NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID ISRAEL GASTELUM CHAVEZ, No. 14-71612 Petitioner, Agency No. A078-461-188 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 10, 2019 Pasadena, California Before: WARDLAW, BYBEE, and OWENS, Circuit Judges. The government appeals the district court’s declaratory judgment that David Gastelum Chavez, who was born in Mexico, is a United States citizen through his maternal grandmother, Maria de Jesus Vargas Olivo. Gastelum was charged with illegal reentry under 8 U.S.C. § 1326. After Gastelum presented a defense of derivative citizenship, the jury acquitted him. On June 11, 2014, the Department of Homeland Security (DHS) arrested Gastelum and reinstated his removal order. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Gastelum petitioned for review of the reinstatement order, and we transferred the case to the district court for a de novo hearing on his claim to United States citizenship pursuant to 8 U.S.C. §1252(b)(5)(B). 1. The district court correctly applied the legal standard for § 1252(b)(5)(B) citizenship determination transfer cases. We explicitly held in Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (en banc), that determination of citizenship in § 1252(b)(5)(B) cases involves a burden-shifting scheme in which “[t]he government bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence.” Id. at 419 (internal quotation marks omitted). “When, however, the government offers evidence of foreign birth, a rebuttable presumption of alienage arises, shifting the burden to the alleged citizen to prove citizenship. Upon production by a petitioner of substantial credible evidence of the citizenship claim, this presumption bursts and the burden shifts back to the government to prove the respondent removable by clear and convincing evidence.” Id. (internal quotation and alteration marks and citation omitted). 2. The district court did not clearly err in finding that Gastelum’s grandmother, Vargas, was born in the United States. It was not “illogical, implausible, or without support in the record,” In re Retz, 606 F.3d 1189, 1196 (9th Cir. 2010), to find that Gastelum had shown “‘substantial credible evidence’ of his 2 citizenship claim by the preponderance of the evidence.” First, a baptismal record from June 1929 at Sacred Heart Church in El Paso states that Vargas was born in El Paso, Texas. The current administrative assistant at the church, Teresa Del Carmen Ortega, interpreted this record based on her training: When the registry says “de El Paso,” that means that the individual was born in El Paso—and if the individual was born elsewhere, it would state “nacio” and then list the other city. Second, the detailed testimony of four family members consistently placed Vargas’s birthplace in the United States. Gastelum’s mother, who is Vargas’s daughter, remembers hearing a comment from her grandmother when President Kennedy ...
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