deportable without any additional evidence from the prior

determinations, after Mr. Mondaca had been convicted of a crime.5 The Panel’s

decision should be reversed, clarifying that the government must be held to a

standard of proof that corresponds to the fundamental constitutional rights at issue.

A person who claims citizenship by birth may only be removed with “‘clear,

unequivocal, and convincing’ evidence that does not leave ‘the issue in doubt.’”

Chaunt, 364 U.S. at 353 (citations omitted).

5 “As Chief Justice Warren observed in Trop v. Dulles, 356 U.S. 86, 92 (1958)

(plurality opinion), ‘[c]itizenship is not a license that expires upon misbehavior.’”

Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th Cir. 2005).


18

III. CONCLUSION

Petitioner respectfully requests that the petition for rehearing be granted in

recognition that the Panel’s holding cannot be reconciled with controlling case law.

Date: July 1, 2013 Respectfully submitted,

s/ Matt Adams

Matt Adams


Attorney for Petitioner


19


AND CIRCUIT RULE 40-1(A), CASE NUMBER 03-71369

I certify that:

1. Pursuant to Fed. R. App. P. 40-1(a), the attached petition for rehearing brief

is

Proportionately spaced, has a typeface of 14 points or more and contains

_4,192___ words (must not exceed 15 pages unless it complies with the

alternative length limitations of 4,200 words or 390 lines of text).

July 1, 2013 s/ Matt Adams

Date Matt Adams



20

CERTIFICATE OF SERVICE

RE: Mondaca-Vega v. Holder, Case No. 03-71369

I hereby certify that I electronically filed the foregoing with the Clerk of the Court

for the United States Court of Appeals for the Ninth Circuit by using the appellate

CM/ECF system on July 1, 2013.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Executed in Seattle, Washington, on July 1, 2013.

s/ Matt Adams

Matt Adams



21

ADDENDUM

Mondaca-Vega v. Holder, -- F.3d --, No. 03-71369 (9th Cir. April 25, 2013).


No. 03-71369 _____________________________________________________


FOR THE NINTH CIRCUIT ___________________________________________________

SALVADOR MONDACA-VEGA,

Petitioner (Not Detained),

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

ON APPEAL OF THE DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON’S FINAL ORDER

RESPONDENT’S BRIEF IN OPPOSITION TO PETITIONER’S PETITION FOR REHEARING BY PANEL OR EN BANC

STUART DELERY Assistant Attorney General Civil Division DAVID J. KLINE Director JEFFREY S. ROBINS Assistant Director Office of Immigration Litigation Date: August 13, 2013

KATHERINE E.M. GOETTEL Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115 Attorneys for Respondent

Case: 03-71369 08/13/2013 RESTRICTED ID: 8741457 DktEntry: 130 Page: 1 of 22

TABLE OF CONTENTS

INTRODUCTION………………………………………………………….1 ARGUMENT……………………………………………………………….1 A. Lim v. Mitchell is No Longer Good Law; the Clearly Erroneous Standard is Consistent with Supreme Court Precedent. ………1

B. The Panel’s Decision Regarding the Burden of Proof is Consistent with Supreme Court and Ninth Circuit Case Law…………………………………………………………….7

C. The panel did not err in affirming the district court’s application of the standard to the facts in this case. ……………………...11 CONCLUSION……………………………………………………………15

i



Addington v. Texas, 441 U.S. 418 (1979)………………………………………2, 8, 10, 11 Anderson v. City of Bessemer, 470 U.S. 564 (1985)……………………………………………passim Ayala-Villanueva v. Holder,

572 F.3d 736 (9th Cir. 2009) ……………………………………….10 Baumgartner v. United States, 322 U.S. 655 (1944)……………………………………………3, 4, 5 California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981)………………………………………2, 8, 9, 10, 11 Cardenas-Delgado v. Holder,

--- F.3d ---, No. 11-72057, 2013 WL 3198419 (9th Cir. June 26, 2013) …………………………………………….........................................3

Friend v. Reno, 172 F.3d 638 (9th Cir. 1999)………………………………………...10 Lee Hon Lung v. Dulles, 261 F.2d 719 (9th Cir. 1958)………………………………………10 Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1990)…………………………………...passim Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001)…………………………………10, 11 Matter of Extradition of Smyth, 72 F.3d 1433 (9th Cir. 1996)………………………………………13 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)…………………………………1, 2, 3, 7

ii


Mondaca-Vega v. Holder, 718 F.3d 1075 (9th Cir. 2013)………………………………7, 10, 14 Murphy v. INS, 54 F.3d 605 (9th Cir. 1995)……………………………………10, 11 Pullman-Standard v. Swint, 456 U.S. 273 (1982)……………………………………………passim Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010)………………………………………14 United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960)…………………………………………………1 United States v. Arango, 670 F.3d 988 (9th Cir. 2012)………………………………………10 United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006)…………………………………………7 Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2007)………………………………………13 Woodby v. INS, 385 U.S. 276 (1966)………………………………………………9, 10

STATUTES

8 U.S.C. § 1252(b)(5)………………………………………………………6

FEDERAL RULES OF PROCEDURE Fed. R. App. P. 35…………………………………………………………. 7 Fed. R. App. P. 35(b)(1)……………………………………………………1 Fed. R. App. P. 35(b)(2)……………………………………………………1 Fed. R. App. P. 35(b)(1)(A)……………………………………………11, 15

iii


Fed. R. App. P. 35(b)(1)(B)……………………………………………….15 Fed. R. App. P. 40(a)(2)…………………………………………….…….15 Fed. R. Civ. P. 52(a)…………………………………………….…….2, 5, 6

OTHER AUTHORITIES 2 McCormick On Evid. § 340 (7th ed.) ………………………………….…8

iv


INTRODUCTION

Respondent hereby opposes Salvador Mondaca-Vega’s (“Mr.

Mondaca-Vega”) Petition for Rehearing with Suggestion for Rehearing En

Banc (“Reh. Pet.”). Mr. Mondaca-Vega does not satisfy the requirements

for rehearing en banc or by panel set forth in Rules 35 and 40 of the Federal

Rules of Appellate Procedure.1 En banc review is intended to bring to the

attention of the entire Court a precedent-setting error of exceptional public

importance or an opinion that directly conflicts with prior Supreme Court or

Ninth Circuit precedent. See Fed. R. App. P. 35(b)(1)-(2); see also United

States v. American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). But the

Panel’s decision does not meet either of these requirements.

The first issue is whether an appellate court reviews a district court’s

findings of fact on a nationality claim for clear error or de novo. The Panel

reviewed the district court’s findings of fact for clear error. That standard of

review is consistent with Anderson v. City of Bessemer, 470 U.S. 564

(1985), and Pullman-Standard v. Swint, 456 U.S. 273 (1982), which

effectively overruled Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1990).

Rehearing en banc is unwarranted where higher authority is irreconcilable

with Circuit precedent. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.

1 Petitioner makes no arguments in favor of rehearing by panel. Respondent will therefore focus on the standard for rehearing en banc.


2003) (en banc). Here, Pullman-Standard and Anderson conflict with Lim

and the Ninth Circuit should review fact-finding in citizenship claims for

clear error.

Second, the Panel held correctly that there is no meaningful difference

between the clear, convincing, and unequivocal standard and the clear-and-

convincing standard. Because the Panel’s decision was supported by

Addington v. Texas, 441 U.S. 418, 432 (1979), California ex rel. Cooper v.

Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981) (per curiam), and

several Ninth Circuit cases, rehearing is unwarranted on this issue.

Last, in affirming the district court’s findings of fact, the Panel did not

err. Petitioner fails to show how the Panel’s decision conflicts with

controlling law in any way.

ARGUMENT

A. Lim v. Mitchell is No Longer Good Law; the Clearly Erroneous Standard is Consistent with Supreme Court Precedent.

The Panel applied the “clearly erroneous” standard of review to the

trial court’s findings of fact, citing Federal Rule of Civil Procedure 52(a)(6).

It is well-settled law that an appellate court reviews a trial court’s findings of

fact for clear error. See Anderson v. City of Bessemer, 470 U.S. 564 (1985).

Nevertheless, Petitioner argues that the Panel should have reviewed the

district court’s findings of fact de novo, citing to this Court’s decision in Lim

2


v. Mitchell, 431 F.2d 197 (9th Cir. 1970). In Lim, the Ninth Circuit held that

an appellate court has the authority “to re-examine the facts” in citizenship

cases. Id. at 200. But Lim is no longer good law in light of intervening

higher authority that directly contradicts that decision.

“[A]lthough a three judge panel generally may not overrule a prior

decision of this court, that rule does not take into account situations in which

the prior decision has been ‘undercut by higher authority to such an extent

that it has been effectively overruled by such higher authority and hence is

no longer binding on district judges and three judge panels of this court.’”

Cardenas-Delgado v. Holder, --- F.3d ---, No. 11–72057, 2013 WL

3198491, at *7 (9th Cir. June 26, 2013) (quoting Miller, 335 F.3d at 899).

The Supreme Court’s decisions in Pullman-Standard and Anderson have

effectively overruled the Ninth Circuit’s decision in Lim, and rehearing en

banc or by panel is unnecessary to resolve the applicability of those cases.

In support of his argument, Petitioner goes back to the Supreme

Court’s 1946 case in Knauer v. United States, 328 U.S. 607 (1946), which in

turn relies on Baumgartner v. United States, 322 U.S. 655 (1944). The

Ninth Circuit relied on both cases in Lim. Baumgartner was one of the first

cases to suggest that, in certain situations, an appellate court should review

3


findings of fact de novo. In Baumgartner, the Supreme Court discussed

different types of fact-finding:

The phrase ‘finding of fact’ may be a summary characterization of complicated factors of varying significance for judgment. Such a ‘finding of fact’ may be the ultimate judgment on a mass of details involving not merely an assessment of the trustworthiness of witnesses but other appropriate inferences that may be drawn from living testimony. . . . Finding so-called ultimate “facts” more clearly implicates the application of standards of law. . . . Though labeled ‘finding of fact’, it may involve the very basis on which judgment of fallible evidence is to be made. . . . Particularly is this so where a decision here for review cannot escape broadly social judgments lying close to opinion regarding the whole nature of our Government and the duties and immunities of citizenship.

Baumgartner, 322 U.S. at 670-71 (emphasis added).

The Baumgartner court talked about “ultimate facts” and facts that

included underlying societal judgments. Id. They are the sort of facts that

are not based on credibility determinations or factual review of documentary

evidence, but are facts that implicate an “application of standards of law.”

Pullman-Standard, 456 U.S. at 286 n.1.

Forty years after Baumgartner, in Pullman-Standard, the Court

carefully parsed out the sometimes blurry line between “pure findings of

fact” and conclusions of law that are based on findings of fact. Id. at 288

(“The Court has previously noted the vexing nature of the distinction

between questions of fact and questions of law.”) Despite its “vexation,” the

4


Court made clear that any time an appellate court reviews a pure finding of

fact, it should apply the Rule 52(a) clearly-erroneous standard. The Court

explained:

Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous. It does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with “ultimate” and those that deal with “subsidiary” facts.

Id. at 286-87 (emphasis added). The Court went on to explain that,

“Whatever Baumgartner may have meant by its discussion of ‘ultimate

facts,’ it surely did not mean that whenever the result in a case turns on a

factual finding, an appellate court need not remain within the constraints of

Rule 52(a).” Id. at 286 n.16. The “conclusiveness” of fact-findings turns on

the “nature of the materials on which the finding is based.” Id. at 671.

Following Pullman-Standard, any distinction that remained between

“pure findings of fact” and “ultimate facts” was done away with in

Anderson. In that case, the Court expanded on the Pullman-Standard court’s

definition of “pure findings of fact” to include not just credibility

determinations, but also physical evidence, documentary evidence, and

inferences drawn from evidence. 470 U.S. at 574. Any such finding of fact

5


should be reviewed by an appellate court for clear error. Id. The Court

eliminated any exceptions to the clear-error rule:

[V]arious Courts of Appeals have on occasion asserted the theory that an appellate court may exercise de novo review over findings not based on credibility determinations. This theory has an impressive genealogy . . . but it is impossible to trace the theory’s lineage back to the text of Rule 52(a), which states straightforwardly that “findings of fact shall not be set aside unless clearly erroneous.” That the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) “does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.”

Id. at 574 (quoting Pullman-Standard, 456 U.S. at 287). Accordingly, the

Supreme Court in Anderson made clear that any exceptions to Rule 52(a)’s

clear-error standard are no longer good law. The Supreme Court’s decision

made no exception for the Ninth Circuit’s decision in Lim, and Petitioner can

point to no basis for this Court to carve out one.

Nor can Petitioner deny that this case turned on pure findings of fact.

The district court was tasked with answering one factual question: Is

Petitioner Salvador Mondaca-Vega, a Mexican national, or is he Reynaldo

Mondaca Carlon, a U.S. citizen? See 8 U.S.C. § 1252(b)(5). In answering

that question, the court made “pure findings of fact:” it assessed Petitioner’s

credibility and that of Petitioner’s wife, it reviewed the documentary

evidence, and it evaluated Petitioner’s prior statements. Following Pullman-

6


Standard and Anderson, these are “pure findings of fact” that must be

reviewed for clear error.

Because Anderson and Pullman irreconcilably conflict with Lim, Lim

is no longer good law. Lim has been effectively overruled by a higher court

and en banc review is therefore unnecessary to resolve whether Lim is still

good law.2 See Miller, 335 F.3d at 900 (if a “relevant court of last resort”

has “undercut the theory or reasoning underlying the prior circuit precedent

in such a way that the cases are clearly irreconcilable. . . . a three-judge

panel of this court and district courts should consider themselves bound by

the intervening higher authority . . . .”). Because Lim has been effectively

overruled, this issue is not one of exceptional importance. The Court should

therefore deny Petitioner’s petition for rehearing.

B. The Panel’s Decision Regarding the Burden of Proof is Consistent with Supreme Court and Ninth Circuit Case Law.

The Panel held that the Government bore the burden of proving non-

citizenship by clear, convincing, and unequivocal evidence, which, it held, is

the same as the clear-and-convincing standard. Mondaca-Vega v. Holder,

718 F.3d 1075, 1081-83 (9th Cir. 2013). The Panel’s holding is taken

2 Petitioner also cites United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006), as conflicting authority. But the standard for rehearing en banc is not whether the Panel’s decision conflicts with other circuit courts, but whether the Panel’s decision conflicts with Ninth Circuit law or Supreme Court law. See Fed. R. App. P. 35.

7


directly from the Supreme Court’s decision in Addington v. Texas, 441 U.S.

418, 432 (1979) and California ex rel. Cooper v. Mitchell Bros.’ Santa Ana

Theater, 454 U.S. 90, 93 (1981) (per curiam). Despite this controlling law,

the Petitioner argues that the clear, convincing, and unequivocal standard is

a special, higher burden of proof akin to the criminal beyond-a-reasonable-

doubt standard. (Pet. Reh. at 12.) Petitioner’s argument is not supported by

Supreme Court or Ninth Circuit case law.

To the contrary, in Addington v. Texas, the Supreme Court recognized

that courts use different word formulas to describe the clear-and-convincing

standard, which is the standard between a preponderance of the evidence and

proof beyond a reasonable doubt. 441 U.S. at 424 (discussing the

“intermediate standard, which usually employs some combination of the

words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing’”).3 The Court held

that each of these formulations is a variation on the same standard. Id. It

made clear that the standard applicable here – clear, convincing, and

unequivocal – is an iteration of the intermediate, clear-and-convincing

standard. Id.

3 See also 2 McCormick On Evid. § 340 (7th ed.) (“The [clear-and-convincing] formula varies from state to state, but among the phrases used are the following: ‘by clear and convincing evidence,’ ‘clear, convincing and satisfactory,’ ‘clear, cogent and convincing,’ and ‘clear, unequivocal, satisfactory and convincing.’ . . . No high degree of precision can be attained by these groups of adjectives.”).

8


The Supreme Court recognized this again in California ex rel.

Cooper, 454 U.S. at 93. In that case, the Supreme Court again explained

that “[t]hree standards of proof are generally recognized, ranging from the

‘preponderance of the evidence’ standard employed in most civil cases, to

the ‘clear and convincing’ standard reserved to protect particularly important

interests in a limited number of civil cases,” to proof beyond a reasonable

doubt in criminal cases. Id. (internal citations omitted). Those important

interests generally are considered liberty interests such as involuntary

commitment hearings, civil fraud, denaturalization, and libel. Id. In this

way, the clear-and-convincing standard is reserved for only the most

important civil cases with the greatest equities, including the equities at issue

in this case – citizenship.

Petitioner cites Woodby v. INS, 385 U.S. 276 (1966), in support of his

argument that the clear-and-convincing and clear, unequivocal, and

convincing standards are different. (Pet. Reh. at 11-12.) But the Woodby

court was not discussing a higher standard than clear and convincing; it was

discussing the clear-and-convincing standard itself. Id. at 285 (stating that

“a person [should not] be banished from this country upon no higher degree

of proof than applies in a negligence case”). The higher standard, though, is

not akin to a proof-beyond-a-reasonable doubt standard, but is between that

9


and the general civil preponderance-of-the-evidence standard. Id. (“To be

sure, a deportation proceeding is not a criminal prosecution.”). The clear,

convincing, and unequivocal standard that the Court articulated in Woodby is

the same intermediate standard that the Supreme Court later discussed in

Addington and California ex rel. Cooper.

Petitioner points to two cases in which the Ninth Circuit did not

expressly equate the clear, convincing, and unequivocal standard with the

clear-and-convincing standard.4 But in neither case did the Ninth Circuit say

that the clear, convincing, and unequivocal standard is a higher standard

than clear and convincing. And Petitioner ignores the cases cited by the

Panel in which the Ninth Circuit used the two standards interchangeably.5

For example, in United States v. Arango, the Ninth Circuit referenced both

the clear, convincing, and unequivocal standard and the clear-and-

convincing standard when it articulated the standard in a denaturalization

proceeding. 670 F.3d 988, 992 (9th Cir. 2012). In Lopez-Chavez v. INS, the

4 See Lim, 431 F.2d at 199; Lee Hon Lung v. Dulles, 261 F.2d 719, 723–24 (9th Cir. 1958). 5 See Mondaca-Vega, 718 F.3d at1082 (citing United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009); Lopez-Chavez v. INS, 259 F.3d 1176, 1180–81 (9th Cir. 2001); Friend v. Reno, 172 F.3d 638, 646 (9th Cir. 1999); Murphy v. INS, 54 F.3d 605, 608–10 (9th Cir. 1995)).

10


Ninth Circuit articulated the standard “clear, convincing, and unequivocal”

but discussed a relevant case applying the “clear and convincing” standard.

259 F.3d 1176, 1180-81 (9th Cir. 2001). Petitioner has not – and cannot –

point to any cases holding that the two standards are markedly different.

There is simply no case in direct conflict with the Panel’s decision. See Fed.

R. App. P. 35(b)(1)(A).6 Rather, the Panel’s decision is supported by the

Supreme Court’s decisions in Addington and California ex rel. Cooper.

C. The Panel did not err in affirming the district court’s application of the standard to the facts in this case.

As discussed above, the Panel correctly applied the clear, convincing,

and unequivocal evidence standard. When it applied that standard, the Panel

properly determined that the district court did not commit clear error in its

fact-finding. Petitioner tries to poke holes into the Panel’s decision, but fails

to acknowledge that the great weight of evidence supports it.

6 Petitioner also argues that the Panel erred in affirming the district court’s burden-shifting. Petitioner contends that the burden can only shift to him if he concedes foreign birth abroad or foreign citizenship. (Pet. Reh. at 13). This is inconsistent with Ninth Circuit law. The Ninth Circuit has held that the petitioner bears the initial burden in section 1252(b)(5) cases. See Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995) (“Only at a de novo district court hearing on citizenship under section [1252(b)(5)] does the alien subject to deportation bear the burden of proving citizenship by a preponderance of the evidence.”). The case law that Petitioner cites is relevant only in deportation proceedings, not in de novo citizenship cases in the district court.

11


Based on the undisputed evidence alone, the Government met its

burden of proving that Petitioner is not a United States citizen by clear,

convincing, and unequivocal evidence. The undisputed facts are as follows:

(1) Petitioner used the name Salvador Mondaca-Vega during the

1950’s. (Pet. Op. Br. at 8-9.); (2) Petitioner grew up in El Fuerte, Sinaloa,

Mexico. (Pet. Op. Br. at 7; Joint Pretrial Order Agreed Fact No. 4, ER v. 1

at 26.); (3) Salvador Mondaca-Vega was born in 1931 just outside of El

Fuerte, Sinaloa, Mexico, a few weeks before Reynaldo Mondaca Carlon’s

birth in California. (Joint Pretrial Order Agreed Fact No. 2 & 3, ER v.1 at

25-26.); (4) Petitioner allowed himself to be deported as a Mexican national.

(Pet. Op. Br. at 8.); (5) Petitioner accepted voluntary departure as a Mexican

national ten to twenty times. (Joint Pretrial Order Agreed Fact No. 24, ER

v.1 at 30.); (6) Petitioner signed a sworn statement in 1954, affirming that

his name Salvador Mondaca-Vega and that he was born in Mexico. (Pet.

Op. Br. at 9.); (7) Petitioner’s contemporary handwriting matches the

handwriting on Salvador Mondaca-Vega’s 1954 sworn statement. (Joint

Pretrial Order Agreed Fact No. 8, ER v.1 at 26-27.); and (8) Petitioner’s

contemporary fingerprints match Salvador Mondaca-Vega’s fingerprints

from the 1950’s. (Joint Pretrial Order Agreed Fact No. 9, ER v.1 at 27.)

12


In addition to these undisputed facts, Petitioner proffered no witnesses

that could corroborate his birth in California and childhood in El Fuerte,

Mexico, and Petitioner has provided inconsistent testimony about the use of

the name Salvador Mondaca-Vega and his deportations in the 1950’s. (See,

e.g., Joint Pretrial Order, Pet. Contentions Nos. 23-25, ER v.1 at 30.) Thus,

the Court need not even address the issues that Petitioner raises in his

petition for rehearing because the Government has sustained its burden of

proving Petitioner’s non-citizenship by clear, convincing, and unequivocal

evidence based upon the undisputed evidence alone.

First, Petitioner contends that the Panel “brushed aside” the district

court’s “speculation and conjecture.” (Pet. Reh. at 14.) But the district court

did not speculate, it drew rational inferences from the evidence in the record,

which is a trial court’s job. See Matter of Extradition of Smyth, 72 F.3d

1433, 1435 (9th Cir. 1996) (“[I]nference-drawing is a type of factfinding, a

process by which the presence of one fact leads to a probable estimate of a

second fact.”). To do so does not amount to error. See Wallace v. City of

San Diego, 479 F.3d 616 (9th Cir. 2007) (it is the fact-finder’s job to “weigh

evidence and draw inferences from it”).

Second, Petitioner claims that the Panel should have reversed the

district court’s adverse credibility finding regarding his wife’s testimony.

13


But as the Panel points out, Petitioner’s wife’s testimony was inconsistent

with previous sworn statements and such inconsistencies can form the basis

of an adverse credibility finding. See Mondaca-Vega, 718 F.3d at 1081. An

adverse credibility finding can also be based a witness’ lack of detail when

testifying. See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010).

The district court did not err, nor did the Panel in affirming it, when it found

that Petitioner’s wife’s testimony was not credible.

Third, Petitioner seeks rehearing because the Panel did not address the

fact that the Government “hunted down” Salvador Mondaca-Vega’s birth

certificate, and the fact that there was no evidence that he ever used it. But

these facts are a logical extension of the evidence that shows Petitioner went

to great lengths to hide his true identity. Thus, it is unsurprising that no

evidence exists that Petitioner ever used or possessed his Mexican birth

certificate.

Last, Petitioner complains that the Panel did not address his arrest and

indictment in 1980. Furthermore, Petitioner claims that by 1980, the U.S.

Attorney’s Office should have linked Petitioner’s identity to that of Salvador

Mondaca-Vega due to a prior investigation. The two investigations,

however, occurred in a pre-digital era, in a time when connecting the dots of

identity fraud was much more difficult. The fact that INS had previously

14


investigated Petitioner’s identity fraud did not mean that the federal agencies

were able to access that information, years later in a different geographic

region. The Panel did not need to address this tangential issue to reach its

ultimate conclusion that the district court did not clearly err when it found

that Petitioner is Salvador Mondaca-Vega, and this issue does not merit

rehearing by Panel or en banc.

In sum, Petitioner can point to no fact-finding that contradicts

Supreme Court or Ninth Circuit case law, or one that is an issue of

exceptional importance. Because the district court’s conclusions were

supported by a wealth of evidence in the record, this case does not present an

important issue that requires rehearing by panel or en banc.

CONCLUSION

For the foregoing reasons, this Court should not grant rehearing in this

case. Petitioner has failed to show that the Panel’s decision conflicts with

Ninth Circuit or Supreme Court case law, and he has failed to show that this

is an issue of exceptional importance. See Fed. R. App. P. 35(b)(1)(A)-(B).

The Panel did not overlook or misapprehend any point of law necessitating

its rehearing the case. See Fed. R. App. P. 40(a)(2).

15


DATED: March 13, 2013 Respectfully submitted, STUART F. DELERY

Assistant Attorney General Civil Division DAVID J. KLINE Director Office of Immigration Litigation JEFFREY ROBINS Assistant Director Office of Immigration Litigation

s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL

Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115

Attorneys for Respondent

16


CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Federal Rule of Appellate Procedure

32(a)(7)(C) and Ninth Circuit Rules 31-2 and 40-1(a), that I used Microsoft

Word 2010 to prepare Respondent’s Brief, and the typeface is proportionally

spaced in 14-point Times New Roman typeface. The brief contains 3,865

words of text and 369 lines of text.

DATE: August 13, 2013 s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation


I hereby certify that I electronically filed the foregoing with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on August 13, 2013.

I certify that all participants in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation

17


NO. 03-71369




CASE NO. A 019 263 384

Petitioner,

v.


Attorney General

Respondent.

PETITION FOR REVIEW OF FINAL ORDER OF THE

BOARD OF IMMIGRATION APPEALS

PETITIONER’S OPENING SUPPLEMENTAL BRIEF

BEFORE THE EN BANC COURT

Matt Adams

Martha H. Rickey



Seattle, WA 98104

(206) 957-8611



ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………..

I. INTRODUCTION .................................................................... 1

II. ARGUMENT .......................................................................... 2

A. Controlling Case Law Clarifies that this Court Must Apply a

Searching, Independent Review of the Record in Resolving Mr.

Mondaca’s Claim to Birthright Citizenship……………………………...2

B. The District Court Failed to Apply the Appropriate Burden of Proof…5

C. The District Court’s Findings are Not Supported by the Record..….....12

D. Even if Review were Limited to Clear Error, the District Court’s

Findings Should be Set Aside…………………………………………….16

III. CONCLUSION ................................................................... 17





iii


Cases

Addington v. Texas, 441 U.S. 418 (1979) ....................................................... 7, 8, 10

Afroyim v. Rusk, 387 U.S. 253 (1967) .....................................................................12

Anderson v. City of Bessemer, 470 U.S. 564 (1985) ...........................................4, 17

Barber v. Ruth, 7 F.3d 636 (7th Cir. 1993) ................................................................ 4

Baumgartner v. U.S., 322 U.S. 665 (1944) ................................................... 1, 3, 4, 5

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)......................... 3

Chaunt v. U.S., 364 U.S. 350 (1960) ...................................................................3, 12

Costello v. United States, 365 U.S. 265 (1961) ...................................................6, 12

Fedorenko v. U.S., 449 U.S. 440 (1981) ..................................................................12

Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) ...................................... 2

Klapprott v. U.S., 335 U.S. 601 (1949) ...................................................................12

Knauer v. U.S., 328 U.S. 654 (1946) ............................................................... passim

Kungys v. U.S., 485 U.S. 759, 781 (1988) ...............................................................12

Kwock Jan Fat v. White, 253 U.S. 454 (1920) .......................................................... 8

Mondaca-Vega, 718 F.3d 1075 (9th Cir. 2013) ............................................... passim


Ng Fung Ho v. White, 259 U.S. 276 (1922) ............................................................... 2

Nowak v. U.S., 356 U.S. 660 (1958) ........................................................................12

Perez v. Brownell, 356 U.S. 44 (1958) ....................................................................12

Pullman-Standard v. Swint, 456 U.S. 273 (1982) .................................................3, 4


iv

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ............... 3

Schneiderman v. U.S., 320 U.S. 118 (1943) .................................................... passim

U.S. v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) .................................................. 4

United States v. Minker, 350 U.S. 179 (1956) ........................................................... 2

Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) ........................................................11

Woodby v. INS, 385 U.S. 276 (1966) ...................................................................9, 11

Statutes

18 U.S.C. § 2 ............................................................................................................15

8 U.S.C. § 1229a(c)(3)(A) .......................................................................................11

8 U.S.C. § 1325 ........................................................................................................15

Other Authorities

Matter of Patel, 19 I. & N. Dec. 774 (1988) ............................................................11


1

I. INTRODUCTION

This Court must provide searching, independent review of the District

Court’s findings because Petitioner’s citizenship hangs in the balance. This level

of review was first established seventy years ago by the Supreme Court in cases

reviewing citizenship claims. See Baumgartner v. U.S., 322 U.S. 665, 670 (1944).

The Supreme Court has since repeatedly clarified that even on appeal the Court

maintains de novo review of factual findings in deportation and denaturalization

cases examining questions of citizenship. Knauer v. U.S., 328 U.S. 654, 657-58

(1946) (“We reexamine the facts to determine whether the United States has

carried its burden”). There is no authority that would permit a reviewing court to

deviate from this standard.

The District Court erred in failing to hold the Executive to the exacting

standard that is applicable where it seeks to strip away a person’s claim to

citizenship. The agency “must sustain the heavy burden” by presenting “‘clear,

unequivocal, and convincing’ evidence which does not leave the issue in doubt.”

Schneiderman v. U.S., 320 U.S. 118, 135 (1943). Even if the Court were to equate

the “clear, unequivocal, and convincing” standard with the “clear and convincing”

standard, the Supreme Court has repeatedly made clear that in the context of


2

claims to U.S. citizenship, the Court must require the agency to provide evidence

which does not leave the issue in doubt.

This Court should reject the findings and conclusions of the District Court as it

relied on factual errors and speculation, allowing the agency to replace evidence

with conjecture. “To deport one who so claims to be a citizen obviously deprives

him of liberty. . . . It may result also in loss of both property and life, or of all that

makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

Consequently, “where there is doubt it must be resolved in the citizen’s favor.”

Gorbach v. Reno, 219 F.3d 1087, 1097 (9th Cir. 2000) (en banc) (quoting United

States v. Minker, 350 U.S. 179, 188 (1956)).

II. ARGUMENT

A. Controlling Case Law Clarifies that this Court Must Apply a Searching,

Independent Review of the Record in Resolving Mr. Mondaca’s Claim

to Birthright Citizenship.

This Court provides searching, independent review of the District Court’s

factual findings with regard to citizenship determinations because of the

constitutional right at stake.

Suffice it to say that emphasis on the importance of “clear, unequivocal, and

convincing” proof, see Schneiderman v. United States, [citation omitted], on

which to rest the cancellation of a certificate of naturalization would be lost

if the ascertainment by the lower courts whether that exacting standard of

proof had been satisfied on the whole record were to be deemed a “fact” of

the same order as all other “facts”, not open to review here.


3

Baumgartner, 322 U.S. at 671. Baumgartner, and a long, uninterrupted line of

cases directly addressing claims of citizenship, clearly established a rule that the

appellate court retained a responsibility to carefully examine the factual findings

for error. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v. U.S., 328

U.S. 654, 657-58 (1946). As the Supreme Court explained, “the rule of

independent review assigns to judges a constitutional responsibility that cannot be

delegated to the trier of fact, whether the factfinding function be performed in the

particular case by a jury or by a trial judge.” Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 501 (1984).

While Federal Rule of Civil Procedure 52(a) calls for a much more

deferential standard of review of factual findings in most other areas of law, the

Supreme Court has not altered its approach in cases reviewing citizenship claims.

Accordingly, the standard remains the same: “If a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

While the Supreme Court in Pullman-Standard v. Swint, 456 U.S. 273, 286

n.16 (1982), explains in a footnote why it chose not to depart from the more

deferential standard articulated in Rule 52(a) in most other areas of law, its


4

reasoning does nothing to undermine the continued vitality of the standard of

review in citizenship claims established in Baumgartner.1

The First Circuit has rejected arguments that this heightened standard of

review is no longer appropriate in cases involving claims to U.S. citizenship. U.S.

v. Zajanckauskas, 441 F.3d 32, 38 n.5 (1st Cir. 2006). Similarly, the Seventh

Circuit clearly acknowledged that, contrary to its general approach, the Supreme

Court requires de novo appellate review of factual findings in denaturalization and

First Amendment cases. Barber v. Ruth, 7 F.3d 636, 643 (7th Cir. 1993). But

following Pullman-Standard, the Seventh Circuit “decline[d] to exercise plenary

review outside of the limited domain to which the Supreme Court has restricted the

doctrine.” Id.

Much discussion notes that the Supreme Court has eschewed any broad

extension as to what the Supreme Court referred to as “ultimate facts” in

Baumgartner. Nonetheless, what is clear is that the Supreme Court determined

that in cases reviewing efforts by the government to strip away individuals’ right to

1 As explained in petition for rehearing, p. 6-8, the Panel opinion in this case failed

to recognize the Supreme Court’s primary reasoning in providing for a searching

independent review on the appellate level, and thus erred in asserting that “the

Supreme Court has rejected Baumgartner’s remaining reasoning,” citing to

Anderson v. City of Bessemer, 470 U.S. 564 (1985). Mondaca-Vega, 718 F.3d

1075, 1079 (9th Cir. 2013). Anderson does not even cite to Baumgartner, let alone

purport to abrogate any last vestiges of authority.


5

U.S. citizenship, an appellate court retains independent review of this application

of law to fact. As Judge Pregerson wrote in his dissenting opinion:

Baumgartner is an example of the Court making a determination, where

Congress has not spoken, to designate an issue a question of fact or law. In

Baumgartner, the Court articulated its standard of independent appellate

review for what it described as a finding of “ultimate ‘facts,’” which “clearly

implies the application of standards of law.” Baumgartner, 322 U.S. at 671,

64 S.Ct. 1240.

Mondaca-Vega, 718 F.3d at 1091. Here, Petitioner contests the District Court’s

failures not only in making factual determinations, but in failing to apply the

demanding burden of proof in weighing whether the evidence compels a

conclusion that the issue is not left in doubt. Pursuant to controlling case law, the

ultimate conclusion cannot be parsed from review of the other factual

determinations of the trial court—the same standard must apply.

B. The District Failed to Apply the Appropriate Burden of Proof.

The District Court erred in failing to require the agency demonstrate with

“clear, unequivocal and convincing” evidence that Mr. Mondaca was not entitled

to birthright citizenship. Knauer, 328 U.S. at 657-58 (“We reexamine the facts to

determine whether the United States has carried its burden of proving by ‘clear,

unequivocal, and convincing’ evidence, which does not leave ‘the issue in

doubt’”). While the District Court erred in failing to recognize the distinction

between “clear and convincing” evidence and the more exacting “clear,

unequivocal, and convincing” evidence standard, this case does not rest on that


6

distinction. Even if the trier of fact equated “clear and convincing” evidence with

“clear, unequivocal, and convincing” evidence it should have been compelled to

determine that the agency failed to present evidence that does not leave the issue in

doubt.

Indeed, the Court need not even determine the difference between the two

standards, as under either, the District Court’s findings readily demonstrate that the

trier of fact failed to hold the Executive to its demanding burden of proof. In the

context of cases reviewing the Executive’s efforts to strip an individual of their

claim to U.S. citizenship, the Court has repeatedly demanded that the agency be

required to produce such compelling evidence that does not leave the issue in

doubt. See Costello v. United States, 365 U.S. 265, 272 (1961) (“We have

examined the record to determine if the evidence leaves ‘the issue in doubt,’

Schneiderman, 320 U.S. 118, 158”).

Nonetheless, a discussion contrasting a “clear and convincing” standard with

“a clear, unequivocal, and convincing” standard helps to further illuminate why the

Petition for Review should be granted, as it reinforces the demanding standard at

play and the important constitutional rights at stake. Undoubtedly, a lack of

precision in case law has led to confusion, with some decisions intermingling, and

appearing to equate, the “clear and convincing” standard with the more rigorous,

“clear, unequivocal, and convincing” standard. Mondaca-Vega, 718 F.3d at 1082.


7

But again, not only has the Supreme Court established the original standard in an

unbroken line of cases going back seventy years to Schneiderman, 320 U.S. at 125,

it has also distinguished this exacting standard in the citizenship and deportation

context, contrasting it with a more lenient standard of “clear and convincing”

evidence required in other contexts.

Specifically, in Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court

examined what standard of evidence was constitutionally required to impose

indefinite civil commitment on an individual. The Court was reviewing the Texas

Supreme Court’s determination that a trial court need only employ a

“preponderance of the evidence” standard in making this determination. The

Texas Supreme Court had overturned the Court of Civil Appeals’ decision, which

had in turn reversed the trial court’s original instructions applying a “clear,

unequivocal, and convincing evidence” standard in favor of the criminal standard

“beyond a reasonable a doubt.” Id. at 421-422.

In Addington, the Supreme Court first determined that “the individual’s

interest in the outcome of a civil commitment proceeding is of such weight and

gravity that due process requires the state to justify confinement by proof more

substantial than a mere preponderance of the evidence.” Id. at 427.

Next, the Supreme Court determined that due process did not require

application of the most demanding standard—evidence beyond a reasonable doubt.


8

Id. at 429-31. Nonetheless, the Court noted that it was perfectly acceptable for

states to apply this more stringent standard, as “procedures must be allowed to vary

[from state to state] so long as they meet the constitutional minimum.” Id. at 431.

In explaining why due process did not require evidence beyond a reasonable doubt

in the context of civil commitment, the Supreme Court explained, “the heavy

standard applied in the criminal cases manifests our concern that the risk of error

must be minimized even at the risk that some who are guilty might go free. The

full force of that idea does not apply to civil commitment.” Id. at 428. 2 The Court

explained that unlike an erroneous conviction, ongoing professional oversight,

treatment concerns and involvement of family and friends would generally provide

continuous opportunities to appropriately address an erroneous civil commitment.

Id.

In distinguishing civil commitment proceedings, Addington also relied

heavily on the fact that predicting the future actions of the person in question

(would they be a danger to themselves or others), necessarily contains a lack of

certainty, and is a prognosis based on expert opinions, not concrete facts of

historical verification: “The subtleties and nuances of psychiatric diagnosis render

2 In contrast to civil commitment, but similar to a criminal conviction and

significant here, the Supreme Court has also stated, “it is better that many []

immigrants should be improperly admitted than that one natural born citizen of the

United States should be permanently excluded from his country.” Kwock Jan Fat

v. White, 253 U.S. 454, 464 (1920).


9

certainties virtually beyond reach in most situations. The reasonable doubt

standard of criminal law functions in its realm because there the standard is

addressed to specific, knowable facts.” Id. at 430. Thus, it rejected “beyond a

reasonable doubt” as the constitutionally-required standard.

And then, most instructive to the case at hand, the Court concluded that the

“clear, unequivocal and convincing” standard demanded too much: “Similarly, we

conclude that use of the term ‘unequivocal’ is not constitutionally required,

although states are free to use that standard.” Id. at 432. The Court made this

pronouncement after surveying the different standards applied, noting that some

states require “clear and convincing” evidence, while others require “clear, cogent

and convincing” evidence, and others “clear, unequivocal and convincing”

evidence. Id. at 431-32.

In deciphering “clear, unequivocal and convincing” evidence the Court

turned to deportation and denaturalization cases applying that standard:

In Woodby v. INS, 385 U.S. 276 (1966), dealing with deportation, and

Schneiderman v. United States, [citation omitted], dealing with

denaturalization, the Court held that “clear, unequivocal, and convincing”

evidence was the appropriate standard of proof. The term “unequivocal,”

taken by itself, means proof that admits of no doubt, a burden

approximating, if not exceeding, that used in criminal cases.

Id. at 432. The Court explained why a higher burden of proof was appropriate in

the deportation and denaturalization context: “The issues in Schneiderman and

Woodby were basically factual, and therefore susceptible of objective proof, and


10

the consequences to the individual were unusually drastic—loss of citizenship and

expulsion from the United States.” Id. Thus, Addington expressly distinguished

deportation and denaturalization proceedings from civil commitment proceedings

that required only “clear and convincing” evidence to satisfy due process.

The Supreme Court concluded by noting that the trial court in the civil

commitment proceedings originally employed the more stringent standard of

“clear, unequivocal and convincing” evidence. Id. at 433. “However,

determination of the precise burden equal to or greater than the ‘clear and

convincing’ standard which we hold is required to meet due process guarantees is a

matter of state law which we leave to the Texas Supreme Court.” Id. Thus, the

Court made readily apparent that “clear, unequivocal and convincing” does not

equate to the constitutionally-required “clear and convincing” standard, otherwise

there would be no need to leave it to the State Supreme Court to determine if it

wanted to adopt the higher standard applied by the trial court.

The Sixth Circuit has similarly recognized that Addington compels the

conclusion that “the omission of ‘unequivocal’ makes a difference. The ‘clear,

unequivocal, and convincing standard’ is a more demanding degree of proof than

the ‘clear and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir.


11

2013).3 As the Supreme Court explained, “[t]he standard serves to allocate the risk

of error between the litigants and to indicate the relative importance attached to the

ultimate decision.” 441 U.S. at 423. In the instant case, the District Court failed to

acknowledge the correct standard, failing thus to recognize “the degree of

confidence our society thinks he should have in the correctness of factual

conclusions.” Id.

Ultimately, whether the District Court labeled the burden of proof “clear and

convincing” as opposed to “clear, unequivocal, and convincing,” it should have

nonetheless recognized that when citizenship is at stake the appropriate standard

requires the adjudicator to determine whether the agency presented evidence so

compelling that it does not leave the issue in doubt. See, e.g., Knauer, 328 U.S. at

657-58 (“whether the United States has carried its burden of proving by clear,

unequivocal, and convincing evidence, which does not leave the issue in doubt.”

(emphasis added). “Furthermore, because of the grave consequences incident to

denaturalization proceedings we have held that a burden rests on the Government

3 As the Sixth Circuit noted, 733 F.3d at 605-06, the Board of Immigration Appeals

has also declared that “[t]he clear and convincing standard imposes a lower burden

than the clear, unequivocal, and convincing standard ... because it does not require

that the evidence be unequivocal or of such a quality as to dispel all doubt.”

Matter of Patel, 19 I. & N. Dec. 774, 783 (1988). Moreover, the Immigration and

Nationality Act equates “clear and convincing” as requiring “reasonable,

substantial, and probative” evidence. 8 U.S.C. § 1229a(c)(3)(A). Yet in Woodby,

the Supreme Court reversed the Second and Sixth Circuits for requiring only

“reasonable, substantial and probative evidence” rather than “clear, unequivocal,

and convincing evidence.” 385 U.S at 279-81, 286.


12

to prove its charges in such cases by clear, unequivocal and convincing evidence

which does not leave the issue in doubt. This burden is substantially identical with

that required in criminal cases – proof beyond a reasonable doubt.” Klapprott v.

U.S., 335 U.S. 601, 611-12 (1949) (citation omitted) (emphasis added). Accord

Nowak v. U.S., 356 U.S. 660, 663 (1958) (“evidence which does not leave ‘the

issue in doubt’”) (emphasis added); Perez v. Brownell, 356 U.S. 44, 47 (1958)

(overruled on other grounds in Afroyim v. Rusk, 387 U.S. 253 (1967)); Chaunt, 364

U.S. at 353 (same); Costello, 365 U.S. at 269 (same); Fedorenko v. U.S., 449 U.S.

440, 505 (1981) (same); Kungys v. U.S., 485 U.S. 759, 781 (1988) (same).4

C. The District Court’s Findings are Not Supported by the Record.

In determining whether the agency had presented “clear, unequivocal and

convincing” evidence the district court failed to properly consider undisputed facts,

made clear errors in the factual findings, and relied on speculation, all errors that

should compel reversal.

4 Respondent asserts that the district court did not err in placing the initial burden

on Petitioner to demonstrate his citizenship. Respondent cites to Murphy v. INS,

54 F.3d 605, 610 (9th Cir. 1995), which in dicta not applicable to that case asserted

that “[o]nly at a de novo district court hearing on citizenship under section . . . does

the alien subject to deportation bear the burden of proving citizenship by a

preponderance of the evidence.” However, Murphy cited to no authority to support

that assertion. Indeed, as Murphy acknowledged, case law demonstrates that the

burden is on the agency until it presents evidence of alienage, thereby shifting the

burden. Id. at 608-09. However, this point does not impact the instant case as the

district court found that Petitioner was able to come forward with prima facie

evidence of citizenship.


13

The government does not contest that Reynaldo Mondaca Carlon is a real

person, born in Imperial, California, on July 17, 1931, to parents Antonia Carlon

and Marin Mondaca. (ER v.1 25.) Nor does the government contest that the birth

certificate presented by Petitioner to identify himself as Reynaldo Mondaca is

authentic. Id. The government has verified its authenticity on multiple occasions.

(ER v.2 115-20, 144.) Nor has the government introduced any evidence that any

other person has ever claimed to be Reynaldo Mondaca. This is despite the fact

that the agency’s investigation first concluded “[b]oth the SSN application and the

Selective Service efforts appear to be actions taken by the true Reynaldo.” (ER v.1

29-30.) The agency quickly backed away from this conclusion when handwriting

experts for both parties conccluded that the signature on the application, “Reynaldo

C. Mondaca”, appeared to be made by Petitioner. (ER v.1 26.)

Significantly, the sole reason provided by the district court for finding it

“highly improbable the petitioner obtained the birth certificate for Renoldo [sic]

Mondaca from his mother,” was its flawed speculation regarding what steps Mr.

Mondaca must have taken to turn around and apply for a Social Security card the

day after he was deported in May of 1953. (ER v.1 14-15.) Indeed, the district

court’s finding depended on layers of improper speculation. (Petr’s. Opening Br.

37-41.) Similarly, the District Court based its findings on speculation regarding

Mr. Mondaca’s financial incentives. Id. at 41-45. “Where the fate of a human


14

being is at stake, we must not leave the [deciding issue] to conjecture.” Knauer,

328 U.S. at 659.

Moreover, it is undisputed that Petitioner has always used the Social

Security Number, dating back to when it was issued on May 23, 1953. (ER v.1-

29.) Thus, the district court erred in finding that petitioner began using the name

Reynaldo C. Mondaca due to “his marriage to Aurelia Estrella in Reno, Nevada, on

August 7, 1970.” (ER v.1 17-18.)

In addition, the agency investigated Mr. Mondaca’s citizenship at least as

early as 1973. (ER v.2 155.) That was when the agency first requested and

obtained production of a birth certificate under the name of Salvador Mondaca

Vega. (ER v.2 155.) Nonetheless, beginning in 1977, the agency issued

certificates of citizenship to four of Mr. Mondaca’s children, based on its

determination that Mr. Mondaca is a U.S. citizen. (ER v.1 27-28.) Similarly, the

agency granted family visas for his wife and two other children. Id. Finally, the

Department of State issued Mr. Mondaca a passport in 1998 and then issued a

replacement passport in 2005. Id. at 28.5

In 1980, Mr. Mondaca was arrested on suspicion of smuggling persons into

the country. (ER v.1 28.) He was charged as a U.S. citizen, and convicted under 8

5 The Department of State only sought to revoke the Passport on the heels of this

litigation, relying on a clearly erroneous charge; i.e., that he admitted to the

Immigration Judge on April 29, 1998, “that you were not Reynaldo Mondaca but

rather Salvador Mondaca.” (ER v.2 241.)


15

U.S.C. § 1325 and 18 U.S.C. § 2. (ER v.2 -125.) There is no record of any effort

to remove him after this conviction. However, the district court committed plain

error in finding that after Petitioner was arrested and charged with smuggling

“[n]either the INS nor the United States Attorney questioned his assertion that his

name is Reynaldo Carlon Mondaca.” (ER v.1 8.) There is nothing in the record to

support the conjecture that federal authorities simply accepted Mr. Mondaca’s

assertion of citizenship without any investigation. Indeed, as with any criminal

prosecution, his prints were entered into the same system that recorded his prior

removals from the country under different aliases. (ER v.2 160.)

He was stopped again by the Bonnie Lake Police in 1983 and again turned

over to immigration. (ER v.2 127.) Again, the agency initiated an investigation as

to a possible false claim, based on his rap sheet. (ER v.2 128.) Respondent asserts

that ‘[t]hese investigations, however, occurred in a pre-digital era, in a time where

connecting the dots….” (Respt.’s Opp’n to Reh’g 14.) But this defense fails to

acknowledge that the government took the fingerprints of the individuals they

charged in both immigration and criminal proceedings. That is how they were

alerted to the citizienship investigation conducted in 1973.

Respondent contends that there is no evidence that Mr. Mondaca ever

claimed to be either Reynaldo Mondaca (or otherwise asserted that he was a U.S.

citizen) on the numerous occasions when he was removed from the country. (ER


16

v.1-24.) But of course, this is asking him to prove a negative. If Mr. Mondaca

were detained with evidence of his true identity, then he would not be subject to

removal, and there generally would be no removal records, just as the FBI reports

fail to record the time when he was arrested and released by INS in 1983. (ER v.2-

135, 160.)

Relatedly, the district court erred in concluding he was deported in July of

1953. (ER v.1 5.) However, FBI records only show that he was transferred to

immigration from the Sacramento Police Department, not that he was actually

removed. (ER v.2 158.)6 Similarly, while he was arrested by immigration officials

and removed in 1951, May of 1953,1954, 1956 and 1966, there is no similar record

of immigration authorities taking any action against him when he was arrested in

October of 1969, with charges being brought under both names. (ER v.2 133,

159.)


Findings Should be Set Aside.

Indeed, even if this Court were to restrict its review to clear error as

prescribed under Rule 52(a), the District Court’s findings and conclusions must be

set aside as they are based on factual error and speculation. An analysis restricted

to clear error must nonetheless ensure that the underlying adjudicator applied the

6 The administrative record maintained by the agency also includes an old,

certified copy of Reynaldo Mondaca’s birth certificate issued by the City of

Imperial, with a handwritten note “Calexico Calif May 19, 1952.” (ER v.2 113.)


17

appropriate burden of proof in concluding that the Executive had met its heavy

burden in demonstrating Mr. Mondaca’s identity with clear, unequivocal, and

convincing evidence.

The Panel cited to Anderson, stating that where there “are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Mondaca-Vega, 718 F.3d at 1083. But this was precisely the

problem. The evidence presented did not compel the conclusion that Mr. Mondaca

was not a U.S. citizen. Instead, at most the evidence provided two alternative

possibilities. But if there are two plausible views, then the agency has failed to

present evidence that does not “leave the issue in doubt.” It is precisely for this

reason that Mr. Mondaca’s petition for review must be granted.

III. CONCLUSION

Petitioner respectfully requests that the en banc Court reverse the findings

and conclusions of the district court, and declare that Mr. Mondaca is a U.S.

citizen.


18

Date: January 24, 2014 Respectfully submitted,

s/ Matt Adams

Matt Adams



Seattle, WA 98104

(206) 957-8611

[email protected]

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

(206) 957-8679

[email protected]



mailto:[email protected]


19



I certify that:

1. Pursuant to Fed. R. App. P. 40-1(a), the attached opening supplemental brief

for Petitioner is


_4,166___ words (per this Court’s order must not exceed 4,200 words).

January 24, 2014 s/ Matt Adams

Date Matt Adams


615 Second Avenue, Ste. 400

Seattle, WA 98104

[email protected]

(206) 957-8611

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

[email protected]

(206) 957-8679




20





CM/ECF system on January 24, 2014.



Executed in Seattle, Washington, on January 24, 2014.

s/ Matt Adams

Matt Adams



No. 03-71369 _____________________________________________________


FOR THE NINTH CIRCUIT ___________________________________________________

SALVADOR MONDACA-VEGA,

Petitioner (Not Detained),

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS

RESPONDENT’S SUPPLEMENTAL BRIEF BEFORE THE EN BANC COURT

STUART DELERY Assistant Attorney General Civil Division AUGUST E. FLENTJE Senior Counsel for Immigration Civil Division COLIN A. KISOR Acting Director Office of Immigration Litigation Date: February 14, 2014

ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation KATHERINE E.M. GOETTEL Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115 Attorneys for Respondent


TABLE OF CONTENTS

TABLE OF CONTENTS …………………………………………………….……..i TABLE OF AUTHORITIES……………………………………………………….ii

I. INTRODUCTION ……………………………………………………….….1

II. ARGUMENT………………………………………………………………..1

A. The Court of Appeals Should Review Fact-Finding for Clear Error

in Section 1252(b)(5) Transfer Cases………………………………………..1

B. The Petitioner in a Section 1252(b)(5) Case Should Bear the Burden to Prove Citizenship by a Preponderance of the Evidence………………….7

C. There Is No Meaningful Distinction Between the Clear and Convincing and the Clear, Unequivocal, and Convincing Standards….......10

D. Applying Either the Clear Error or De Novo Standard of Review, This Court Should Uphold the District Court’s Findings of Fact. ……….. 13

III. CONCLUSION…………………………………………………………… 16 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

i



CASES

Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 715 (E.D.Va. 2012)……………………………… 9

Addington v. Texas,

441 U.S. 418, 432 (1979) ……………………………………1, 8, 9, 11, 13 Ali v. Obama,

736 F.3d 542, 545 (D.C. Cir. 2013)……………………………………..5 Anderson v. City of Bessemer,

470 U.S. 564 (1985)…………………………………………. 1, 2, 3, 4, 7 Anderson v. Holder,

673 F.3d 1089, 1092 (9th Cir. 2012)……………………………………. 6 Ayala-Villanueva v. Holder,

572 F.3d 736, 737 n.3 (9th Cir. 2009)………………………………. 7, 13

Baumgartner v. United States, 322 U.S. 655 (1944)………………………………………………….. 2, 3

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 501 (1984)………………………………………………….5 California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater,

454 U.S. 90, 93 (1981) (per curiam)……………………………. .1, 11, 12

Delmore v. Brownell, 236 F.2d 598, 600 (3d Cir. 1956)………………………………………..9

Edwards v. Bryson,

536 Fed. App’x. 217, 219 (3d Cir. 2013)………………………………..8 Graham v. Holder,

No. CV 12-00066, 2013 WL 5445525, at *1 (D. Ariz. Sept. 30, 2013)…9

ii


Hughes v. Ashcroft, 255 F.3d 752, 758 (9th Cir. 2001)……………………………………….4

Knauer v. United States,

328 U.S. 607 (1946)………………………………………….………… 2, 12

Kungys v. United States, 485 U.S. 759, 768-70, 800 n.11 (1988)……………………..……………….6

Lim v. Mitchell, 431 F.2d 197, 199-200 (9th Cir. 1970)…………………………………...…9 Lopez-Chavez v. INS,

259 F.3d 1176, 1180-81 (9th Cir. 2001)……………………………….…..13 Lopez-Gomez v. Gonzales,

No. 08-cv-1276, 2014 WL 50217, at *4-5 (S.D. Cal. Jan. 7, 2014)………..9 Lung v. Dulles,

261 F.2d 719, 723 (9th Cir. 1958)………………………………………….10 Matter of Extradition of Smyth,

72 F.3d 1433, 1435 (9th Cir. 1996)………………………………………..16 Mondaca-Vega v. Holder,

718 F.3d 1075, 1081 (9th Cir. 2013)……………………………...7, 9, 12, 16 Murphy v. INS,

54 F.3d 605, 608-10 (9th Cir. 1995)……………………………………….13 Nijhawan v. Holder,

557 U.S. 29, 42, (2009)…………………………………………………….12 Perez-Mejia v. Holder,

663 F.3d 403, 418 (9th Cir. 2011)………………………………………….14 Planned Parenthood v. American Coalition of Life Activists,

290 F.3d 1058, 1070 (9th Cir. 2002)………………………………………...5

iii


Pullman-Standard v. Swint, 456 U.S. 273 (1982)…………………………………………………1, 2, 3, 4

Santosky v. Kramer,

455 U.S. 745, 756 (1982)…………………………………………………..11 St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 510 (1993) …………………………………………………..10

United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)………………………………………… 13

United States v. Hovsepian,

359 F.3d 1144, 1168 (9th Cir. 2004)………………………………………...9 United States v. Zajanckauskas,

441 F.3d 32, 38 n.5 (1st Cir. 2006)………………………………………....5 Vega-Alvarado v. Holder,

No. CV 09-5591, 2011 WL 333101, at *3 (C.D. Cal. Jan. 28, 2011)………9 Woodby v. INS,

385 U.S. 276, 285 (1966) …………………………………………………..12 Yee Tung Gay v. Rusk,

290 F.2d 630, 631 (9th Cir. 1961)………………………………………….. 8

STATUTES

The Declaratory Judgment Act: 28 U.S.C § 2201…………………………………………………………….4, 8, 10

Federal Rules of Civil Procedure

Rule 52(a)………………………………………………………………………......3 Rule 52(a)(6)…………………………………………………………………. 1, 2, 7

iv


Immigration and Nationality Act of 1952, As Amended: 8 U.S.C. § 1229a(c)(3)(A)………………………………………………………….7 8 U.S.C. § 1252(b)(5)………………………………………………………...passim 8 U.S.C. § 1421(c) ………………………………………………………………8, 9 8 U.S.C. § 1451…………………………………………………………………….6 8 U.S.C. § 1503…………………………………………………………………….8 8 U.S.C. § 1503(a) …………………………………………………………… .8, 10

MISCELLANEOUS

2 McCormick On Evid. § 340 (7th ed.)………………………………………...…11

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I. INTRODUCTION

This Court should deny Petitioner’s petition for review because he is not a

U.S. citizen under any standard of review and regardless of the burden of proof.

The Court should apply the clear error standard when it reviews a district

court’s findings of fact on a nationality claim. First, this standard of review is

consistent with Anderson v. City of Bessemer, 470 U.S. 564 (1985), Pullman-

Standard v. Swint, 456 U.S. 273 (1982), and Federal Rule of Civil Procedure

52(a)(6). Second, there is no meaningful difference between the clear, convincing,

and unequivocal standard and the clear-and-convincing standard. Because the

District Court’s decision is consistent with Addington v. Texas, 441 U.S. 418, 424

(1979), California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S.

90, 93 (1981) (per curiam), and several Ninth Circuit cases addressing the relevant

standard of review, it does not rest on a legal error. Last, the District Court’s

findings of fact are not clearly erroneous. The undisputed evidence clearly and

unequivocally shows that Petitioner is Salvador Mondaca-Vega, a Mexican citizen.

II. ARGUMENT

A. The Court of Appeals Should Review Fact-Finding for Clear Error in Section 1252(b)(5) Transfer Cases.

At issue before the en banc court is whether a trial court’s findings of fact in

a citizenship case should be reviewed for clear error or de novo. It is well-settled

law that an appellate court reviews a trial court’s findings of fact for clear error.


See Anderson, 470 U.S. 564; Fed. R. Civ. P. 52(a)(6). But Petitioner asks the

Court to apply an exception to this rule in the context of citizenship cases

transferred to district courts under section 1252(b)(5). There is no rationale to

support such a rule, nor does the outdated and inapposite case law relied on by

Petitioner.

This case is about where Petitioner was born – Mexico or the United States –

and the Petitioner primarily challenges the District Court’s conclusions regarding

Petitioner’s birth, which cannot be treated as anything other than a finding of fact

without doing violence to the term. Id. at 5; 12-17. The Court should review these

findings of fact for clear error, not de novo. As discussed fully in Respondent’s

Response to Petitioner’s Rehearing Petition, the Supreme Court has overruled the

line of cases suggesting that findings of fact in citizenship cases are subject to de

novo review. See Resp. to Pet. for Reh. at 2-7. Knauer v. United States, 328 U.S.

607 (1946), and Baumgartner v. United States, 322 U.S. 655 (1944), held that, in

certain situations, an appellate court should review findings of fact de novo. The

Supreme Court distinguished between different types of fact-finding, identifying

some facts as “ultimate facts” – which includes applications of law to fact and facts

underlying societal judgments – and other facts as “pure” findings of fact, such as

credibility determinations. Baumgartner, 322 U.S. at 670-71.

Forty years later, in Pullman-Standard, the Supreme Court expressly

distinguished “pure findings of fact” from mixed questions of law and fact. 456

2


U.S. at 287-88. In that case, the Court made clear that any time an appellate court

reviews a pure finding of fact, it should apply the Rule 52(a) clearly erroneous

standard. Id. The Court went on to explain that, “[w]hatever Baumgartner may

have meant by its discussion of ‘ultimate facts,’ it surely did not mean that

whenever the result in a case turns on a factual finding, an appellate court need not

remain within the constraints of Rule 52(a).” Id. at 286 n.16.

In Anderson, the Supreme Court did away with the notion that any type of

fact-finding could evade clear error review. The Court eliminated any exceptions

to the clear-error rule and expanded the Pullman-Standard court’s definition of

“pure findings of fact” to include physical evidence, documentary evidence,

inferences drawn from evidence, as well as credibility determinations. 470 U.S. at

574. The Court held that an appellate court should review any such findings for

clear error, and expressly rejected various courts of appeals’ theories that they may

“exercise de novo review over fact findings not based on credibility

determinations.” Id. Accordingly, following Anderson, prior exceptions to Rule

52(a)’s clear-error standard are no longer good law. The Supreme Court’s

decisions make no exception for citizenship cases, and Petitioner can point to no

basis for this Court to carve out one.

To the contrary, applying Rule 52(a)’s clear-error standard best comports

with the plain terms of 8 U.S.C. § 1252(b)(5). Under section 1252(b)(5), a court of

appeals is to transfer a case to district court to resolve any factual issue relating to

3


the petitioner’s citizenship. 8 U.S.C. § 1252(b)(5) (providing for “a new hearing

on the nationality claim and a decision on that claim as if an action had been

brought in the district court under section 2201 of Title 28”). Thus, the purpose of

a transfer under section 1252(b)(5) is for the District Court to conduct fact-finding

and issue a decision comparable to a declaratory judgment. Id. Accordingly, a

court will transfer the case where there are factual issues to resolve. See Hughes v.

Ashcroft, 255 F.3d 752, 758 (9th Cir. 2001). In rendering “a decision on” a

nationality claim, a district court may also resolve legal issues, not just factual

ones, and those issues are reviewed de novo. But a District Court’s fact-finding –

which is the primary purpose of a section 1252(b)(5) action – is reviewed for clear

error.

In this case, there was no legal dispute surrounding Petitioner’s claim to

citizenship. Both parties agreed that the issue was whether Petitioner was actually

born in the United States, which is a factual determination. E.R. v.2 at 35, Joint

Pretrial Order. In answering that question, the court assessed Petitioner’s

credibility and that of Petitioner’s wife, it reviewed the documentary evidence, and

it evaluated Petitioner’s prior statements. Following Pullman-Standard and

Anderson, there can be no question that these are not mixed questions of law and

fact, but pure findings of facts reviewed for clear error.

Petitioner argues that the constitutional rights at stake compel a more

searching review. (Pet. Supp. Br. at 2.) But there is nothing unusual about

4


reviewing fact-finding in constitutional challenges, and where constitutional rights

are at stake, under the clear error standard of review. Instead, that is the norm.

See, e.g., Ali v. Obama, 736 F.3d 542, 545 (D.C. Cir. 2013) (reviewing a district

court’s fact-finding in a habeas corpus case for clear error). Petitioner references

First Amendment cases in which appellate courts review “constitutional facts” de

novo. Pet. Supp. Br. at 3 (citing Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485, 501 (1984)). But those facts are markedly different than the facts that a

district court finds in a section 1252(b)(5) case. In the First Amendment context,

an appellate court does not review “pure” findings of fact. It reviews the record to

ensure that “the speech in question actually falls within the unprotected category

and to confine the perimeters of any unprotected category within acceptably

narrow limits.” Bose Corp., 466 U.S. at 505; see also Planned Parenthood v.

American Coalition of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002)

(reviewing “the core constitutional fact” de novo to ensure that the speech within

the unprotected category is construed narrowly). An appellate court’s review of

“constitutional facts” is unlike a section 1252(b)(5) case where the district court is

tasked with finding facts relating to a petitioner’s citizenship, such as where the

petitioner was born. These are pure findings that should be reviewed for clear

error.

Last, Petitioner cites United States v. Zajanckauskas, 441 F.3d 32, 38 n.5

(1st Cir. 2006), which is a denaturalization case, and not a section 1252(b)(5)

5


transfer case. In fact, all of the citizenship cases that Petitioner cites in support of a

higher burden of proof are denaturalization cases, which are distinctly different

from section 1252(b)(5) cases. Once a person is naturalized, the only way in

which the Government may take citizenship away is through denaturalization

proceedings under 8 U.S.C. § 1451. To prevail in a denaturalization action, the

Government must show by clear, convincing, and unequivocal evidence that the

naturalized citizen illegally procured naturalization or gained it through material

misrepresentation. Id.; see also Kungys v. United States, 485 U.S. 759, 768-82

(1988).

In a de novo district court action under section 1252(b)(5), on the other hand,

citizenship is an open question for the district court to decide as if it were a simple

Declaratory Judgment Act case. Typically, the question in these cases is whether

the petitioner was born in the United States, or whether he can prove that he

derived citizenship through his parents. See, e.g., Anderson v. Holder, 673 F.3d

1089, 1092 (9th Cir. 2012). The Government is not taking away a right or

privilege it already granted; indeed, the government cannot take citizenship away

in a 1252(b)(5) proceeding. Importantly, section 1252(b)(5) puts the burden on the

petitioner to prove citizenship after the court of appeals finds that there is a

material issue of fact relating to a petitioner’s citizenship. See infra Part II.B.

Because of this, case law in the denaturalization context is not relevant.

6


Neither case law nor public policy compel the Court to apply a heightened

standard of review when reviewing a trial court’s findings of fact in a section

1252(b)(5) transfer case. For these reasons, the Court should apply the clear error

standard. Fed. R. Civ. P. 52(a)(6); Anderson, 470 U.S. at 574.

B. The Petitioner in a Section 1252(b)(5) Case Should Bear the Burden to Prove Citizenship by a Preponderance of the Evidence.

The District Court correctly placed the initial burden on the Petitioner to

prove citizenship by a preponderance of the evidence. E.R. v.1 at 19. Petitioner

contends that the burden-shifting that occurs in administrative removal proceedings

also applies in section 1252(b)(5) cases, and the panel adopted this interpretation as

well. Pet. Supp. Br. at 12 n.4; Mondaca-Vega v. Holder, 718 F.3d 1075, 1081 (9th

Cir. 2013). The argument lacks merit.

In administrative removal proceedings, the Government bears the initial

burden “of establishing by the deportability of an admitted alien.” 8 U.S.C.

§ 1229a(c)(3)(A); Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir.

2009) (the Government bears the burden “of establishing by clear, unequivocal,

and convincing evidence, all facts supporting deportability.”). Evidence of foreign

birth creates a rebuttable presumption of alienage, and the burden shifts to the

petitioner to prove citizenship. Ayala-Villanueva, 572 F.3d at 737 n.3. If the

petitioner presents credible evidence of citizenship, the presumption of alienage is

7


rebutted, and the Government “then bears the ultimate burden of proving the

respondent removable by clear and convincing evidence.” Id.

This Court should not apply the burden-shifting scheme in removal

proceedings to section 1252(b)(5) proceedings. As discussed in Part II.A above, a

section 1252(b)(5) transfer case is different than a removal case. The question of

citizenship is an open question. And, notably, it is arising on a petition for review

of a final removal order, after the burden-shifting scheme has already been applied

in immigration court and the immigration court has found that the person is an

alien. If the appellate court finds that there is a material issue of fact and transfers

the case to the district court, the court should decide it “as if an action had been

brought in the district court under section 2201 of Title 28 [the Declaratory

Judgment Act].” Id. In declaratory judgment actions, the burden of proof is on the

plaintiff. And more broadly, the burden in civil cases generally is on the plaintiff

to prove his or her case by a preponderance of the evidence.1 See Addington, 441

1 Placing the burden on the petitioner is also consistent with the burden in analogous citizenship cases arising under 8 U.S.C. § 1503 and 8 U.S.C. § 1421(c). Under both statutes, plaintiffs can bring a district court case for a de novo determination of citizenship, resulting in a declaratory judgment under 28 U.S.C. § 2201. See 8 U.S.C. §§ 1421(c); 1503(a). Courts have consistently held in both contexts that the burden is on the plaintiff to prove eligibility for citizenship by a preponderance of the evidence. See Yee Tung Gay v. Rusk, 290 F.2d 630, 631 (9th Cir. 1961) (in a section 1503 case, “[t]he burden was upon appellants to establish their citizenship by a fair preponderance of the evidence.”); Edwards v. Bryson, 536 Fed. App’x. 217, 219 (3d Cir. 2013) (“In the § 1503(a) proceeding before the District Court, Edwards bore the burden of proving his citizenship by a preponderance of the evidence.”) (internal citations and quotations omitted);

8


U.S. at 423. Indeed, even the dissenting judge agreed that the “burden” is on the

petitioner, who must “carr[y] his initial burden by a preponderance of the evidence

that he is an American citizen.” Mondaca-Vega, 718 F.3d at 1095 (Pregerson, J.,

dissenting).

There is ample Ninth Circuit case law to support placing the burden on the

petitioner in a section 1252(b)(5) case. In Lim v. Mitchell, the Court stated that

“[a]s plaintiff below, Lim had the burden of proving by a fair preponderance of the

evidence that he is an American citizen.” 431 F.2d 197, 199 (9th Cir. 1970).

Other circuit courts and many district courts within this Circuit likewise held that

the burden rests on the petitioner in a section 1252(b)(5) action.2 This Court

should hold that the petitioner bears the burden by a preponderance of the evidence

because it is consistent with other citizenship cases under 8 U.S.C. §§ 1421(c) and

United States v. Hovsepian, 359 F.3d 1144, 1168 (9th Cir. 2004); Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 715-16 (E.D. Va. 2012) (adopting the preponderance standard in a 1421(c) case). 2 See, e.g., Delmore v. Brownell, 236 F.2d 598, 600 (3d Cir. 1956) (“[Peitioner] had the burden of proving his citizenship by a preponderance of the evidence.”); Lopez-Gomez v. Gonzales, No. 08-cv-1276, 2014 WL 50217, at *4-5 (S.D. Cal. Jan. 7, 2014); (“Though the party claiming citizenship is the respondent during the removal proceedings, in the de novo hearing in district court, that party is in the position of a plaintiff seeking a declaratory judgment. . . . [and] has the burden of proving his citizenship by a preponderance of the evidence in order to prevail.”) (citations and quotations omitted); Graham v. Holder, No. CV 12-00066, 2013 WL 5445525, at *1 (D. Ariz. Sept. 30, 2013) (same); Vega-Alvarado v. Holder, No. CV 09-5591, 2011 WL 333101, at *3 (C.D. Cal. Jan. 28, 2011) (same).

9


1503(a), with other cases arising under the Declaratory Judgment Act, and the

general rule in civil cases that the plaintiff bears the burden of proving his or her

case by a preponderance of the evidence.

In a case that goes to trial, like this one, burden shifting plays no formal role.

See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510 n.3 (1993). However,

Respondent agrees that, as a practical matter, once a petitioner in a section

1252(b)(5) case presents a valid citizenship document, the Government must

provide clear, convincing, and unequivocal evidence to show he was not a citizen.

Lung v. Dulles, 261 F.2d 719, 724 (9th Cir. 1958). Accordingly, because the

District Court found that Petitioner possessed a valid, unexpired passport, the court

appropriately called on the Government to provide clear and convincing evidence

that Petitioner was not who he claimed to be.3

C. There Is No Meaningful Distinction Between the Clear and Convincing and the Clear, Unequivocal, and Convincing Standards.

Another question before the en banc court is the significance of the term

“unequivocal,” in the phrase “clear, unequivocal, and convincing evidence,” and

whether that standard is equivalent to the clear-and-convincing standard or akin to

the more stringent criminal standard. While the District Court announced that it

was applying the clear, convincing, and unequivocal standard (E.R. v.1 at 21),

3 The Department of State revoked Petitioner’s passport in April 2011. E.R. v.1 at 14. Because the time to file an administrative appeal had not yet run, the District Court treated Petitioner’s passport as valid and un-revoked. Id.

10


Petitioner contends that the Court “erred by failing to recognize the distinction”

between the two standards. Pet. Supp. Br. at 5. But both standards are the

intermediate civil standard reserved for cases where liberty rights are at stake.

Addington, 441 U.S. at 424. Because the two standards are the same, the District

Court did not err when it used the two standards interchangeably.

As discussed in Respondent’s Petition for Rehearing Response, the Supreme

Court recognized that courts use different word formulas to describe the clear-and-

convincing standard. Id. (discussing the “intermediate standard, which usually

employs some combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and

‘convincing’”); see also Resp. to Pet. for Reh. at 8-9.4 The Court held that each of

these formulations is a variation on the same standard. Addington, 441 U.S. at 424.

In California ex rel. Cooper, the Supreme Court explained that the intermediate

clear and convincing standard was “reserved to protect particularly important

interests in a limited number of civil cases,” including citizenship. 454 U.S. at 93

(1981); accord Santosky v. Kramer, 455 U.S. 745, 756 (1982) (for particularly

important individual interests the “Court has mandated an intermediate standard of

proof – ‘clear and convincing evidence’”). Indeed, in listing the types of liberty

4 See also 2 McCormick On Evid. § 340 (7th ed.) (“The [clear-and-convincing] formula varies from state to state, but among the phrases used are the following: ‘by clear and convincing evidence,’ ‘clear, convincing and satisfactory,’ ‘clear, cogent and convincing,’ and ‘clear, unequivocal, satisfactory and convincing.’ . . . No high degree of precision can be attained by these groups of adjectives.”).

11


interests that are subject to the intermediate standard, the Supreme Court grouped

denaturalization and deportation cases together with civil commitment and libel

cases. California ex rel. Cooper, 454 U.S. at 93.

Petitioner argues that the clear, convincing, and unequivocal standard should

not “leave the issue in doubt.” Pet. Supp. Br. at 5 (quoting Knauer, 328 U.S. at

657-58). In making this argument, Petitioner suggests that the clear, convincing,

and unequivocal standard is essentially equivalent to the criminal standard, or

perhaps even higher, given no possibility of unreasonable doubt. Mondaca-Vega,

718 F.3d at 1097 (Pregerson, J., dissenting) (reasoning that the government can

never carry its burden when “there is ‘conflicting evidence’” because “it cannot be

said that the government has carried its burden to prove by evidence ‘which does

not leave the issue in doubt’”). But, like deportation and denaturalization cases, a

citizenship case under section 1252(b)(5) is not a criminal case and the Supreme

Court has repeatedly emphasized this point. Nijhawan v. Holder, 557 U.S. 29, 42,

(2009) (“[A] deportation proceeding is a civil proceeding in which the Government

does not have to prove its claims ‘beyond a reasonable doubt.’”); Woodby v. INS,

385 U.S. 276, 285 (1966) (same). While the clear, convincing, and unequivocal

standard is a high standard, it is not the same as proof beyond a reasonable doubt,

and such a standard, in name or otherwise, is emphatically not appropriate.

Last, contrary to Petitioner’s argument that the clear, convincing, and

unequivocal standard is markedly higher than the clear and convincing standard,

12


several Ninth Circuit cases reference the two standards interchangeably. See, e.g.,

United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012).5 And Petitioner

admits as much, stating that “some decisions intermingl[e], and appear[] to equate,

the ‘clear and convincing’ standard with the more rigorous, ‘clear, unequivocal,

and convincing’ standard.” Pet. Supp. Br. at 6. But an intermingling of the

standards is not due to confusion or imprecision, it is because they come from the

same intermediate burden of proof. See Addington, 441 U.S. at 424. Accordingly,

the District Court did not err when it interchanged the two standards, and this

Court should therefore affirm the District Court’s application of the clear,

convincing, and unequivocal standard.

D. Applying Either the Clear Error or De Novo Standard of Review, this Court Should Uphold the District Court’s Findings of Fact.

The great weight of undisputed evidence in this case compels this Court to

affirm the District Court’s finding that Petitioner is Salvador Mondaca-Vega under

either the clear error or de novo standards of review. That evidence includes:

• Petitioner’s own admissions (including a sworn statement) that he used the name Salvador Mondaca-Vega during the 1950s. ER v.2 at 44, 148-49, 198; SER at 13, 15-16;

• Petitioner’s own admissions that he was born in 1931 and grew up in El Fuerte, Sinaloa, Mexico. ER v.2 at 148;

5 See also Ayala-Villanueva v. Holder, 572 F.3d 736, 736, 737 n.3 (9th Cir. 2009); Lopez-Chavez v. INS, 259 F.3d 1176, 1180-81 (9th Cir. 2001); Murphy v. INS, 54 F.3d 605, 608-10 (9th Cir. 1995).

13


• A birth certificate showing that Salvador Mondaca-Vega was born in 1931 just outside of El Fuerte, Sinaloa, Mexico. ER v.2 at 138-140;

• Petitioner’s allowing himself to be deported as a Mexican national and acceptance of voluntary departure as a Mexican national ten to twenty times. ER v.2 at 148-49; SER at 16-17;

• Petitioner’s fingerprints and handwriting match that of Salvador Mondaca-Vega from the 1950s. SER at 23; 26-38.

Accordingly, applying either standard, this Court need not look beyond the

undisputed evidence to affirm the District Court’s finding that Petitioner is

Salvador Mondaca-Vega.

Nevertheless, Petitioner tries to estop the Government from questioning

Plaintiff’s citizenship because it did not criminally prosecute or seek to deport

Petitioner in the 1970s and 1980s. See Pet. Supp. Br. at 14-15. For example,

Petitioner points out that the former Immigration and Naturalization Service first

investigated him in 1973, but then gave certificates of citizenship to Petitioner’s

children four years later. Id. at 14. And in 1980, the U.S. Attorney’s Office in for

the District of Arizona charged Petitioner as a U.S. citizen during criminal

proceedings. Id. at 15. But it is a well-settled rule in this circuit that the

Government is not estopped from correcting a mistake. See Perez-Mejia v. Holder,

663 F.3d 403, 418 (9th Cir. 2011) (“[T]he government was negligent in improperly

granting Perez-Mejia [legal permanent resident] status . . . [but] [t]he government

was not estopped from correcting the mistake when it was discovered.”). Simply

because the Government once lacked the knowledge, resources, or ability to

14


discover Petitioner’s fraud or deport or prosecute Petitioner does not estop it from

now showing that he is not a U.S. citizen.

Petitioner also argues that he should not be required to “prove a negative”;

meaning, he should not have to prove that he presented his birth certificate to INS

or otherwise asserted that his true identity is Reynaldo Mondaca Carlon. Pet.

Supp. Br. at 16. But this argument ignores Petitioner’s own deposition and trial

testimony. Petitioner admitted that he was deported because he affirmatively

claimed to be Salvador Mondaca-Vega and affirmatively claimed birth in Mexico.

SER at 12-17 . He was not deported simply because he omitted his true identity.

In fact, in 1954, when in deportation proceedings for the third time, he signed a

sworn statement attesting that his name is Salvador Mondaca-Vega and that he was

born in Mexico. ER v.2 at 148-49. He also attested to the fact that he had been

deported and accepted voluntary departure on numerous occasions. Id. And it is

not disputed that the fingerprints of Mondaca-Vega taken at that time match the

Petitioner. Petitioner is not expected to “prove a negative.” His task is only

impossible because he cannot explain, without admitting the truth of his birth, why

he would hold himself out as a Mexican citizen for several years, bearing the same

name as a man who was born in the same small town where he grew up within two

months of his purported birthdate.

Petitioner also argues that the District Court speculated about his birth

certificate and his financial incentives for crossing back and forth across the

15


border. Pet. Supp. Br. at 13-14. But as the panel opinion explained, these were

“not findings at all” and there is nothing improper about a district court discussing

its “reasoning when deciding that Petitioner was not a credible witness.”

Mondaca-Vega, 718 F.3d at 1084. Further, as discussed fully in Respondent’s

answering brief (Resp. Ans. Br. at 28-29; 38-40), a trial court may draw rational

inferences from the evidence in the record, and that is what occurred here. See

Matter of Extradition of Smyth, 72 F.3d 1433, 1435 (9th Cir. 1996) (“[I]nference-

drawing is a type of factfinding, a process by which the presence of one fact leads

to a probable estimate of a second fact.”). The District Court rationally inferred

that if Petitioner had his California birth certificate in his possession in the 1950s,

he would have presented it to immigration authorities. It also rationally inferred

that, if Petitioner were truly a U.S. citizen, he would not want to be abruptly

deported to Mexico while he was working in the United States.

In sum, Petitioner’s own actions and behaviors are enough to compel this

Court to affirm the District Court’s findings of fact. Whether this Court reviews

the District Court’s finding for clear error or de novo, the conclusion is the same:

Petitioner is Salvador Mondaca-Vega, a Mexican citizen.

III. CONCLUSION

For the foregoing reasons, this Court should deny the petition for review.

16


DATED: February 14, 2014 Respectfully submitted, STUART F. DELERY

Assistant Attorney General Civil Division AUGUST E. FLENTJE Senior Counsel for Immigration Civil Division

COLIN A. KISOR Acting Director Office of Immigration Litigation ELIZABETH J. STEVENS Assistant Director Office of Immigration Litigation

s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL

Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 532-4115

Attorneys for Respondent

17


CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Federal Rule of Appellate Procedure

32(a)(7)(C) and Ninth Circuit Rules 31-2 and 40-1(a), that I used Microsoft Word

2010 to prepare Respondent’s Brief, and the typeface is proportionally spaced in

14-point Times New Roman typeface. The brief contains 4,196 words of text and

363 lines of text.

DATE: February 14, 2014 s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation

18



I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on February 14, 2014.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL Department of Justice Office of Immigration Litigation

19


NO. 03-71369




A 019 263 384

Petitioner,

v.


Attorney General

Respondent.

PETITION FOR REVIEW OF

BOARD OF IMMIGRATION APPEALS FINAL ORDER

PETITIONER’S REPLY BRIEF BEFORE THE EN BANC COURT

Matt Adams

Martha H. Rickey



Seattle, WA 98104

Tel. (206) 957-8611



ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................... iii

I. STANDARD OF REVIEW ....................................................... 1

II. BURDEN OF PROOF ............................................................. 3

A) This Court Reviews a Final Order of Deportation to Determine if the

Agency Satisfied its Heavy Burden. ................................................................... 3

B) The Burden of Proof Does Not Switch to Petitioner after Limited

Transfer from this Court. .................................................................................... 4

C) Respondent Did Not Present Evidence to Sustain its Heavy Burden of

Proof. ..................................................................................................................... 7

III. CONCLUSION ................................................................... 11





iii


Cases

Addington v. Texas, 441 U.S. 418 (1979) .................................................................. 4

Anderson v. City of Bessemer, 470 U.S. 564 (1985) ................................................. 1

Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) .................................................. 2

Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) ....................................... 6

Baumgartner v. United States, 322 U.S. 665 (1944) ................................................. 5

Chaunt v. U.S., 364 U.S. 350 (1960) ......................................................................... 1

Demirchyan v. Holder, 641 F.3d 1141 (9th Cir. 2011) ............................................. 2

Kashat v. Comm’r of Internal Revenue, 229 F.2d 282 (6th Cir. 1956) ..................... 9

Kaur v. Ashcroft, 379 F.3d 876 (9th Cir. 2004) ......................................................... 9

Klapprott v. U.S., 335 U.S. 601 (1949) ..................................................................... 3

Knauer v. U.S., 328 U.S. 654 (1946) ......................................................................... 1

Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1970) ........................................................... 8

Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.Ct. 843 (Jan. 22, 2014) . 5

Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir. 2002) .......................................... 9

Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011) ............................................... 7

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ..................................................... 1

Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15 (2000) .......................................... 2

Schneiderman v. U.S., 320 U.S. 118 (1943) ................................................. 3, 5, 8, 9

Singh v. INS, 292 F.3d 1017 (9th Cir. 2002) ............................................................. 9

Woodby v. INS, 385 U.S. 276 (1966) ......................................................................... 3

Yee Tung Gay v. Rusk, 290 F.2d 630 (9th Cir. 1961) ................................................ 6


iv

Statutes

8 U.S.C. § 1252(b)(5)(B) ........................................................................................... 2

8 U.S.C. § 1421(c) ..................................................................................................... 6

8 U.S.C. § 1503 .......................................................................................................... 6


1

I. STANDARD OF REVIEW

Respondent argues there is no basis to make an exception to the general rule

that a trial court’s findings of fact should only be reviewed for clear error.

(Respt’s. Suppl. Br. 2) (hereinafter “Resp’t”.) Indeed, Respondent argues that

“[t]he Supreme Court’s decisions make no exception for citizenship cases, and

Petitioner can point to no basis for this Court to carve out one.” Id. at 3. This

assertion is backward. Respondent urges this Court to ignore the Supreme Court’s

controlling precedent requiring a searching, independent review for cases

involving challenges to citizenship. Since the 1940s the Supreme Court has held

that in citizenship cases a reviewing court must apply de novo review, in order to

protect the almost sacred constitutional matter at issue, which lies at the heart of

our democracy. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v.

U.S., 328 U.S. 654, 658-59 (1946). It is Respondent who is not able to point to any

case law holding that the clear-error rule should be applied in citizenship cases.

Respondent argues that through Pullman-Standard v. Swint, 456 U.S. 273

(1982), and Anderson v. City of Bessemer, 470 U.S. 564 (1985), “[t]he Court

eliminated any exceptions to the clear-error rule.” (Resp’t 3.) This assertion

ignores the fact that the Supreme Court has never purported to reject the separate

standard of review in citizenship cases. As previously noted, the footnote in

Pullman-Standard does not profess to overturn this exception, and Anderson does


2

not even address it. (Petr’s. Suppl. Br. 3-5.) Nor is there any other case that

explicitly states that the clear-error rule must be applied in all cases.

Respondent also seeks to justify application of the clear-error rule simply

because this case was transferred to district court for additional factfinding under

the predecessor statute to 8 U.S.C. § 1252(b)(5)(B). However, this limited transfer

does not alter the context of the instant proceedings: this Court maintains

jurisdiction to review the lawfulness of the agency’s action in rejecting Mr.

Mondaca’s claim to citizenship and ordering him deported. See Demirchyan v.

Holder, 641 F.3d 1141, 1143 (9th Cir. 2011) (“[W]e see no meaningful distinction

between transfer under 8 U.S.C. § 1252(b)(5)(B) and limited remand.”); Anderson

v. Holder, 673 F.3d 1089, 1093-94 (9th Cir. 2012).

Similarly, Respondent erroneously asserts that, “there was no legal dispute

surrounding Petitioner’s claim to citizenship. Both parties agreed that the issue

was whether Petitioner was actually born in the United States, which is a factual

determination.” (Resp’t 4.) As the Supreme Court has explained, the findings of

fact include application of a very demanding legal standard, one that does not leave

the issue in doubt. Similarly, the Supreme Court has made clear that the burden of

proof is a “‘substantive’ aspect of a claim.” Raleigh v. Illinois Dept. of Revenue,

530 U.S. 15, 20-21 (2000). And as discussed below, the burden of proof applied

by the Court is an essential component of this case.


3

II. BURDEN OF PROOF

A) This Court Reviews a Final Order of Deportation to Determine if the

Agency Satisfied its Heavy Burden.

Respondent attempts to distinguish “1252(b)(5) cases” from denaturalization

cases in order to avoid the “higher burden of proof” that is required, claiming they

are “distinctly different” since in the latter the government tries to take citizenship

away whereas in the former “citizenship is an open question.” (Resp’t 6.) There is

nothing in the procedural posture of this case to support Respondent’s contention

that Respondent should be held to any less exacting standards than those laid out

by the Supreme Court in Schneiderman v. U.S., 320 U.S. 118 (1943), and its

progeny. The government’s burden of proof in deportation proceedings is identical

to the burden of proof in denaturalization proceedings. See Woodby v. INS, 385

U.S. 276, 285-86 (1966) (comparing deportation to denaturalization and

determining “[n]o less a burden of proof is appropriate in deportation

proceedings”).

The Supreme Court has repeatedly clarified the heavy burden that

Respondent must bear in attempting to reject Petitioner’s claim to U.S. citizenship:

“a burden rests on the Government to prove its charges in such cases by clear,

unequivocal and convincing evidence which does not leave the issue in doubt.”

Klapprott v. U.S., 335 U.S. 601, 612 (1949) (citation omitted). Respondent seeks

to avoid this plain language by asserting that this standard must not be equated


4

with the criminal standard. (Resp’t 12.) Petitioner does not ask this Court to

equate one standard with the other. Rather, this Court must simply apply the

standard that the Supreme Court has repeatedly declared is applicable: evidence

which does not leave the issue in doubt. (Petr’s. Suppl. Br. 11-12.)

In attempting to avoid this plain language, Respondent also cites to

Addington v. Texas, 441 U.S. 418 (1979). (Resp’t 11, 13.) Yet in that case the

Supreme Court discussed the burden described in Schneiderman and Woodby,

noting, “[t]he term ‘unequivocal,’ taken by itself, means proof that admits of no

doubt, a burden approximating, if not exceeding, that used in criminal cases.” 441

U.S. at 432 (citation omitted). Citizenship by birth in the United States is secured

by the Fourteenth Amendment. While the Supreme Court has not explicitly

applied the burden of proof in language traditionally used in criminal cases, there

is no basis to ignore the Supreme Court’s clearly repeated mandate that the

applicable burden requires that the agency present evidence which does not leave

the issue in doubt.

B) The Burden of Proof Does Not Switch to Petitioner after Limited

Transfer from this Court.

Respondent also argues that in civil cases the petitioner bears the burden of

proof, and since this case was remanded to district court for factual findings it

should be treated as any other case reviewing the trial court’s findings. (Resp’t 8.)


5

This argument ignores the fact that the agency initiated the instant proceedings,

seeking to deport Mr. Mondaca by rejecting his claim to U.S. citizenship. The

Supreme Court’s recent holding in Medtronic, Inc. v. Mirowski Family Ventures,

LLC, 134 S. Ct. 843, 849 (Jan. 22, 2014), is instructive. There, the Court held that

when a licensee seeks a declaratory judgment to settle an allegation of patent

infringement, the licensee does not bear the burden of persuasion. Rather, the

defendant, the patent holder who alleges the infringement, should bear the burden.

The Court explained that this was so for three reasons, all of which are instructive

in the instant case. First, “it is well established that the burden of proving

infringement generally rests upon the patentee.” Id. Similarly, in deportation and

denaturalization cases, it is well established the burden rests on the government.

Second, the Court clarified “[w]e have long considered ‘the operation of the

Declaratory Judgment Act’ to be only ‘procedural,’ leaving ‘substantive rights

unchanged.’” Id. (citations omitted). Similarly, any limited transfer for

declaratory findings by the district court in citizenship cases must be considered as

purely a procedural mechanism for factfinding. Finally, the Supreme Court

reiterated that the “‘burden of proof’ is a ‘substantive’ aspect of a claim.’” Id.

(citations omitted). Likewise, Schneiderman, Baumgartner v. United States, 322

U.S. 665 (1944), and their progeny have emphasized the important role the heavy

burden of proof plays in cases reviewing claims to U.S. citizenship.


6

Respondent also errs in arguing that Petitioner should bear the burden of

proving citizenship by a preponderance of the evidence, because that would be

“consistent with the burden in analogous citizenship cases.” (Resp’t 8 n.1.)

However, the cases cited are not “analogous” at all: 8 U.S.C. § 1421(c) actions

deal with denied naturalization applications, where it is logical to place the initial

burden on the petitioner who is a non-citizen seeking to become one.

Respondent’s reliance on 8 U.S.C. § 1503 is similarly misplaced. The text of that

section itself disavows any applicability to cases where nationality questions

“arose by reason of, or in connection with any removal proceeding.” 8 U.S.C. §

1503(a). Moreover, the cases cited all concerned petitioners who sought a

declaration of their derivative citizenship after conceding foreign birth. See, e.g.,

Yee Tung Gay v. Rusk, 290 F.2d 630 (9th Cir. 1961) (Chinese-born petitioners

applied for U.S. passports in Hong Kong alleging derived citizenship).1

Ultimately, Respondent acknowledges that regardless of the initial burden,

in a case like this one, where an individual “presents a valid citizenship document,

1 Respondent also argues, “[e]vidence of foreign birth creates a rebuttable

presumption of alienage, and the burden shifts to the petitioner to prove

citizenship.” (Resp’t 7.) But the case cited is not one in which a petitioner has

maintained birthright citizenship. Nor is it a case where a petitioner has previously

been recognized as a U.S. citizen. Rather, it concerns a petitioner who conceded

birth abroad but argued citizenship was acquired or derived through a parent.

Ayala-Villanueva v. Holder, 572 F.3d 736, 738 (9th Cir. 2009).


7

the Government must provide clear, convincing, and unequivocal evidence to show

he was not a citizen.” (Resp’t 10.)

C) Respondent Did Not Present Evidence to Sustain its Heavy Burden of

Proof.

Respondent errs in asserting that “Petitioner tries to estop the Government

from questioning [his] citizenship because it did not criminally prosecute or seek to

deport [him] in the 1970s and 1980s.” (Resp’t 14.) First, Mr. Mondaca has never

made any type of estoppel claim. Respondent’s reliance on Perez-Mejia v. Holder,

663 F.3d 403, 418 (9th Cir. 2011), is misplaced, as the petitioner there conceded

that he had been granted lawful permanent residence in error, but sought to prevent

the government from correcting the mistake when it was discovered. In this case

Petitioner certainly does not concede any mistake, and does not seek to “estop” any

conduct. Rather, he firmly maintains that the agency is seeking to strip him of his

inalienable right to birthright citizenship.

Moreover, Respondent’s characterization ignores that Mr. Mondaca is not

simply relying on the fact that he was not prosecuted or deported on many

occasions based on claims to U.S. citizenship. Rather, the Executive has

repeatedly determined that Petitioner is a U.S. citizen in granting family visa

petitions to his spouse and two children in 1977, in granting derivative citizenship

applications to four other children in 1977, and in issuing and then reissuing his


8

U.S. passport. (See ER v.1 27-28, Agreed Facts 13, 15, 16.) Thus, Petitioner

asserts that the agency now has a very heavy burden in seeking to undo his

entitlement to U.S. citizenship based on allegations of fraud or mistake. See Lim v.

Mitchell, 431 F.2d 197, 199 (9th Cir. 1970) (“Denial of a certificate of citizenship

some thirty-six years after appellant was admitted into this country as a citizen is,

like cancellation of a certificate of citizenship, in its consequences ‘more serious

than a taking of one’s property, or the imposition of a fine or other penalty.’ The

government should not prevail ‘without the clearest sort of justification and

proof.’”) (citing Schneiderman, 320 U.S. at 122).

Respondent also errs in claiming that it is seeking to correct a mistake it only

later discovered, because it previously lacked the “knowledge, resources, or ability

to discover Petitioner’s fraud.” (Resp’t 14-15.) All the information and evidence

relied upon by Respondent was obtained in the agency’s initial investigation in

1973, more than 20 years before placing Petitioner in deportation proceedings after

declining to do so in 1973, 1980, and 1983, and more than 15 years after

confirming his U.S. citizenship in 1977 and approving multiple visa petitions and

derivative citizenship applications.

Despite rejecting his claim to citizenship in deportation proceedings, the

agency did not call any witnesses or present any additional evidence. Similarly, in

district court, Respondent did not provide any new evidence. Before a person may


9

be stripped of citizenship, the government bears the heavy burden to present clear,

unequivocal, and convincing evidence that does not leave the issue in doubt.

Schneiderman, 320 U.S. at 135. In this case, the agency has not presented such

evidence. Instead, the agency convinced the trial court to accept the invitation to

speculate as to why a U.S. citizen would allow himself to be deported to Mexico

on multiple occasions, noting that Mr. Mondaca used an alias that corresponds to a

birth certificate from Mexico that the agency obtained in 1973.

Respondent attempts to defend such speculation by asserting that “a trial

court may draw rational inferences from the evidence in the record.” (Resp’t 16.)

But the district court’s findings were based on improper assumptions about how a

citizen would act and unfounded speculation regarding financial incentives,

cultural expectations, and motives of detained individuals—not rational inferences.

(See Petr’s. Show Cause Br. 41-45) (citing Singh v. INS, 292 F.3d 1017, 1024 (9th

Cir. 2002); Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir. 2002); Kaur v.

Ashcroft, 379 F.3d 876, 887-88 (9th Cir. 2004)). Cf. Kashat v. Comm’r of Internal

Revenue, 229 F.2d 282, 286 (6th Cir. 1956) (noting that allegations of fraud are

easily made, especially when a person’s circumstances seem “strange[] to an

experienced and enlightened American mind”).2

2 It is also notable that the district court’s credibility determination was heavily

colored by the assumption that Mr. Mondaca would have needed a copy of his

birth certificate in order to apply for a Social Security card in 1953. (Petr’s. Suppl.


10

The agency’s final order of deportation must be reversed as it has not met its

heavy burden of proof. It is undisputed that Petitioner has presented a valid birth

certificate demonstrating that Reynaldo Mondaca is entitled to birthright

citizenship. It is undisputed that Petitioner has established Social Security and

employment history as Reynaldo Mondaca since the 1950s. There is no evidence

of any other person who is Reynaldo Mondaca. Despite being removed multiple

times in the 1950s and 1960s, and despite noting the alternative aliases and prior

removals, the Executive has repeatedly adjudicated and confirmed Mr. Mondaca’s

applications asserting his U.S. citizenship, starting in 1977.

In contrast, the agency relies on incredulity that a U.S. citizen would allow

himself to be removed multiple times to Mexico, and on a Mexican birth certificate

it obtained in 1973 that roughly conforms with an alias that he used. In asking this

Court to sustain the findings of the district court, Respondent is asking that the

lives of Mr. Mondaca and his children (and grandchildren) be thrown into chaos,

despite the fact that the narrative urged by Respondent at best presents only more

questions. The record compels a finding that Respondent failed to meet its burden

to present clear, unequivocal, and convincing evidence that does not leave the issue

of Petitioner’s citizenship in doubt.

Br. 13.) Indeed, the district court’s “conclusions of law” section focuses heavily

on this birth certificate issue. (ER v.1 19-21.)


11

III. CONCLUSION

For these reasons Petitioner requests that the Court grant his petition for

review, reversing the final order of deportation.

Date: February 28, 2014 Respectfully submitted,

s/ Matt Adams

Matt Adams



Seattle, WA 98104

[email protected]

(206) 957-8611

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

[email protected]

(206) 957-8679



12



I certify that:

1. Pursuant to Fed. R. App. P. 40-1(a), the attached petition for rehearing brief

is



February 28, 2014 s/ Matt Adams

Date Matt Adams



Seattle, WA 98104

[email protected]

(206) 957-8611

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

[email protected]

(206) 957-8679


13





CM/ECF system on February 28, 2014.



Executed in Seattle, Washington, on February 28, 2014.

s/ Matt Adams

Matt Adams



NO. 03-71369




CASE NO. A 019 263 384

Petitioner,

v.


Attorney General

Respondent.

PETITION FOR REVIEW OF FINAL ORDER OF THE

BOARD OF IMMIGRATION APPEALS

PETITIONER’S OPENING SUPPLEMENTAL BRIEF

BEFORE THE EN BANC COURT

Matt Adams

Martha H. Rickey



Seattle, WA 98104

(206) 957-8611



ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………..

I. INTRODUCTION .................................................................... 1

II. ARGUMENT .......................................................................... 2

A. Controlling Case Law Clarifies that this Court Must Apply a

Searching, Independent Review of the Record in Resolving Mr.

Mondaca’s Claim to Birthright Citizenship……………………………...2

B. The District Court Failed to Apply the Appropriate Burden of Proof…5

C. The District Court’s Findings are Not Supported by the Record..….....12


Findings Should be Set Aside…………………………………………….16

III. CONCLUSION ................................................................... 17





iii


Cases

Addington v. Texas, 441 U.S. 418 (1979) ....................................................... 7, 8, 10

Afroyim v. Rusk, 387 U.S. 253 (1967) .....................................................................12

Anderson v. City of Bessemer, 470 U.S. 564 (1985) ...........................................4, 17

Barber v. Ruth, 7 F.3d 636 (7th Cir. 1993) ................................................................ 4

Baumgartner v. U.S., 322 U.S. 665 (1944) ................................................... 1, 3, 4, 5

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)......................... 3

Chaunt v. U.S., 364 U.S. 350 (1960) ...................................................................3, 12

Costello v. United States, 365 U.S. 265 (1961) ...................................................6, 12

Fedorenko v. U.S., 449 U.S. 440 (1981) ..................................................................12

Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) ...................................... 2

Klapprott v. U.S., 335 U.S. 601 (1949) ...................................................................12

Knauer v. U.S., 328 U.S. 654 (1946) ............................................................... passim

Kungys v. U.S., 485 U.S. 759, 781 (1988) ...............................................................12

Kwock Jan Fat v. White, 253 U.S. 454 (1920) .......................................................... 8

Mondaca-Vega, 718 F.3d 1075 (9th Cir. 2013) ............................................... passim


Ng Fung Ho v. White, 259 U.S. 276 (1922) ............................................................... 2

Nowak v. U.S., 356 U.S. 660 (1958) ........................................................................12

Perez v. Brownell, 356 U.S. 44 (1958) ....................................................................12

Pullman-Standard v. Swint, 456 U.S. 273 (1982) .................................................3, 4


iv

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ............... 3

Schneiderman v. U.S., 320 U.S. 118 (1943) .................................................... passim

U.S. v. Zajanckauskas, 441 F.3d 32 (1st Cir. 2006) .................................................. 4

United States v. Minker, 350 U.S. 179 (1956) ........................................................... 2

Ward v. Holder, 733 F.3d 601 (6th Cir. 2013) ........................................................11

Woodby v. INS, 385 U.S. 276 (1966) ...................................................................9, 11

Statutes

18 U.S.C. § 2 ............................................................................................................15

8 U.S.C. § 1229a(c)(3)(A) .......................................................................................11

8 U.S.C. § 1325 ........................................................................................................15

Other Authorities

Matter of Patel, 19 I. & N. Dec. 774 (1988) ............................................................11


1

I. INTRODUCTION

This Court must provide searching, independent review of the District

Court’s findings because Petitioner’s citizenship hangs in the balance. This level

of review was first established seventy years ago by the Supreme Court in cases

reviewing citizenship claims. See Baumgartner v. U.S., 322 U.S. 665, 670 (1944).

The Supreme Court has since repeatedly clarified that even on appeal the Court

maintains de novo review of factual findings in deportation and denaturalization

cases examining questions of citizenship. Knauer v. U.S., 328 U.S. 654, 657-58

(1946) (“We reexamine the facts to determine whether the United States has

carried its burden”). There is no authority that would permit a reviewing court to

deviate from this standard.

The District Court erred in failing to hold the Executive to the exacting

standard that is applicable where it seeks to strip away a person’s claim to

citizenship. The agency “must sustain the heavy burden” by presenting “‘clear,

unequivocal, and convincing’ evidence which does not leave the issue in doubt.”

Schneiderman v. U.S., 320 U.S. 118, 135 (1943). Even if the Court were to equate

the “clear, unequivocal, and convincing” standard with the “clear and convincing”

standard, the Supreme Court has repeatedly made clear that in the context of


2

claims to U.S. citizenship, the Court must require the agency to provide evidence

which does not leave the issue in doubt.

This Court should reject the findings and conclusions of the District Court as it

relied on factual errors and speculation, allowing the agency to replace evidence

with conjecture. “To deport one who so claims to be a citizen obviously deprives

him of liberty. . . . It may result also in loss of both property and life, or of all that

makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

Consequently, “where there is doubt it must be resolved in the citizen’s favor.”

Gorbach v. Reno, 219 F.3d 1087, 1097 (9th Cir. 2000) (en banc) (quoting United

States v. Minker, 350 U.S. 179, 188 (1956)).

II. ARGUMENT

A. Controlling Case Law Clarifies that this Court Must Apply a Searching,

Independent Review of the Record in Resolving Mr. Mondaca’s Claim

to Birthright Citizenship.

This Court provides searching, independent review of the District Court’s

factual findings with regard to citizenship determinations because of the

constitutional right at stake.

Suffice it to say that emphasis on the importance of “clear, unequivocal, and

convincing” proof, see Schneiderman v. United States, [citation omitted], on

which to rest the cancellation of a certificate of naturalization would be lost

if the ascertainment by the lower courts whether that exacting standard of

proof had been satisfied on the whole record were to be deemed a “fact” of

the same order as all other “facts”, not open to review here.


3

Baumgartner, 322 U.S. at 671. Baumgartner, and a long, uninterrupted line of

cases directly addressing claims of citizenship, clearly established a rule that the

appellate court retained a responsibility to carefully examine the factual findings

for error. See, e.g., Chaunt v. U.S., 364 U.S. 350, 353 (1960); Knauer v. U.S., 328

U.S. 654, 657-58 (1946). As the Supreme Court explained, “the rule of

independent review assigns to judges a constitutional responsibility that cannot be

delegated to the trier of fact, whether the factfinding function be performed in the

particular case by a jury or by a trial judge.” Bose Corp. v. Consumers Union of

U.S., Inc., 466 U.S. 485, 501 (1984).

While Federal Rule of Civil Procedure 52(a) calls for a much more

deferential standard of review of factual findings in most other areas of law, the

Supreme Court has not altered its approach in cases reviewing citizenship claims.

Accordingly, the standard remains the same: “If a precedent of this Court has

direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.”

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

While the Supreme Court in Pullman-Standard v. Swint, 456 U.S. 273, 286

n.16 (1982), explains in a footnote why it chose not to depart from the more

deferential standard articulated in Rule 52(a) in most other areas of law, its


4

reasoning does nothing to undermine the continued vitality of the standard of

review in citizenship claims established in Baumgartner.1

The First Circuit has rejected arguments that this heightened standard of

review is no longer appropriate in cases involving claims to U.S. citizenship. U.S.

v. Zajanckauskas, 441 F.3d 32, 38 n.5 (1st Cir. 2006). Similarly, the Seventh

Circuit clearly acknowledged that, contrary to its general approach, the Supreme

Court requires de novo appellate review of factual findings in denaturalization and

First Amendment cases. Barber v. Ruth, 7 F.3d 636, 643 (7th Cir. 1993). But

following Pullman-Standard, the Seventh Circuit “decline[d] to exercise plenary

review outside of the limited domain to which the Supreme Court has restricted the

doctrine.” Id.

Much discussion notes that the Supreme Court has eschewed any broad

extension as to what the Supreme Court referred to as “ultimate facts” in

Baumgartner. Nonetheless, what is clear is that the Supreme Court determined

that in cases reviewing efforts by the government to strip away individuals’ right to

1 As explained in petition for rehearing, p. 6-8, the Panel opinion in this case failed

to recognize the Supreme Court’s primary reasoning in providing for a searching

independent review on the appellate level, and thus erred in asserting that “the

Supreme Court has rejected Baumgartner’s remaining reasoning,” citing to

Anderson v. City of Bessemer, 470 U.S. 564 (1985). Mondaca-Vega, 718 F.3d

1075, 1079 (9th Cir. 2013). Anderson does not even cite to Baumgartner, let alone

purport to abrogate any last vestiges of authority.


5

U.S. citizenship, an appellate court retains independent review of this application

of law to fact. As Judge Pregerson wrote in his dissenting opinion:

Baumgartner is an example of the Court making a determination, where

Congress has not spoken, to designate an issue a question of fact or law. In

Baumgartner, the Court articulated its standard of independent appellate

review for what it described as a finding of “ultimate ‘facts,’” which “clearly

implies the application of standards of law.” Baumgartner, 322 U.S. at 671,

64 S.Ct. 1240.

Mondaca-Vega, 718 F.3d at 1091. Here, Petitioner contests the District Court’s

failures not only in making factual determinations, but in failing to apply the

demanding burden of proof in weighing whether the evidence compels a

conclusion that the issue is not left in doubt. Pursuant to controlling case law, the

ultimate conclusion cannot be parsed from review of the other factual

determinations of the trial court—the same standard must apply.

B. The District Failed to Apply the Appropriate Burden of Proof.

The District Court erred in failing to require the agency demonstrate with

“clear, unequivocal and convincing” evidence that Mr. Mondaca was not entitled

to birthright citizenship. Knauer, 328 U.S. at 657-58 (“We reexamine the facts to

determine whether the United States has carried its burden of proving by ‘clear,

unequivocal, and convincing’ evidence, which does not leave ‘the issue in

doubt’”). While the District Court erred in failing to recognize the distinction

between “clear and convincing” evidence and the more exacting “clear,

unequivocal, and convincing” evidence standard, this case does not rest on that


6

distinction. Even if the trier of fact equated “clear and convincing” evidence with

“clear, unequivocal, and convincing” evidence it should have been compelled to

determine that the agency failed to present evidence that does not leave the issue in

doubt.

Indeed, the Court need not even determine the difference between the two

standards, as under either, the District Court’s findings readily demonstrate that the

trier of fact failed to hold the Executive to its demanding burden of proof. In the

context of cases reviewing the Executive’s efforts to strip an individual of their

claim to U.S. citizenship, the Court has repeatedly demanded that the agency be

required to produce such compelling evidence that does not leave the issue in

doubt. See Costello v. United States, 365 U.S. 265, 272 (1961) (“We have

examined the record to determine if the evidence leaves ‘the issue in doubt,’

Schneiderman, 320 U.S. 118, 158”).

Nonetheless, a discussion contrasting a “clear and convincing” standard with

“a clear, unequivocal, and convincing” standard helps to further illuminate why the

Petition for Review should be granted, as it reinforces the demanding standard at

play and the important constitutional rights at stake. Undoubtedly, a lack of

precision in case law has led to confusion, with some decisions intermingling, and

appearing to equate, the “clear and convincing” standard with the more rigorous,

“clear, unequivocal, and convincing” standard. Mondaca-Vega, 718 F.3d at 1082.


7

But again, not only has the Supreme Court established the original standard in an

unbroken line of cases going back seventy years to Schneiderman, 320 U.S. at 125,

it has also distinguished this exacting standard in the citizenship and deportation

context, contrasting it with a more lenient standard of “clear and convincing”

evidence required in other contexts.

Specifically, in Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court

examined what standard of evidence was constitutionally required to impose

indefinite civil commitment on an individual. The Court was reviewing the Texas

Supreme Court’s determination that a trial court need only employ a

“preponderance of the evidence” standard in making this determination. The

Texas Supreme Court had overturned the Court of Civil Appeals’ decision, which

had in turn reversed the trial court’s original instructions applying a “clear,

unequivocal, and convincing evidence” standard in favor of the criminal standard

“beyond a reasonable a doubt.” Id. at 421-422.

In Addington, the Supreme Court first determined that “the individual’s

interest in the outcome of a civil commitment proceeding is of such weight and

gravity that due process requires the state to justify confinement by proof more

substantial than a mere preponderance of the evidence.” Id. at 427.

Next, the Supreme Court determined that due process did not require

application of the most demanding standard—evidence beyond a reasonable doubt.


8

Id. at 429-31. Nonetheless, the Court noted that it was perfectly acceptable for

states to apply this more stringent standard, as “procedures must be allowed to vary

[from state to state] so long as they meet the constitutional minimum.” Id. at 431.

In explaining why due process did not require evidence beyond a reasonable doubt

in the context of civil commitment, the Supreme Court explained, “the heavy

standard applied in the criminal cases manifests our concern that the risk of error

must be minimized even at the risk that some who are guilty might go free. The

full force of that idea does not apply to civil commitment.” Id. at 428. 2 The Court

explained that unlike an erroneous conviction, ongoing professional oversight,

treatment concerns and involvement of family and friends would generally provide

continuous opportunities to appropriately address an erroneous civil commitment.

Id.

In distinguishing civil commitment proceedings, Addington also relied

heavily on the fact that predicting the future actions of the person in question

(would they be a danger to themselves or others), necessarily contains a lack of

certainty, and is a prognosis based on expert opinions, not concrete facts of

historical verification: “The subtleties and nuances of psychiatric diagnosis render

2 In contrast to civil commitment, but similar to a criminal conviction and

significant here, the Supreme Court has also stated, “it is better that many []

immigrants should be improperly admitted than that one natural born citizen of the

United States should be permanently excluded from his country.” Kwock Jan Fat

v. White, 253 U.S. 454, 464 (1920).


9

certainties virtually beyond reach in most situations. The reasonable doubt

standard of criminal law functions in its realm because there the standard is

addressed to specific, knowable facts.” Id. at 430. Thus, it rejected “beyond a

reasonable doubt” as the constitutionally-required standard.

And then, most instructive to the case at hand, the Court concluded that the

“clear, unequivocal and convincing” standard demanded too much: “Similarly, we

conclude that use of the term ‘unequivocal’ is not constitutionally required,

although states are free to use that standard.” Id. at 432. The Court made this

pronouncement after surveying the different standards applied, noting that some

states require “clear and convincing” evidence, while others require “clear, cogent

and convincing” evidence, and others “clear, unequivocal and convincing”

evidence. Id. at 431-32.

In deciphering “clear, unequivocal and convincing” evidence the Court

turned to deportation and denaturalization cases applying that standard:

In Woodby v. INS, 385 U.S. 276 (1966), dealing with deportation, and

Schneiderman v. United States, [citation omitted], dealing with

denaturalization, the Court held that “clear, unequivocal, and convincing”

evidence was the appropriate standard of proof. The term “unequivocal,”

taken by itself, means proof that admits of no doubt, a burden

approximating, if not exceeding, that used in criminal cases.

Id. at 432. The Court explained why a higher burden of proof was appropriate in

the deportation and denaturalization context: “The issues in Schneiderman and

Woodby were basically factual, and therefore susceptible of objective proof, and


10

the consequences to the individual were unusually drastic—loss of citizenship and

expulsion from the United States.” Id. Thus, Addington expressly distinguished

deportation and denaturalization proceedings from civil commitment proceedings

that required only “clear and convincing” evidence to satisfy due process.

The Supreme Court concluded by noting that the trial court in the civil

commitment proceedings originally employed the more stringent standard of

“clear, unequivocal and convincing” evidence. Id. at 433. “However,

determination of the precise burden equal to or greater than the ‘clear and

convincing’ standard which we hold is required to meet due process guarantees is a

matter of state law which we leave to the Texas Supreme Court.” Id. Thus, the

Court made readily apparent that “clear, unequivocal and convincing” does not

equate to the constitutionally-required “clear and convincing” standard, otherwise

there would be no need to leave it to the State Supreme Court to determine if it

wanted to adopt the higher standard applied by the trial court.

The Sixth Circuit has similarly recognized that Addington compels the

conclusion that “the omission of ‘unequivocal’ makes a difference. The ‘clear,

unequivocal, and convincing standard’ is a more demanding degree of proof than

the ‘clear and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir.


11

2013).3 As the Supreme Court explained, “[t]he standard serves to allocate the risk

of error between the litigants and to indicate the relative importance attached to the

ultimate decision.” 441 U.S. at 423. In the instant case, the District Court failed to

acknowledge the correct standard, failing thus to recognize “the degree of

confidence our society thinks he should have in the correctness of factual

conclusions.” Id.

Ultimately, whether the District Court labeled the burden of proof “clear and

convincing” as opposed to “clear, unequivocal, and convincing,” it should have

nonetheless recognized that when citizenship is at stake the appropriate standard

requires the adjudicator to determine whether the agency presented evidence so

compelling that it does not leave the issue in doubt. See, e.g., Knauer, 328 U.S. at

657-58 (“whether the United States has carried its burden of proving by clear,

unequivocal, and convincing evidence, which does not leave the issue in doubt.”

(emphasis added). “Furthermore, because of the grave consequences incident to

denaturalization proceedings we have held that a burden rests on the Government

3 As the Sixth Circuit noted, 733 F.3d at 605-06, the Board of Immigration Appeals

has also declared that “[t]he clear and convincing standard imposes a lower burden

than the clear, unequivocal, and convincing standard ... because it does not require

that the evidence be unequivocal or of such a quality as to dispel all doubt.”

Matter of Patel, 19 I. & N. Dec. 774, 783 (1988). Moreover, the Immigration and

Nationality Act equates “clear and convincing” as requiring “reasonable,

substantial, and probative” evidence. 8 U.S.C. § 1229a(c)(3)(A). Yet in Woodby,

the Supreme Court reversed the Second and Sixth Circuits for requiring only

“reasonable, substantial and probative evidence” rather than “clear, unequivocal,

and convincing evidence.” 385 U.S at 279-81, 286.


12

to prove its charges in such cases by clear, unequivocal and convincing evidence

which does not leave the issue in doubt. This burden is substantially identical with

that required in criminal cases – proof beyond a reasonable doubt.” Klapprott v.

U.S., 335 U.S. 601, 611-12 (1949) (citation omitted) (emphasis added). Accord

Nowak v. U.S., 356 U.S. 660, 663 (1958) (“evidence which does not leave ‘the

issue in doubt’”) (emphasis added); Perez v. Brownell, 356 U.S. 44, 47 (1958)

(overruled on other grounds in Afroyim v. Rusk, 387 U.S. 253 (1967)); Chaunt, 364

U.S. at 353 (same); Costello, 365 U.S. at 269 (same); Fedorenko v. U.S., 449 U.S.

440, 505 (1981) (same); Kungys v. U.S., 485 U.S. 759, 781 (1988) (same).4

C. The District Court’s Findings are Not Supported by the Record.

In determining whether the agency had presented “clear, unequivocal and

convincing” evidence the district court failed to properly consider undisputed facts,

made clear errors in the factual findings, and relied on speculation, all errors that

should compel reversal.

4 Respondent asserts that the district court did not err in placing the initial burden

on Petitioner to demonstrate his citizenship. Respondent cites to Murphy v. INS,

54 F.3d 605, 610 (9th Cir. 1995), which in dicta not applicable to that case asserted

that “[o]nly at a de novo district court hearing on citizenship under section . . . does

the alien subject to deportation bear the burden of proving citizenship by a

preponderance of the evidence.” However, Murphy cited to no authority to support

that assertion. Indeed, as Murphy acknowledged, case law demonstrates that the

burden is on the agency until it presents evidence of alienage, thereby shifting the

burden. Id. at 608-09. However, this point does not impact the instant case as the

district court found that Petitioner was able to come forward with prima facie

evidence of citizenship.


13

The government does not contest that Reynaldo Mondaca Carlon is a real

person, born in Imperial, California, on July 17, 1931, to parents Antonia Carlon

and Marin Mondaca. (ER v.1 25.) Nor does the government contest that the birth

certificate presented by Petitioner to identify himself as Reynaldo Mondaca is

authentic. Id. The government has verified its authenticity on multiple occasions.

(ER v.2 115-20, 144.) Nor has the government introduced any evidence that any

other person has ever claimed to be Reynaldo Mondaca. This is despite the fact

that the agency’s investigation first concluded “[b]oth the SSN application and the

Selective Service efforts appear to be actions taken by the true Reynaldo.” (ER v.1

29-30.) The agency quickly backed away from this conclusion when handwriting

experts for both parties conccluded that the signature on the application, “Reynaldo

C. Mondaca”, appeared to be made by Petitioner. (ER v.1 26.)

Significantly, the sole reason provided by the district court for finding it

“highly improbable the petitioner obtained the birth certificate for Renoldo [sic]

Mondaca from his mother,” was its flawed speculation regarding what steps Mr.

Mondaca must have taken to turn around and apply for a Social Security card the

day after he was deported in May of 1953. (ER v.1 14-15.) Indeed, the district

court’s finding depended on layers of improper speculation. (Petr’s. Opening Br.

37-41.) Similarly, the District Court based its findings on speculation regarding

Mr. Mondaca’s financial incentives. Id. at 41-45. “Where the fate of a human


14

being is at stake, we must not leave the [deciding issue] to conjecture.” Knauer,

328 U.S. at 659.

Moreover, it is undisputed that Petitioner has always used the Social

Security Number, dating back to when it was issued on May 23, 1953. (ER v.1-

29.) Thus, the district court erred in finding that petitioner began using the name

Reynaldo C. Mondaca due to “his marriage to Aurelia Estrella in Reno, Nevada, on

August 7, 1970.” (ER v.1 17-18.)

In addition, the agency investigated Mr. Mondaca’s citizenship at least as

early as 1973. (ER v.2 155.) That was when the agency first requested and

obtained production of a birth certificate under the name of Salvador Mondaca

Vega. (ER v.2 155.) Nonetheless, beginning in 1977, the agency issued

certificates of citizenship to four of Mr. Mondaca’s children, based on its

determination that Mr. Mondaca is a U.S. citizen. (ER v.1 27-28.) Similarly, the

agency granted family visas for his wife and two other children. Id. Finally, the

Department of State issued Mr. Mondaca a passport in 1998 and then issued a

replacement passport in 2005. Id. at 28.5

In 1980, Mr. Mondaca was arrested on suspicion of smuggling persons into

the country. (ER v.1 28.) He was charged as a U.S. citizen, and convicted under 8

5 The Department of State only sought to revoke the Passport on the heels of this

litigation, relying on a clearly erroneous charge; i.e., that he admitted to the

Immigration Judge on April 29, 1998, “that you were not Reynaldo Mondaca but

rather Salvador Mondaca.” (ER v.2 241.)


15

U.S.C. § 1325 and 18 U.S.C. § 2. (ER v.2 -125.) There is no record of any effort

to remove him after this conviction. However, the district court committed plain

error in finding that after Petitioner was arrested and charged with smuggling

“[n]either the INS nor the United States Attorney questioned his assertion that his

name is Reynaldo Carlon Mondaca.” (ER v.1 8.) There is nothing in the record to

support the conjecture that federal authorities simply accepted Mr. Mondaca’s

assertion of citizenship without any investigation. Indeed, as with any criminal

prosecution, his prints were entered into the same system that recorded his prior

removals from the country under different aliases. (ER v.2 160.)

He was stopped again by the Bonnie Lake Police in 1983 and again turned

over to immigration. (ER v.2 127.) Again, the agency initiated an investigation as

to a possible false claim, based on his rap sheet. (ER v.2 128.) Respondent asserts

that ‘[t]hese investigations, however, occurred in a pre-digital era, in a time where

connecting the dots….” (Respt.’s Opp’n to Reh’g 14.) But this defense fails to

acknowledge that the government took the fingerprints of the individuals they

charged in both immigration and criminal proceedings. That is how they were

alerted to the citizienship investigation conducted in 1973.

Respondent contends that there is no evidence that Mr. Mondaca ever

claimed to be either Reynaldo Mondaca (or otherwise asserted that he was a U.S.

citizen) on the numerous occasions when he was removed from the country. (ER


16

v.1-24.) But of course, this is asking him to prove a negative. If Mr. Mondaca

were detained with evidence of his true identity, then he would not be subject to

removal, and there generally would be no removal records, just as the FBI reports

fail to record the time when he was arrested and released by INS in 1983. (ER v.2-

135, 160.)

Relatedly, the district court erred in concluding he was deported in July of

1953. (ER v.1 5.) However, FBI records only show that he was transferred to

immigration from the Sacramento Police Department, not that he was actually

removed. (ER v.2 158.)6 Similarly, while he was arrested by immigration officials

and removed in 1951, May of 1953,1954, 1956 and 1966, there is no similar record

of immigration authorities taking any action against him when he was arrested in

October of 1969, with charges being brought under both names. (ER v.2 133,

159.)


Findings Should be Set Aside.

Indeed, even if this Court were to restrict its review to clear error as

prescribed under Rule 52(a), the District Court’s findings and conclusions must be

set aside as they are based on factual error and speculation. An analysis restricted

to clear error must nonetheless ensure that the underlying adjudicator applied the

6 The administrative record maintained by the agency also includes an old,

certified copy of Reynaldo Mondaca’s birth certificate issued by the City of

Imperial, with a handwritten note “Calexico Calif May 19, 1952.” (ER v.2 113.)


17

appropriate burden of proof in concluding that the Executive had met its heavy

burden in demonstrating Mr. Mondaca’s identity with clear, unequivocal, and

convincing evidence.

The Panel cited to Anderson, stating that where there “are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Mondaca-Vega, 718 F.3d at 1083. But this was precisely the

problem. The evidence presented did not compel the conclusion that Mr. Mondaca

was not a U.S. citizen. Instead, at most the evidence provided two alternative

possibilities. But if there are two plausible views, then the agency has failed to

present evidence that does not “leave the issue in doubt.” It is precisely for this

reason that Mr. Mondaca’s petition for review must be granted.

III. CONCLUSION

Petitioner respectfully requests that the en banc Court reverse the findings

and conclusions of the district court, and declare that Mr. Mondaca is a U.S.

citizen.


18

Date: January 24, 2014 Respectfully submitted,

s/ Matt Adams

Matt Adams



Seattle, WA 98104

(206) 957-8611

[email protected]

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

(206) 957-8679

[email protected]





19



I certify that:

1. Pursuant to Fed. R. App. P. 40-1(a), the attached opening supplemental brief

for Petitioner is



January 24, 2014 s/ Matt Adams

Date Matt Adams



Seattle, WA 98104

[email protected]

(206) 957-8611

Martha H. Rickey


P.O. Box 270

Granger, WA 98932

[email protected]

(206) 957-8679




20





CM/ECF system on January 24, 2014.



Executed in Seattle, Washington, on January 24, 2014.

s/ Matt Adams

Matt Adams



Documents

NO. 03-71369 IN THE UNITED STATES COURT OF …cdn.ca9.uscourts.gov/datastore/uploads/enbanc/03-71369pfr.pdf · Lim v. Mitchell, 431 F.2d 197 ... See also Nunez-Reyes v. Holder, 646