Koback v. Metrowest Medical Ce ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-2110
ALDEVINO MANUEL LEAL SANTOS,
Petitioner, Appellant,
v.
MICHAEL B. MUKASEY,* Attorney General,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
Cheryl J. Sturm on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Barry J. Pettinato, Assistant Director, and Jesse M. Bless,
Attorney, Office of Immigration Litigation, Civil Division, United
States Department of Justice, on brief for respondent.
February 13, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B.
Mukasey has been substituted for former Attorney General Alberto R.
Gonzales.
HOWARD, Circuit Judge. In a removal proceeding before an
Immigration Judge ("IJ"), petitioner Aldevino Manuel Leal Santos
("Santos") argued as a defense that he met the requirements for
derivative citizenship because his mother was physically present in
the United States for the requisite time prior to his birth. That
argument was rejected by the IJ and by the Board of Immigration
Appeals ("BIA"). The Third Circuit Court of Appeals transferred
the case, for reasons that will become clear later, to the District
of Massachusetts for fact-finding on Santos's derivative
citizenship claim. The district court found that his mother was
not present for the requisite time, and denied his claim of
derivative citizenship. Santos now appeals that decision. We
affirm.
I.
Santos was born in 1957 in the Azores Islands, Portugal.
He was convicted in the U.S. District Court for the district of
Massachusetts in 1997 of cocaine distribution, money laundering,
and conspiracy charges, United States v. Santos, No. 96-cr-10231
(D. Mass. Oct. 29, 2001), and subsequently was charged with removal
under 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). During his removal
proceedings, Santos argued that he satisfied the requirements for
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derivative citizenship under 8 U.S.C. § 1401(a), as that statute
read in 1957.1
Under the statute, derivative citizenship may be
conferred upon a person born outside of the United States if the
applicant has at least one parent who is a United States citizen,
and the parent was present in the United States for at least ten
years prior to the applicant's birth. At least five of those years
must have been after the parent's fourteenth birthday.
Santos claims derivative citizenship through his mother,
Francelina Augusta Leal Santos ("Francelina"). While Santos's
removal proceedings were pending, the United States Citizenship and
Immigration Services determined Francelina to be a United States
citizen.2 In order for Santos to be eligible for derivative
citizenship under 8 U.S.C. § 1401(a) (1957), Francelina must have
spent at least ten years in the United States prior to Santos's
birth in 1957. Moreover, five of those years must have been after
Francelina's fourteenth birthday in January 1941.
In statements to immigration officials between 2003 and
2005, Francelina indicated that she came to the United States first
1
When making derivative citizenship determinations under section
1401(a), courts "look to the applicable law in effect at the time
of appellant's birth". Tullius v. Albright, 240 F.3d 1317, 1320
(11th Cir. 2001).
2
Francelina was born in the Azores in January 1927, but her mother,
Aurora Augusta Leal (Santos's grandmother), was born in the United
States and was a citizen.
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in 1928, returning to the Azores in 1934. She arrived in the
United States again in 1941, returning to the Azores in 1947. Her
grandson John Mello, an attorney who is Santos's nephew, testified
before the district court that Francelina had described to him her
childhood years in the United States using the same time frames.
However, while the IJ said that Francelina was not "evasive or
misleading," her testimony was "distraught, confused and
distressed" in that she could not remember in what years her
children were born, and that she incorrectly stated that she
herself was born in the United States.3
Francelina's 1962 visa application to the United States
was also introduced as evidence. In response to the question in
the visa application, "Since my sixteenth birthday my places of
residence for six months or more have been . . .", Francelina
listed only two addresses, both in the Azores, for the years 1943
to 1962. Thus, Francelina's and Mello's more recent statements
that she returned to the Azores in 1947 are inconsistent with the
response in her 1962 visa application stating that she lived in the
Azores from 1943 to 1962.
The IJ in Santos's removal proceedings concluded that
Santos failed to prove that he satisfied the requirements for
derivative citizenship. The BIA affirmed this ruling; Santos
3
Francelina was unable to testify before the district court due to
ill health.
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petitioned the Third Circuit Court of Appeals for review. In
reviewing the BIA decision, the Third Circuit found that there
existed "a genuine issue of material fact" as to whether Santos met
the requirements for derivative citizenship and transferred the
case to the District of Massachusetts for fact-finding. This
procedure was pursuant to 8 U.S.C. § 1252(b)(5)(B), which provides
for a transfer to the "judicial district in which the petitioner
resides" for further fact-finding. As Santos, previously
incarcerated in Pennsylvania, had already been deported, the Third
Circuit elected to transfer the case to the District of
Massachusetts for the convenience of Francelina, a Massachusetts
resident.4
In July 2007, the district court held an evidentiary
hearing on the factual question of whether Francelina was
physically present in the United States for the requisite amount of
time prior to Santos's birth. Leal Santos v. Gonzales, 495 F.
Supp. 2d 180 (D. Mass. 2007). The district court concluded that
although she had come to the United States twice as a child, she
had not stayed long enough the second time, after attaining the age
of fourteen. Specifically, the district court found that
4
No issue has been raised in this appeal about either the propriety
of the transfer or whether this is the appropriate court to review
the district court's findings. See 28 U.S.C. § 1294(1) (appeals
from reviewable district court decisions shall be in the court of
appeals for the circuit embracing the district.)
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Francelina was in the United States from 1928 to 1934, and from
1941 to 1943. Santos now appeals to this court.
II.
We review the district court's legal conclusions de novo.
Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st
Cir. 2006). We review the factual determination of the district
court as to Santos's eligibility for derivative citizenship under
a clearly erroneous standard. Id.Santos argues that the district court incorrectly placed
the burden of proof on him to show that he met the eligibility
requirements for derivative citizenship. In addition, he contends
that, even if the district court was correct in assigning the
burden of proof to him, the court erred in its interpretation of
the evidence.5
First, Santos argues that the government bears the burden
of proving alienage in removal proceedings. 8 C.F.R. § 1240.8(c)
(2007). This is true; however, evidence that the person in removal
proceedings was born abroad meets that burden unless the person can
prove, by a fair preponderance of the evidence, that he possesses
derivative citizenship. See Batista v. Ashcroft, 270 F.3d 8, 15
(1st Cir. 2001); Matter of Tijerina-Villarreal, 13 I. & N. Dec.
327, 330-31 (BIA 1969); see also Scales v. INS, 232 F.3d 1159, 1163
5
Santos made several additional arguments before the IJ and BIA,
which he did not raise before this court and has thus waived.
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(9th Cir. 2000). Thus, we agree with the district court that it
was Santos's burden to prove by a preponderance of the evidence
that Francelina lived in the United States from 1941 until at least
1946, in addition to spending five years in the United States prior
to age fourteen.
Santos next argues that he met that burden, as the
evidence shows, in his view, that Francelina remained in the United
States until 1947. He contends that the district court came to the
wrong conclusion based on the evidence before it.
In challenging the district court's conclusion, Santos
argues that the testimony of John Mello corroborated Francelina's
version of when she was in the United States. Although some of
Francelina's statements may have demonstrated confusion, he argues
that Mello's credible testimony wholly supports her account.
Santos also argues that the district court gave undue
weight to Francelina's 1962 visa application. As Francelina is
illiterate in both English and Portugese, he argues, she did not
prepare the application herself and it may not be accurate.
Further, he argues, the 1962 visa application is ambiguously
worded. The visa application requires the applicant to list
"places of residence" since the applicant's sixteenth birthday. A
minor's "residence," he argues, can be understood as the home of
one's parents. Here, he suggests, Francelina was a minor between
the years 1943 and 1946, and may have answered the question to
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reflect where her parents were living at this time rather than
where she herself was living.6
While Santos's interpretation of the evidence is
admittedly plausible, the view adopted by the district court --
Francelina left the United States in 1943 -- is also plausible.
Due to her inability to recall dates, the district court found
Francelina's testimony before the IJ unreliable with respect to the
precise years she had been in the United States as a child. In
contrast, the district court did credit Francelina's statements in
the visa application, which was completed several decades closer to
the material time periods and, as the district court noted, "at a
time when the stakes were not yet known." We cannot find the
district court's choice between two plausible interpretations of
the facts to be clearly erroneous. United States v. Weidul, 325
F.3d 50, 53 (1st Cir. 2003).
Affirmed.
6
Santos makes a final attack on the district court's conclusion
with an appeal to historical context. He suggests that it is
unlikely that Francelina would have crossed the Atlantic Ocean in
1943, during World War II, to return to the Azores. In response,
we note first there is nothing on the record to suggest that the
district court's finding is clearly erroneous. Further, even if
Santos were able to show that Francelina could only have returned
to the Azores after the conclusion of World War II in 1945, that is
still insufficient to prove that he met the requirements for
derivative citizenship. Again, he must show that Francelina
remained in the United States until at least 1946.
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