The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
FINDING OF FACT re: CITIZENSHIP and DIRECTING THE CLOSING OF THIS CASE
The present petition for a de novo determination of petitioner's claim to United States citizenship was brought under 28 U.S.C. § 2241. The case was transferred to the United States District Court for the Southern District of California by the United States Court of Appeals for the Ninth Circuit. On October 24, 2006, the Court heard the testimony of petitioner's mother Patricia Vera-Avina and admitted the administrative record.*fn1
Petitioner Escamilla-Vera is in removal proceedings. As a defense to his removal, petitioner contends that he acquired United States citizenship at the time of his birth through his mother's citizenship under 8 U.S.C. § 1401(a)(7) (1952). After a hearing, the Immigration Judge ("IJ") found that petitioner's mother had failed to satisfy the "physical presence" in the United States requirement in order to provide petitioner with citizenship at his birth.*fn2 The IJ reached this conclusion by finding petitioner's mother not credible.
Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") which affirmed the IJ. Petitioner then appealed to the Ninth Circuit but by stipulation of the parties and under 8 U.S.C. § 1252(b)(5)(B), the Court of Appeals transferred the case for a de novo determination whether petitioner's mother satisfied the "physical presence" requirement that would permit the transmission of her United States citizenship to petitioner.
At the time petitioner was born, the citizenship of petitioner's mother could be "transmitted" to him at his birth but only if certain statutory requirements were met. The Immigration and Nationality Act of 1952, §301(a)(7) provided:
(A) The following shall be nationals and citizens of the United States at birth:
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person 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.
The following facts are undisputed. Petitioner was born in Mexico on August 30, 1969. Petitioner's mother is an United States citizen but his father was not an United States citizen at the time of petitioner's birth. Petitioner's mother was born on August 23, 1939 and was physically present in the United States for at least five years before her 14th birthday. Petitioner has never applied for a United States passport or a certificate of citizenship. Petitioner first claimed United States citizenship through his mother while in removal proceedings but has never relied on an erroneous grant or declaration of United States citizenship.
Before the IJ, petitioner's mother testified that she regularly spent time in the United States after her fourteenth birthday and prior to petitioner's birth to have met sufficiently the five year "physically present" requirement of the INA.
Patricia V. Avina's Testimony
Petitioner's mother, Patricia V. Avina ("Avina"), testified before the undersigned*fn3 that she spent the first five years of her life in Chicago before going to live with her paternal grandparents in Mexico. Avina's mother remained in Chicago with Avina's grandmother. During the time leading up to Avina's fourteenth birthday, she spent some years in Mexico and some years in Chicago.
Avina was in Chicago when she had her fourteen birthday in 1953. She returned to Mexico in September 1954, and was married in a civil ceremony in 1955. A religious wedding ceremony was held the following year in Mexico. Avina testified that she visited her grandmother in Chicago for three to four month periods each year from 1956 through 1960. Avina's first child, Gina, was born May 3, 1957 (Exh. B1, B2)*fn4 and when Gina was three months old, Avina visited her grandmother in Chicago. Gina did not accompany her mother on the trips to Chicago but was instead cared for in Mexico by Avena's husband's aunt, Maria Dolores Escamilla, also known as Lolita Escamilla. Avina's husband was a trucker by profession and would be on the road two to three weeks each month. Avina testified that her husband visited Chicago with her only one time in 1956.
Avina's next child, Laura, was born on June 15, 1958 (Exh. C-1, C2). Again, Avina testified that she traveled by herself to Chicago in October or November 1958 to visit with her grandmother. Avina stated she spent the summer of 1959, June through August, in Chicago. Avina next had a son, Miguel, who was born March 8, 1960 (Exh. D1, D2).*fn5 Avina testified that her grandmother was ill*fn6 so she returned to Chicago in September 1960 and remained there until September 1962. Avina's three children, ages three and two years, and six months, remained in Mexico throughout the two-year period. Avina testified that she did not return to visit with her children and husband in Mexico at any time during that extended time period.
Avina gave birth to sons, Horatio on July 25, 1963 (Exh. F1, F2), and Carlos on October 17, 1964 (Exh. G1, G2). Avina testified that in March 1965, she returned to Chicago along with her infant son, Carlos, to assist her brother, Jesus Vera,*fn7 and his wife with their child. Avina further testified that she remained in Chicago from March 1965 through September or October 1966 because her sister-in-law was suffering from depression. Exhibit K shows that Avina's son Carlos was admitted as a three-month temporary visitor to the United States on March 10, 1965.*fn8
Avina's other four children remained in Mexico under the care of Lolita for the approximate 18 months Avina states she and Carlos were in Chicago in 1965-66.
Avina's daughter Patricia was born in Mexico in 1967. Avina stated that after Patricia's birth she visited Chicago in the summer of 1968 and returned to Mexico at the end of August 1968. Avina did not return to Chicago after 1968. She testified that her grandmother died but did not know when her death occurred. Petitioner was born in Mexico in August 1969.
Documentary Evidence in Support of Testimony
At the October 24, 2006 hearing, petitioner presented certain documentary evidence in support of Avina's testimony. Petitioner introduced a letter from Jesse Vera, Avina's brother and petitioner's uncle, dated October 18, 2002, which states in relevant part:
As requested by my sister, I am verifing [sic] that she was living with me and my family at 1911 S.59th Avenue, Cicero, Illinois from 1965 through 1966. Her husband, during this time, was a truck driver who would visit her periodically at my home. . . . My sister was married at a very early age, and throughout her life, she has worked steadily to support her children. She should be commended for her great efforts & ...