FILED NOT FOR PUBLICATION SEP 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLARENCE AGCAOILI HERNANDEZ, No. 09-73088 Petitioner, Agency No. A038-108-925 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 18, 2012 Submission Vacated November 2, 2012 Resubmitted August 31, 2020** Honolulu, Hawaii Before: THOMAS, Chief Judge, and PAEZ, Circuit Judge*** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this resubmitted case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** This case is decided by quorum of the panel. See 28 U.S.C. § 46(d); Ninth Circuit General Order 3.2(h) Clarence Hernandez petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal of a decision by an immigration judge (“IJ”) determining that he had not acquired derivative citizenship and was removable as charged. We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition. Because the parties are familiar with the history of the case, we need not recount it here. Hernandez argued in his original petition for review that the BIA improperly held that the IJ was justified in denying his fifth request for a continuance. Because we determined there were genuine factual disputes regarding the marital status of Hernandez’s parents at the time of his birth that were relevant to the determination of whether he was entitled to derivative citizenship, we transferred the petition to the District of Hawaii, pursuant to 8 U.S.C. § 1252(b)(5)(B) for the limited purpose of making a determination of his citizenship claim. The district court permitted lengthy discovery, conducted a bench trial, and issued extensive findings of fact and conclusions of law. The district court concluded that Hernandez had failed to meet his burden of proof as to his claim of derivative citizenship. Hernandez now contests the district court’s conclusion. However, on careful review, we find no clear error in the district court’s conclusions. See United States 2 v. Mercado-Moreno, 869 F.3d 942, 953 (9th Cir. 2017) (“We review factual findings . . . for clear error.” (citations and quotations omitted)). Hernandez also claims that the district court abused its discretion in excluding a purported marriage contract. However, the record discloses that the district court did, in fact, admit the contract into evidence pursuant to Vatyan v. Mukasey, 508 F.3d 1179, 1183, 1185 (9th Cir. 2007). Hernandez also argues that the district court abused its discretion in excluding three other pieces of evidence, but we agree with the district court that this evidence was properly excluded. Deposition testimony was properly excluded as hearsay testimony because the deponent was available and testified. See Fed. R. Evid. 804(b)(1). A tendered affidavit was also properly excluded as improper hearsay testimony. See Fed. R. Evid 801(c). The district court ...
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