FILED NOT FOR PUBLICATION APR 04 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES CHRISTIAN WERTHMANN, No. 05-75580 Petitioner, Agency No. A073-876-675 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 15, 2019 San Francisco, California Before: McKEOWN and W. FLETCHER, Circuit Judges, and EZRA,** District Judge. James Christian Werthmann (“Werthmann”) filed a habeas petition in 2003 claiming he was a U.S. citizen and challenging a removal order issued by the Board of Immigration Appeals (“BIA”) in May 2002. The habeas petition was pending as of the effective date of the REAL ID Act of 2005 and was automatically * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. converted into the instant petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. Due to what appears to be severe injustice in this case, we remand to the BIA to consider reopening. Werthmann’s story could have been plucked from the pages of a Kafka novel. Born on or around December 15, 1979, in Tijuana, Baja California, Mexico, Werthmann was adopted by two U.S. citizens—Olive Irene Canady Werthmann (“Ann Irene”) and Florian Werthmann (“Florian”)—when he was thirteen months old. See AR 1052 (Guam adoption order), 1165–66 (1979 Mexican birth registration); AR 1166 (indicating a stamp of February 11, 1981); see also AR 350 (Florian testifying that Ann Irene “got [Werthmann] in Mexico when he was 13 months old”). Ann Irene and Florian adopted a daughter, Julia, at the same time. AR 1062. They hired a Mexican attorney, who handled the adoptions, and received birth registrations from Mexico that list the children’s parents as Ann Irene and Florian Werthmann. AR 1062, 1165–66. Ann Irene and Florian believed the birth certificates were legally sufficient to recognize the adoption, and, therefore, they would not receive a separate adoption order. AR 1062. In 1981, after the adoptions, Ann Irene brought Werthmann and their other adopted children to the Marshall Islands where Florian, a retired Colonel and medical doctor in the U.S. Army, was providing surgical services. AR 1062. In 2 1982, the family moved back to Indio, California, for a brief period of time during which they adopted another child, Mark, in Tijuana, Mexico, again through Mexican counsel. AR 1062. The family moved back to the Marshall Islands in 1982 and to Guam in 1983, where they resided for the next nine years. AR 1062. While in Guam, Ann Irene and Florian adopted two children from the Marshall Islands. AR 1060, 1062. At that time, citizenship was not automatic for the adopted children of two U.S. citizen parents. Florian and Ann Irene obtained U.S. citizenship for the two children they adopted from the Marshall Islands with the aid ...
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