Javier Alcarez-Garcia, AKA Garcia Javier Alcarez v. John Ashcroft, Attorney General

dissenting:

Petitioner had the burden of showing that his father had established residence in the United States for 10 years before petitioner’s birth. 8 U.S.C. § 601 (g) (1940). The Supreme Court has held that “residence” nieans “place of general abode” or “principal* dwelling place.” Savorgnan v. United States, 338 U.S. 491, 505-06 , 70 S.Ct. 292 , 94 L.Ed. 287 (1950). The question is whether petitioner has presented sufficient evidence that near the beginning of the 9 years in question — 1943 to 1952— the father had moved his principal dwelling place from Mexico to the United States.

The evidence supporting petitioner’s claim is highly inconclusive. Petitioner’s mother testified that during the years in question, her husband came to the United States during the cotton-growing season “to harvest cotton.” Tr. at 28. The mother did not know the location of her husband’s employment or the name of the employer. Nor did petitioner’s mother testify that the father had an established job *1159 that was held open for his return from year to year. Petitioner offered no income tax records, no utility bills, no letters addressed to his father in the United States and no other evidence…

Opinion by Judge CYNTHIA HOLCOMB HALL; Dissent by Judge Kozinski.

OPINION

This case requires us to determine whether an individual who was physically present and working in the United States for 9 months out of the year for 8 years out of a 9-year period established resi *1156 dence for that 9-year time period under section 201 -of the Nationality Act of 1940, 8 U.S.C. § 601 (g) (1940). We conclude that he did, grant his petition, for review, and remand to the Board of Immigration Appeals (“BIA”).

I. FACTS AND PROCEEDINGS BELOW

A. Background

Petitioner Javier Alcarez-Garcia was born in Mexico on December 6, 1952. Petitioner’s mother is a native and citizen of Mexico. Petitioner’s father, Crescencio Alcarez, was born in Texas on September 15, 1920, and was a United States citizen. He married Petitioner’s mother in 1942. Petitioner’s father died in 1988.

Petitioner’s father lived in the United States for 2 years from 1920 to 1922, at which'time his parents moved to Mexico. In 1943, Petitioner’s father obtained employment on a farm in Texas. Petitioner’s father worked on the same farm in the United States from 1943-1952, generally living 9 months (March-November) each of these…

293 F.3d 1155 Javier ALCAREZ-GARCIA, aka Garcia Javier Alcarez, Petitioner, v. John ASHCROFT, Attorney General, * Respondent. No. 00-70635. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 6, 2001 — Pasadena, California. Filed June 20, 2002. Mathew L. Millen, Los Angeles, CA, for the petitioner. Regina Byrd and Anh-Thu P. Mai, United States Department of Justice, Civil Division, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before CYNTHIA HOLCOMB HALL, KOZINSKI and W. FLETCHER, Circuit Judges. Opinion by Judge CYNTHIA HOLCOMB HALL; Dissent by Judge Kozinski. OPINION CYNTHIA HOLCOMB HALL, Circuit Judge. 1 This case requires us to determine whether an individual who was physically present and working in the United States for 9 months out of the year for 8 years out of a 9-year period established residence for that 9-year time period under section 201 of the Nationality Act of 1940, 8 U.S.C. § 601 (g) (1940). We conclude that he did, grant his petition for review, and remand to the Board of Immigration Appeals ("BIA"). I. FACTS AND PROCEEDINGS BELOW A. Background 2 Petitioner Javier…