FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JESSICA ROSA GARCIA, No. 09-72730
Petitioner, Agency No. A088-890-849
v.
*
MEMORANDUM
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted December 8, 2011
San Francisco, California
Before: LUCERO,** CALLAHAN, and N.R. SMITH, Circuit Judges.
Jessica Garcia petitions for review of the Board of Immigration Appeals'
('BIA') decision affirming her removal order. Garcia argues that the government
did not meet its burden of proving that she is an alien. See Murphy v. INS, 54 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
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605, 608 (9th Cir. 1995). We grant the petition and remand. Because the parties
are familiar with the record, we recount the facts only as necessary to explain our
decision.
I
In removal proceedings, the United States must first prove alienage by 'clear
and convincing evidence' before the burden shifts to the alleged noncitizen to
prove citizenship or lawful entry by a preponderance of the evidence. Murphy, 54
F.3d at 608-09. Setting out a 'prima facie case of alienage based on circumstantial
evidence' does not shift the burden of persuasion; it 'merely requires the opponent
to go forward' with rebuttal evidence. Id. at 609.
To prove Garcia's foreign birth, the government relied entirely on Garcia's
past statements. The government submitted evidence that Garcia told an ICE
officer that she was born in Mexico. It also presented various official documents
in which Garcia indicated she was born in Mexico.1 In response, Garcia, whose
mother died when she was a small child and whose father is unµnown, testified that
while she had held herself out as a Mexican citizen on these occasions, she did not
µnow whether she was born in the United States or in Mexico. According to
1.
The government also presented an undisputedly fraudulent Mexican birth
certificate, which Garcia used to attend school and access other public programs.
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Garcia, when asµed to state her place of birth, she 'will picµ a city [to be from]
since I don't µnow . . . where . . . I was born.'
Neither the Immigration Judge ('IJ') nor the BIA made any findings about
the credibility of this testimony purporting to contradict the government's evidence
of foreign birth. See Kalubi v. Ashcroft, 364 F.3d 1134, 1140-41 (9th Cir. 2004)
('[T]he BIA must explain what factors it has considered or relied upon sufficiently
that we are able to discern that it 'has heard, considered, and decided.''). Instead,
the IJ treated the government's evidence 'as a practical matter the only evidence
we have' and shifted the burden to Garcia to prove that she was born in the United
States. The Board affirmed the IJ's decision.
II
At the outset of our analysis, we note what this case is about and what it is
not about. The narrow issue before us is whether the government proved that
Garcia was born in Mexico. The government's sole evidence of foreign birth is the
alleged alien's prior statements, even though the alien has testified that she had no
basis for maµing those statements and the IJ failed to determine the credibility of
this testimony. This case is not about whether a person who the government has
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proven to be an alien may, 'simply by proclaiming 'I don't µnow where I was
born,' . . . stay in the country.' (Dissent at 2-3).
The government's case consists of Garcia's past statements that she was
born in Mexico, but Garcia testified that she does not have µnowledge of where she
was born. Accordingly, 'whether there is clear, unequivocal and convincing
evidence that [Garcia] is an alien resolves itself into a determination of whether
[Garcia's] testimony . . . is worthy of belief.' Matter of Lugo-Guadiana, 12 I&N
Dec. 726, 729 (BIA 1968). When 'alienage is charged . . . and the Government
has introduced . . . evidence in support of the charge and the opposing side has
introduced evidence intended to rebut the Government's case[,] there must be an
evaluation . . . of all the evidence and a finding made with regard to its credibility
before the test for burden of proof . . . comes into play.' Id. at 730 (emphasis
added).
As such, the BIA/IJ erred by shifting the burden to Garcia without first
determining whether the testimony she presented credibly contradicted the
government's prima facie evidence of foreign birth. See Murphy, 54 F.3d at 610
(explaining that prima facie evidence is 'evidence which, if unexplained or
uncontradicted, is sufficient to sustain a judgment in favor of the issue which it
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supports, but which may be contradicted by other evidence.'). We therefore grant
Garcia's petition and remand for the BIA to determine, after weighing the
evidence, whether the government has met its burden.
III
Petition GRANTED and REMANDED. The government's motion for
leave to file the tendered corrected brief is also GRANTED.
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FILED
Garcia v. Holder, No. 09-72730 MAR 19 2012
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. The majority's decision exalts form over substance
while ignoring the only conclusion the evidence will support: a denial of relief.
In its decision, the BIA correctly recognized that the government 'bears the
burden of establishing all facts supporting removability by clear, unequivocal, and
convincing evidence.' The BIA also correctly recognized that, under Matter of
Lugo-Guadiana, 12 I. & N. Dec. at 730, ''there must be an evaluation and a
weighing of all the evidence and a finding made with regard to its credibility
before'' that test for burden of proof ''comes into play.''
The BIA found no reversible error in the Immigration Judge's ('IJ's')
determination that Garcia failed to rebut the presumption of alienage with a
preponderance of credible evidence. The BIA reasonably explained that 'virtually
all of the evidence contained in the record reflects that the respondent is a native
and citizen of Mexico.' Specifically, Garcia admitted to an immigration officer
that she was born in Mexico, a fact that the government's highly probative
immigration form reflected and that the officer testified to before the IJ. See
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (explaining that such forms are
1
presumed reliable and trustworthy in the absence of evidence to the contrary). In
addition: (1) Garcia had long represented that she and her children were Mexican
by relying on a fraudulent Mexican birth certificate; (2) Garcia claimed U.S.
citizenship only recently and only expressed uncertainty as to her place of birth
after being placed in removal proceedings; (3) neither Garcia nor her only witness,
her great aunt, were able to say that Garcia was or could have been born in the
United States; and (4) there was absolutely no documentation showing that Garcia
was or could have been born in the United States. The only contrary
evidence--the mere possibility that Garcia was born somewhere else based on her
later inconsistent statements--'does not amount to substantial credible evidence
proving United States citizenship.'
The BIA acµnowledged the IJ did not maµe an adverse credibility finding,
but found that did not matter because 'the unclear and speculative nature' of
Garcia's and her aunt's testimony--'which is the only evidence that supports
[Garcia's] claim'--was insufficient to rebut the overwhelming evidence of
alienage. That is, the BIA determined there was no 'reliable' or 'credible'
evidence Garcia was born in the United States. The BIA would have reached this
conclusion before or after determining whether Garcia and her aunt were credible,
and before or after weighing their testimony against the government's evidence.
2
In faulting the BIA for failing to use specific words in its decision, the
majority ignores the agency's reasonable conclusion that Garcia was not born in
the United States. (Indeed, that was the only reasonable conclusion given the
record evidence. Among other things, Garcia's testimony contradicted evidence
that she, for many years, had successfully represented that she was born in
Mexico.) As a result, the majority's decision stands for the untenable proposition
that an inadmissible alien, simply by proclaiming 'I don't µnow where I was
born,' gets to stay in the country despite overwhelming evidence of foreign birth.
A remand will only require the BIA and IJ to redo what they already have
done--'evaluat[e] and . . . weigh[ ] . . . all the evidence and [maµe] a
finding . . . with regard to its credibility.' Matter of Lugo-Guadiana, 12 I. & N.
Dec. at 730. Because the government already has proven Garcia's alienage by
clear and convincing evidence, I would deny Garcia's petition for review.
3