NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ESTEBAN TIZNADO-REYNA, No. 13-72690 Petitioner, Agency No. A090-219-302 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 7, 2019 Phoenix, Arizona Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges. An immigration judge (“IJ”) ordered Esteban Tiznado-Reyna removed, rejecting his claim of derivative United States citizenship. After the Board of Immigration Appeals dismissed Tiznado’s appeal, he filed this petition for review. Pursuant to 8 U.S.C. § 1252(b)(5)(B), we transferred the proceedings to the district court for a de novo nationality determination. The only disputed factual issue was whether Tiznado’s father was born in this country, which the government agrees * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under the facts of this case would have entitled Tiznado to derivative citizenship. See 8 U.S.C. §§ 1401(g), 1409(a). After a trial based almost entirely on documentary evidence, the district court found that Tiznado had not produced “substantial credible evidence” that his father was born in the United States. In light of the district court’s factual findings, we deny the petition for review. 1. In a § 1252(b)(5)(B) proceeding, if “the government offers evidence of foreign birth, a ‘rebuttable presumption of alienage’ arises, ‘shifting the burden to the [alleged citizen] to prove citizenship.’” Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th Cir. 2015) (en banc) (alteration in original) (quoting Chau v. INS, 247 F.3d 1026, 1029 n.5 (9th Cir. 2001)). “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 ‘prov[e] the respondent removable by clear and convincing evidence.’” Id. (alteration in original) (quoting Ayala-Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)). 2. The district court found that Tiznado did not produce credible evidence that his father was born in the United States. Tiznado claims that the district court erred at the second step of the Mondaca-Vega analysis, arguing that the term “substantial credible evidence” describes only a burden of production, satisfied by producing evidence that, taken in light most favorable to the petitioner, is sufficient to survive a motion for summary judgment. We disagree. 2 3. A remand for the district court to engage in a de novo determination of nationality occurs only after “the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented.” 8 U.S.C. § 1252(b)(5)(B). Thus, the proceedings in the district court necessarily began from the premise that Tiznado had presented sufficient evidence to avoid summary judgment on the nationality issue. See Fed. R. Civ. P. 56(a) (authorizing summary judgment only if “there is no genuine dispute as to any material fact”); 8 U.S.C. § 1252(b)(5)(A) (“If the petitioner claims to be ...
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