1 sere ye comer 2 3 9/9/2020

CENTRAL DISTRICT OF CALIFORNIA

4 BY: CW DEPUTY 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAVIER DE SANTIAGO-PEREZ, ) Case No. CV 17-3790-CUC (JPR) ) 12 Petitioner, ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF U.S. 13 Vv. ) MAGISTRATE JUDGE ) 14 WILLIAM BARR, Attorney ) General, et al., } ) 15 Respondents. } ——S—C—C—CSC—S 17 The Court has reviewed the records on file and Report and 18 || Recommendation of U.S. Magistrate Judge, which recommends that 19 || Respondents’ summary-judgment motion be granted. See 28 U.S.C. 20 1 § 636(b)(1). On August 13, 2020, Petitioner filed objections to R. & R.? on August 27, Respondents filed a response. 22 Petitioner claims that the Magistrate Judge “stepped outside 23 | [her] prescribed role” by weighing the evidence and concluding 24 || herself that he did not prove his derivative-citizenship claim by 25 | substantial credible evidence “rather than finding that no 26 || reasonable factfinder could come to th[at] conclusion.” (Objs. 1.) But the Magistrate Judge applied the correct summary- 28 || judgment standard (see R. & R. at 3 (noting that court must grant

1 summary judgment when no genuine dispute exists as to any 2 material fact and that dispute is genuine only if based on it “a 3 reasonable jury could find for the nonmoving party”)), and she 4 did not make any credibility determinations or factual findings 5 (see Objs. at 6-8). Rather, she thoroughly reviewed the record, 6 making all reasonable inferences in his favor, to determine 7 whether a reasonable factfinder could find based on substantial 8 credible evidence that Petitioner’s U.S.-citizen father was in 9 the United States for the period required by 8 U.S.C. 10 § 1401(a)(7) (1965) (recodified in 1978 as § 1401(g)). (See 11 generally R. & R. at 9-19.) 12 As the Magistrate Judge found, Petitioner failed to produce 13 substantial credible evidence that his father, Cesario de 14 Santiago, was present in the United States for the necessary five 15 years between Cesario’s 14th birthday, on December 9, 1942, and 16 Petitioner’s birth, on September 13, 1965. (See R. & R. at 13- 17 19.) Petitioner claims the Magistrate Judge improperly “declined 18 to credit testimony . . . that Cesario went to the United States 19 ‘seven or eight times’” on bracero trips that lasted as long as 20 three months. (Objs. at 2; see id. at 4, 9-11, & n.1.) But as 21 she correctly recognized, “even if Petitioner’s calculation that 22 Cesario spent a total of three years working as a bracero in the 23 United States is credited, he can’t establish that Cesario spent 24 two additional years here before Petitioner was born.” (R. & R. 25 at 16.) 26 Petitioner originally argued that Cesario was physically 27 present in the United States for an additional 32 months between 28 January 1, 1963, and September 13, 1965, when he commuted to work 2 1 from Tijuana to California. (See Objs. at 11-13.) But his 2 original calculation to that effect erroneously included weekends 3 even though Antonia Suarez, Petitioner’s sister and the only 4 source of information on this topic, unequivocally testified that 5 Cesario stayed in Mexico on Saturdays and Sundays. (See Mot. 6 Summ. J., Ex. 29 at 78, 80, 84, 89, 91, 96.) He now concedes 7 that even assuming Cesario worked every single weekday during 8 that time, he would be 23 days shy of the two years needed. (See 9 Objs. at 2.) Although she accepted it (see R. & R. at 17), the 10 Magistrate Judge correctly pointed out that even that calculation 11 is overly “generous” because it credits Cesario with being 12 physically present in the United States for 24 hours each day he 13 worked despite Suarez’s undisputed testimony that he returned to 14 Tijuana each night after work (see id. (citing Mot. Summ. J., Ex. 15 29 at 89, 91, 96 & Lomeli v. Holder, No. CV-11-02340-PHX-NVW., 16 2013 WL 2152244, at *2 (D. Ariz, May 17, 2013) (counting hours 17 claimant was physically present in United States, not days)).1 18 Petitioner argues that a genuine issue of material fact 19 exists as to whether Cesario was physically present here for 20 those 23 additional days and that the Magistrate Judge 21 erroneously “declined to infer that Cesario spent . . . weekends 22 in the United States from 1963 to [September 13,] 1965,” from 23 evidence that he had “as many as two residences in the United 24 States . . . in the early-mid 1960s.” (Objs. at 2.) But 25 26 1 Thus, although Petitioner maintains throughout his objections that the Magistrate Judge improperly refused to infer 27 that he spent “nights” in the United States during the 1963 to 1965 period (see Objs. at 11, 12, & 13), she in fact did make that 28 inference in his favor despite its likely being unwarranted. 3 1 contrary to his assertion otherwise, there is no “documentary and 2 testimonial evidence that suggests Cesario spent nights and 3 weekends in the United States” during the relevant period. (Id. 4 at 11.) For instance, he claims that his 1962 temporary Social 5 Security card established that he had a residence in West Los 6 Angeles. (Id. at 12.) But as the Magistrate Judge pointed out, 7 that card was valid for only two weeks in early 1962 and 8 therefore was not evidence of any U.S. address between 1963 and 9 1965. (R. & R. at 18.) Moreover, Suarez testified that she 10 didn’t know if Cesario had ever actually lived at the address 11 listed on that card. (See Mot. Summ. J., Ex. 29 at 75-76.) 12 Finally, that Cesario may have lived at some address in the 13 United States for a brief period in 1962 would not be surprising 14 because the parties do not dispute that he lived and worked here 15 as a bracero during that period. Even Petitioner does not claim 16 that his father worked as a bracero in 1963. Thus, the 1962 17 address is not evidence at all of a 1963 residence, much less 18 substantial credible evidence. 19 For the first time, Petitioner identifies another potential 20 address where Cesario might have spent weekends and nights during 21 the relevant time period — a home he allegedly rented in 22 Huntington Beach. (See Objs. at 12.) He appears to be referring 23 to a statement by Suarez in her declaration that when she and her 24 mother and sister immigrated to the United States on November 14, 25 1966 — more than a year after the relevant period had ended — 26 Cesario was living and working in Huntington Beach and had 27 “rented a house there” for them to live in. (Opp’n, Ex. A ¶ 4; 28 see id. ¶ 9.) Notably, Suarez testified at her deposition that 4 1 the house Cesario had rented was actually in San Isidro, not 2 Huntington Beach. (See Mot. Summ. J., Ex. 29 at 82.) 3 Regardless, she expressly testified that her family rented it 4 “right after [they] immigrated” in November 1966 so that they 5 could “live there” while they “wait[ed] for . . . green card[s].” 6 (Id.)2 This is consistent with her statement in the declaration 7 that “[f]rom 1963 until November 14, 1966, my father drove from 8 Tijuana, Mexico, to Huntington Beach, California every weekday to 9 work.” (Opp’n, Ex. A ¶ 9.) Thus, at best the evidence shows 10 that Cesario had a place to spend nights and weekends in November 11 1966, more than a year after Petitioner was born, and does not 12 support any reasonable inference about his physical presence in 13 the United States between 1963 and September 1965. 14 Having reviewed de novo those portions of the R. & R. to 15 which Petitioner objects, the Court agrees with and accepts the 16 findings and recommendations of the Magistrate Judge. IT 17 THEREFORE IS ORDERED that Respondents’ summary-judgment motion is 18 granted, their motion concerning the use of deposition testimony 19 at an evidentiary hearing is denied as moot, and judgment be 20 entered in Respondents’ favor. 21 22 23 24 2 Petitioner argues that Suarez’s deposition testimony also showed that around that time Cesario began living in the United 25 States and would “come down” to Tijuana to give the family money. 26 (Objs. at 12.) But that was not her testimony. Rather, she explained that “during the time [they] were waiting for [their] 27 green card[s]” — which was after they had already moved to the United States — Cesario would “come down to where [they] were” from 28 Huntington Beach. (Mot. Summ. J., Ex. 29 at 83; see id. at 82.) 5 1 The Clerk is directed to serve this order and the judgment 2 the Ninth Circuit Court of Appeals. 3 , patEp: September 9, 2020 Co Zé. Sy

CORMAC J. CARNEY

5 U.S. DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28