German Zuniga-Hurtado v. Eric Holder, Jr. , 588 F. App'x 563 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERMAN ZUNIGA-HURTADO, aka No. 12-70076
Herman Zuniga,
Agency No. A017-174-274
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2014
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
German Zuniga-Hurtado petitions for review of a decision of the Board of
Immigration Appeals affirming the immigration judge’s denial of his motion to
terminate removal proceedings based on Zuniga-Hurtado’s claim that he was a
citizen of the United States. We review the BIA’s decision regarding legal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
question related to claims of citizenship de novo. See Scales v. INS, 232 F.3d
1159, 1162 (9th Cir. 2000). Because genuine issues of material fact existed with
regard to Zuniga-Hurtado’s nationality, we transferred this matter to the district
court for a determination of Zuniga-Hurtado’s claim of United States citizenship.
See 8 U.S.C. § 1252(b)(5)(B). The district court held a hearing on Zuniga-
Hurtado’s citizenship claim and denied declaratory relief. Zuniga-Hurtado now
seeks review of the district court’s decision that he failed to prove his claim of
United States citizenship. We have jurisdiction under 8 U.S.C. § 1252(b)(2).
Because the district court’s finding that Zuniga-Hurtado failed to establish that he
was a United States citizen was not clearly erroneous, we deny the petition for
review.
1. The district court correctly applied the preponderance of the evidence
burden of proof to Zuniga-Hurtado’s citizenship claim. See Sanchez-Martinez v.
INS, 714 F.2d 72, 74 (9th Cir. 1983) (per curiam). There is no basis for us to adopt
a new burden of proof, even if we had the jurisdiction to do so. See In re Findley,
593 F.3d 1048, 1050 (9th Cir. 2010).
2. The district court’s factual findings regarding Zuniga-Hurtado’s claim of
United States citizenship were not clearly erroneous. See Sanchez-Martinez, 714
F.2d at 74. The district court also concluded that, in the alternative, even accepting
2
all of Zuniga-Hurtado’s submitted evidence, he failed to meet his burden of proof
that his mother was present in the United States for five years between 1936 and
1961. Based on a review of the record, this finding is not “(1) illogical, (2)
implausible, or (3) without support in inferences that may be drawn from the facts
in the record.”1 United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en
banc) (quotation marks omitted).
PETITION FOR REVIEW DENIED.
1
Because we conclude that the district court’s alternative finding was not
clearly erroneous, we need not address Zuniga-Hurtado’s challenges to the district
court’s evidentiary findings.
3