Salvador Rivera v. John Ashcroft, Attorney General Immigration and Naturalization Service

Salvador Rivera, a.k.a. Salvador Galvan-Gaspar, (hereinafter “Rivera”) appeals the District Court’s denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. Rivera alleges that he is a United States citizen who was wrongly removed to Mexico, that his Due Process rights were violated during removal proceedings before Immigration Judge Anna Ho, and that he is entitled to a declaration by the District Court that he is a United States citizen. We find that the District Court has jurisdiction to hear Rivera’s citizenship claim and remand for further proceedings.

FACTUAL BACKGROUND 1

Salvador Rivera was born at University North Hospital in Portland, Oregon, on January 20, 1979, to Logino Rivera and Eloísa Gaspar (now Eloísa Galvan). Approximately one month after Rivera’s birth, Eloísa obtained a certified copy of her son’s birth certificate. When Rivera was approximately three months old, Eloí-sa and Logino were having “personal problems,” so Eloísa took Rivera with her to Mexico. Eloísa and Rivera returned to the United States with Eloisa’s new husband in November 1989 when Rivera was nearly eleven years old. A few years later, Eloísa left Rivera in the United States…

dissenting.

My colleagues, in a rush to correct what they perceive as an injustice, implicitly decide what has yet to be determined— Rivera’s citizenship — and, reasoning backward from that determination, create jurisdiction in the district court where none had previously existed. I dissent because their approach conflicts with our prior opinions and is not sound.

Whatever the shortcomings of the Immigration and Naturalization Service (“INS”) and the Immigration Judge (“IJ”), Rivera’s predicament is of his own making. Rivera, by his own admissions, at the age of eighteen decided to develop an alias. He purchased a Mexican birth certificate and used that to apply for a Washington State driver’s license and identification card. When he was arrested in January 1998, by a Border Patrol agent, rather than face jail or imprisonment due to his outstanding warrants, he presented himself as a Mexican citizen and accepted deportation to Mexico. When he was again arrested in the United States in December 2000, Rivera changed his tune and told the Border Patrol agents that he was a United States citizen.

The government, understandably leery of his representations, commenced removal…

394 F.3d 1129 Salvador RIVERA, Plaintiff-Appellant, v. John ASHCROFT, Attorney General; Immigration and Naturalization Service, Defendants-Appellees. No. 03-35548. United States Court of Appeals, Ninth Circuit. Submitted June 7, 2004. * Filed October 18, 2004. Amended January 7, 2005. Cheryl M. Nance, Bell, Flegenheimer & Nance, Seattle, WA; Karen L. Gilbert, for the plaintiff-appellant. Kirsten M. Schimpff, United States Attorney's Office, Seattle, WA, for the defendants-appellees. Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-03-00634-TSZ. Before PREGERSON, FERGUSON, and CALLAHAN, Circuit Judges. FERGUSON, Circuit Judge. 1 Salvador Rivera, a.k.a. Salvador Galvan-Gaspar, (hereinafter "Rivera") appeals the District Court's denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. Rivera alleges that he is a United States citizen who was wrongly removed to Mexico, that his Due Process rights were violated during removal proceedings before Immigration Judge Anna Ho, and that he is entitled to a declaration by the District Court that he is a United States citizen. We…