Mondaca-Vega v. Holder

MONDACA-VEGA, Salvador

Petitioner, HOLDER, Jr., Attorney

Eric H.

General, Respondent.

No. 03-71369. Appeals, Court of

United States

Ninth Circuit.

Argued Sept. and Submitted April

Filed AND PROCEDURAL

FACTUAL

BACKGROUND final or- Petitioner’s We first reviewed considering his in 2003. der of removal is- citizenship,1 genuine we noted claim of Therefore, pursuant to 8 of fact. sues 1105a(a)(5) appears § now U.S.C. —which minimal at 8 only modifications with 1252(b)(5) § transferred U.S.C. —we Immi- Rickey, H. Northwest Martha District Court matter to the United States Washing- Project, Granger, grant Rights Washington for the Eastern District Adams, Immi- ton; Northwest and Matt States resolve United Petitioner’s.claim Seattle, WA, for Project, grant Rights Ashcroft, Mondaca-Vega v. citizenship. Petitioner. Cir.2004) (unpub- Fed.Appx. lished). Goettel, E.M. United States Katherine Justice, Division, Of- Civil Department trial, court held a bench The district Washing- Litigation, Immigration

fice findings of it made extensive after which D.C., ton, Respondent. us, these rele- fact. As the case reaches undisputed: are underlying

vant facts 3, 1931, Mondaca- June Salvador On to Felix Mondaca and Jose- Vega was born Mahone, Vega fa Mexico. Salvador’s Fuerte, Sinaloa, registered in El birth was PREGERSON, HARRY Before: Mexico, later that month. GRABER, P. and CONSUELO SUSAN was July Renoldo Mondaca On CALLAHAN, Judges. Circuit M. Antonia Car- to Marin Mondaca and born Imperial, Ion in California. GRABER; Dissent by Judge Opinion evidence, certificates are in Both birth Judge PREGERSON. genuine. are and both born, Petition- No matter where he was OPINION Fuerte, Sinaloa, in El Mexico. grew up er GRABER, Judge: Circuit from Mexico to the United He traveled old, years he was about 20 States when Reynaldo he Car- is Petitioner? Is Who about Mondaca, a native and citizen of the Ion claiming be Salva- person or is he Salvador Mondaca- Security applied for a Social dor Mondaca a native and citizen of Mexico? Vega, listed Feliz Mondaca applicant that Petitioner is card. court determined district his moth- and, Vega father and Josefa as accordingly, as his Mondaca-Vega Salvador 13, 1931. gave April er and a birth date of citizen. that he is not United States rejected because he application for His was Reviewing the district court’s none, States citizen- deny we now failed to establish United error and clear ship. petition for review. after the district challenged those claims are moot some of the but 1. Petitioner also nationality proceedings on the claim. Immigration Appeal’s procedures, Board of that he May person deported May named Salva- had been once on On Mondaca-Vega was served with a war- dor September 1953. On and Naturaliza- Immigration rant again granted voluntary was removal to (“INS”) in while detained tion Service Mexico under the name Salvador Monda- jail. May King County, Washington, On ea-Vega. person who had been with served began Petitioner a relationship fingerprinted; prints

the warrant was eventually with the woman whom he mar- are Petitioner’s. They ried. had nine together, children 22, 1953, May deport- Petitioner On was whom the first six were born in Mexico. name ed from the United States under the baptismal children’s and birth records Mondaca-Vega. Salvador in that are evidence show the father’s 28, 1953, May applied someone for a On Reynaldo name as Mondaca. Calexico, California, in Security Social card 11, 1966, January On Petitioner was de- Reynaldo under the name C. Mondaca. name, ported yet under another Jose Val- Handwriting analysis suggests, but does dez-Vega. he was referred to on establish, that it firmly was Petitioner his FBI Rap Vega- Sheet as Salvador signed application. who The Social At point, appears Mondaca. some he a Security Administration issued Social Se- stopped using have the name Salvador curity card to Petitioner under the name Mondaca-Vega altogether. He Reynaldo C. Mondaca. has consistent- Security ly used that Social number ever 1970s, In the Petitioner obtained certifi- since. citizenship children, cates of for four of his by an supported affidavit under the name

Nonetheless, he continued to use Reynaldo Mondaca. He also filed a rela- Mondaca-Vega name Salvador even after receiving Security immigrant in tive visa petition Social card behalf of 15, 1954, September example, children, On for again his wife and two of his a INS issued warrant for the detention of Reynaldo under the name Mondaca. The Petitioner, being who held the Yak- was petition approved, adjust- was and the INS sheriff, County, Washington, ima under ed the status of the wife and one of his Mondaca-Vega. the name Salvador While permanent children to that of lawful resi- custody, Mondaca-Vega Salvador was dent. fingerprinted. fingerprints taken on April Secretary On of State that occasion are Petitioner’s. a to Peti- passport issued United States September gave On Petitioner Reynaldo tioner under the name Carlon sworn, signed a statement to an INS offi- passport Mondaca. Petitioner lost the cial Seattle. Therein he averred that 2005; replacement a but his obtained Mondaca-Vega, his name is Salvador passport was revoked El “April he was born on gave explanation why no [sic], Sin., Mexico,” Puerte and that he was he the name Mondaca- used “Salvador a citizen of Mexico. He also stated that he Vega” why he continued to do so after lawfully had never been admitted to the security a obtaining social card under any purpose United States for and that he “Reynaldo name Mondaca.” Nor did he had entered the United States “several why provide any explanation for he times since about 1949.” He admitted to using the name Monda- stopped “Salvador having “apprehended been California a ca-Vega” using and started a different voluntary granted number of times and departures agreed to Mexico.” He also name. clearly it is errone- trial, finding of fact unless the district court bench

After the should, initial that we had carried his ous. Petitioner counters that Petitioner ruled Mitchell, by prepon- instead, proving citizenship follow Lim v. burden evidence, because the INS Cir.1970), derance of and review de novo the foreign- that his wife and had determined citizenship findings relating to his factual to derivative entitled children were born Interpretation of the Federal Rules claim. adjustment of status law, question of Civil Procedure is Secretary of through him and because Corp., 785 F.2d Jenkins v. Whittaker Then passport. him State had issued (9th Cir.1986), respect with to which govern- the the burden to the court shifted it precedent follow circuit unless we must of citizen- Petitioner’s claim ment to rebut intervening with decisions is inconsistent by convincing” “clear and ship court Court or of this of citi- foregoing determinations that the Gammie, banc, Miller v. 335 sitting en of fraud or error. zenship product were a (9th Cir.2003) (en banc). 889, F.3d 899-900 government that the The court concluded explain, that we will Lim For the reasons because, heavy burden had carried its law, longer good no and we must reasons, “highly proba- among it was other findings of fact for clear the district court’s 1954 sworn and ble” that Petitioner’s error. According- was truthful. signed statement application an for a certifi- Lim involved that Petitioner ly, the district court ruled that, in citizenship. cate of We wrote such citizen. is not a United States case, make an we “must citi- the district court resolved the After as to the evidence determination whether claim, an order to show zenship we issued sufficed to by” government introduced adopt the dis- why cause we “should not proof, and we under- satisfy its burden findings trict court’s and conclusions Lim, the facts.” 431 took to “re-examine deny petition for review.” Mondaca- 199, 4; n. see also F.2d at United Holder, 03-71369, No. 718 F.3d Vega v. Delmendo, 98, 100 n. 2 States v. (9th 25, 1075, Aug. 2013 WL 1760795 Cir. Cir.1974) (“In reviewing denaturaliza- 2011) (order). timely filed a tion based on claims that naturalization district challenge brief to showcause obtained, fraudulently illegally was court’s decision. by are not bound the district court’s find- clearly errone- ings they even if are not APPELLATE STANDARD OF States, (citing Bechtel v. ous.” United REVIEW (9th Cir.1949))). outset, parties dispute At the apply of review that we should on standard Both Lim and Bechtel relied Knauer fact. findings States, the district court’s Clas- v. United heart of this findings (1946). sic of fact lie at the There, 90 L.Ed. case: was Petitioner born? Which Where held, had in the context of Supreme Court testimony birth certificate is his? Is his proceeding, that the re- denaturalization legal consequence A credible? the facts to viewing “reexamine[s] —United on the answer citizenship depends States States has determine whether — the law is not in questions, to those but ... proving burden of that the carried its doubt;, only the facts are. sought citizen who is to be restored to of an alien obtained his naturaliza- status contends Federal 52(a)(6) illegally.” tion certificate Id. at prohibits Rule of Procedure Civil Knauer, turn, relied on from aside a district court’s S.Ct. setting us Baumgartner may Whatever have v. United Baumgartner (1944). 88 L.Ed. 1525 meant its discussion of “ultimate that, case, facts,” had held surely In that the Court it did not mean that ultimate ‘facts’ “[flinding so-called because whenever the result in a case turns on a clearly implies application more finding, court need factual law[,] the conclusion standards of not remain within the constraints of drawn from the may appropriately be 52(a). Baumgartner’s Rule discussion always the of evidence is not whole mass pure of “ultimate facts” referred not to ‘fact’ that of the kind of ascertainment findings of fact—as we find discrimina- consideration this Court.” precludes tory intent to be this context —but to Id. at 66 S.Ct. 1304.2 findings “clearly [imply] appli- much of the core has since cabined standards of cation of law.” [/<£] Baumgartner: Swint, Pullman-Standard on occasion itself indi- Court has [T]his 286 n. L.Ed.2d 66 “ultimate cated that facts” added) (alteration in (emphasis orig- independently are reviewable. inal). States, v. Baumgartner United rejected Supreme And the Court has (1944), 1525] 88 L.Ed. [64 S.Ct. Baumgartner's remaining reasoning. whether or not the find- the issue was Baumgartner stated: ings of the two lower courts satisfied the “finding may of fact” be the ultimate [A] clear-and-convineing proof standard involving on a judgment mass details necessary to sustain a denaturalization merely the trust- not an assessment of that the conclu- decree. The Court held appro- witnesses but other worthiness of of the two lower courts the sion may priate inferences that be drawn had been sat- exacting proof standard of living testimony print. from which elude finding an unreviewable isfied was not “finding The of a of fact” conclusiveness reviewing fact but one that a court could of the materials depends on the nature independently assess. The Court re- finding the is based. on which as one of “ultimate” ferred to (empha- 322 U.S. at 64 S.Ct. fact, ap- in that involved an which case added). City sis But Anderson praisal strength body of the of the entire City, 470 105 S.Ct. Bessemer U.S. said that of evidence. Court (1985), L.Ed.2d 518 the Court significance clear-and-convincing standard clearly held that erroneous if “would be lost” proof standard applies lower courts ascertainment exacting findings

whether that standard even when the district court’s determinations, had been satisfied on the whole record credibility do not rest on were to deemed a “fact” of the same be or physical based instead on but are open order as all other “facts documentary evidence or inferences Id. at 671 sure, [64 1240]. review here.” various other facts. To be from as- Appeals have on occasion

Courts 265, 269-70, States, U.S. Baumgartner in a v. United 2. Knauer and are first (1961); Chaunt v. extending through 5 L.Ed.2d 551 line Fedorenko of cases States, 350, 353, States, U.S. United (1960); ("[I]n reviewing Nowak v. United 5 L.Ed.2d 120 66 L.Ed.2d 686 cases, 2 L.Ed.2d carefully ex- denaturalization we have (1958))). (citing amined record ourselves.” Costello has fully applicable”). Court theory that serted the Corp.’s review over find- to extend Bose given de novo us no reason may exercise credibility determina- not based on context. ings holding to this unrelated narrow theory impressive has an This tions. short, progeny Lim and its relied articulated having first been genealogy, drawn from Knauer implications Frank by Judge opinion in an written Baumgartner by Judge Augustus and subscribed in Pullman- subsequently repudiated Hand, to trace the impossible but it is and Anderson. Because Lim Standard Rule to the text of theory’s lineage back with Pullman-Stan- clearly irreconcilable 52(a), straight-forwardly which states Anderson, effectively it been dard and not be set “findings of fact shall Miller, F.3d at 900 overruled. See That clearly erroneous.” aside unless (“[IJssues higher court decided emphasize spe- on to goes the Rule con- not be identical in order to be need credibility de- paid to be cial deference Rather, court of last trolling. the relevant not alter its clear terminations does theory have undercut the or resort must 52(a) make “does not command: Rule circuit reasoning underlying prior to exclude certain exceptions purport the cases are precedent way such a of factual from the categories In future cases clearly irreconcilable.... accept obligation appeals of a court of irreconcilability, a clear three such clearly findings unless a district court’s district judge panel of this court and erroneous.” bound courts should consider themselves (citations omit at 105 S.Ct. 1504 Id. authority and by intervening higher ted) Pullman-Standard, (quoting reject prior opinion of this court as 1781). at overruled.”). having effectively been correctly notes that an echo The dissent reasoning can be heard Baumgartner1 of s Having concluded that Lim does regard- in decisions Supreme Court’s review, compel not de novo we next must in the First Amend- ing review of facts apply. decide what standard does The Corp. context. In Bose v. Consum- ment pursuant court held a bench trial district States, Inc., ers Union of 1252(b)(5)(B), provides § to 8 U.S.C. which 1949, 80 L.Ed.2d 502 nationality by trial a claim the dis of (1984), Court held that “the court, trict “as if an action had been 52(a) clearly-erroneous of [Rule ] standard in under brought [the the district court prescribe does not the standard of 52(a) Declaratory Judgment Rule Act].” in a applied reviewing to be determination that, unambiguously requires action by governed of actual malice a case jury, of a thus tried the court instead Sullivan, York Times Co. v. [New specially” the court “find the facts 710, 11 L.Ed.2d 686 review, that, be findings those factual there, though, the court Even ].” only “clearly if Fed. set aside erroneous.” 52(a)’s exception gener- limited its to Rule (6). 52(a)(1), R.Civ.P. prin- al unique, standard to the substantive decisions Pullman-Standard Court’s ciple of First Amendment law was that there is no and Anderson make clear Corp., in that case. See Bose issue merely exception to that rule because (noting n. U.S. at 514 of Petition facts found are determinative “many findings fact in a that there are ultimate claim. Nor have we found er’s to the defamation case that are irrelevant exception to Rule any applicable other to which the constitutional standard 52(a) 52(a)’s general requirement that we review clearly-erroneous of Rule standard removable proving respondent case for fact in a civil findings of a court’s convincing evidence. clear and review for clear Accordingly, clear error. See, e.g., Republic W. required. (citations omitted).

error is at 737 n. 3 Id. Willens, Woodward, Spierer, Ins. Co. argues that government first Furstman, Denis & place court failed to the burden on district Cir.1995) “clearly erroneous” (applying citizenship by his prove Petitioner factu- review of district court’s standard before preponderance of the evidence ac- declaratory judgment findings al shifting govern- the burden of to the tion).3 persuaded ment. We are court erred. district district court’s reviewing the Before standard, of fact under this properly The court looked first to preliminary another though, we consider citizenship. In ad Petitioner’s evidence applied the district court issue: whether introducing passport, dition to proof. the correct burden genuine United States birth produced corroborating presented certificate and ALLOCATION COURT’S DISTRICT testimony family support members to from THE OF OF BURDEN person that he is the identi his averment PROOF4 That infor that birth certificate. fied on credible govern mation constituted Both Petitioner and the “substantial support citi [Petitioner’s] erred that the district court ment contend sufficient zenship claim” and was therefore respect parties’ burdens with Holder, Any pre Ayalar-Villanueva. under Ayala-Villanueva proof. thereby alienage was rebut (9th Cir.2009), sumption forth a we set ted, and the then bore framework for removal burden-shifting proving that Petition “ultimate burden” proceedings: removable. Id. er was of Homeland [Department DHS [T]he Security] bears the burden of establish- Next, contends that the dis- Petitioner convincing unequivocal, and ing requiring govern- in trict court erred evidence, supporting deportabil- all facts and alienage only by “clear prove ment to foreign gives “clear, birth rise ity. Evidence of un- convincing” evidence instead (Em- alienage, presumption convincing” to a rebuttable evidence. equivocal, and added.) Petitioner, alleged citizen shifting According the burden to the to phasis citizenship. Upon produc- “unequivocal” govern- his raises the prove to the term than something higher evidence in to credible ment’s burden tion substantial claim, elear-and-convincing per- citizenship pre- support of his standard — higher or even than the level haps equal is rebutted. The to sumption alienage reasonable doubt” proof “beyond of of the ultimate burden DHS then bears Circuit, Fire Ins. Co. v. Sea- in Taisho Marine & acknowledge that the First M/V 3. We Endurance, (9th Zajanckauskas, 441 F.3d 1274 United States v. 815 F.2d Land (1st Cir.2006), 1987). held that clear-error re- applies only 37-38 De novo review Cir. apply burden, to a district court’s factu- view does not assignment or allocation proceeding. a denaturalization al Vineyard Winery, Foley & v. Estates Molski text, explained we find our the reasons For (9th LLC, Cir. 531 F.3d reasoning unpersuasive. court's sister 2008), quantum proof re but also Gill, 280 F.3d quired, United States v. appropriate burden of “The selection of the Cir.2002). (9th 929-31 proof question law reviewed de novo.” is a citizenship mat- unique proof a criminal convic- burden of required support reject argument and tion. We Petitioner’s ters. gov- two formulations of the

hold that the In Addington, the Court considered the pro- proof burden of removal ernment’s proof required under the Due standard ceedings indistinguishable. are Process Clause of the Fourteenth Amend- true, out, points It is as support involuntary ment to an individual’s in at least two cases we have articulated and indefinite civil commitment for mental government’s disproving burden for Id. at illness. S.Ct. 1804. “clear, and con unequivocal, as jury trial court had instructed com- evidence, vincing” expressly equat without plete a verdict form that asked whether to the more common ing that formulation “clear, unequivocal and convincing evi- Lim, convincing” “clear and standard. supported dence” the commitment. at Id. Dulles, 199; Lung F.2d at Lee Hon 261 421, 1804. The (9th Cir.1958) (equating 723-24 process required held that due “clear and the stated standard of with the “rule in civil convincing” evidence commitment which obtains denaturalization cases” proceedings the trial court’s (citing Schneiderman v. United 320 “clear, unequivocal, convincing” satis- 118, 123, 125, 87 L.Ed. minimum. fied that Id. (1943))). cases, many though, 1804. The Court did not decide whether phrases interchangeably have used the two necessarily “unequivocal” the word set the See, single e.g., standard. describe higher than the standard constitutional re- Arango, United States v. 670 F.3d Rather, quirement. it remanded the case Cir.2012) (using the two formulations to allow the state courts to determine interchangeably); Ayala-Villanueva, 572 whether, law, as a matter of state the two (same); n. Lopez-Chavez F.3d at 737 equivalent. formulations were Id. (9th Cir.2001) INS, 259 F.3d 1180-81 result, reaching Addington its (same); Reno, Friend v. 172 F.3d that, (9th Cir.1999) opinion suggested whatever Texas (describing Schneiderman might require, gener- state law federal law setting convincing” as forth a “clear and standard); INS, 605, ally recognizes containing a “continuum” Murphy v. (9th Cir.1995) only proof.” “three standards or levels of (using 608-10 the two for interchangeably explaining Specifically, pre- mulations it identified the “mere standard; quoting the standard Modern Federal ponderance of the evidence” Instructions, Jury Jury In standard; Model Civil “beyond a reasonable doubt” 5.02, § structions for the Ninth Circuit 9- standard, and “intermediate which usu- (Ninth 1993)). Jury Circuit Committee ally employs some combination the Indeed, post-Anderson we have found no ‘clear,’ ‘cogent,’ ‘unequivocal,’ words and ’” in case which differentiated “clear and 423-24, ‘convincing. Id. at 99 S.Ct. 1804 “clear, convincing” unequivocal, from and added). (emphases example As one of a convincing.” case in which the intermediate standard Schneiderman, applies, Addington cited

Petitioner contends that the the denaturalization case. Id. at Court differentiated the two standards in Thus, Addington the Texas, decision Addington v. that, expressly recognized in (1979), that L.Ed.2d 323 and cases, necessary proof the level of reflects “unequivocal” the term heightens the bur- proof. Addington general den of We do intermediate standard —one not read require “beyond government certainly to meet falls below the reasons, For we hold that the two ap- those proof standard of doubt” reasonable Moreover, burden government’s formulations of the prosecutions. in criminal plied proceedings appeared in removal that have reasoning on the Court, resting its require in the same inter- our cases both generally are that three standards premise sum, then, proof.5 quantum mediate Petition- implicitly precluded recognized, shifting not err in in the district court did variation that a semantic argument er’s nor did proof government, articulat- burden standard is the intermediate how selecting the “clear and convinc- it err requirements. its substantive changes ed assigning when the level ing” formulation later, ex rel. years Two California had to meet. proof ’ that the The Bros. Santa Ana Cooper v. Mitchell ater, 102 S.Ct. 454 U.S. FINDINGS DISTRICT COURT’S curiam), the Su (per L.Ed.2d OF FACT again “[t]hree observed preme Court turn Petitioner’s claim Finally, we generally recog are proof standards the district court erred respect to federal law. With nized” under a native standard, Mondaca-Vega, he Salvador precise “[t]he the intermediate held, varies, citizen of Mexico. As we have phrases and and verbal formulation ‘clear, findings the court’s factual co we review convincing,’ such as ‘clear ‘clear, clear error. unequivo convincing,’and gent, and used.”

cal, convincing’ have all been “clearly when finding is erroneous” [A] 172. As in Ad at 93 n. it, although support is evidence to there recognize declined dington, Court reviewing court on the entire evi- the various formula any among distinction firm left with the definite and dence is standard. tions of the intermediate com- conviction that a mistake has been .... If the district court’s account mitted Indeed, itself has Court plausible light evidence is of the “clear, unequivocal, and phrases used entirety, in its the record viewed in convincing” and “clear and convincing” it even appeals may court of not reverse Baumgartner, terchangeably. sitting it though convinced that had been importance “the emphasized fact, it would have as the trier of convincing proof’ unequivocal, differently. weighed at permit denaturalization. permissible are two views Where there (inter added) (emphasis evidence, choice the factfinder’s omitted). Yet nal marks quotation clearly errone- them cannot be between Anderson, Baum the Court characterized ous. the issue “whether gartner presenting as Anderson, of the two lower courts or not the omitted); (internal marks quotation clear-and-convincing stan

satisfied the Hinkson, 585 see also United States necessary to sustain denat- dard of Cir.2009) (en banc) (9th n. 456 U.S. at 286 uralization decree.” added). (“[T]he limits us to scope of our (emphasis reasonably cer- proved highly probable dispute parties do not what constitutes 5. The evidence, Jordan, convincing” if that stan- 256 F.3d "clear and tain.” United States Generally, (alteration applies. (9th Cir.2001) original) “clear and convinc- dard requires pre- ing” (7th more than a mere evidence Dictionary 577 ed. (quoting Black’s Law ponderance the evidence. It consists of 1999)). thing that the to be "indicat[es] evidence that necessary, trial court determining whether was this observation a or even a any a decision that falls within of particularly important, why reached reason choices the court could permissible court disbelieved Petitioner. Petitioner words, In other have made. challenge accuracy does not of the any convinces us that precedent Court’s gave: other reasons that the district court firm conviction’ of the review ‘definite and routinely that Petitioner used the name still include some measure ing court must Mondaca-Vega throughout Salvador trial factual court’s deference 1960s, began 1950s and that he use determinations.”). Credibility findings de later, Reynaldo name C. Mondaca that he Anderson, greater mand even deference. explanation why offered no whatsoever for 1504; see also he stopped using one name and started Iranon, 283 F.3d 1078 n. 8 Allen v. other, using testimony and that his Cir.2002). applying this stan When court was inconsistent with his earlier tes- review, necessarily incorporate dard timony immigration judge.6 before an understanding appropriate of the bur dispute Some of the centers on how the den of in the district court. See evidence, weigh district court chose to Comm’r, Marsellus v. 544 F.2d on which it chose to address ex- (5th Cir.1977) (holding finding that a plicitly arguments its decision. These error, may only fraud be reversed for clear essentially recapitulate re- Petitioner’s finding judged but that must be quest anew, reweigh for us to the evidence convincing” view of the “clear and burden may which we not do. proof); see also MacDonald Kahiko (9th Cir.2009) lu, Ltd., 581 F.3d challenged of the findings Some are not (reviewing for clear error the district clearly erroneous. We will discuss four finding clearly court’s the evidence examples. fact); convincingly established a 1. The district court found that Peti- Maricopa Cnty. Cmty. EEOC v. Coll. accepted voluntary departure tioner “ten Dist., (9th Cir.1984) (re twenty times” under the name Salvador viewing for clear error the district court’s Mondaca-Vega. support, the court cit- factual party conclusion that a had sus parties’ agreed ed the fact: “At his 1998 tained its proving burden of that a statuto immigration hearing, Petitioner stat- ry provision applied). accepted voluntary ed that he departure said, challenged That some of the find- twenty ten times.” ings example, are not at all. For disputes finding opined the district court the most linked all departures to the name Sal- probable reason for Petitioner’s transition Mondaca-Vega vador accepted because he using from the name Salvador Mondaca- voluntary departure under a different

Vega using Reynaldo the name Carlon name, Vega-Valdez,” “Jose at least once. marriage, Mondaca was his and his desire are not persuaded. We to obtain benefits that could him flow to accepted Petitioner admitted that he had family using and his from the name of a voluntary departure twenty “ten to times” United States citizen. This observation is and that he went Mondaca- not so much a Salvador part as it is a reasoning Vega during period. court’s when the relevant time deciding that Peti- Moreover, tioner was not a fingerprints credible witness. Nor Petitioner’s are as- reasoning respect 6. The why same obtains with to sorts Petitioner took various other ac- conjecture the district court’s as to rea- tions. (9th Cir.2010) (holding that “inconsisten- document FBI records that with sociated voluntary departure adequately support the [adminis- cies deportation his occasions, (“ALJ”) four of separate judge’s least five trative law adverse credi- ] the name Salvador under which occurred bility finding”); see also United States v. Notwithstanding single Cir.2011) Mondaca-Vega. (9th McCarty, 648 F.3d an alias use of admitted aberration—the (observing that the district court “based its district voluntary departure—the for one credibility determination on inconsistencies reasonably that Petitioner inferred court Here, testimony”). the trial in [a witness’] departure ten to voluntary accept did that were court identified inconsistencies under the name Salvador twenty times significant they because in- particularly States v. Mondaca-Vega. See United very place fact at issue—the volved Cir.2004) (9th Bucher, 929, 375 F.3d Petitioner’s birth. (“[F]acts inferences from and reasonable addition, generally trial courts are trier of province are the those facts permitted credibility to evaluate of testi- fact.”). error. see no clear We mony by assessing its level detail. See Likewise, the district court did 2. Holder, v. 590 F.3d Shrestha Petitioner was clearly err in Cir.2010) (9th (holding that the level July under the name deported in in testimony detail in is a “relevant factor” un- Mondaca-Vega. Petitioner Salvador “totality test of of the circumstances” July It was detained 1953. questionably immigration credibility employed by court to infer that was reasonable Astrue, v. judges); see also Tommasetti then, in view of his deported he also was (9th Cir.2008) (allow- 533 F.3d on several that he was removed admission “ordinary employ an tech- ing ALJ that name. occasions under evaluation,” in- credibility which niques error Similarly, we see no clear testimony); discrediting “vague” clude credibility in the district court’s adverse Comm’r, Sparkman wife. respect to Petitioner’s finding with (9th Cir.2007) (“The Court, describing Tax testify the district was unable She contrived, testimony ‘vague, as witness’] [a before trial. For court because she died non-credible,’ plainly did not believe reason, relied on her the district court Court, her, any other the Tax like transcript of and the 1994 sworn statement court, may disregard uncontradicted testi- testimony immigration before the her 1998 it finds that mony by taxpayer where court’s adverse credi judge. The district (some credibility.” in- testimony lacking in on, bility among rested oth determination omitted)). quotation marks ternal initial things, inconsistencies her er ju took permissibly statement, which twice stated that sworn geo between dicial notice of distances Mexico, and a lack Petitioner was born judi may A “court take points. graphical testimony. in that of intimate details geographical undisputed cial notice record bears grounds, Those which the Lummi Muckleshoot Tribe v. In facts.” out, support the adverse credibil suffice to Tribe, 4n. 141 F.3d dian ity determination under the deferential Cir.1998). in Rule of review enunciated standard

52(a)(6). Nevertheless, correctly identi- clearly are errone- a few fies that a fact-finder

It is well settled July deported was ous: that Petitioner support may rely on inconsistencies and November See, September credibility determination. adverse (the error as Astrue, concedes e.g., Berry 1086 dates); ly consistently Supreme followed the and that 1953 one specific

these a birth certificate order Court’s instructions. present had to (as Security card to to obtain a Social majority grounds, On dubious de record, in the which there is no evidence Swint, v. clares that in Pullman-Standard of which the court could and no document 273, 102 1781, 72 L.Ed.2d 66 456 U.S. S.Ct. notice).7 judicial take City and Anderson v. Bessemer N.C., 564, 1504, 84 City, 470 U.S. S.Ct. question then becomes The crucial (1985), Supreme L.Ed.2d 518 Court Peti whether the essential —that line impliedly long overruled the of Su Mondaca-Vega, who was tioner is Salvador preme and Ninth Circuit cases hold in Mexico and who never became born ing required independently that we are clearly errone United States citizen—are citizenship cases. See Fedorenko v. findings are tak ous when those erroneous States, 490, 737, United U.S. easily en out of the mix. We conclude (1981); 66 L.Ed.2d 686 Costello v. United that, taken the context entire States, 265, 534, 365 U.S. whole, findings as a record and the (1961); v. L.Ed.2d 551 Chaunt United pertain inconsequential points. errors States, 147, 364 U.S. 81 S.Ct. Banque de v. Touche See Societe Generate (1960); L.Ed.2d 120 Nowak v. United (In Litig.), re Fin. Sec. Ross & Co. States, 356 U.S. (9th Cir.1984) (noting 729 F.2d (1958); Knauer v. L.Ed.2d 1048 United may any affirm in that we reliance on States, supports in the that record (1946); Baumgartner L.Ed. 1500 v. United judgment). trial court’s In view of the States, many undisputed facts and the additional (1944); L.Ed. 1525 United States v. Del findings, non-erroneous subordinate (9th mendo, Cir.1974); 503 F.2d 98 Lim key finding, hold that the district court’s (9th Mitchell, Cir.1970); 431 F.2d 197 Mondaca-Vega, Petitioner is Salvador Stacker v. 258 F.2d 112 United clearly is not erroneous under the “clear Cir.1958). convincing” proof. standard of majority concludes that when the Petition DENIED. government citizenship seeks to revoke PREGERSON, deport petitioner who claims to be a Judge, Circuit citizen, Federal Rules of Civil Procedure dissenting: 52(a)’s Rule clear error standard of review long Court has held I applies. disagree. Independent review priceless right when the of United States Here, required. government stake, is at clear, not un- prove met its burden to prove unequivocal, must its case equivocal, and convincing evidence Pe- convincing Integral evidence. titioner is not an American citizen. government’s heavy proof, burden of Court established we are I. THE RIGHT OF CITIZENSHIP required independently review such “Citizenship cases and must scrutinize the record our- the United States of safeguard right among selves order to of America is our most valuable Reno, citizenship. precedents rights.” Our have faithful- 219 F.3d Gorbach Berber-Tinoco, judge may judicial 7. A take notice in States v. (9th Cir.2007). personal experience. reliance on That is what occurred here.

1087 “grave of (en banc). citizenship cases. Because Cir.2000) (9th It is 1098 citizen,” to revoke his to the life, consequences and liberty, our “protects right in- citizenship “the evidence must Id. her deprivation.” arbitrary from property ‘clear, convinc- unequivocal, and be more, opportunities deed of is all What children, issue in doubt.’” “depend on and leave ‘the ing’ not our pass onto seek States, 350, 353, stay this 364 U.S. rights to in v. United Chaunt secure children’s] [our (1960) life, 147, (quoting 120 of 5 L.Ed.2d enjoy guarantees its 81 S.Ct. country and States, 320 U.S. v. United and the domestic Schneiderman property, liberty, and 1333, 125, 158, L.Ed. 1796 118, those 63 that flow from S.Ct. 87 prosperity and peace (1943)). proof. of “heavy” burden This is at 1099. guarantees.” States, 490, 449 U.S. v. United Fedorenko her] of his person [or deprive a “[T]o (1981).1 737, 505, 686 66 L.Ed.2d 101 S.Ct. extraordinarily citizenship is an American proof of government’s v. burden Klapprott United penalty.” severe 384, to the proceedings 93 is identical States, deportation 69 S.Ct. 385 U.S. pro (1949). so in denaturalization proof one deport “To who burden 266 L.Ed. obviously deprives ceedings. This is so because to be a citizen claims to denat- analogized deportation may result also liberty,” “[i]t him of and less a life, “[n]o concluded that or of all uralization and and property loss of both in deporta Ng Fung appropriate Ho v. living.” burden life worth makes INS, 492, 284, Woodby v. 385 276, 42 66 White, proceedings.” tion U.S. 259 483, (1922). 276, 285-86, 17 L.Ed.2d Proceedings determin- L.Ed. 938 U.S. (1966) aliens (finding “many citizenship place “the fate resident 362 ing the loss es country longer Knauer in this being ... at stake.” have lived human social, and eco stronger family, tablished United have be de- than some who (comparing nomic here L.Ed. 1500 ties 90 citizens”); Alocozy v. come naturalized deportation). naturalization Cir.2012). (9th USCIS, F.3d 704 II. THE GOVERNMENT’S concerning a proceedings deportation OF PROOF BURDEN citizen claim of United petitioner’s States the “ultimate bears ship, short majority gives that the I believe foreign birth establishing burden” of underlay the policies shrift convincing evid “clear, unequivocal, Su- proof and the burden of government’s INS, F.3d 247 Chau v. ence.”2 of that burden preme Court’s formulation 1961, Congress 8 U.S.C. enacted consistently de- citizenship cases have 1. Our 1105a(a)(5), appears with mini- now § which "clear, unequivocal, and convinc- scribed 1252(b)(5), § at 8 U.S.C. mal modification proof in accordance with ing” burden deportation judicial review that codified heavy as a characterization Court's subject depor- person which orders "in leave the issue which does burden citizen.” a United States to be tation claims See, Arango, 670 e.g., States v. United doubt. INS, Agosto Cir.2012) (9th (citizenship case F.3d (1978). carving “In out L.Ed.2d 677 "clear, con- unequivocal, stating that the cases, Congress [the aware was this class of burden”; "heavy vincing” proof is a burden of holding that past decisions Supreme Court's] leave evidence "must not government's be some requires that there the Constitution (internal quotations and the issue doubt” judicial determination provision for de novo Dang, omitted)); States v. citations deporta- to American of claims Cir.2007) (same); (9th Lim v. 2081; Id. at proceedings.” tion Cir.1970) Mitchell, Ho, see, Ng Fung e.g., (same). S.Ct. 492. (9th Cir.2001); 1029 n. Ayala-Villa the appellate Holder, nueva v. 572 F.3d 736 Cir. 671, court. Baumgartner, 322 U.S. at 2009). (internal omitted). S.Ct. citation Con- sequently, the appellate court must make Supreme emphasized Court has its own determination whether “the evi- high proof burden of in citizenship dence up to the acknowledges measure[s] cases standard of “[n]ew relations flow, proof which must be applied and new interests once to denatu- citizenship [a 672, granted.” Baumgartner has been case.” ralization] Unit- Id. at 64 S.Ct. 1240. States, 665, 675, ed 322 U.S. Baumgartner S.Ct. explained that this standard (1944). 88 L.Ed. 1525 In Baumgartner, of appellate usually review “is differentiat- rejected the govern- ed from ordinary questions review of attempt ment’s an “make[ ] alien out of by fact being called question review of a a man years ten after he was admitted to law.” Id. at 64 S.Ct. 1240. citizenship.” at Id. 64 S.Ct. 1240. In Independent appellate justi- review is case, this government seeks to revoke fied, much government’s like the heavy citizenship by claimed an eighty-one year proof, burden of in light of the valuable old man who contends he was born an rights at stake. See Cooper, Edward H. American citizen and whose children all 52(a): Civil Rule Rationing and Rational- derived citizenship legal permanent res- izing Review, Appellate Resources of ident status him through thirty-five over 63 Notre Dame L.Rev. years ago. The consequences” “[s]evere (“The sweeping practiced in Baum- arising from the citizenship may loss of be gartner explained was in part on the basis “aggravated person when the has enjoyed of the policies same require as clear his citizenship many years.” Costello proof.... surely [T]he Court right was States, v. United look.”). take a close The Supreme Court (1961). 5 L.Ed.2d 551 All the emphasized that because issue “[t]he blessings of United States citizenship in [denaturalization] cases is so important “should not be undone proof unless the liberty citizen[,] of the the weight compelling that [citizenship] which was normally given concurrent findings of two granted was properly] [not obtained.” lower preclude courts does not reconsider- Baumgartner, 322 U.S. at ation here.” Chaunt v. 5 L.Ed.2d 120

III. STANDARD OF APPELLATE (1960). denaturalization, “For like depor- REVIEW tation, may result the loss ‘of all that ” Knauer, makes life worth living.’ A. The Independent Crucial Role of U.S. at 66 S.Ct. 1304 (quoting Ng Citizenship Review in Cases Ho, Fung 492). 259 U.S. at majority recognize fails to that our If otherwise, the law were “valuable exercise of independent review in citizen- rights” would be vulnerable to politi- “the ship plays cases a crucial in assuring role cal temper majority thought and the government’s heavy burden of stresses of the times.” at proof has been In Baumgartner, met. (internal S.Ct. 1304 quotations and citation Supreme Court govern- instructed that the omitted). heavy ment’s burden to revoke citizenship “would be lost” if Baumgartner, Since an lower courts’ deter- unbroken line of mination “whether that exacting standard Court cases has held that when had been open satisfied” was not stake, is at the appellate court determination independent an make must the record review of makes an introduced the evidence met to whether as whether to determine ‘clear, unequivocal, was unequiv [government] present heavy burden its ” Lim, at 199 convincing.’ prove its convincing evidence ocal, and Mitchell, omitted). we Fedorenko, (citation In Lim See, e.g., case. reviewing petitioner action initiated “in (explaining reviewed carefully Attorney General cases, have against Lim denaturalization (citations declaring judgment a ourselves” States for record the United examined States, 365 States. of the United omitted)); v. United be a citizen to Costello Lim 534, 551 to 5 L.Ed.2d not hesitate We did at 198-99. U.S. to deter (1961) the (“examin[ing] independent record the apply ‘the issue leaves in denaturaliza- if established mine the had been Chaunt, at 81 of doubt’”); U.S. the 364 because denial precedents tion appro is reconsideration its con- (stating citizenship was “in 147 to S.Ct. claim Lim’s stake); v. Nowak rights taking at of than a priate given the ‘more serious sequences States, 78 U.S. 356 of a fíne imposition or the property, United one’s ” (1958) (explain 1048 (quoting L.Ed.2d Id. at 199 penalty.’ other or at citizenship is stake Schneiderman, ing “[w]here at and heavy burden” carries 1333).3 view, declaring [a] judgment Government In our a the rec duty to scrutinize “it becomes our has the a non-citizen petitioner be a Knauer, care”); 328 the utmost with ord ... decision [as] a “practical effect same (“We reexamine 1304 at U.S. denatu- a Government favorable the United whether facts to determine is “the individual case” because ralization proving burden of carried its States benefits’ ‘priceless stripped ‘clear, unequivocal, by [denaturalization] citizen- status of derive from which evidence, does not which convincing’ and Dulles, F.2d Lung v. Lee Hon ship.” citizenship] [of issue ‘the leave Cir.1958) (9th (quoting 719, 720, 724 omitted)). (citation doubt....’” Schneiderman, at Lim, 1333).4 Thus, de- judgment a under holds accordingly precedent Our circuit non-citizen, as a to be stake, claring petitioner a “[we] citizenship is when 1105a(a)(5) grounds there § citizenship claim in "may pursue a person A3. Holder, "ha[dj of citizen prior determination F.3d been no Lopez v. ways.” two Cir.2009) (internal (9th petitioner and and quotations ship” upon "both which (1) omitted). may: person "assert many years.” A citation had relied for proceed- citizenship to a removal INS, a defense as 73-74 714 F.2d Sanchez-Martinez unsuccessful, exhausting ad- after ing,” and if 1983). applica (9th exception is not Cir. That remedies, a may petition for he ministrative prior government made here because ble citizenship under judicial declaration through grant citizenship determinations of (2) 1252(b); citi- proof of § "seek U.S.C. citizenship family derivative ing Petitioner’s citizenship application for by filing an zenship citizenship also and on Petitioner's based denied, 1452(a),” § if isit 8 U.S.C. under 22 U.S.C. passport. See issuing a remedies, he exhausting administrative after have passport "shall (stating a valid § 2705 citi- judicial may petition for a declaration proof of United as effect force and the same § Id. This case 1503. zenship 8 U.S.C. under naturaliza citizenship as certificates States former, lat- Lim concerned concerns the Lim, at 198 citizenship”); 431 F.2d tion or ter. petitioner a had issued (noting government wife and petitioner’s passport as a citizen 52(a) applied Rule exception, we In one derivative daughter had obtained Lim in independent review under instead through petitioner). 8 U.S.C. petition reviewing under here, we subject have is Neither Pullman-Standard nor review.5 Anderson implicitly overruled this well- precedent established for three reasons: course, Of we have likewise held that (1) Pullman-Standard and Anderson held reviewing ..., “[i]n denaturalization question subject of fact is to clear are not bound the district court’s find 52(a), error review under Rule but Baum- ings they even if are not clearly errone gartner established Delmendo, ous.” that whether gov- United States (9th Cir.1974) (citation ernment has met heavy n. its burden to re- omitted). Instead, voke citizenship question law; must “[w]e come to our own conclusion as the facts.” the Supreme Stacker v. Court continues to rely on Baumgartner’s Cir. reasoning in distinguishing 1958). questions between subject of fact to Rule 52(a), questions of law deserving inde- B. Pullman-Standard v. Swint and pendent review; (3) and the Su- City Anderson v. City, of Bessemer preme nearly Court’s seventy years of N.C. Did Independent Not Overrule precedents requiring independent review Appellate Review for Citizenship for citizenship weigh heavily cases against Cases majority’s the conclusion that prece- these Despite Supreme the Court’s steadfast dents have impliedly been overruled and history independent of review for citizen- swept away. I now address point each cases, ship majority the believes that Pull- turn. Swint, 273, man-Standard v. 456 U.S. First, the majority incorrectly presumes 1781, (1982) 72 L.Ed.2d 66 and that Baumgartner, which established inde- Anderson v. City City, N.C., Bessemer of pendent cases, review in- U.S. 105 S.Ct. 84 L.Ed.2d question volves a of fact like Pullmartr- (1985) impliedly prec- overruled these Standard and Anderson. It does not. edents and require apply us now to defer- Court has acknowledged 52(a).6 ential review under Rule But how “ ” ‘the vexing nature’ can distinction this be so? nearly For seventy years between questions of the fact questions rule has been of independent appel- law. Corp. late Bose required review is Consumers ensure that Union of U.S., government Inc., has high met its burden of when citizenship is at stake L.Ed.2d 502 (quoting because Pull- of significant rights man-Standard, and the severe 456 U.S. at 102 S.Ct. consequences 1781). involved. Nevertheless, difficulty cases, In consequence denaturalization hardship deportation “immediate of is often is the citizenship. revocation of deporta In greater than that inflicted denaturaliza this, tion cases such as consequence of alien, tion” when the deportee is an let alone erroneously deporting petitioner a the ex deportee —is a claiming to be an American citi ile of an American citizen. It is inconceivable Woodby, zen. See 385 U.S. at 87 S.Ct. potential that the of an exile American citizen any is deserving less of review. White, Kwock Jan Fat v. 253 U.S. Cf. 52(a) provides 6. Rule that for an action tried (1920) ("It 64 L.Ed. 1010 is by the by jury, court instead of a the court many better that immigrants ... should be review, must specially,” "find the facts improperly admitted than that one natural those factual will be set only aside if born citizen of the United States should be "clearly 52(a)(1), erroneous.” Fed.R.Civ.P. permanently countiy.”). excluded from his (6). fact, Court has found that the whether by the lower courts its ment not diminish line “does drawing proof had been satis- of exacting truth Id. practical [is] standard importance.” “[T]he were to be ‘ques- whole record label an issue fied on the the decision fact,’ ‘mixed or a as all law,’ of the same order ‘question fact deemed a tion as here.” Id. facts, fact’ is sometimes law and open not other question omitted). as it is allocation (internal a matter citation quotations much Fenton, 474 U.S. Miller v. analysis.” whether the Baumgartner thus described 88 L.Ed.2d as heavy met its burden has expressly (1985). Congress has When light of the Court’s of law question at times distinction “the spoken, fact/law court is that the appellate determination ... one turned on a determination precious safeguard best suited an- than positioned actor is better judicial Cooper, supra, citizenship. See right of question.” the issue to decide other (explaining L.Rev. at 668 Notre Dame is line 445. “Where Baumgartner application”). involved “law according to the nature varies drawn only contrast, Pullman-Standard Corp., Bose at issue.” law substantive Proce Federal Civil held that the Rules 17, 104 S.Ct. 1949. n. at 501 52(a) pure to “a applicable is Rule dure of the Court Baumgartner example there, in fact,” finding of question of determination, Congress where making a at 288- tentional discrimination. issue a designate an spoken, not to has Likewise, Anderson 1781. 102 S.Ct. Baumgartner, law. of fact or question finding of intention a held that “[b]ecause of inde- its standard articulated the Court fact,” the finding of is a al discrimination what it de- review for appellate pendent is finding of discrimination district court’s ” ‘facts,’ of “ultimate finding aas scribed 52(a). Rule for clear error under reviewed of application the “clearly implies which Anderson, at 470 U.S. Baumgartner, 322 U.S. law.” of standards Anderson the and In Pullmanr-Standard noted The Court S.Ct. 1240. at was clear. question at hand nature the of may appropriate- that “the conclusion that that “the provided expressly Congress evi- whole mass of from the be drawn ly un intentional discrimination of question of always the ascertainment is not dence 703(h) of the Civil Title VII § [of der consider- precludes kind of ‘fact’ that pure question ais Rights 1964] Act of of times, inde- Id. At by this Court.” ation Pullman-Standard, at 286 456 U.S. fact.” review, typically called is which pendent added). (emphasis n. law,” to of is needed question a “review of ex- Pullman-Standard implies applica- Importantly, a that review Baumgartner as not law. Id. Independent distinguished pressly of standards of tion Pullman- particularly needed of question review fact. appellate involving “Baumgartner’s judgments judg- “broadly social that Standard explained review — regarding opinion close not lying referred ments of ‘ultimate facts’ discussion Government nature of our find dis- fact—as we findings whole to pure ” Id. citizenship.’ and immunities this context— duties to be in criminatory intent ‘clearly impl[y] that but judg- Baumgartner concluded ” Pull- law.’ standards of application citizenship the loss of concerning ment man-Standard, n. 456 U.S. at Id. The review. independent requires (alteration (quoting original) S.Ct. 1781 unequivocal, “importance Baumgartner, at citi- to [revoke which convincing proof, on 1240). emphasized PullmanStandard if the lost ascertain- zenship] would be “discriminatory intent ... question States, Inc., is not a Supreme Court of law question and not mixed of law and proper addressed the appellate standard of fact.” at Id. 102 S.Ct. 1781. There- review for the “determination that a false fore, in Anderson, Pullman-Standard statement was made with kind of ‘actu- ”8 the Supreme did not Court hold that Rule al required malice’ in certain defama- 52(a) applies to findings that imply the tion actions. 466 U.S. at application law, of standards of as we have case, in this because no such finding in- prior Court’s “cases rais volving law was before the Court.7 Nor ing First Amendment issues ... re ha[d] does Pullman-Standard and Anderson peatedly held that an appellate court has anything tell us about where the Court obligation independent make an ex draws the line question between a of fact amination the whole record” to ensure and law in citizenship cases because Pull- judgment did not right violate the man-Standard and Anderson involved a speech. free Id. at 104 S.Ct. 1949 different area of substantive law—not the (internal quotations omitted). and citation of citizenship. loss rejected the argument Pullman-Standard and Anderson thus 52(a) Rule eviscerates appellate court’s nothing had to do with well-established independent review. required for citizenship 499-514, 104 S.Ct. 1949. Independent cases and did implicitly overrule the appellate review for First Amendment Court’s precedents. cases “reflects a deeply held conviction Felton, Agostini See judges ... must exercise such review 138 L.Ed.2d 391 preserve order to precious liberties (cautioning against courts concluding that established and ordained the Constitu have, “recent cases by implication, over tion.” Id. at 104 S.Ct. 1949. Con ruled an earlier precedent”). Indeed, af sequently, notwithstanding 52(a), Rule an ter Anderson, Pullman-Standard the appellate court “must independent exercise Supreme Court has continued to empha judgment and determine whether the rec unusually size “the high burden of ord establishes actual malice with convinc denaturalization cases” with reference to ing clarity.” 514, 1949; Id. at 104 S.Ct. Baumgartner. Kungys See v. United — see Snyder also v. Phelps, U.S. -, 485 1537, U.S. 108 S.Ct. 1207, 131 1216, S.Ct. 179 L.Ed.2d 172 99 L.Ed.2d 839 (citing Baumgart (2011) (quoting Bose in determining ner, that 670, 322 U.S. 1240; at 64 S.Ct. reviewing courts make an Schneiderman, “independent 320 U.S. at 63 S.Ct. 1333). examination of the whole record” in First cases). Amendment

Second, majority the ignores that the Supreme Court has Bose continued demonstrates that the apply BaumgartnePs reasoning in Court continues carving out to embrace the heart of substantive from scope issues the Baumgartner’s of Rule reasoning in making the 52(a). In Bose Corp. v. Consumers Union distinction between a question of fact—and " 52(a) apply 7. Rule does not to conclusions of 'knowledge Actual malice is [a that state- 52(a)(1), (6). law. Moreover, Fed.R.Civ.P. ment] was false disregard or with reckless of ” Pullman-Standard, expressly stated it that was falsity.’ its Corp., truth Bose at U.S. addressing not 52(a) applicability of Rule (citation omitted). 104 S.Ct. 1949 questions to “mixed of law and fact.’’ Pull- man-Standard, 456 U.S. at 289 n. S.Ct. 1781. ” added)). (emphasis law question deserving independent lawof question a of in Baumgart- principles the same although Echoing Baumgartner, As in review. Supreme Court to “actual progeny, ner its has referred ” fact,’ independent actual mal rule of ‘ultimate that “the emphasized as [an] malice implying appli a assigns judges constitutional constitutes review ice Corp., Bose of law. delegated to of standards that be responsibility cation cannot 1949; 15, 104 id. at n. S.Ct. at 498 fact, factfinding U.S. of whether the trier (listing cases where 500-11, 104 S.Ct. particular in the performed function be actual reviewed independently judge.” Bose jury byor a trial case constitutional to ensure malice at U.S. Corp., 466 met). quoted Bose been had standard in First review independent Just as inde when explanation Baumgartner’s right preserves cases Amendment findings im justified for review pendent by the established Constitu- speech free of law: application standards plying citizenship tion, independent may appropriately conclusion [T]he right” precious the “most preserves cases mass of evi- the whole be drawn from guaranteed expressly that “is citizenship always the ascertainment dence is to the Con- Amendment by the Fourteenth consider- precludes ‘fact’ the kind of Mendoza-Mar- Kennedy stitution.” Particu- appellate court]. ation [the tinez, 83 S.Ct. U.S. here where a larly so decision is this (1963). Thus, and its Bose L.Ed.2d 644 broadly escape social review cannot history of an long us that progeny tell close to lying judgments judgments — obligation to conduct court’s nature of the whole opinion regarding right of protect the review to duties im- and the our Government Rule despite intact remains citizenship. munities 52(a).9 (citation 500 n. at the Su Third, majority disregards omitted) Baumgartner, (quoting “[v]ery admonition preme Court’s citing 1240 and Pull- princi underlie the considerations weighty n. man-Standard, at 286-87 lightly overrule should not courts ple that 1781). Fenton, 474 Miller past decisions.” actual mal that whether Bose concluded L.Ed.2d question established is has been ice (internal (1985) citation quotations 405 determination of the Court’s light law Quijas de omitted); Rodriguez see also safeguard court must 477, Inc., 490 U.S. Express, Shearson/Am. 500-11, at rights. Id. Amendment First (1989) 1917, 104 L.Ed.2d 484, 109 S.Ct. 1949; Harte-Hanks also see of this precedent (instructing that “[i]f Connaughton, Commc’ns case, yet in a application has direct Court 2678, 105 685, 109 L.Ed.2d rejected reasons to rest on appears in the rec the evidence (stating “whether decisions, the Court line some other sufficient case is in a ord defamation di the case which should follow Appeals malice ais finding of actual support whether issue of to the constitutional tains Bose as nar- majority mischaracterizes 9. The established, in citizen- has malice been Maj. at actual independent review. rowly applying necessarily is independent review ship is cases scope independent is issue constitutional because broader at hand. issue governed by the constitutional revoking citizenship the burden whether Corp., 466 U.S. at Bose only issue primary met—the 1949; been at Baumgartner, U.S. this case. per- in Bose independent review While controls, rectly leaving to this Court protect right of citizenship, it would prerogative of overruling its deci own have said so.

sions”). C. The First Circuit Has Held the Su- instance, Fenton, For in Miller v. preme Citizenship Court’s Cases Supreme Court held that “an unbroken Have Not Been Overruled cases, line of coming to this Court forecloses the Appeals’ Court of In direct conclusion contrast majority’s con- that the clusion, ‘voluntariness’ of a circuit, [criminal de our sister the First Circuit fendant’s] something confession merits less has concluded that independent review for than federal consideration.” denaturalization has not cases been over- 474 U.S. at 106 S.Ct. 445. The Su sixty ruled. Almost years ago, the First preme emphasized “nearly a Circuit held that Baumgartner did not century half unwavering precedent suggest “that we might only reverse when weighs heavily against any suggestion that we opinion were the district we now discard the settled rule in this ‘clearly court was erroneous’ its conclu- area.” Id. at 106 S.Ct. 445. Similar sion” that has met its ly, in Ornelas v. the Su heavy burden of proof. v. United Cufari preme Court resolved a circuit split and States, (1st Cir.1954). 217 F.2d held that Amendment, under the Fourth Instead, duty “[i]t of the court upon review of a warrantless requires search review of cases ... [denaturalization] “independent appellate review of ul the[ ] examine the evidence in order to ascertain timate determinations of suspi reasonable whether it meets requisite] high [the stan- cion and probable cause,” which was the proof.” dard of Baghdasarian v. United approach “consistent with the position we States, (1st Cir.1955). have in past taken cases.” 517 U.S. The First Circuit affirmed independent L.Ed.2d review after Pullman-Standard (1996). The Court underscored that in its Anderson. United States v. Zajanck- prior precedents, never, the Court “ha[s] auskas, “after at looking several when reviewing probable-cause or rea Court cases in which the Court made clear sonable-suspicion ourselves, determination that denaturalization cases are of an un- expressly deferred to the trial court’s de nature,” usual the First Circuit affirmed termination.” Bose, So too the Su “ that in cases, denaturalization ‘while we preme Court the principle “reaffirm[ed] weight accord to a district court’s findings independent appellate review First [for ..., we do not weight those findings as Amendment cases] that we applied have heavily as we would in other cases aof uncounted times before.” Bose Corp., 466 civil (1st nature.’” 37-38 S.Ct. 1949. Cir.2006) (quoting 408). Cufari, 217 F.2d at The majority give has failed to due con- In holding, so the First Circuit expressly sideration to the seventy years over held that the Supreme Court’s citizenship precedents unbroken from the Supreme precedents “are still valid and have not Court in citizenship cases. Time and time been overruled in any way,” and noted that again, emphasized has Anderson nothing “[had] to do with denat- preciousness importance of citizen- uralization.” Id. at n. 5. I agree with ship and the crucial role of appellate the First Circuit’s reasoning. sound independent court’s review. Had Su- preme Court intended to ap- overrule the reasons, For the foregoing I cannot ac- pellate deep court’s rooted obligation cept the majority’s conclusion that Pull- speak English, not learn to Petitioner did overruled— and Anderson man-Standard Mexico, and its only implication Baumgartner Spanish. by — precedent, our It follows that as a farmer. progeny. parents worked with his Mitchell, Baum- which relies on Lim years was around 20 When Petitioner controls the progeny, gartner's old, he came back to the United States for Thus, case. review this standard of States, Peti- the first time. the United conduct an required to are fields, primarily in the with tioner worked in the record to of the evidence from Mexico. people that evidence is suffi- whether determine heavy satisfy government’s cient to Petitioner then returned to Mexico. He by unequivocal, to show burden he was an American citizen learned that that Petitioner is a convincing evidence by given when he was his birth certificate citizen, citi- not a United States Mexican his birth cer- his mother. Petitioner used III.A; States supra Part zen. See tificate to come back to the United (9th Cir.1992) Gay, 967 F.2d specifically, Washington. California and ... cannot (holding judge panel a “three of a the decision reconsider or overrule Reynaldo undisputed It is Mondaca intervening “an Su- panel” unless prior security May for a social card on applied exist- undermines an preme Court decision application 1953. The indicated that Circuit, and of the Ninth ing precedent parents were Antonia Carlon and Ma- his (internal closely point” on cases are both July rin and that he was born on Mondaca omitted)). and citation quotations Imperial, par- California. The stipulated “[according ties also FAILED TO THE IV. GOVERNMENT analyses provided by experts handwriting CLEAR, BY CASE PROVE ITS signature on the parties, for both UNEQUIVOCAL, AND CONVINC- Mondaca’) (‘Reynaldo ap- application C. ING EVIDENCE by pears to be made Petitioner.”10 Peti- correctly The district court determined security card is under the tioner’s social carried his initial burden of that Petitioner Mondaca, Reynaldo and Petitioner name by a of the evi- proving preponderance Security num- always used the Social citizen that he is an American dence with the card. Petitioner ber associated Petitioner’s Reynaldo name of Mondaca. Security benefits. qualifies Social Reynal- demonstrating that he is do Mondaca was as follows: (now deceased) Petitioner met his wife Reynaldo Fuerte, that he is

Petitioner testified in El Mexico. Petitioner and his Carlon, in Imperial, born Califor- children, Mondaca nine three of whom wife had nia, July parents 1931 to Antonia Petition- were born the United States. Mondaca. Petitioner and Marin Carlon marriage certificate and presented er certificate for an authentic birth presented children, all baptismal certificates for his Reynaldo Mondaca Carlon. Reynaldo that he is Mon- of which indicate issued passport, daca. Petitioner’s California, Petitioner’s

Although born State, also under Department of Mexico, him he parents took back to where Fuerte, Sinaloa, Reynaldo Mexico. the name Mondaca. up in El grew application, Reynaldo Mondaca’s Sal- claiming Unlike to be Salvador 1952 someone 10. security Mondaca-Vega applied Mondaca-Vega’s application for a social does not vador card, present any government did not but the signature. contain a tying application to Petitioner. years after Petitioner security May For several and for social card in 1953. married, his wife were Petitioner’s wife Maj. at That speculation pro- 1085-86. is Mexico, and children lived in while Peti- blematic. It led the district court to incor- in tioner worked California. Petitioner rectly conclude that Petitioner did not year would return to Mexico about once a rightfully possess an authentic United family. spend Eventually, time with his States birth certificate. family brought Petitioner his entire incorrectly The district court reasoned United States. that Petitioner would have had to obtain in Petitioner’s six children born his applying birth certificate before for his Mexico obtained United States security social card. The district court or Lawful Permanent Resident status judicial geographical took notice of dis- through Petitioner’s status as a United tances to conclude that would have “[i]t States citizen. Also Petitioner’s difficult, extremely impossible” been if not Legal wife became a Permanent Resident for Petitioner to have retrieved a birth based on Petitioner’s status as a United Fuerte, certificate from his mother El States citizen. prior applying security for a social card Because Petitioner a prima established Calexico, California, May 1953. facie case that he is an American citizen there, From the district court concluded Mondaca, Reynaldo govern- named that Petitioner must have obtained his required present ment was un- Reynaldo Mondaca birth certificate “at equivocal, and convincing evidence that Pe- some location near the border between the titioner was not who he claimed to be. United States and Mexico on May either Specifically, government claimed that May 22nd or 23rd.” There is no evidence Petitioner is Mexican citizen named Sal- in the support record to the district court’s Mondaca-Vega, vador who was born in El conclusion that Petitioner obtained his Mahone, Sinaloa, 3,1931.11 Mexico on June Rather, birth certificate in this manner. record,

Upon review of the I do not only evidence in the record is that government believe met high its Petitioner obtained his birth certificate burden. The district court made numer- from his mother. supported ous that are either not 3.The speculated district court further speculation. the record or are based on INS, that when Petitioner was detained examples. Here are some always certificate, had his birth majority recognizes 1. As the and both and that Petitioner’s identify failure to parties agree, there is no evidence in the Reynaldo himself as Mondaca was “inexpli- support

record to the district court’s find- cable.” The district court seemed to be- ings that deported July Petitioner was contrary lieve that this is to how an Ameri- September and November Petitioner, can citizen would act. But who Maj. 1952. at 1085-86. speak English, does not stated he used an majority concedes that the alias when he did not dis- have his birth certifi- trict court engaged speculation passport when it cate and U.S. with him to show required determined that Petitioner was citizenship. to his United States The district present his birth certificate applying speculated when when it assumed what (holding contends that key finding, the “ulti- that "the district court’s mate issue in this case is whether Petitioner is Mondaca-Vega, that Petitioner is Salvador Mondaca-Vega Reynaldo Salvador ... or erroneous”). clearly Maj. Mondaca Carlon.” See also at 1086 including ‘“the masamy’s ‘real’ motives” would or position in Petitioner’s someone ”). early in 1950s. job opportunities’ done anticipation not have of better would Holder, 599 F.3d v. See Chawla Finally, speculated the district court Cir.2010) (9th the “BIA’s dis- (holding that began using Rey- the name that Petitioner ... was based decision of Chawla’s belief marriage naldo Mondaca because his conjecture about what and speculation on only Not and his desire to obtain benefits. or would position in someone Chawla’s record, by the supported is this not Gonzales, do”); Zhou v. would not that Peti- but the evidence demonstrates (9th Cir.2006) (holding that F.3d in Reynaldo used his name Mondaca tioner testimony was of Zhou’s the Id’s “disbelief twenty years prior to his almost conjecture and speculation on ... based applied he for a social marriage, when society position Chinese about Zhou’s security card. would position that and what someone do”). would not V. CONCLUSION speculated also The district court incorrectly applies clear majority deported it time Petitioner was that each erroneous con- error review because its interest, and contrary to his financial was for citizen- clusion that review thus, not have that he would implausible implicitly been overruled. ship cases has citizen. as an American himself identified record, On review of the because July on speculated The district speculation findings numerous based on year for busy “a time of it was evidence, by findings unsupported thus, laborer,” it would agricultural clear, un- government prove failed to petitioner’s finan- [have been] “not convincing that Pe- equivocal, and from the Unit- interest to be removed cial Similarly, the whose name is at this time.” titioner is a Mexican citizen ed States See, Lim, that when Peti- presumed Mondaca-Vega. e.g., district court Salvador September tioner was detained “although (holding at 200 431 F.2d great agricul- there was “a deal tending to show some evidence there was work,” petitioner’s in the and it “was tural family name was Jew rath- appellant’s in the United financial interest to remain Lim, not government] did [the er than no evidence in the rec- There is States.” proving [attainment meet its burden court’s support the district ord fraud or error citizenship through] opportunities regarding employment convincing evi- unequivocal worker, Petitioner’s financial for a farm here, dence”). fact, where, as there is motives, conditions at the border or how be said it cannot “conflicting evidence” early 1950s. controlled in the See were burden has carried its that the Berber-Tinoco, United States not leave by evidence “which does prove (9th Cir.2007) (“A judge trial Salva- that Petitioner is the issue doubt” relying personal on his from prohibited Reynaldo not Mondaca-Vega, and dor judi- taking of support experience Schneiderman, Mondaca. (internal and cita- quotations notice.” cial omitted). (internal quotations S.Ct. 1333 omitted)); Paramasamy Ashcroft, tion present government did Notably, the Cir.2002) (holding than Peti- anyone other any evidence that her improperly that “the IJ substituted Reynaldo be claimed to tioner has ever the evidence hypothesis own Mondaca. acknowledged record” when she standard of if proper Even “Paramasamy afraid to return to Sri was error, the district clear here is for Para- speculated “then about Lanka” but gov- that the clearly erred majority ernment met its burden. clear error there was no

contends challenged findings

because “[s]ome clearly

are not erroneous” and inconsequential points.” pertain

“errors above,

Maj. at 1086.12 As discussed

however, the district court’s erroneous numerous and central to the are govern-

district court’s conclusion that the I proved

ment its case. do not believe remaining findings are sufficient satisfy government’s burden to

prove by unequivocal, convincing and Mon-

evidence that Petitioner is Salvador Thus,

daca-Vega, a Mexican citizen. Peti- be,

tioner is who he claims to an American

citizen, Reynaldo Mondaca. I would Therefore, I petition.

GRANT the dis-

sent. HINOJOS, individually

Antonio S. similarly

on behalf of all others

situated, Plaintiff-Appellant, CORPORATION, a

KOHL’S Wisconsin

corporation; Department Kohl’s

Stores, Inc., corporation, a Delaware

Defendants-Appellees.

No. 11-55793. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Jan. 2013. May

Filed on Rehearing

As Amended Denial of Suggestion Rehearing

En July Banc majority understanding vid[ed] 12. The relies on Societe Generate de a sufficient of the is- (In Banque findings.” v. Touche Ross & Co. re U.S. Fin. sues without a remand for further (9th Cir.1984), Litig.), Litig., Sec. 729 F.2d 628 In re U.S. Fin. Sec. F.2d at 630. I that, may speculative conclude that it the district court do believe absent the affirm findings, any supports clearly the district erroneous the basis judgment. Maj. court’s case, at 1085-86. In that district court’s decision remains clear in this pro- the “basis for the court’s decision case.

Case Details

Case Name: Mondaca-Vega v. Holder

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 25, 2013

Citation: 718 F.3d 1075

Docket Number: 03-71369

Court Abbreviation: 9th Cir.