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Anderson v. Holder

April 27, 2010

GARY ANDERSON, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



(Court of Appeals No. 08-73946)

MEMORANDUM OF DECISION

Pursuant to 8 U.S.C. § 1252(b)(5)(B), the Ninth Circuit Court of Appeals transferred this matter to this court for a determination of petitioner Gary Anderson's claim that he is a United States citizen. Petitioner asks for a declaratory judgment that he obtained United States citizenship at birth. After considering the arguments of counsel, the parties' Joint Statement of Facts, and the depositions submitted to the court, the court finds that petitioner has not met his burden of establishing that he is a United States citizen and will therefore deny his request for declaratory relief.

This memorandum constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Fed. R. Civ. P. 52(a); see 8 U.S.C. § 1252(b)(5)(B).

I. Procedural History

On January 3, 1996, petitioner was convicted for conspiring to distribute and possess with the intent to distribute methamphetamine. The then-existing Immigration and Naturalization Service initiated removal proceedings against petitioner on September 7, 2000. On January 11, 2001, an immigration judge found that petitioner was a United States citizen and terminated removal proceedings. The Board of Immigration Appeals reversed this decision and ordered petitioner removed to England on June 22, 2001. Petitioner filed a petition for review with the Ninth Circuit on October 16, 2007, which remains pending. See Anderson v. Holder, No. 07-74042.

On June 26, 2008, petitioner filed a motion to reopen the removal proceedings with the Board of Immigration Appeals. On August 14, 2008, petitioner filed a second petition with the Ninth Circuit, which is also pending, challenging the Board of Immigration Appeals' decision to deny his motion to reopen. See Anderson v. Holder, No. 08-73946. The two petitions were consolidated on September 16, 2008. See Anderson, No. 07-74042 at Docket No. 15. On August 17, 2009, the Ninth Circuit severed the two petitions, held them in abeyance, and transferred petitioner's second petition to this court for a determination of citizenship pursuant to 8 U.S.C. § 1252(b)(5). (Docket No. 1.)

At the scheduled Pretrial Conference on February 8, 2010, the parties indicated that they were in agreement on many, if not all, of the facts in this matter. The court accordingly afforded the parties an opportunity submit a joint statement of undisputed facts, which the parties filed on March 1, 2010. (Docket No. 19.) The court held another Pretrial Conference on March 1, 2010, where petitioner identified one potential disputed issue of fact in regard to witness Henry Gitelman's testimony and asked the court for additional time to take another deposition of Gitelman so that he could avoid the inconvenience of coming to Sacramento to testify. The United States did not oppose this request. The court accordingly allowed petitioner to take another deposition of Henry Gitelman and submit it as part of the record. (Docket No. 20.)

The court held a hearing on April 26, 2010, to afford the parties an opportunity to call witnesses and submit evidence not already on the record for any disputed issue of material fact. Neither party elected to call any witnesses or submit any additional evidence at the hearing.

II. Findings of Fact

Petitioner was born on October 1, 1954 in Swindon, England. (Joint Statement of Undisputed Material Facts (Docket No. 19) ¶ 1.) Petitioner's mother, Mavis Sinclair, also known by her married name as Mavis Anderson, was born in England on November 30, 1936. (Id. ¶¶ 2-3.) Sinclair became a naturalized United States citizen on February 20, 1974. (Id. ¶ 4.) Petitioner's biological father, Henry Gitelman, is a United States citizen born in Malden, Massachusetts on February 28, 1932. (Id. ¶¶ 5-6.) Gitelman lived and intended to permanently remain in Malden, Massachusetts. (Id. ¶ 7.) At nineteen, Gitelman joined the United States Air Force and was stationed in England. (Id. ¶ 8.) Gitelman lived in England as a member of the Air Force from 1952 until 1955, when he was honorably discharged. (Id. ¶¶ 9-10).

Gitelman and Sinclair had a sexual relationship in England that resulted in the conception of petitioner. (Id. ¶¶ 11-12.) Gitelman learned that Sinclair was pregnant through her parents, who did not approve of Gitelman's relationship with their daughter. (Id. ¶ 17.) Sinclair's parents would not give Gitelman permission to marry Sinclair and their romantic relationship ended after Sinclair became pregnant. (Id. ¶ 26.) Gitelman was not present at the hospital when Sinclair was in labor or during petitioner's birth. (Id. ¶ 15.) Gitelman visited petitioner shortly after his birth, paid for Sinclair's hospital expenses, and purchased a baby stroller, which he gave to Sinclair. (Id. ¶ 16.) Gitelman's name is not listed on petitioner's birth certificate in part because Sinclair's parents would not give the permission required for Gitelman to put his name on the certificate. (Id. ¶¶ 23-24.) Neither Gitelman nor Sinclair attempted to amend the birth certificate to add Gitelman as petitioner's biological father. (Id. ¶ 23.)

Gitelman left England and returned to the United States in 1955. (Id. ¶ 27.) Gitelman landed in New York on a troop ship and went to New Jersey for a few days to be discharged. (Id.; Resp't Brief Ex. F. (Jan. 6, 2010 Gitelman Depo.) at 35:23-36:10.) After his discharge from the Air Force, Gitelman returned to Massachusetts where he lived until at least 1975. (Joint Statement of Undisputed Facts ¶ 27.) Gitelman never claimed petitioner on his tax returns, took a blood test to establish that he is petitioner's biological father, or lived with petitioner. (Id. ¶¶ 18-21.) Gitleman also never provided or agreed in writing to provide financial support for petitioner outside of paying for Sinclair's hospital expenses and purchasing a baby stroller. (Id. ¶ 22.)

Gitelman had no contact with petitioner from the time he visited petitioner in the hospital shortly after birth until 1999 or 2000, when petitioner was forty-five or forty-six years old. (Id. ¶ 20.) In 2000, Gitelman signed an affidavit stating that he is petitioner's biological father. (Id. ¶ 28.) In 2001, Gitelman also provided telephonic testimony at petitioner's hearing in immigration court that he is petitioner's biological father. (Id.) Gitelman has never denied that he is petitioner's biological father and has told a number of friends over the years that he had a son in England. (Id. ¶ 14; Resp't Brief Ex. A (Mar. 25, 2010 Gitelman Depo.) at 5-8, 11-14.)

Sinclair married Ted Anderson in Detroit, Michigan on May 23, 1964. (Joint Statement of Undisputed Facts ¶ 31.) Ted Anderson is a United States citizen, born in North Carolina on September 4, 1936. (Id. ¶ 29.) Ted Anderson lived in North Carolina from his birth until April 6, 1956. (Id. ¶ 30.) When petitioner was twelve years old, he moved from England to the United States on January 10, 1966 to live with Ted Anderson and his mother. (Id. ¶¶ 36-37.) Upon arriving in the United States, petitioner began living with Ted Anderson and Sinclair in Pontiac, Michigan. (Id. ¶¶ 38-39.) On March 16, 1967, Ted Anderson adopted petitioner. (Id. ¶ 31.) Gitelman was not notified that petitioner was living in the United States or that Ted Anderson adopted him until Gitelman spoke with Sinclair in 2000. (Id. ¶¶ 32-34.)

Petitioner lived continuously, and intended to permanently remain in, Michigan from January 1966 until 1971 or 1972, when he moved to Minnesota with Ted Anderson and Sinclair. (Id. ¶¶ 39, 41.) Petitioner continuously lived in Minnesota, where he intended to permanently remain, until July 1975. (Id. ¶ 41.) He lived with Sinclair and Ted Anderson in Minnesota until they moved to Arizona. (Id.) Six to nine months later, petitioner also moved to Arizona in July 1975. (Id. ¶¶ 41-2.) Petitioner lived with Sinclair and Ted Anderson in Arizona for a year, until Sinclair and Anderson moved into their own home while petitioner stayed in an apartment on his own. (Id. ¶ 42.) Petitioner became a Lawful Permanent Resident of the United States on July 1, 1976, when he was twenty-one years old. (Id. ¶ 40.) Petitioner lived in Arizona until 1995, except for the time when he was incarcerated for various criminal sentences in Arizona and Florida. (Id. ¶ 43.)

III. Analysis and Conclusions of Law

In a proceeding under 8 U.S.C. § 1252(b)(5), the petitioner bears the burden of proving citizenship by a preponderance of the evidence. See Sanchez-Martinez v. I.N.S., 714 F.2d 72, 74 (9th Cir. 1983). "There are 'two sources of citizenship, and two only: birth and naturalization.'" Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). Citizenship at birth can be acquired by being born in the United States. If a person is not born in the United States, he or she can acquire citizenship at birth only as provided by Congress. See id. at 423-24. "'The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth.'" Id. at 1162 (citing United States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th Cir. 1998)) (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995)) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990)).

At the time of petitioner's birth in 1954, former 8 U.S.C. § 1401(a)(7) of the Immigration and Nationality Act of 1952 ("INA") conferred United States citizenship at birth to: a person born outside of 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: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

8 U.S.C. § 1401(a)(7) (June 27, 1952). Section 1409(a) of the INA provided that § 1401(a)(7) could provide citizenship to children born out-of-wedlock only "if the paternity of such child is established while such child is under the age of twenty-one years by legitimation." Id. § 1409(a). Accordingly, under the statute, the method by which an out-of-wedlock child can establish his paternity is through being legitimated.

In addition, ยง 1101(c)(1) provided that the term "child" meant: an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431-1434 of this title, a child adopted in the United States, if such legitimation or adoption takes-place before the child reaches the age of sixteen years, and ...


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