Jessica Garcia v. Eric Holder, Jr.

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NOT FOR PUBLICATION MAR 19 2012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.

-1- 605, 608 (9th Cir. 1995). We grant the petition and remand. Because the parties

are familiar with the record, we recount the facts only…

MEMORANDUM **

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 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 .

*469 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,…

dissenting:

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…