Dent v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAZAR DENT, AKA Cesar Augusto 
Jimenez-Mendez,
No. 09-71987
Petitioner,
v.  Agency No.
A037-082-657
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 13, 2010—San Francisco, California

Filed November 9, 2010

Before: Andrew J. Kleinfeld, A. Wallace Tashima and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Kleinfeld

18451
18454 DENT v. HOLDER

COUNSEL

Anne R. Traum, Supervising Attorney and Holly E. Cheong,
Student Attorney, University of Nevada, William S. Boyd
School of Law, Thomas & Mack Legal Clinic, Las Vegas,
Nevada, for the petitioner.

Paul Fiorino, Senior Litigation Counsel, Office of Immigra-
tion Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.

OPINION

KLEINFELD, Circuit Judge:

We address an alien’s right to see his “A-file” during pro-
ceedings against him.
 DENT v. HOLDER 18455
I. Facts

The Department of Homeland Security initiated removal
proceedings against Dent on the ground that he was not an
American citizen or national, and had been convicted of an
aggravated felony. He has lived in the United States since
1981, but according to the government, he is a citizen of Hon-
duras and has been a lawful permanent resident rather than a
citizen. He was convicted on a guilty plea in the Superior
Court of Arizona of possession or use of narcotic drugs1 and
escape in the third degree,2 both felonies, and sentenced to
one year of imprisonment.

Dent defended pro se against his removal, arguing that he
had been adopted by an American citizen when he was a
child, and was an American citizen himself. He also argued
that his convictions did not suffice to make him an aggravated
felon under the statute.3 The BIA adopted and affirmed the
IJ’s decision that he be removed.

Dent at first conceded, at a hearing before the IJ, that he
was not a citizen of the United States. Subsequently, when the
IJ found that his escape, though on foot and for only half a
block, was a crime of violence, and that the charge of removal
had been proved, Dent said “I was adopted, you know that.
You guys know that.” The IJ said he knew nothing about it.

In a previous hearing, government counsel had referred to
Dent’s Alien File (“A-file”) (“[the I-261] might have had a
different ‘A’ number on because we had to change ‘A’ num-
bers on this case . . . .”). In an earlier separate proceeding the
government filed a “motion to change A-file number” from
A24 411 521 to A37 082 657, consolidating the two files for
Dent, also using his pre-adoption name, Cesar Augusto
1
A.R.S. § 13-3401, 3408, 3418, 701, 702, 702.01, and 801.
2
A.R.S. § 13-1001, 2502, 2503, 31-342, 13-701, 702, 702.01, and 801.
3
8 U.S.C. § 1101(43)(F).
18456 DENT v. HOLDER
Jimenez-Mendez. The government had not given copies of the
A-file to Dent or to the IJ in Dent’s removal case. An A-file
is the file maintained by various government agencies for
each alien on record. “Contents include, but are not limited to
passport, driver’s license, other identification cards, and pho-
tographs; immigration history (prior record); and all docu-
ments and transactions” relating to the alien.4

After Dent told the IJ he had been adopted by an American
citizen, the IJ reminded him that “You admitted that you’re a
native and citizen of Honduras.” Dent replied “Yes. But I no
[sic] I don’t know anybody over there. I’ve been here since
I was 11 years old so I don’t know.” He went on, “I have my
adoption papers to show you, if you want to see them.” The
IJ understood Dent to mean that he was claiming United
States citizenship and asked Dent if he had the adoption
papers with him. Dent did not, so the IJ gave him a continu-
ance so that he could produce them.

Dent succeeded. He wrote the lawyer in Arkansas who had
handled his Arkansas adoption twenty years before, and pro-
duced not only his adoption decree, but his school records
showing his elementary and high school attendance and his
grades. But then government counsel pointed out that he had
not proved that his adoptive mother, Roma Dent, was herself
an American citizen. The IJ asked Dent if he had his now-
deceased mother’s birth certificate. Dent did not, so the IJ
gave him three weeks to get it and produce it. Dent wrote the
4
INS Det. Man. T, Ch. 1, 2000 WL 35367104 (2000). “The A-File is
the record that contains copies of information regarding all transactions
involving an individual as he/she passes through the U.S. immigration and
inspection process. Previously, legacy Immigration and Naturalization
Services (INS) handled all of these transactions. Since the formation of
DHS, however, these responsibilities have been divided among USCIS
[United States Customs and Immigration Service], ICE [Immigration and
Customs Enforcement], and CBP [Customs and Border Protection]. While
USCIS is the custodian of the A-file, all three components create and use
A-files.” 72 C.F.R. § 1755-02, 2007 WL 86868 (2007).
 DENT v. HOLDER 18457
Arkansas adoption lawyer again. The lawyer replied that he
would be unable to find a death certificate because Ms. Dent
had died in Honduras, and a birth certificate would be a prob-
lem because “She was born before the central registry of birth
certificates were issued. I have contacted the Labette County
Courthouse in Kansas and due to a fire, they have lost all birth
certificates before 1911.” (Ms. Dent was born in 1905.) He
was working on getting her passport, difficult since she had
died on a trip to Honduras. Nevertheless the adoption lawyer
sent Dent other persuasive evidence of his adoptive mother’s
citizenship: her 1950 application for a social security number,
in which she had represented that she was born in Morehead
in Labette County, Kansas June 17, 1905, of Arley Riggs and
Irma Riggs nee Ross.

Dent wrote a statement to the IJ explaining that Ms. Dent
had taken him, a child abandoned at age five or six, under her
wing on her annual trips to help poor people in Honduras,
brought him to America, and adopted him when he was four-
teen:

I was born in Honduras, Central America, I was
abandoned at an early age by my biological parents.
Probably when I was 5 or 6 yrs. old, one American
woman by the name of Roma Riggs Dent, used to
travel to Honduras then in the mid 70’s to help the
poor people, with clothes, food, and education, etc
. . ., she was not connected or affiliated to any
church, organizations, group, etc . . ., she did this on
her own time, own financial support, etc . . . .

I was a very poor and a needy orphan she treated
me very nice and would let me in her house and we
got closer to each other until I would miss her when
she would leave for the united states, she would do
this every year be in Honduras 6 months and come
back to U.S.A., for another 6 months, any ways [sic]
I started calling her mom as time went by until
18458 DENT v. HOLDER
finally she brought me to the united states in 1981
and finally adopted me as her legal son, now I was
14 yrs. old when the adoption was final in 1981.

I believe I inherited U.S. citizenship through this
adoption, now I seem to meet all of the I.N.S.
requirements for qualifying for it, exept [sic] for her
birth certificate, because she was born in 1904 and
records started being kept on files only since 1911.

However, I do have her SSI # birthdate and name,
etc . . ., she had a U.S. passaport [sic] also, all of the
archives with the I.N.S. are in Memphis, Tenn. that
she had to give the I.N.S. in order for her to bring me
to the States. So I know that the government really
knows that she was a U.S. born citizen by birth not
any other kind of citizenship. She outlived her klan,
[sic] she died at age 96, the U.S. embassy in Hondu-
ras has her U.S. passport.

Dent pointed out in this statement that “the government really
knows that she was a U.S. born citizen by birth.”

Noting that Dent had still not produced his mother’s birth
certificate despite continuances and that he could pursue his
citizenship claim from Honduras, the IJ found that “respon-
dent has been unable to make a prima facie showing of citi-
zenship in the United States” and ordered him removed to
Honduras.

Dent appealed to the BIA, and won a remand on the non-
substantive ground that the record it received lacked the adop-
tion decree and the criminal judgment. On remand, the
government lodged an additional charge, that Dent was
removable not only for the escape but also for his controlled
substance violation. The IJ again found Dent removable
because his escape violation was a crime of violence, and also
because of his controlled substance violation. Dent again
 DENT v. HOLDER 18459
appealed to the BIA, and the BIA adopted and affirmed the
IJ’s decision.

Unknown to Dent, documents existed in Dent’s A-file
related to Dent’s claim of United States citizenship. These
documents were always in the government’s control, but
never given to Dent. The documents consisted of a naturaliza-
tion application Dent’s adoptive mother filed on Dent’s behalf
on January 18, 1982 when Dent was fourteen, and an Applica-
tion to File Petition for Naturalization Dent filed on his own
behalf on February 26, 1986, when he was eighteen. The A-
file does not include any document purporting to adjudicate
either application. We now know about the A-file only
because of a peculiar course of subsequent proceedings dis-
cussed below. Dent was not given these documents, and the
IJ and BIA were not made aware of them, in the removal pro-
ceedings.

Dent petitions for review of the BIA decision affirming the
IJ’s decision, and raises a new issue, that he should have been
furnished with the naturalization petitions in his A-file.

II. Analysis

A. Judicial notice

The procedural history of Dent’s case took peculiar turns.
First, the BIA remanded to the IJ because the record was inad-
equate. Second, the BIA affirmed, but failed to send notice to
Dent at his current address. Dent was arrested in Ohio in 2008
for illegal reentry5 and claimed (correctly) that he had not
known that the BIA had affirmed or that he had been ordered
deported. The government conceded inadequate notice and
dismissed the indictment for illegal reentry in 2009. Dent had
obtained counsel in the criminal proceeding. Counsel peti-
tioned the BIA to reissue the 2005 decision that had not been
5
8 U.S.C. § 1326.
18460 DENT v. HOLDER
sent to the proper address, so that a timely petition for review
could be filed. The BIA did so, and the petition for review
before us is from the reissued decision.

The A-file documents have trickled into these proceedings
subsequent to the government’s aborted criminal prosecution
for illegal reentry, so subsequent to the BIA decision under
review. The BIA, so far as we can tell from the record, has
never been provided with Dent’s A-file documents regarding
his adoptive mother’s and his own petitions for his naturaliza-
tion. When the BIA held that Dent had failed to prove that he
was a naturalized citizen, it likely meant he had failed to
prove that his adoptive mother was a United States citizen.
That was the only argument the government had made once
Dent had proved his adoption.

Dent’s mother’s and his own petitions to naturalize him
were submitted to us as attachments to a motion Dent filed
before us, asking us to take judicial notice of them. The gov-
ernment has opposed this motion, but suggests that if we do
take notice, we also take notice of handwritten notations on
the copy of the documents it has provided to us. The govern-
ment submissions differ from Dent’s, even though both are
supposed to be copies of documents in Dent’s A-file. The
government’s submission shows a rubber stamp Dent’s does
not, and there are other differences.

On Dent’s adoptive mother’s application filed in 1982
when Dent was fourteen, there are handwritten notations on
the upper left corner of the first page that appear probably to
say “absent” for dates in 1983, 1984 and 1986. There is a
notation in a box labeled “nonfiled” appearing to say “over 18
2/26/86” with someone’s initials. There is no explanation of
why the INS may have sat on the document without acting on
it for more than four years, until perhaps Dent aged out of the
category where his adoptive mother could get him naturalized.6
6
See Immigration and Nationality Act § 322, 8 U.S.C. § 1433.
 DENT v. HOLDER 18461
The government argues that the handwritten notations mean
that Dent’s adoptive mother had her chance, and either she or
her son or both failed to show up for three scheduled inter-
views or that they failed to file other required documents.7
There is a rubber stamp on the copy the government submit-
ted, illegible on our copy, which the government alleges says
“denied Nov 10 2008.” Dent’s submitted copy does not have
that stamp, so the stamp may have been added after the gov-
ernment had provided the copy without the denial stamp to
Dent, well after the 2005 conclusion of his removal proceed-
ings before the IJ and BIA.

On Dent’s own application, signed in 1986 when he was
eighteen, there is an important discrepancy between his copy
and the government’s. The copy the government gave him in
2008 does not show any government action. But the copy the
government gave us shows a label pasted onto the first page
dated February 26, 2009, and a handwritten notation that
appears to say “denied 3-25-09.” That date, too, is long after
the BIA had affirmed the removal order on Dent’s appeal. If
the government’s representations are accepted, the govern-
ment denied Dent’s mother’s application 27 years after it was
filed, and denied Dent’s 23 years after it was filed.

[1] Generally our review is confined to the administrative
record before the BIA. “We may review out-of-record evi-
dence only where (1) the Board considers the evidence; or (2)
the Board abuses its discretion by failing to consider such evi-
dence upon the motion of an applicant.”8 The law does not,
however, interpret this rule absurdly, so that injustice may be
done if the government successfully shields its documents
from a person who ought to have access to them, particularly
when the documents might change the result of the proceed-
ings. We took judicial notice of documents falsifying the
7
See Brue v. Gonzales, 464 F.3d 1227, 1232 n.3 (10th Cir. 2006).
8
Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996) (en banc).
18462 DENT v. HOLDER
proposition on which the BIA had relied in Lising v. I.N.S.,9
and have discretion to do so here. We held in Lising that
Fisher does not prevent us from taking judicial notice of the
agency’s own records.10

[2] We take notice of the existence of Dent’s adoptive
mother’s and his own applications for naturalization, because
they are official agency records from Dent’s A-file. The gov-
ernment’s failure to provide Dent with his A-file, and his evi-
dent ignorance of its existence, justify his failure to present
them to the tribunal. We cannot, however, take notice of the
facts proved by the documents, because we cannot ascertain
what those facts might be. We do not know who wrote the
handwritten notes, or what they mean. Nor are all the nota-
tions and rubber stamps legible.

B. The government’s duty to produce the A-file

[3] The A-File documents the history of immigrants’ and
others’ interactions with components of the Department of
Homeland Security and predecessor agencies. The United
States Customs and Immigration Service (USCIS) uses the
information in an A-File to enforce U.S. immigration laws.11
The A-file “contains all the individual’s official record mate-
rial such as naturalization certificates; various forms (and
attachments, e.g., photographs), applications and petitions for
benefits under the immigration and nationality laws, reports
9
124 F.3d 996 (9th Cir. 1997).
10
Id.
11
See 72 Fed. Reg. 9017-01, 2007 WL 594827 (2007); see also 72 Fed.
Reg. 1755-02, 2007 WL 86868 (2007) (“The A-File is the record that con-
tains copies of information regarding all transactions involving an individ-
ual as he/she passes through the U.S. immigration and inspection process.
Previously, legacy Immigration and Naturalization Services (INS) handled
all of these transactions. Since the formation of DHS, however, these
responsibilities have been divided among USCIS, ICE, and CBP. While
USCIS is the custodian of the A-File, all three components create and use
A-Files.”).
 DENT v. HOLDER 18463
of investigations; statements; reports; correspondence; and
memoranda on each individual for whom INS has created a
record under the Immigration and Nationality Act.”12

[4] While Dent was struggling with the issues of his possi-
ble naturalization and his mother’s citizenship, the govern-
ment had his A-file with his adoptive mother’s petition and
his own. He did not have the contents of the file. The govern-
ment has not suggested that anything in his A-file was or
should be secret. The government had a central index linking
to Dent’s name, both before and after his adoption.13 That a
proceeding should have taken place without the benefit of the
documents in the government’s file on Dent invited error. The
documents show the existence of highly debatable entries.
That the parties still disagree about what those documents
mean shows the importance of having them where they were
most needed, in Dent’s proceedings before the IJ. The exten-
sive proceedings about whether he had been adopted, and
whether his adoptive mother, evidently born in Kansas in
1905, was an American citizen, were all irrelevant if he was
naturalized, and irrelevant if his naturalization was authorita-
tively and properly denied.14

In his first appeal (pro se) to the BIA, Dent expressly asked
for help getting records relating to his mother’s citizenship
etc., because he was in jail and his adoptive mother was dead.
Despite his request, he was not furnished with copies of his
A-file. His lawyer later discovered the documents during his
criminal prosecution for illegal reentry. That case was dis-
missed when the government discovered that it had failed to
send his notice of his removal to the correct address. Had the
government’s error in service not led to Dent’s arrest and
12
66 Fed. Reg. 46812-02, 2001 WL 1016875 (2001).
13
8 U.S.C. § 1360.
14
Dent argues that the A-file showed that Dent’s adoptive mother was
granted a type of visa for him available only if she was a United States
citizen. Pet’r Br. 9 n.3.
18464 DENT v. HOLDER
criminal proceedings, he apparently would never have seen
the petitions for his naturalization filed decades before.

Dent argues that failure to furnish the A-file to him denied
him due process of law, citing our decision in Rendon15 that
denial of a continuance necessary to a fair proceeding denied
due process of law.

The government argues that Dent did not raise the claim
before the BIA, so it is not exhausted. We reject that argu-
ment because his document request was indeed addressed to
the BIA, and it would not be reasonable to require him to do
more, particularly where he was not given the documents and
therefore could not have put them before the BIA. The IJ and
the government had focused the case, at that point, on whether
Dent’s Kansan adoptive mother was a United States citizen,
a question to which the government may have already had the
answer. (The adoption lawyer had suggested in the letter fur-
nished to the BIA, that her 1950 application for a social secur-
ity number, providing her date and place of birth, should be
sufficient to establish her citizenship.)

No justification has been offered for the failure to furnish
Dent, the IJ, the BIA, and us with the documents in the A-file.
The government’s motion in separate proceedings to change
Dent’s A-file number shows the government’s awareness of
the A-file. The government uses the A-file routinely in almost
every case to determine whether an alien should be removed
and whether an alien should be naturalized, and maintains an
automated system to make access easy for its staff.16 All the
official records, correspondence, photographs, applications,
petitions, statements, reports and memoranda relating to
immigration contacts between the alien and the government
15
Rendon v. Holder, 588 F.3d 669 (9th Cir. 2009).
16
U.S. Gov’t Accountability Office, GAO-07-85, Immigration Benefits:
Additional Efforts Needed to Help Ensure Alien Files are Located when
Needed 1 (2006).
 DENT v. HOLDER 18465
are there, yet in the critical proceedings before the IJ neither
the IJ nor the BIA nor Dent was furnished with the relevant
documents. We have no idea why not. The only justification
the government offers for why we all should have been left
rooting around in the dark is in its 28(j) letter,17 arguing that
the law did not require them to furnish the A-file. The govern-
ment offers no reason why the A-file should not be furnished.

[5] “An alien has a Fifth Amendment right to due process,
including the right to a full and fair hearing in a deportation
proceeding.”18 “In order to prevail on such a claim, the alien
must demonstrate that the challenged proceeding was so fun-
damentally unfair that the alien was prevented from reason-
ably presenting his case.”19 Once the alien demonstrates that
he was prevented from reasonably presenting his case, he
must then “show prejudice, which means that the outcome of
the proceeding may have been affected by the alleged viola-
tion.”20 “[W]hen the alien appears pro se, it is the IJ’s duty to
‘fully develop the record.’ ”21 “Because aliens appearing pro
se often lack the legal knowledge to navigate their way suc-
cessfully through the morass of immigration law, and because
their failure to do so successfully might result in their expul-
sion from this country, it is critical that the IJ ‘scrupulously
and conscientiously probe into, inquire of, and explore for all
the relevant facts.’ ”22

Dent argues that because he was not provided with the doc-
uments in his A-file, he was denied an opportunity to fully
17
Fed. R. App. P. 28(j).
18
Burgos-Abril v. I.N.S., 58 F.3d 475, 476 (9th Cir. 1995) (citation omit-
ted).
19
Rendon v. Holder, 588 F.3d 669, 675 (9th Cir. 2009) (internal cita-
tions and quotation omitted).
20
Id. (internal citations and quotation omitted).
21
Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto
v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)).
22
Id.
18466 DENT v. HOLDER
and fairly litigate his removal and his defensive citizenship
claim.23 We agree.

[6] Congress has provided that to meet his burden of proof
in removal proceedings, “the alien shall have access” to his
entry document “and any other records and documents, not
considered by the Attorney General to be confidential, per-
taining to the alien’s admission or presence in the United
States.”24 This mandatory access law entitled Dent to his A-
file. The government takes the position that the only way
Dent would be entitled to get the file would be a Freedom of
Information Act request.25 The government relies on a regula-
tion (not a statute) providing that an individual seeking access
to records about himself “must submit a written request” to
the Freedom of Information Act (FOIA) office.26

The regulation does not purport to address removal hear-
ings specifically. It is a general regulation governing records
requests. If it applied to removal proceedings, a serious due
process problem would arise, because FOIA requests often
take a very long time, continuances in removal hearings are
discretionary, and aliens in removal hearings might not get
responses to their FOIA requests before they were removed.

[7] The doctrine of constitutional avoidance requires us to
construe the statute and the regulation, if possible, to avoid a
serious constitutional question.27 We construe the “shall have
23
Pet’r Br. 34.
24
8 U.S.C. § 1229a(c)(2)(B).
25
5 U.S.C. § 552.
26
8 C.F.R. § 103.21.
27
See Public Citizen v. United States Department of Justice, 491 U.S.
440, 466 (1989) (“It has long been an axiom of statutory interpretation that
where an otherwise acceptable construction of a statute would raise seri-
ous constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the intent of
Congress.”) (quotation omitted).
 DENT v. HOLDER 18467
access” statute to provide a rule for removal proceedings, and
the regulation to apply generally in the absence of such a
more specific rule.28 It would indeed be unconstitutional if the
law entitled an alien in removal proceedings to his A-file, but
denied him access to it until it was too late to use it. That
would unreasonably impute to Congress and the agency a
Kafkaesque sense of humor about aliens’ rights. Prejudice
here is plain, because the A-file, when it is fully examined
and this case adjudicated on all the facts, may show that Dent
is a naturalized citizen of the United States.

[8] We conclude that Dent, having asked for help in get-
ting what records the agency had that bore on his case, should
have been given access to his file. The only practical way to
give an alien access is to furnish him with a copy. We do not
imply that Dent’s request for help getting records was a nec-
essary precondition to the government’s obligation, nor do we
imply that the government would have no obligation if Dent
had not asked, because those cases are not before us. We are
unable to imagine a good reason for not producing the A-file
routinely without a request, but another case may address that
issue when facts call for it.

The government argues that we ought to defer to the
agency interpretation in Matter of Duran29 for the proposition
that the right to access to records is conditioned on following
the procedure in the regulations, filing a FOIA request. We
need not decide whether to defer to Duran because, first, it
addressed discretionary 212(c) relief, not removal, and sec-
28
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001)
(“ ‘[W]here general words follow specific words in a statutory enumera-
tion, the general words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words.’ ”)
(quoting 2A Norman J. Singer, Sutherland-Statutory Construction § 47.17
(1991)).
29
20 I. & N. Dec. 1, 1989 WL 331857 (B.I.A. 1989).
18468 DENT v. HOLDER
ond, it came down before Congress promulgated the “shall
have access” statute,30 so Duran did not address the statute.31

C. Transfer to the district court

Ordinarily, upon deciding that an alien was denied a fair
hearing in his removal proceeding, we would remand to the
BIA so that he could get a fair hearing. In this case, though,
Dent’s claim is and has been that he is a naturalized citizen
of the United States.

[9] The statute governing judicial review of orders of
removal provides that if the petitioner claims to be a national
of the United States, then the court of appeals should decide
whether he is, in the absence of any genuine issue of material
fact, or should transfer the case to the district court if there is
a genuine issue of material fact.32 Dent claims that he is a
30
8 U.S.C. § 1229a(c)(2)(B).
31
Dent argues that the naturalization statute violates the Equal Protec-
tion Clause because it draws an irrational distinction between children
adopted by natural born citizens and children adopted by naturalized citi-
zens. We need not address this argument, or whether it is precluded by
Miller v. Albright, 523 U.S. 420 (1998), and Fiallo v. Bell, 430 U.S. 787
(1977), because there has as yet been no decision on whether Dent is a cit-
izen of the United States. Dent also argues that his escape offense is not
an aggravated felony. We need not address this argument because if he is
a citizen, he cannot be deported even if he did commit an aggravated fel-
ony.
32
8 U.S.C. § 1252(b)(5), which provides:
(5) Treatment of nationality claims
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United
States and the court of appeals finds from the pleadings
and affidavits that no genuine issue of material fact about
the petitioner’s nationality is presented, the court shall
decide the nationality claim.
(B) Transfer if issue of fact
 DENT v. HOLDER 18469
United States citizen. That means we cannot remand Dent’s
case to the BIA.

[10] This case presents a genuine issue of material fact.
The government claims that the handwritten notations and the
illegible photocopy of a possibly illegible rubber stamp prove
that Dent is not a citizen. We cannot confidently decide what
the notations and rubber stamp say. Nor can we decide who
put them there. Nor can we decide, in the absence of evi-
dence, whether, even if they say what the government claims
they say, and were put there by duly authorized officials of
the appropriate agencies, they have conclusive effect. We do
not know whether such notations amount to denials of natu-
ralization petitions. For all we know, the government lacks
authority to sit on an application to naturalize a fourteen year
old until after he is eighteen and has aged out, or to sit on
applications for naturalization for 23 or 27 years.

[11] Accordingly, we transfer the proceedings to the
United States District Court for the District of Arizona “for a
new hearing on [his] nationality claim and a decision on that
claim as if an action had been brought” for declaratory relief
under 28 U.S.C. § 2201.33 If the district court determines that
Dent is not a citizen of the United States, then the case should
be remanded to the BIA for a new hearing after production of
the A-file in full, unless its production has already been
ordered by the district court.

If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine issue
of material fact about the petitioner’s nationality is pre-
sented, the court shall transfer the proceeding to the dis-
trict court of the United States for the judicial district in
which the petitioner resides 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.
33
See 8 U.S.C. § 1252(b)(5)(B).
18470 DENT v. HOLDER
The BIA decision is VACATED and the proceedings
TRANSFERRED to the district court.