Hugo Petersen-Palma v. Loretta E. Lynch

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HUGO PETERSEN-PALMA, AKA Hugo No. 12-72776
Leonel Petersen Palma,
Agency No. A021-551-663
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2015**
Pasadena, California
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,***
Senior District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Petersen-Palma petitions for review of a decision of the Board of
Immigration Appeals (“BIA”). The BIA concluded that the Department of
Homeland Security had demonstrated Petersen-Palma’s alienage, and that
Petersen-Palma was not eligible for withholding of removal or deferral of removal
under the Convention Against Torture. We have jurisdiction to consider Petersen-
Palma’s claims under 8 U.S.C. § 1252.
When a petitioner’s claim of United States citizenship presents a genuine
issue of material fact, 8 U.S.C. § 1252(b)(5)(B) requires us to transfer to the
district court for de novo review of that claim. “Particularly where the evidence
consists of the testimony of live witnesses concerning material factual issues, it
will seldom if ever be appropriate to deny a de novo hearing, since ‘[i]t is only
when the witnesses are present and subject to cross-examination that their
credibility and the weight to be given their testimony can be appraised.’” Agosto v.
INS, 436 U.S. 748, 757 (1978) (quoting Poller v. Colum. Broadcasting Sys., Inc.,
368 U.S. 464, 473 (1962)). Accordingly, we have transferred to the district court
proceedings involving disputes over a petitioner’s parentage, Ayala-Villanueva v.
Holder, 572 F.3d 736 (9th Cir. 2009), and place of birth, Sanchez-Sanchez v. INS,
957 F.2d 702 (9th Cir. 1992).
2
Because petitioner has raised sufficient genuine issues of material fact as to
his citizenship, we transfer this petition to the United States District Court for the
Southern District of California. We express no view as to the merits of Petersen-
Palma’s claim to United States citizenship. The petition for review of the BIA’s
decision is held in abeyance pending resolution of that litigation, and the order of
removal is stayed pending further action by the district court.
TRANSFERRED.
3