Michael Rose v. Loretta E. Lynch
679 F. App'x 557
| 9th Cir. | 2017Background
- Michael G. Rose, born in Jamaica out of wedlock, faced removal; government contended he was not a U.S. citizen because his father was Harry Rose, who married Michael’s mother after Michael’s birth.
- If Michael’s biological father was anyone other than Harry, Michael would have derived U.S. citizenship under former 8 U.S.C. § 1432(a) when his mother naturalized in 1988.
- Ninth Circuit initially found a genuine factual dispute about paternity and transferred the citizenship question to the district court under 8 U.S.C. § 1252(b)(5)(B).
- The district court found the paternity evidence in perfect equipoise (50/50) — i.e., no scenario more likely — and this finding was not appealed by the government.
- Under Ninth Circuit precedent, Michael’s production of substantial credible evidence rebutted the presumption of alienage, shifting the burden to the government to prove removability by clear, unequivocal, and convincing evidence.
- The court held the government failed to meet that heightened burden given the district court’s equipoise finding, vacated the removal order, and granted the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Michael derived U.S. citizenship through his mother under former § 1432(a) | Michael: he met § 321(a)(3) conditions; his father never legitimized him, so he derived citizenship when his mother naturalized | Government: Michael’s father is Harry Rose (who later married his mother), so Michael did not meet the out-of-wedlock/paternity requirement and is removable | Michael rebutted presumption of alienage; government failed to prove noncitizenship by clear, convincing, and unequivocal evidence — petition granted |
| Whether the district court’s transferred factual finding is reviewable and dispositive here | Michael: district court’s equipoise finding shows he produced substantial credible evidence, shifting burden to government | Government: removal order should stand; BIA concluded Michael abandoned some theories on appeal | Court: transfer under § 1252(b)(5)(B) leaves appellate jurisdiction; equipoise finding suffices to shift burden and resolve the petition without remand |
| Whether remand to the BIA/IJ is required for further factfinding | Michael: no further agency expertise needed; pure legal issue remains after district court finding | Government: implies agency should decide any unresolved issues | Court: remand unnecessary where only legal determination remains and record is dispositive |
| Whether BIA erred in holding Michael abandoned the non-legitimation theory | Michael: argued pro se before BIA that father never legitimized him; thus BIA wrongly limited his theory | Government: BIA concluded he pursued a different theory (parents separated) | Court: BIA erred in that conclusion; Michael had raised the non-legitimation claim |
Key Cases Cited
- Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (framework for transferred nationality factfinding and burden-shifting in removal proceedings)
- Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) (transfers under § 1252(b)(5)(B) do not divest appellate jurisdiction)
- Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) (presumption of alienage and burst-back burden when petitioner produces substantial credible evidence)
- Chau v. INS, 247 F.3d 1026 (9th Cir. 2001) (presumption of alienage shifts burden to respondent to prove citizenship)
- Saelee v. Chater, 94 F.3d 520 (9th Cir. 1996) (definition of substantial evidence: more than a scintilla, less than a preponderance)
- Richardson v. Perales, 402 U.S. 389 (Sup. Ct.) (definition of substantial evidence standards)
- Berenyi v. Dist. Dir., INS, 385 U.S. 630 (Sup. Ct.) (government must prove deportability by clear, unequivocal, and convincing evidence)
- Woodby v. INS, 385 U.S. 276 (Sup. Ct.) (standard for government proof in deportation proceedings)
- Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005) (appellate review of BIA’s assessment of arguments and preserved issues)
- Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014) (remand not required where only legal issues remain)
- Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) (no remand when record supports or refutes removability without agency expertise)
- Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (declining remand where factual record is dispositive)
- Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) (derivative citizenship determined under law in effect when critical events occurred)