Wednesday, November 20, 2013

A Different View on how Mondaca-Vega Should be Decided

Earlier this week on our blog, Timothy Dugdale made light of the facts in two cases involving individuals who face removal because federal courts have not recognized their citizenship claims.  First, let’s not forget that if you represent removal clients or speak with attorneys who represent removal clients regularly, it’s very common to find that ICE institutes proceedings against U.S citizens in error. In fact, ICE has deported U.S. citizens and in those cases that have been unearthed, DHS has had to pay millions in damages—and that’s just on the cases that have been found out.

Second, Dugdale claims that in one case currently awaiting en banc proceedings at the Ninth Circuit, Mondaca-Vega (2013), the “evidenciary [sic] hearing in district court was damning.” But there are two sides to that story. In the 2-1 panel decision in that case, the majority failed to recognize that the exercise of independent review in citizenship cases plays a crucial role in assuring that the government's heavy burden of proof has been met. After the bench trial, the district court ruled that Petitioner had carried his initial burden of proving citizenship by a preponderance of the evidence, because the government had determined that his wife and foreign-born children were entitled to derivative adjustment of status and citizenship through him and because the Secretary of State had issued him a passport. Then the court shifted the burden to the government to rebut Petitioner's claim of citizenship by “clear and convincing” evidence that the foregoing determinations of citizenship were a product of fraud or error.

The majority gave short shrift to the policies that underlay the government's burden of proof and the Supreme Court's formulation of that burden for citizenship cases. Because of “grave consequences to the citizen,” to revoke his or her citizenship “the evidence must indeed be ‘clear, unequivocal, and convincing’ and not leave ‘the issue in doubt.’ ” Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960). As the dissent by Judge Harry Pregerson aptly noted, the Ninth Circuit precedent accordingly holds that when citizenship is at stake, “[we] must make an independent determination as to whether the evidence introduced by the [government] was ‘clear, unequivocal, and convincing.’ ” Lim, 431 F.2d 197, 199 (9th Cir.1970). The majority failed to give due consideration to the over seventy years of unbroken precedents from the Supreme Court in citizenship cases. Time and time again, the Supreme Court has emphasized the preciousness and importance of citizenship and the crucial role of an appellate court's independent review.

Rather than “damning,” the facts were clearly on Petitioner’s side. Although born in California, Petitioner's parents took him back to Mexico, where he grew up in El Fuerte, Sinaloa, Mexico. Petitioner did not learn to speak English, only Spanish. In Mexico, Petitioner worked with his parents as a farmer. When Petitioner was around 20 years old, he came back to the United States for the first time. In the United States, Petitioner worked in the fields, primarily with people from Mexico. Petitioner then returned to Mexico. He learned that he was a U.S. citizen when he was given his birth certificate by his mother. Petitioner used his birth certificate to come back to the United States.

The district court speculated that when Petitioner was detained by INS decades earlier, Petitioner always had his birth certificate, and that Petitioner's failure to identify himself as Reynaldo Mondaca was “inexplicable.” The district court seemed to believe that this is contrary to how an American citizen would act. But Petitioner, who does not speak English, stated he used an alias when he did not have his birth certificate and U.S. passport with him to show his United States citizenship.

The district court speculated that Petitioner began using the name Reynaldo Mondaca because of his marriage and his desire to obtain benefits. Not only is this finding not supported by the record, but the evidence demonstrates that Petitioner used his name Reynaldo Mondaca in 1953, almost twenty years prior to his marriage, when he applied for a social security card.

The district court's erroneous findings are numerous and central to its conclusion that the government proved its case. The government clearly did not satisfy its burden to prove by clear, unequivocal, and convincing evidence that Petitioner is Salvador Mondaca–Vega, a Mexican citizen. By not satisfying that burden, the obvious conclusion is that the Petitioner is who he claims to be, an American citizen, Reynaldo Mondaca.  Hopefully, the en banc panel of the Ninth Circuit will agree.


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