The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 11]
This matter originated as a petition for review of a removal order filed in the United States Ninth Circuit Court of Appeals pursuant to 8 U.S.C. § 1252. Upon its determination that a genuine issue of material fact regarding Petitioner's nationality existed, the Court of Appeals transferred the matter to this Court for a de novo hearing to make a determination of Petitioner's nationality claim pursuant to 8 U.S.C. § 1252(b)(5)(B). The parties stipulated to the Respondent's filing of a motion for summary judgment in lieu of a hearing to resolve the issue now before the Court.
I. Petitioner's Citizenship
On November 18, 1982, Petitioner Alexandru Dantos was born in Romania. (Pet'r's Opp'n, Ex. C at 1, Ex. D at 1; Resp't's Mot. for Summ. J., Ex. F.) On August 7, 1991, the United States admitted Petitioner, his parents, and his sister as Lawful Permanent Residents. (Pet'r's Opp'n, Ex. C at 1, Ex. D at 1.) On July 28, 1999, when Petitioner was 16 years old, his mother, Carmen Dantos, became a naturalized citizen. (Resp't's Mot. for Summ. J., Ex. E; Pet'r's Opp'n, Ex. E.) In or around July 2003, when Petitioner was 20 years old, Petitioner's father, Gheorghe Dantos, returned to Romania. (Pet'r's Opp'n, Ex. C at 2, Ex. D at 3.) In September 2005, Ms. Dantos moved to North Carolina to be with her daughter. (Id., Ex. C at 2, Ex. D at 4.) On February 26, 2007, while living in North Carolina, Ms. Dantos filed for divorce. (Id., Ex. A.) On June 7, 2007, a North Carolina Family Court granted an absolute divorce. (Id.) In the Order, the Court found that Mr. and Mrs. Dantos "separated on or about July 2003, and have lived continuously separate and apart from each other for more than one (1) year next preceding the institution of this action with the intention on the part of Plaintiff not to resume the marital relationship." (Id.)
II. Immigration Proceedings
On August 2, 2005, Petitioner was convicted on three counts of receiving stolen property in violation of Cal. Penal Code § 496(a). (Resp't's Mot. for Summ. J., Ex. A at 003, Ex. F at 017--019, Ex. G at 025.) On June 28, 2006 and December 12, 2006, Petitioner was convicted of possession of a controlled substance in violation of Cal. Health & Safety Code § 11377(a). (Id., Ex. F at 020--021, Ex. G at 025.) On April 14, 2008, Petitioner was convicted of possessing an undetectable weapon in violation of Cal. Penal Code § 12020(a)(1). (Id., Ex. A at 003, Ex. F at 016, Ex. G at 025.)
On March 27, 2009, the Department of Homeland Security ("DHS") ordered Petitioner to appear for removal proceedings before the Immigration Court after determining inter alia that Petitioner's conviction for a theft offense constituted an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(G), making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). (Resp't's Mot. for Summ. J., Ex. A at 003--004.) During the removal proceedings, the Immigration Judge granted Petitioner two continuances in order to obtain evidence establishing derivative citizenship. (Id., Ex. B, Ex. C, Ex. G. at 025.) After Petitioner was unable to provide the documentation necessary to establish derivative citizenship, the Immigration Judge determined that Petitioner failed to establish derivative citizenship and concluded that Petitioner's various criminal convictions were aggravated felonies and crimes of moral turpitude. (Id., Ex. H at 037--038.) The Immigration Judge ordered that Petitioner be removed.
On September 30, 2009, the Board of Immigration Appeals ("BIA") issued a decision upholding the Immigration Judge's removal order. (Id., Ex. J.) On October 23, 2009, Petitioner filed a petition for review in the Ninth Circuit Court of Appeals asserting that the Immigration Judge erred when he determined that Petitioner's convictions constituted aggravated felonies and crimes of moral turpitude. (Id., Ex. K.) Although Petitioner did not raise any argument regarding his derivative citizenship claim on appeal to the BIA or the Ninth Circuit Court of Appeals, the Ninth Circuit Court of Appeals nevertheless transferred the matter to this Court for a de novo determination of Petitioner's derivative citizenship claim. (Id., Ex. N.)
A moving party is entitled to summary judgment only if the moving party can demonstrate that (1) "there is no genuine issue as to any material fact," and (2) it is "entitled to judgment as a matter of law." Fed R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1180 (9th Cir. 2002). In the absence of genuine issues of disputed fact, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.
This case comes before the Court on a transfer order issued by the Ninth Circuit Court of Appeals pursuant to 8 U.S.C. ...