NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTEBAN TIZNADO-REYNA, No. 13-72690

Petitioner, Agency No. A090-219-302

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 7, 2019 Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

An immigration judge (“IJ”) ordered Esteban Tiznado-Reyna removed,

rejecting his claim of derivative United States citizenship. After the Board of

Immigration Appeals dismissed Tiznado’s appeal, he filed this petition for review.

Pursuant to 8 U.S.C. § 1252(b)(5)(B), we transferred the proceedings to the district

court for a de novo nationality determination. The only disputed factual issue was

whether Tiznado’s father was born in this country, which the government agrees

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under the facts of this case would have entitled Tiznado to derivative citizenship.

See 8 U.S.C. §§ 1401(g), 1409(a). After a trial based almost entirely on

documentary evidence, the district court found that Tiznado had not produced

“substantial credible evidence” that his father was born in the United States. In light

of the district court’s factual findings, we deny the petition for review.

1. In a § 1252(b)(5)(B) proceeding, if “the government offers evidence of

foreign birth, a ‘rebuttable presumption of alienage’ arises, ‘shifting the burden to

the [alleged citizen] to prove citizenship.’” Mondaca-Vega v. Lynch, 808 F.3d 413,

419 (9th Cir. 2015) (en banc) (alteration in original) (quoting Chau v. INS, 247 F.3d

1026, 1029 n.5 (9th Cir. 2001)). “Upon production by a petitioner of ‘substantial

credible evidence’ of the citizenship claim, this presumption bursts and the burden

shifts back to the government to ‘prov[e] the respondent removable by clear and

convincing evidence.’” Id. (alteration in original) (quoting Ayala-Villanueva v.

Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)).

2. The district court found that Tiznado did not produce credible evidence

that his father was born in the United States. Tiznado claims that the district court

erred at the second step of the Mondaca-Vega analysis, arguing that the term

“substantial credible evidence” describes only a burden of production, satisfied by

producing evidence that, taken in light most favorable to the petitioner, is sufficient

to survive a motion for summary judgment. We disagree.

2 3. A remand for the district court to engage in a de novo determination of

nationality occurs only after “the court of appeals finds that a genuine issue of

material fact about the petitioner’s nationality is presented.” 8 U.S.C.

§ 1252(b)(5)(B). Thus, the proceedings in the district court necessarily began from

the premise that Tiznado had presented sufficient evidence to avoid summary

judgment on the nationality issue. See Fed. R. Civ. P. 56(a) (authorizing summary

judgment only if “there is no genuine dispute as to any material fact”); 8 U.S.C.

§ 1252(b)(5)(A) (“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.”).

4. Mondaca-Vega emphasized that if foreign birth is established, a petitioner

must come forth with “credible” evidence in support of a claim of United States

nationality. 808 F.3d at 419. The term “credible” necessarily describes a burden of

persuasion, not production. Because a district court must, in considering summary

judgment, view the submitted evidence in the light most favorable to the non-moving

party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the use of the

word “credible” in Mondaca-Vega is inconsistent with a summary judgment

standard. Rather, it describes a burden of persuasion, because the only purpose of

the remand is to allow the district court to assess the weight of evidence on the issue

3 of citizenship, a process that necessarily involves credibility determinations. See

Mondaca-Vega, 808 F.3d at 427. The district court did not clearly err in that

assessment here. Id. at 428 (noting that “the clear error standard ‘does not vest[] us

with power to reweigh the evidence presented at trial in an attempt to assess which

items should and which should not have been accorded credibility’”) (alteration in

original) (quoting Cataphote Corp. v. De Soto Chem. Coatings, Inc., 356 F.2d 24,

26 (9th Cir. 1966)).

5. The district court did not absolve the government of its ultimate burden to

prove non-citizenship by “clear, unequivocal, and convincing evidence.” Id. at 419.

The record here, which included not only the uncontested fact of Tiznado’s foreign

birth, but also other evidence establishing that his father was born in Mexico,

satisfied that standard. See Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 n.2 (9th

Cir. 1984) (noting that for a presumption of alienage to arise, “the government must

first present ‘clear, convincing, and unequivocal’ evidence of foreign birth”).

PETITION DENIED.

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