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3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 11 ANTONIO FERNANDO MELARA, Case No. EDCV 17-2275 JGB (SPx)

12 Petitioner, 13 v. FINDINGS OF FACT AND 14 ALEJANDRO MAYORKAS, Secretary of the CONCLUSIONS OF LAW 15 Department of Homeland Security, et al., 16 Respondents.

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27 1 This case was tried to the Court without a jury on July 16, 2021. Before trial, 2 both Petitioner and Respondent United States filed proposed findings of fact and 3 conclusions of law pursuant to Local Rule 52-1. (“Pr’s PFOF,” Dkt. No. 71; “US 4 PFOF,” Dkt. No. 72.) 5 At trial, the Court ordered supplemental briefing on the Petitioner’s burden 6 of proof. Petitioner submitted his brief on the subject on July 27, 2021. (“Pr’s 7 Supp. Br.,” Dkt. No. 79.) Respondent United States submitted its brief on July 30, 8 2021. (“U.S. Supp. Br.,” Dkt. No. 80.) The United States also submitted a 9 closing brief on August 9, 2021, supported by proposed findings of fact and 10 conclusions of law. (“US Br.,” Dkt. No. 81; “Final US PFOF,” Dkt. No. 81-1.) 11 Petitioner Melara did not file a closing brief. 12 The Court, having considered all the evidence presented by the parties, the 13 written submissions from both sides, the pretrial conference stipulated findings of 14 fact, and the argument of counsel, issues the following Findings of Fact and 15 Conclusions of Law pursuant to Federal Rule of Civil Procedure 52. 16

17 18 I. FINDINGS OF FACT 19 20 1. Petitioner Antonio Fernando Melara is a citizen of El Salvador. (“PTCO 21 Stip.,” Dkt. No. 73 ¶ 1.) He was born in 1959 and grew up in a suburb of San 22 Salvador, El Salvador, with his mother and maternal grandparents. (Id. ¶¶ 4, 23 6, 9.) Petitioner has never been confused about the date of his birth, and he 24 assumes that he is a native and citizen of El Salvador based, at least in part, 25 on the copies of a birth certificate he obtained from El Salvador in 1997 or 26 1998 and 2018 and because his mother was born there. (Id. ¶¶ 3, 5.) 27 Petitioner’s El Salvadoran birth certificate states that both of his parents 1 2. Petitioner’s parents were never married. (Id. ¶ 2.) His mother was born and 2 grew up in El Salvador; she was not a U.S. citizen. (Id. ¶ 8.) Plaintiff has 3 never met his father. (Id. ¶ 10.) 4 3. Petitioner has met his paternal grandmother, Francesca Cerna. (Id. ¶ 61.) 5 When Petitioner was young, Francesca Cerna told him that he had been born 6 in Puerto Rico. (Id.) 7 4. Petitioner had a passport issued by El Salvador by the time he was 16 or 17. 8 (Id. ¶ 17.) In order to receive this passport, Petitioner presented his El 9 Salvador birth certificate. (Id. ¶ 19.) This El Salvador passport was 10 legitimate, and Petitioner believed it to be legitimate. (Id. ¶ 18.) 11 5. Prior to 1979, Petitioner had gone back and forth between El Salvador and 12 the United States a number of times. (Id. ¶ 23.) On these trips, he entered 13 the United States by saying he was a U.S. citizen. (Id. ¶ 24.) 14 6. On or around July 23, 1979, Petitioner entered the United States without 15 inspection near San Luis, Arizona. (Id. ¶ 26.) He was then 20 years old. 16 (Id. ¶ 4.) On July 24, 1979, Petitioner was apprehended by United States 17 Border Patrol agents near Yuma, Arizona. (Id. ¶ 28.) Plaintiff told officers 18 he was a native of El Salvador; deportation proceedings were initiated. (Id. ¶ 19 30.) While Plaintiff was in deportation proceedings, he did not tell anyone 20 he thought he was a U.S. Citizen. (Id. ¶ 31.) Petitioner did not tell anyone 21 he was unsure of where he was born at any time on or between July 24, 1979 22 and August 10, 1979. (Id. ¶ 32.) Petitioner was deported from the United 23 States to El Salvador on August 10, 1979. (Id. ¶ 29.) This was the only time 24 Petitioner was ever deported from the United States. (Id.) 25 7. After Petitioner was deported from the United States—sometime between 26 1979 and 1986—Ms. Cerna gave Petitioner a Puerto Rican birth certificate 27 which stated he was born in Puerto Rico. (Id. ¶ 62; Petitioner’s Trial 1 Testimony.) Ms. Cerna told Petitioner she was giving him the Puerto Rican 2 birth certificate because she did not want him to be deported again. (PTCO 3 Stip. ¶ 63.) 4 8. Petitioner used the Puerto Rican birth certificate to obtain a U.S. Passport, 5 which was issued on April 18, 1986. (Id. ¶¶ 34-35.) Petitioner’s U.S. 6 Passport stated his place of birth is Puerto Rico, U.S.A. (Id.) Petitioner’s 7 U.S. Passport also stated his mother was born in Puerto Rico, which is 8 untrue. (Id. ¶ 36.) Petitioner used this passport to travel and entered the 9 United States multiple times using it. (Id. ¶ 38.) 10 9. From the mid-1980’s to 1992, Petitioner was a superintendent at Marketing 11 Data Systems in Orange, California, where he managed 100 employees on 12 average and ran the plant. (Id. ¶ 13.) Between 1992 and 1999, Petitioner 13 worked as a manager for a few different companies. (Id. ¶ 14.) While 14 working, Petitioner was also in school. (Id. ¶ 12.) Petitioner attended 15 Compton Community College for three years, from 1991-1994. (Id. ¶ 11.) 16 He took classes in computer science and management and received good 17 grades. (Id. ¶ 12.) 18 10. Petitioner registered to vote in U.S. elections in 1983 and 1994 and on April 19 13, 1999. (Id. ¶ 53.) When Petitioner registered to vote in U.S. elections in 20 1983, 1994 and 1999, he listed his place of birth as Ponce, Puerto Rico. (Id. ¶ 21 54.) Petitioner voted in U.S. elections because he believed he was a U.S. 22 citizen. (Id. ¶ 57.) 23 11. On March 9, 1989, Petitioner signed and submitted to the U.S. Post Office a 24 document entitled “Statement Regarding Lost or Stolen Passport.” (Exhibit 25 18-7.) On the “Statement Regarding Lost or Stolen Passport” that 26 Petitioner signed and submitted to the U.S. Post Office on March 9, 1989, 27 Petitioner stated he was born in Ponce, Puerto Rico on May 20, 1959. (Id.) 1 that someone broke into his car and stole his luggage, which contained his 2 U.S. Passport and other things. (Id.) 3 12. On March 9, 1989, Petitioner also signed under oath and submitted to the 4 U.S. Post Office an Application for a new U.S. Passport based on his report 5 of the theft of his U.S. Passport issued in 1986. (Exhibit 18-6.) On the 6 Application for a new U.S. Passport, Petitioner stated he was born in Ponce, 7 Puerto Rico on May 20, 1959. (Id.) On this Application, Petitioner also 8 stated his mother and father were born in Puerto Rico, but did not include 9 their dates of birth. (Id.) Petitioner presented his Puerto Rican birth 10 certificate with his Application for a new U.S. Passport on March 9, 1989. 11 (Id.) 12 13. A new U.S. Passport was not issued in response to Petitioner’s Application 13 for a new U.S. Passport that he signed and submitted to the U.S. Post Office 14 on March 9, 1989. (Exhibit 18-6.) After Petitioner unsuccessfully applied 15 for a new U.S. Passport in 1989, his original U.S. Passport was recovered, 16 and he used it to travel in and out of the United States on multiple occasions. 17 (Petitioner’s trial testimony.) Petitioner’s U.S. Passport expired April 17, 18 1996. (PTCO ¶ 37.) 19 14. On January 13 of either 1997 or 1998,1 Petitioner signed a G-325 Biographic 20 Information Form that states he and his parents were born in El Salvador. 21 (PTCO ¶ 44.)2 On this date, Petitioner had a social security number, but he 22 signed the form stating that he did not have a social security number. (Id. ¶¶ 23 45-46.) 24 25 26

27 1 The form is dated January 13, 1997, but it is possible this form was mis-dated. 1 15. Petitioner’s wife filed an I-130 Petition for Alien Relative (“I-130”) on 2 February 2, 1998. (Id. ¶ 40.)3 The I-130 states that Petitioner was born in 3 San Salvador, El Salvador. (Id. ¶ 42.) If Petitioner were a U.S. citizen, his 4 wife would not need to file an I-130. (Id. ¶ 41.) 5 16. Petitioner voted in the U.S. General Election on November 7, 2000. (Id. ¶ 6 55.) When he registered to vote in 1983, 1994, and 1999, he claimed to be a 7 U.S. citizen under penalty of perjury. (Id. ¶ 55.) Petitioner testified under 8 oath in this litigation that he voted in the U.S. because he believed he was a 9 U.S. citizen. (Id. ¶ 57.) He also testified under oath in this litigation that 10 when he voted in 2000, he did not know whether he had been born in Puerto 11 Rico or El Salvador. (Id. ¶ 58.) Petitioner’s belief that he was a U.S. citizen 12 at the time he voted in 2000 was based on his belief that he was born in 13 Puerto Rico. (Id. ¶ 59.) 14 17. On July 20, 2001, Petitioner filed a Form I-485 application to adjust his 15 status to lawful permanent resident. (Id. ¶ 47.) Petitioner’s Form I-485 16 application was submitted under 8 U.S.C. § 1255a (the “LIFE Legalization” 17 provisions). (Id. ¶ 51.) Petitioner did not file any waivers of grounds of 18 inadmissibility in connection with his Form I-485 application and therefore 19 did not obtain any waivers of the grounds of his inadmissibility. (Parada 20 Testimony.) 21 18. On August 31, 2004, Petitioner signed another G-325 Biographic 22 Information Form stating he and his mother were born in El Salvador, and 23 his father was born in Puerto Rico. (Pr’s PFOF Exh. 10.) 24 25

26 3 An I-130 is a form used by U.S. citizens or lawful permanent residents to establish their relationship to an eligible relative who wishes to come to or remain in the United States permanently and get a Permanent Resident Card (also called a Green 27 Card). Generally, once an I-130 is approved, the eligible relative may apply for an 1 19. Petitioner became a lawful permanent resident on January 3, 2005, through 2 late amnesty under immigrant classification W46. (Id. ¶ 48.) 3 20. Petitioner obtained his lawful permanent resident status based, at least in 4 part, on his representation and proof that he was born in El Salvador. (Id. ¶ 5 49.) 6 21. Petitioner’s mother died in Los Angeles in 2005 or 2006. (PTCO ¶ 67.) He 7 is not aware of anyone alive today who could corroborate where he was born. 8 (Id. ¶ 68.) Petitioner has never been to Puerto Rico and has no family who 9 lives in Puerto Rico. (Id. ¶¶ 69-71.) 10 22. Petitioner submitted a Form N-400 Application for Naturalization on 11 November 28, 2014 (“N-400”). (Id. ¶ 80.) Petitioner signed his N-400 on 12 April 6, 2015. (Id. ¶ 81.) Petitioner’s N-400 application states that his 13 mother was not a U.S. citizen, but his father is or was. (Id. ¶¶ 83-84.) 14 23. Question 1 on the N-400 asks, “Have you ever claimed to be a U.S. citizen 15 (in writing or any other way)? Petitioner responded “Yes.” (Exh. 4.) 16 24. Question 2 on the N-400 asks, “Have you ever registered to vote in any 17 Federal, State, or local election in the United States?” Petitioner responded 18 “Yes.” (Id.) 19 25. Question 3 on the N-400 asks, “Have you ever voted in any Federal, State, 20 or local election in the United States?” Petitioner responded “Yes.” (Id.) 21 26. Question 31 on the N-400 asks, “Have you ever given any U.S. 22 governmental official any information or documentation that was false, 23 fraudulent or misleading?” Petitioner responded “No.” (Id.) 24 27. Question 32 on the N-400 asks, “Have you ever lied to any U.S. 25 government official to gain entry or admission to the United States or to gain 26 immigration benefits while in the United States?” Petitioner responded 27 “No.” (Id.) 1 28. Question 33 on the N-400 asks, “Have you ever been removed, excluded, or 2 deported from the United States?” Petitioner responded “Yes.” (Id.) 3 29. During an interview Petitioner attended with U.S. Citizenship and 4 Immigration Services (“USCIS”) regarding his N-400 on April 6, 2015 5 (“First Interview”), Petitioner affirmed his responses, including that he had 6 never given any U.S. Government official any information or documentation 7 that was false, fraudulent or misleading, as well as that he had never lied to 8 any U.S. government official to gain entry or admission to the United States 9 or to gain immigration benefits while in the United States. (PTCO ¶ 89.) 10 30. During a second interview with a USCIS officer on September 14, 2015, 11 Petitioner stated to a USCIS officer that he was born on May 20, 1959 in El 12 Salvador. (Id. ¶ 90.) During interviews in his naturalization proceedings, 13 Petitioner contended that he had a good faith belief he was a U.S. citizen 14 when he voted in U.S. elections. (Id. ¶ 91.) 15 31. On November 28, 2016, USCIS issued a decision determining that 16 Petitioner was not eligible for naturalization because he had not been lawfully 17 admitted for permanent residence. (Id. ¶ 92.) On December 21, 2016, 18 Petitioner filed a Form N-336 Request for a Hearing on a Decision in 19 Naturalization. (Id. ¶ 93.) On August 31, 2017, USCIS issued a decision 20 affirming the denial of Petitioner’s N-400 on the grounds that his lawful 21 permanent residence status was unlawfully procured and that his false 22 representation to be a U.S. citizen shows he lacks good moral character. (Id. 23 ¶ 94.) 24 25 II. CONCLUSIONS OF LAW 26 27 1. A petitioner bears the burden of proof on all elements of naturalization in a 1 The petitioner must establish each element of naturalization by a 2 preponderance of the evidence. Id. (citing 8 C.F.R. § 316.2(b).) 3 2. No person has a right to naturalization “unless all statutory requirements are 4 complied with.” United States v. Ginsberg, 243 U.S. 472, 474-75 (1917); 5 Fedorenko v. United States, 449 U.S. 490, 506 (1981) (“There must be strict 6 compliance with all the congressionally imposed prerequisites to the 7 acquisition of citizenship.”) 8 3. To be eligible for naturalization, an applicant must establish, among other 9 things, that he has been “lawfully admitted to the United States for 10 permanent residence.” 8 U.S.C. §§ 1427(a), 1429. 11 4. The applicant bears the burden of proving that his admission was lawful. 8 12 U.S.C. § 1429. It is not enough for an applicant for U.S. citizenship to 13 simply show he or she has been granted lawful permanent resident (“LPR”) 14 status; an applicant must also prove he or she was granted LPR status in 15 substantive compliance with the immigration laws. Injeti v. USCIS, 737 F.3d 16 311, 316 (4th Cir. 2013). 17 5. If an applicant is found not to have complied with the substantive legal 18 requirements, he is deemed unlawfully admitted for permanent residence. 19 Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010) (holding that 20 someone who obtains permanent resident status does so unlawfully if later 21 proceedings reveal that he was in fact ineligible to obtain that status in the 22 first place). 23 6. To be lawfully admitted for permanent residence under INA 245A (8 U.S.C. 24 § 1255a), an applicant bears the burden of proving, among other 25 requirements, that he is admissible as an immigrant with certain exceptions 26 (not applicable here) as provided under the Act. INA § 245A(a)(4) (8 27 U.S.C. § 1255a(a)(4)). 1 7. An applicant is inadmissible to the United States if he has (a) fraudulently or 2 willfully misrepresented a material fact (8 U.S.C. § 1182(a)(6)(C)(i)); (b) 3 falsely claimed U.S. citizenship for any purpose or benefit under the INA or 4 any other Federal or State law (8 U.S.C. § 1182(a)(6)(C)(ii)); or (c) 5 unlawfully voted (8 U.S.C. § 1182(a)(10)(D)). 6 8. In contrast to fraud, “willful” misrepresentation under the INA does not 7 require intent to deceive; rather, an alien’s misrepresentation is “willful” if 8 the statement was deliberate and voluntary, and the alien had knowledge of 9 the statement’s falsity. Espinoza-Espinoza v. Immigration & Naturalization 10 Serv., 554 F.2d 921, 925 (9th Cir. 1977); United States v. Arango, 670 F.3d 11 988, 995 (9th Cir. 2012); Forbes v. I.N.S., 48 F.3d 439, 442 (9th Cir. 1995). 12 9. Only a misrepresentation of material fact makes an alien inadmissible. 13 Generally, a misrepresentation is material if it is “predictably capable of 14 affecting, i.e., ha[s] a natural tendency to affect, the official decision . . . 15 whether the applicant meets the requirements for citizenship.” Kungys v. 16 United States, 485 U.S. 759, 771-772 (1988). Put another way, the 17 materiality of a misrepresentation depends on “whether the 18 misrepresentation or concealment had a natural tendency to produce the 19 conclusion that the applicant was qualified.” Id. at 771-72. 20 10. Matter of Zhang, 27 I&N Dec. 569 (BIA 2019) is not entitled to deference by 21 this Court because it is a dramatic break with past agency interpretation, is in 22 conflict with the Department of State’s current interpretation of the false 23 claim to citizenship ground of inadmissibility, and is a break from Congress’s 24 clearly expressed intent. An agency’s interpretation of an unambiguous 25 statute receives no deference if the interpretation is not in line with 26 Congress’s clearly expressed intent. See, e.g., Valenzuela Gallardo v. Lynch, 27 818 F.3d 808, 815 (9th Cir. 2016). 1 11. Matter of Zhang takes a dramatic and unique approach to the knowledge 2 element out of the term “false claim to U.S. citizenship.” See, e.g., 3 Richmond v. Holder, 714 F.3d 725, 729 (2d Cir. 2013) (assuming without 4 deciding that false claim inadmissibility provision has knowledge element); 5 Muratoski v. Holder, 622 F.3d 824, 828 (7th Cir. 2010) (agency determined 6 that applicant lacked good moral character because he “knew or should have 7 known” that he was not a United States citizen at the time he made that 8 claim); Valdez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010) 9 (reasonable factfinder would not be compelled to disagree with agency’s 10 determination that applicant was inadmissible because he “intended to and 11 did make a false claim of United States citizenship”). 12 12. Petitioner was not inadmissible at the time of adjustment of status under 8 13 U.S.C. §1182(a)(6)(C)(i) for having made a material misrepresentation at the 14 time of applying for his U.S. passport by presenting a Puerto Rican birth 15 certificate because, at the time of the application, Petitioner believed his 16 Puerto Rican birth certificate to be genuine. Petitioner did not make a 17 misrepresentation deliberately or with notice of its falsity. See Espinoza- 18 Espinoza, 554 F.2d at 925. 19 13. Petitioner was not inadmissible at the time at the time of his adjustment for 20 false claims to U.S. citizenship under 8 U.S.C. §1182(a)(6)(C)(ii) due to 21 registering to vote in 1999 and voting in 2000. Prior to Petitioner registering 22 to vote in 1999, he had been issued a U.S. Passport. It was reasonable for 23 Petitioner to rely on his passport as evidence he was a U.S. citizen when he 24 registered to vote. See Magnuson v. Baker, 911 F.2d 330, 333 (9th Cir. 1990) 25 (citing 22 U.S.C. §2705). The 1996 rejection of Petitioner’s passport 26 renewal application was not a denial of citizenship. See Kelso v. U.S. Dep’t 27 of State, 13 F. Supp. 2d 1, 4 (D.D.C. 1998) (“to admit that passports are 1 evidence of citizenship is to say nothing about whether their revocation 2 implicates the fundamental right of citizenship.”) 3 14. Petitioner was not inadmissible at the time of his adjustment of statusfor 4 unlawful voting under 8 U.S.C. §1182(a)(10)(D) due to his voting in the 5 2000 general election. Petitioner was permitted to rely on the previously- 6 issued passport as evidence of U.S. citizenship. 7 15. Alternatively, Petitioner was not inadmissible under 8 U.S.C. 8 §1182(a)(10)(D) because he did not vote in violation of any identified 9 federal, state, or local constitutional provision, statute, ordinance, or 10 regulation. Petitioner did not violate 18 U.S.C. § 611(a) because he believed 11 himself to be a U.S. citizen at the time he voted. Cf. Matter of Fitzpatrick, 12 26 I&N Dec. 559 (BIA 2015). Additionally, Petitioner did not violate 13 California Election Code § 18560(a) because that statute requires him to 14 have known that he was not entitled to vote at the time he voted. See, e.g., 15 People v. Alarcon, 2016 WL 237124, *4 (CA. Ct. App. 2d Dist. Jan. 20, 16 2016) (unpub). As Petitioner believed himself to be a citizen at the time he 17 voted, he did not know that he was not entitled to vote, and therefore, did 18 not violate the California Election Code. 19 16. Petitioner has also established that he is a person of good moral character 20 and that he did not provide false testimony during his naturalization 21 interview. False testimony must be given with the subjective intent to obtain 22 immigration benefits. See Matter of Gomez-Beltran, 26 I&N Dec. 765, 767 23 (BIA 2016). “Willful misrepresentations made for other reasons, such as 24 embarrassment, fear, or a desire for privacy, were not deemed sufficiently 25 culpable to brand the applicant as someone who lacks good moral 26 character.” Kungys v. United States, 485 U.S. 759, 780 (1988). Petitioner 27 indicated during his interview that he had not previously given any 1 he claimed to be a U.S. citizen to officials, he believed himself to be a citizen. 2 Petitioner’s answers to the questions at his naturalization interview reflected 3 only a misunderstanding, and do not reflect any “subjective intent” to 4 mislead the naturalization officer. Cf. Gomez-Beltran, 26 I&N Dec. at 770. 5 17. In addition, Petitioner’s disclosure of his claims to U.S. citizenship on the N- 6 400 and during his interview constitute a timely retraction of any seemingly 7 false responses to Questions 31 and 32 of his naturalization application, and 8 do not qualify as false testimony which would preclude a finding of good 9 moral character. See id. at 769. 10 18. Petitioner has established all of the required elements for naturalization, 11 including that he was lawfully admitted to permanent residence for at least 12 five years; that he has been physically present in the United States for at least 13 half of the days in the last five years; that he has resided within California for 14 at least three months prior to the date of his application for naturalization; 15 that he has continuously resided within the United States since the time of 16 his application; and that he has been a person of good moral character for at 17 least five years. See 8 U.S.C. §1427(a). 18 19 III. DISCUSSION 20

21 Petitioner Antonio Fernando Melara grew up with contradictory stories: His 22 grandmother told him he had been born in Puerto Rico, and his mother, through 23 her silence, implied he had been born in El Salvador. Before he moved to the 24 United States, it did not really matter which story was true. Petitioner also 25 understood his mother and her family did not like to talk about his father, whom he 26 has never met. 27 1 Upon receiving a copy of a Puerto Rican birth certificate from his paternal 2 | grandmother, Petitioner developed a sincere, good faith belief that he was a United 3 | States citizen. Based on this belief, Petitioner enjoyed the privileges of United 4 | States citizenship—travel with a U.S. Passport and voting with the same. 5 After his U.S. Passport expired and he could not get a new one, Petitioner 6 began to realize the story his grandmother had told him was almost certainly not 7 | true. At this point, he likely also came to realize that his birth certificate from El 8 | Salvador was also incorrect, as it reports that his father was born in E] Salvador, not ? | Puerto Rico. 10 1 After Petitioner realized he had likely not been born in Puerto Rico, he

D applied for lawful permanent residence and complied with all requirements of that

3 process. On Petitioner’s N-400, he revealed that he had previously claimed U.S.

4 citizenship, voted in U.S. elections, and been deported from the United States, but

15 he denied ever using false documents or lying to U.S. officials. All statements are

6 true; Petitioner did not possess the requisite level of knowledge to rise to the level

17 of material misrepresentation or to render him a person of poor moral character.

18 19 IV. CONCLUSION 20 The Court finds that Petitioner Antonio Fernando Melara has met his 21 | burden of proving each element of naturalization by preponderance of the 22 | evidence. Judgment is GRANTED for Petitioner. 23 24 | Dated: October 28, 2021 1;

THE HQNORABLE JESUS G. BERNAL

26 United States District Judge 27 28