Garza-Flores v. Mayorkas ( 2022 )

Case: 20-60748 Document: 00516370816 Page: 1 Date Filed: 06/24/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 24, 2022
No. 20-60748 Lyle W. Cayce
Clerk
Javier Garza-Flores,
Petitioner,
versus
Alejandro Mayorkas, Secretary, U.S. Department of Homeland
Security,
Respondent.
On Petition for Review of Reinstatement of Removal Order by
the Department of Homeland Security
Agency No. 076-817-858
Before King, Graves, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
U.S. citizens usually know that they’re U.S. citizens. But not always.
You’re a U.S. citizen—and have been from the moment you were
born—if you were born in the United States and subject to U.S. jurisdiction.
See 8 U.S.C. § 1401(a). See also U.S. Const. amend XIV, § 1.
But what if you were born outside the United States? You may also
be a natural born U.S. citizen. But that may turn on which year you were
born; whether one or both of your parents were U.S. citizens at the time;
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No. 20-60748
whether your parents were married to each other at the time, or whether
paternity can otherwise be legally established; and when and for how long
your parents resided in the United States, both cumulatively and in the years
before your birth. See 8 U.S.C. §§ 1401, 1409.
Moreover, it may prove difficult to establish such obsolete facts as
where your parents lived many years ago, and exactly how long they lived
there. A factfinder may have to sift through whatever personal
documentation remains available and determine what inferences may be
drawn accordingly.
That’s precisely what’s at issue here. For years, Petitioner Javier
Garza-Flores did not believe he had a valid claim to U.S. citizenship. But
now he thinks that he does. And he has presented documentary evidence
sufficient to demonstrate, at a minimum, a genuine issue of material fact
concerning his claim of U.S. citizenship.
That is enough to warrant a factual proceeding before a federal district
court to determine his citizenship. Accordingly, we transfer this matter to
the U.S. District Court for the Southern District of Texas for a de novo
review under 8 U.S.C. § 1252(b)(5)(B).
I.
Garza-Flores was born out of wedlock in Mexico in 1974. His parents
have since deceased. His mother, Francisca Flores, was a Mexican national.
His father, Eugenio Garza-Guerra, was a U.S. citizen.
Petitioner entered the United States without inspection in August
2000. He was subsequently convicted of burglary in Texas. At that time, he
was unaware that he may have a claim to U.S. citizenship through his father.
So he admitted that he was deportable and ineligible for relief from removal.
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He was removed from the United States pursuant to a final removal order in
2003.
His view changed, however, in 2014. He applied for a Certificate of
Citizenship and claimed that he had acquired U.S. citizenship at birth
through his father. But U.S. Citizenship and Immigration Services
(“USCIS”) denied his application.
Approximately six years later, Petitioner reentered the United States.
The Department of Homeland Security reinstated the prior removal order
against him.
After consulting with an attorney, Petitioner timely filed this petition
for review under 8 U.S.C. § 1252(b)(1), along with an opposed motion to
transfer his case to the U.S. District Court for the Southern District of Texas
for a de novo determination of his citizenship claim under 8 U.S.C.
§ 1252(b)(5)(B).
II.
“A person generally may pursue a citizenship claim in two ways.”
Lopez v. Holder, 563 F.3d 107, 110 (5th Cir. 2009). A person can affirmatively
seek proof of citizenship by filing an application for a certificate of citizenship
under 8 U.S.C. § 1452(a), and if denied, seek relief in federal district court
under 8 U.S.C. § 1503. Alternatively, a person can proceed as Petitioner has
done here—by asserting citizenship defensively, in response to removal
proceedings, and if denied, file a petition for review in a court of appeals
under 8 U.S.C. § 1252(b).
If the court of appeals determines that “a genuine issue of material
fact about the petitioner’s nationality is presented,” it shall transfer the
proceeding to a federal district court for a de novo review of Petitioner’s
nationality claim. 8 U.S.C. § 1252(b)(5)(B). If the court of appeals finds no
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such genuine issue of material fact, it should decide the nationality claim itself
on the existing record. 8 U.S.C. § 1252(b)(5)(A). Even if USCIS has
“previously rejected [the petitioner’s] citizenship claim,” as occurred here,
that rejection “does not inhibit our review.” Iracheta v. Holder, 730 F.3d 419,
422 (5th Cir. 2013). See also Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.
2004) (same).
The parties do not dispute that the applicable law for determining
Petitioner’s citizenship “is the statute in effect at the time of [Petitioner’s]
birth.” Iracheta, 730 F.3d at 423. Petitioner was born in 1974, so we look to
the text of 8 U.S.C. § 1401(a)(7) and § 1409(a) in effect at that time.
The government contests only one of the elements required by these
provisions—whether, at the time of Petitioner’s birth, his citizen parent was
“physically present in the United States or its outlying possessions for a
period or periods totaling not less than ten years, at least five of which were
after attaining the age of fourteen years.” It’s undisputed that the remaining
requirements have all been met—Petitioner was (1) born out of wedlock, (2)
outside the United States and its territories, (3) to an alien mother and a
citizen father, and (4) paternity was legitimated before he turned 21.
So if Petitioner demonstrates a genuine issue of material fact as to
whether his father satisfied the “physical presence” requirement, he is
entitled to a de novo review of his citizenship claim in district court. 8 U.S.C.
§ 1252(b)(5)(B).
To determine whether a genuine issue of material fact exists under
§ 1252(b)(5), “summary judgment principles control.” Agosto v. INS, 436
U.S. 748, 749 (1978). So we must transfer this case to the district court “if
the supporting evidence would suffice to entitle a litigant to trial were such
evidence presented in opposition to a motion for summary judgment.” Id.See also Rosales v. Lynch, 821 F.3d 625, 628 (5th Cir. 2016) (same).
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“Petitioner’s burden here is not to prove the facts conclusively, but merely
to show that a genuine issue of material fact exists.” Batista v. Ashcroft, 270
F.3d 8, 16 (1st Cir. 2001). Because we are applying summary judgment
principles, we are “obliged not to weigh conflicting evidence,” “assess the
credibility of [] affidavit[s],” or “attempt to reconcile” conflicting evidence.
Rosales, 821 F.3d at 631.
III.
To establish his citizenship, Petitioner must show that, at the time of
his birth in 1974, his father had satisfied the physical presence requirement—
that is, he was physically present within the United States for a period
“totaling not less than ten years, at least five of which were after attaining the
age of fourteen years.”
In support of that claim, Petitioner presents the following documents:
(1) a certificate of baptism indicating that his father was baptized in Texas in
1916; (2) his father’s illegible border crossing card that purportedly indicates
his father arrived in the United States in 1938; (3) his father’s World War II
draft card that was issued in 1941, which lists the United States as his country
of citizenship, Texas as his place of employment, a Texas-based employer,
and both Texas and Mexico residential addresses; (4) his father’s
Application for Certificate of Citizenship dated September 15, 1969, which
lists a Texas address and asserts that he goes “back [and] forth [between the
United States and Mexico] whenever necessary,” and that he “resided in”
the United States for five months in 1940; and finally, (5) a sworn affidavit
from his father’s sister, Herminia Becerra.
In her affidavit, Becerra attests to the following: Petitioner’s father,
Eugenio, is Becerra’s older brother. Eugenio was born in 1915 in Texas.
Eugenio and his wife had five children together, all of whom obtained their
U.S. citizenship through Eugenio. Eugenio also had an extra-marital
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relationship that resulted in Petitioner’s birth. Becerra did not know
Petitioner personally, but she knew about his mother’s relationship with
Eugenio, and that it had resulted in Petitioner’s birth. From the time
Eugenio was roughly ten years old through the remainder of his life, he
worked as a field laborer for La Labor in the United States. He would work
“at La Labor during the weekdays” and “would usually” return to his home
in Mexico on the weekends.
Finally, the affidavit asserts that, because Eugenio was sixty years old
when Petitioner was born, Becerra has “no doubt” that Eugenio “was
physically present in the U.S. for more than ten years prior to [Petitioner’s]
birth.”
Despite all this evidence, the government claims it is not enough to
establish a genuine issue of material fact. We disagree.
A.
The government contends that Becerra’s affidavit is not based on
personal knowledge, as required under Rule 56(c)(4).
But courts have repeatedly held that the personal knowledge
requirement of Rule 56 can be “reasonably inferred” from the
circumstances—such as the affiant’s identity and relationship to the relevant
subject matter. See, e.g., Matter of Green, 968 F.3d 516, 524 (5th Cir. 2020);
DIRECTV Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005); Barthelemy v.
Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990); United States v.
Sellers, 483 F.2d 37, 41 (5th Cir. 1973), overruled on other grounds by United
States v. McKeever, 905 F.2d 829 (5th Cir. 1990); Allen v. Coil Tubing Servs.,
L.L.C., 846 F. Supp. 2d 678, 698 n.36 (S.D. Tex. 2012), aff’d, 755 F.3d 279(5th Cir. 2014); Sgroe v. Wells Fargo Bank, N.A., 941 F. Supp. 2d 731, 743
(E.D. Tex. 2013).
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Considering Becerra’s relationship with her brother, we have no
difficulty inferring her personal knowledge regarding the basic details of her
brother’s marriage, children, and employment. And even if we were to strike
Becerra’s speculative statement that she has “no doubt” her brother was
physically present in the United States for the requisite amount of time, that
still leaves the underlying information supporting her inference. “On a
motion for summary judgment,” we “disregard only those portions of an
affidavit that are inadequate and consider the rest.” Akin v. Q-L Invs., Inc.,
959 F.2d 521, 531 (5th Cir. 1992).
B.
And even if we were to disregard Becerra’s affidavit, Petitioner’s
documentary evidence supports the conclusion that his father resided and
was physically present in the United States on numerous occasions
throughout the relevant period of time. The government offers no rebuttal
evidence of its own. And Petitioner’s evidence does not conflict with other
parts of the record. Courts have found a genuine issue of material fact on far
less. See, e.g., Agosto, 436 U.S. at 759 (finding genuine issue where Petitioner
and government presented opposing evidence, and despite multiple reasons
to find Petitioner non-credible); Rosales, 821 F.3d at 631 (finding genuine
issue based on “thin evidence” and despite conflicting evidence in the
record); Kamara v. Lynch, 786 F.3d 420, 425 (5th Cir. 2015) (finding genuine
issue where no evidence had yet been developed on the relevant question);
Durazo-Murrieta v. Mukasey, 267 F. App’x 628, 629 (9th Cir. 2008) (finding
genuine issue as to the physical presence requirement based on evidence that
Petitioner’s father “worked in the agricultural fields” in the United States).
Notably, Petitioner was also recently tried in district court for the
crime of unlawful reentry into the United States. See United States v. Garza-
Flores, 2021 WL 5771866 (S.D. Tex. Dec. 6, 2021). He defended himself on
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the ground that he is a U.S. citizen and thus entitled to return to the United
States. As here, the criminal case turned on whether his father met the
“physical presence” requirement. Id. at *6. Evaluating nearly identical
evidence, the court determined that reasonable doubt existed as to his
father’s requisite physical presence—and thus found him not guilty. Id. at
*1, *6. Our conclusion in this case—that Petitioner has presented a genuine
issue of material fact as to his citizenship—is certainly consistent with the
judgment in his criminal case.
***
“United States citizenship is one of the greatest privileges this world
has ever known.” Lopez v. Pompeo, 923 F.3d 444, 447 (5th Cir. 2019) (Ho, J.,
concurring). Garza-Flores has staked his claim to that precious right. And
he has presented at least a genuine issue of material fact concerning that
claim. Accordingly, we transfer this case to the U.S. District Court for the
Southern District of Texas for a de novo determination of his citizenship
claim under 8 U.S.C. § 1252(b)(5)(B).
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