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Norberto Vega-Alvarado v. Eric H. Holder

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 28, 2011

NORBERTO VEGA-ALVARADO, PLAINTIFF,
v.
ERIC H. HOLDER, JR. DEFENDANT.

The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

RULING AND ORDER

The above matter is a declaratory judgment action pursuant to 8 U.S.C. § 1252(b)(5)(B) to determine the nationality of Plaintiff Norberto Vega-Alvarado. On January 4, 2011, this matter commenced in a Bench Trial before this Court. After giving full consideration to the testimony presented at Trial, the deposition transcripts lodged with the Court, the joint exhibits received into evidence and the oral and written arguments of the Parties, the Court NOW FINDS AND RULES AS FOLLOWS:

I. Background

Plaintiff Norberto Vega-Alvarado ("Plaintiff") was born in Guadalajara, Mexico on June 6, 1959, of unmarried parents. [Ex. 8 at 40.] His father, Eustaquio Agustin Vega ("Agustin"), was a United States Citizen born in Santa Rita, New Mexico on April 3, 1921.*fn1 [Ex. 1 at 4.] Agustin, who passed away in November 2006, moved to El Zapote de Cestau, Mexico ("El Zapote") with his parents when he was a child. [Ex. 2 at 5.] In 1962, Agustin brought Plaintiff to the United States and Plaintiff was raised in California by his father. [Ex. 14 at 000394.]

On August 29, 2006, the United States Department of Homeland Security served Plaintiff with a Notice to Appear, charging him with removability as an alien pursuant to Section 237(a)(2)(B)(I) of the Immigration and Nationality Act ("INA")*fn2 due to his 2004 conviction of possession of a controlled substance.*fn3 [Ex. 14 at 000412-000417.] In the removal proceedings that subsequently took place during 2007 in Immigration Court, Plaintiff argued that he was not removable under Section 237 because he derived United States citizenship at the time of his birth through his United States citizen father. [Ex. 14 at 000267, 000301.]

In June 2007, the Immigration Judge ("IJ") concluded that Plaintiff was removable because he had not presented sufficient evidence to establish derivative citizenship, finding that Plaintiff had failed to demonstrate that his father was physically present in the United States for the requisite period of time. [Ex. 14 at 000248-000251.] Plaintiff subsequently appealed this determination to the Board of Immigration Appeals ("BIA"), and on January 29, 2008 the BIA remanded the case back to the Immigration Court for consideration of additional evidence in support of Plaintiff's claim of United States citizenship. [Ex. 14 at 000002, 000034, 000042.] On February 26, 2008, Plaintiff filed a motion to terminate these proceedings. [Ex. 14 at 000048.] On May 12, 2008, the IJ denied this motion and ordered that Plaintiff be removed to Mexico. [Ex. 14 at 000047-000050.]

Plaintiff appealed this decision to the BIA, and on August 7, 2008 the BIA dismissed Plaintiff's appeal. [Ex. 14 at 000002-000003.]

On August 15, 2008 Plaintiff filed petition for review with the Ninth Circuit Court of Appeals from the final order of removal that was issued by the BIA.*fn4

Defendant Government ("Government") subsequently filed a motion with the Ninth Circuit to transfer the case to this Court for a de novo hearing and determination on Plaintiff's claim to derivative citizenship, pursuant to 8 U.S.C. § 1252(b)(5)(B).*fn5 [Ex. 7.] On June 18, 2009 the Ninth Circuit granted this motion [1].

II. Legal Standard

Foreign birth "gives rise to a presumption that the person so born is an alien." Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir. 1981). However, an individual born abroad may seek to establish a claim to citizenship by proving by a preponderance of the evidence that he or she derived citizenship through his or her parent's United States citizenship. See 8 C.F.R. § 341.2(c)(2010). See also Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).

In determining derivative citizenship, the Court must apply the law that was in effect at the time of Plaintiff's birth. See Scales v. INS, 232 F.3d 1159, 1162-63 (9th Cir. 2000). See also United States v. Ahumanda-Aguilar, 189 F.3d 1121, 1124 (9th Cir. 1994) ("[t]he 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")(quotations omitted)). In 1959, the year of Plaintiff's birth, the applicable law is former Section 307(a)(7) of the INA, 8 U.S.C. § 1401(a)(7). According to this statute,

(a) The following shall be nationals and citizens of the United States at birth: ...

(7) a person born outside of the geographical limits of the United States ... 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.

8 U.S.C. § 1401(a)(7) (1952)(current version at 8 U.S.C. § 1401(g)). Therefore, in order for Plaintiff to establish that he derived citizenship from his father Agustin, he must show by a preponderance of the evidence that: 1) his father was born a United States citizen and 2) his father was physically present in the United States for at least ten years before the year of Plaintiff's birth, at least five of which were after his father attained the age of fourteen.*fn6

Physical presence under this statute has its literal meaning and is computed by actual time spent in the United States. Moreover, the parent's physical presence does not have to be continuous and the parent's physical presence in the country can be proved through evidence such as employment or military records, deeds, mortgages and/or leases, affidavits of third parties having actual knowledge of physical presence, bank records, and tax payments. See Alcarez-Garcia v. Ashcroft, 293 F.3d 1155, 1158 (9th Cir. 2002). See also 8 C.F.R. § 103.2(a).

III. Discussion

The Parties have stipulated that the sole issue before this Court is whether Plaintiff can meet his burden of proving by a preponderance of the evidence that his father was physically present in the United States for at least ten years before the year of Plaintiff's birth in 1959, five years of which were after his father attained the age of fourteen in 1935. [Ex. 6 at 12-13.] Accordingly, the relevant date range in this proceeding is from 1921 to 1959, with five of these years being from 1935 to 1959.

Plaintiff argues that the evidence proves that it is more likely than not that Agustin was physically present in the United States for this requisite period of time. Specifically, Plaintiff contends that the evidence proves that Agustin lived in the United States as a child for more than five years after his birth and that every year from the early 1940s until at least 1959, Agustin would spend six to twelve months working in the United States as a field worker, eventually participating in the Bracero Program.*fn7 Therefore, Plaintiff contends that the total cumulative time Agustin spent in the United States during these years more than meets the physical presence requirement of Section 307(a)(7) of the INA.

The Court finds that Plaintiff has not met his burden of establishing by a preponderance of the evidence that his father was physically present in the United States for the requisite period of time under the derivative citizenship statute. See 8 U.S.C. § 1401(a)(7) (1952)(current version at 8 U.S.C. § 1401(g)). Therefore, Plaintiff has failed to meet his burden of establishing that he derived United States citizenship through his father Agustin.

1. Evidentiary Objections

Plaintiff has submitted to the Court designations of Maria Rosario Carrera ("Carrera") and Jovita Banda Bermejo's ("Banda") deposition testimony, offered by Plaintiff at Trial in lieu of their live testimony. As an initial matter, the Court addresses the Government's evidentiary objections with regard to statements made in these deposition testimonies. Specifically, the Government has submitted objections to various statements that are contained in these deposition testimonies on the grounds that these statements in question constitute inadmissible hearsay.*fn8

Hearsay is defined as an out of court statement offered into evidence to prove the truth of the matter asserted, and is inadmissible unless an exception applies. See Fed. R. Evid. 801, 802. Here, many of the statements that Plaintiff has designated in the two deposition testimonies, as well as the witness testimony Plaintiff sought to provide during Trial, discuss statements made by Agustin regarding his time in the United States and his overall reputation in the community for being a field worker and bracero in the United States from the 1940s to 1950s.

The Court finds that these statements constitute hearsay, as they are out of court statements offered to prove the truth of the matter asserted: that Agustin spent a considerable amount of time working in the United States during the 1940s and 1950s as a field worker and a bracero. Moreover, as discussed below, the Court finds that these statements are not subject to any hearsay exception. As such, they are inadmissible under Federal Rule of Evidence 802.*fn9

Plaintiff argued in his Trial Brief and at Trial that any statements made by Agustin regarding his personal history and the time he spent in the United States, as well as any testimony regarding Agustin's reputation in the community regarding these matters, fall within the hearsay exception for statements made by an unavailable declarant regarding his personal or family history and the exception for statements about an individual's reputation within the community. See Fed. R. Evid. 803(19), 804(b)(4)(A). Accordingly, the Court will address each of these arguments.

A. The Court Finds That Agustin's Statements Regarding His Time In The United States Are Inadmissible As Hearsay.

The Court first finds that any testimony concerning statements made by Agustin regarding his time and work in the United States is hearsay that does not fall within any exception, and is therefore inadmissible.

Under Federal Rule of Evidence 804(b)(4)(A), hearsay is admissible if the declarant is unavailable and the statement concerns the declarant's personal or family history. Fed. R. Evid. 804(b)(4)(A). See also United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000). A declarant is considered unavailable as a witness if he is "unable to be present or to testify at the hearing because of death." Fed. R. Evid. 804(a)(4). Therefore, as Agustin passed away in November 2006, he is considered an unavailable declarant. [Ex. 2.]

If the declarant is unavailable, Rule 804(b)(4)(A) specifically provides that "a statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history" shall not be considered hearsay. Fed. R. Evid. 804(b)(4)(A).

However, the Court finds that this Rule encompasses statements that relate only to matters of pedigree, such as the dates of a birth, marriage, or death, and the fact and degree of family relationships. United States v. Carvalho, 742 F.2d 146, 151 (4th Cir. 1984). See also United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997).

The Court therefore finds that Agustin's statements concerning his time and work in the United States do not constitute "personal or family history" within the meaning of this exception. See Fed. R. Evid. 804(b)(4)(A). Specifically, Agustin's statements do not concern matters of pedigree, such as the fact or date of a birth, marriage or death, nor do they relate to the existence of a ceremony or family relationship. Instead, the questions asked at Trial and the excerpts at issue here in the two depositions deal with the circumstances and background of Agustin's alleged work and travels in the United States as a field worker and a bracero. However, courts have held that these types of questions and purported statements are simply outside the scope of this limited exception.

For example, in United States v. Carvalho, the Fourth Circuit Court of Appeals held that statements concerning the circumstances behind the unavailable declarants' marriage, namely the motivation and purpose for entering into the marriage, were not statements concerning personal or family history that fell within the meaning of this exception. 742 F.2d at 151. As such, the Court finds that the testimony and statements here concerning the circumstances and background of Agustin's alleged time in the United States do not fall within the scope of this exception. See Tevlin v. Kessman, 215 A.D. 844 (N.Y.A.D. 1926) (holding that the evidence admitted as to the "residence of a former owner of the premises was hearsay and was not justified by the rule as to evidence of pedigree").

Plaintiff argues that these statements are simply statements regarding Agustin's citizenship, and are therefore admissible. However, while Plaintiff is correct that statements by an unavailable declarant regarding his or her citizenship have been held to fall within this exception, the Court finds that this is limited to when the statement concerns the declarant's nationality or the country of his or her citizenship, not the background and circumstances of the declarant's time and work in the country. See United States v. Olafson, 213 F.3d 435, 441 (9th Cir. 2000)(finding that a statement by the unavailable declarants that they were citizens of Mexico fell within the scope of this hearsay exception).

Accordingly, the Court finds that the testimony and excerpts here regarding Agustin's previous statements about his time and work in the United States are hearsay not subject to the exception under Federal Rule of Evidence 804(b)(4)(A), and are therefore inadmissible.

B. The Court Finds That Statements Regarding Agustin's Reputation Within The Community As A Bracero Are Inadmissible As Hearsay.

Plaintiff also submits various excerpts from Carrera and Banda's deposition testimony, and attempted to introduce testimony at Trial, regarding Agustin's reputation in the community with regard to his time in the United States and his work as a field worker and a bracero.*fn10 The Government also objects to these statements on the basis that they constitute inadmissible hearsay.

Under Rule 803(19),"[r]eputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history" is not excluded by the hearsay rule. Fed. R. Evid. 803(19).

The Court finds that the statements that fall within this exception under Federal Rule of Evidence 803(19) are similar to those statements that are admissible under Federal Rule of Evidence 804(b)(4)(A): statements concerning matters of pedigree such as marriage, time or place of birth or death, and paternity. See United States v. Jean-Baptiste, 166 F.3d 102, 110 (2d Cir. 1999). As such, for the reasons stated above, the Court finds that this Rule does not apply to statements regarding facts such as a person's background, time, or work in another country.

Therefore, the statements contained in the depositions and the purported testimony at Trial concerning Agustin's reputation in the community as a field worker and a bracero and his time in the United States do not fall within this exception, and are inadmissible as hearsay. See Fed. R. Evid. 803(19).

2. The Court Finds That Plaintiff Does Not Meet His Burden Of Proving Agustin's Physical Presence In The United States.

Plaintiff's evidence here regarding Agustin's physical presence in the United States consists primarily of the witness testimony presented at Trial and excerpts from the deposition testimony that Plaintiff offered at Trial in lieu of live testimony.*fn11

Plaintiff argues this evidence proves Agustin was in the United States for at least the minimum amount of time required under the derivative citizenship statute: ten years prior to Plaintiff's birth in 1959, with five of those years being after Agustin attained the age of fourteen in 1935.

The Court finds that Plaintiff has not met his burden to establish Agustin's physical presence in the United States for the minimum amount of time required under the derivative citizenship statute.

The Court first finds that Plaintiff sufficiently establishes that Agustin was physically present in the United States for five years prior to his fourteenth birthday.*fn12 However, the Court finds that Plaintiff's evidence is insufficient to meet his burden of proving that Agustin was physically present in the United States for a period of five years between 1935 and 1959, after the year of his fourteenth birthday and prior to the year of Plaintiff's birth. Therefore, the Court finds that Plaintiff fails to show that he meets the requirements for establishing his derivative citizenship.

A. Plaintiff's Witness And Deposition Testimony

At Trial, Plaintiff offered testimony from his older brother, Eliseo Vega Rodriguez ("Eliseo"), and his younger sister Esperanza Lopez Alvarado ("Esperanza") in support of his claim for derivative citizenship. Plaintiff has also submitted excerpts from Carrera and Banda's deposition testimony in support of his citizenship claim.

As noted below, Plaintiff has not produced any documentary evidence in support of this citizenship claim. Therefore, the witness and deposition testimony are the main pieces of evidence that the Court considers in determining Plaintiff's citizenship claim. However, the Court finds that this testimony is insufficient to provide a factual basis of Agustin's physical presence in the United States, and therefore fails to establish that it is more likely than not that Agustin was physically present in the United States for a period of five years between the years of 1935 and 1959.

1. Eliseo and Esperanza's Trial Testimony Plaintiff's first witness, his older brother Eliseo, testified about his childhood and family life in El Zapote and Guadalajara, Mexico.*fn13 Plaintiff argues this testimony establishes that Agustin traveled to the United States each year beginning in the 1940s, living and working in the United States each year for many months at a time.

Eliseo was born in 1942 in El Zapote, Mexico. Eliseo testified that he lived in El Zapote for five to six years and then moved to Guadalajara, Mexico with his family, remaining there for roughly eight to ten years. Eliseo testified that during this time, Agustin would travel back and forth from their home in Mexico to the United States, leaving the family for periods at a time. However, Eliseo could not list any of the specific dates in which Agustin allegedly left the family to go work in the United States, nor did he have firsthand, personal knowledge of Agustin's whereabouts when he was absent during this time. Therefore, the Court finds that this evidence fails to establish that Agustin was actually in the United States during this time period, as Eliseo's testimony cannot establish Agustin's exact whereabouts.

Eliseo also testified that he accompanied Agustin into the United States to work alongside him in the fields. Specifically, Eliseo testified that starting from around the time he was six years old, Agustin would take him and other family members into Texas and they would stay there for two to three months, maybe four months, working in the fields. Eliseo said this occurred for six to seven years, when he and his family were living in El Zapote and then while they were living in Guadalajara.

The Court finds this testimony also fails to establish Agustin's physical presence during this time, as Eliseo's testimony did not contain specific dates and details of these alleged trips. Eliseo could not definitively state the years in which he accompanied his father to the United States, nor could he remember exactly how long they stayed there. For example, when asked by Plaintiff's Counsel about these trips and Eliseo's time in the United States, Eliseo responded that it was tough to remember dates and specifics, as the events occurred so long ago.

Moreover, Eliseo's testimony is contradicted by Carrera's deposition testimony, as she states that Agustin did not take any of his children back with him to the United States to work as a bracero. [Carrera Dep. at 45:14-17.] While the Court acknowledges that the underlying factual basis for Carrera's statement is unclear, the Court finds that her statement still raises some doubts here as to the overall accuracy of Eliseo's testimony.

Eliseo's testimony here is also inconsistent with his prior, sworn statement. In 2008, Connie A. GadellNewtwon, a third-year law student at Penn State-Dickenson School of Law, prepared a sworn declaration by Eliseo that contained statements regarding Agustin's work in the United States during the 1940s and 1950s, a declaration that was subsequently submitted to the IJ in support of Plaintiff during his initial removal action. [Ex. 14 at 000105, 000173.] This affidavit was made after speaking with Eliseo and contains his statement and signature, but makes no mention of Eliseo's travels to the United States with Agustin to work in the fields. [Ex. 14 at 000105.] The Court finds that this omission and inconsistency also raises doubts as to the overall accuracy and credibility of Eliseo's testimony. See United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1982)(noting that prior inconsistent statements may affect the credibility of a witness).

Furthermore, even if the Court were to find Eliseo's testimony regarding his travels with Agustin to the United States to be completely accurate, it would still only place Agustin in the United States for a maximum of twenty-eight months between the years of 1948 and 1959, well below the statutory physical presence requirement necessary here for deriving citizenship.

Finally, Eliseo testified that Agustin would send back money and gifts to the family while they were living in El Zapote and Guadalajara. However, the Court finds that the fact that Agustin sent gifts and money does not necessarily correlate to his physical presence in the United States, nor does it prove that Agustin was present in the United States for the requisite amount of time here. Therefore, the Court finds that this testimony is not sufficient to establish Agustin's physical presence in the United States.

Plaintiff's second witness, his younger sister Esperanza, was born on May 18, 1956, in Guadalajara, Mexico. Given that the relevant time period here is only from 1921 to 1959, the Court finds that Esperanza's testimony cannot lay a strong foundation as to Agustin's location and presence in the United States during this time period.*fn14 In fact, during her cross-examination, Esperanza testified that she had no memory of any events that occurred between the years of 1956 and 1959. The Court finds that Esperanza's testimony is therefore also insufficient to establish Agustin's physical presence, as she cannot remember events that took place prior to Plaintiff's birth in 1959 and her testimony does not contain any facts or evidence to support Plaintiff's derivative citizenship claim.

The Court also finds that the testimony of both Eliseo and Esperanza carries with it a degree of bias, as both witnesses are related to Plaintiff. See Huffington v. Nuth, 140 F.3d 572, 581-82 (4th Cir. 1998). Given the nature of their relationship to Plaintiff, along with the factual deficiencies present in their testimony, the Court finds that the testimony of these two witnesses is not credible. See, e.g., Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995)(noting that the fact a witness is a relative of a party may ultimately affect the credibility of his or her testimony).

Given the credibility issues here and the fact that Eliseo and Esperanza's testimony does not put forth sufficient facts to support Plaintiff's contention that Agustin was physically present in the United States for five years during the time period of 1935 to 1959, the Court finds that Eliseo and Esperanza's testimony does not establish that Agustin was physically present in the United States for the required five years in order for Plaintiff to have derived United States citizenship.

2. Deposition Testimony

Plaintiff also submits deposition testimony from Carrera and Banda as proof of Agustin's physical presence in the United States for at least five years during the years of 1935 to 1959. The Court finds that this deposition testimony is also insufficient to establish Agustin's physical presence.

Carrera lived in El Zapote, Mexico from the early 1930s until roughly 1964 and testified that Agustin and her husband were close, referring to them as "compadres," or friends. [Carrera Dep., Pages 21:12-17, 29:6-12.] While Carrera may have known Agustin and his family during this time, the Court finds that her testimony contains only vague references to Agustin's occupation as a "bracero" and she does not provide concrete facts, dates, or locations regarding his alleged presence in the United States. In particular, Carrera testified she did not know any of the exact locations in the United States where Agustin may have worked, and when asked by Plaintiff's counsel where Agustin worked in the 1940s and 1950s, Carrera responded "[t]hat I don't know." [Carrera Dep., Pages 34:22-25; 41:24-42:2.] Moreover, Carrera testified that everything she knew about the Bracero Program was based on what she had been told by friends or family and that she did not know the number of years Agustin may have been involved in this program. [Carrera Dep., 64:12-23.]

Banda also lived in El Zapote, Mexico in the 1940s and 1950s and testified that she knew Agustin and his family during this time period. [Banda Dep., Pages 15:21-22, 18:18-19.] However, Banda states she never personally talked to Agustin about his work in the United States, and the Court finds that her testimony also does not contain specific details as to the amount of time he allegedly spent in the United States during this time period. [Banda Dep., 19:12-21.]

Ultimately, the Court finds that neither Carrera nor Banda have personal knowledge of the specifics regarding Agustin's alleged travels or work in the United States. Both of these witnesses resided in Mexico during the years in question, and did not personally see Agustin in the United States. Therefore, the Court finds that these individuals do not have personal knowledge of Agustin's whereabouts during this time period and their testimony is insufficient to establish Agustin's physically presence in the United States between the years of 1935 and 1959.

In addition, both Carrera and Banda acknowledged that they are related to Plaintiff. Agustin married one of Carrera's cousins sometime around 1940, and Banda states she married one of Agustin's cousins. [Carrera Dep., 35:5-16; Banda Dep., 18:18-19.] As such, this testimony also carries with it a degree of bias, and the Court finds that this impacts the overall credibility of their testimony. See Huffington, 140 F.3d at 581-82.

Accordingly, while both the witness and deposition testimony supports the fact that Agustin left his hometown to go work, the Court finds that the offered testimony is insufficient to establish that it was more likely than not that Agustin spent five years in the United States between the years of 1935 and 1959. These witnesses could not state specifics as to the dates, location and length of time that Agustin allegedly spent working in the United States, nor do they offer concrete eyewitness testimony regarding Agustin's alleged travels or work as a field worker and a bracero. Instead, the Court finds that the testimony provides only vague details regarding Agustin's absence from his family from time to time each year and that the witnesses believe, without direct knowledge, that he worked as a bracero during this absence.

Plaintiff argues that the Court should draw inferences from the witness testimony and evidence submitted to the Court and find that Plaintiff has met his burden here of proving Agustin's physical presence. While Plaintiff is correct that the Court may draw inferences from facts that have been established by the evidence, the Court finds that Plaintiff's argument is without merit, as Plaintiff fails to establish the underlying factual basis regarding Agustin's physical presence in the United States that is necessary here in order to enable the Court to draw these inferences. See also Chau v. U.S. Dept. of Homeland Sec., 424 F. Supp. 2d 1159, 1166 (D. Ariz. 2006)(noting that "[w]ithout facts or evidence, the Court cannot infer that [plaintiff's] father met [the derivative citizenship statute's] physical presence requirement," and that "[t]o do otherwise would be to engage in pure speculation"). Therefore, the Court finds that Plaintiff cannot meet his burden of proof by relying solely on inferences, without providing the Court with any direct evidence to establish Agustin's physical presence.

B. Plaintiff's Lack of Documentary Evidence

Finally, the Court finds that the fact that Plaintiff has failed to put forth any documentary evidence to establish Agustin's physical presence in the United States and corroborate the aforementioned testimony supports the finding here that Plaintiff has failed to meet his burden of proof to establish his derivative citizenship.

Plaintiff does not submit any type of documentary evidence in support of his citizenship claim. Specifically, Plaintiff has not produced any of the documents that are listed on the Form N-600 Application for Certificate of Citizenship as documents that a petitioner can use to prove a parent's physical presence in the United States, such as rent receipts, pay stubs, utility bills, tax statements, or affidavits by persons having direct knowledge of the parent's physical presence in the United States. See Form N-600 Application for Certificate of Citizenship. The only real documentary evidence that Plaintiff provides here in support of his claim are Agustin's birth and death certificates.*fn15 [Exs. 1, 2.] Nevertheless, the place and year of Agustin's birth is not at issue here, nor is it disputed that Agustin passed away in November 2006.

Therefore, the Court finds these documents are not relevant to the central issue of whether Agustin was physically present in the United States for five years prior to Plaintiff's birth after Agustin's fourteenth birthday, nor can these documents alone establish Plaintiff's derivative citizenship. See United States v. Ortiz-Diaz, 849 F. Supp. 734, 740 (E.D. Cal. 1994)(holding that evidence of defendant's father's birth certificate, indicating he was born in the United States, was not sufficient in and of itself to establish his father's physical presence under the relevant derivative citizenship statute).

Plaintiff argues he attempted to obtain documentary evidence of Agustin's presence in the United States and his work as a bracero from various Government agencies, but was unable to do so given the fact that the time period in question here ranges from the 1930s to the 1950s, and these agencies no longer have records from that time period in their possession.*fn16 However, the Court finds that this does not explain why Plaintiff has failed to put forth any other type of documentary evidence, such as pictures, letters, family memorabilia, or affidavits from individuals that may have traveled and worked with Agustin in order to help establish his physical presence.

Therefore, given this absence of documentary evidence and the overall lack of specific facts to establish Agustin's physical presence in the United States, the Court finds that Plaintiff has not satisfied his burden of proving that the physical presence requirement has been met here. See id. (finding the plaintiff had not met his burden to show derivative citizenship because plaintiff had failed to put forth any evidence or specific facts showing his father was physically present in the United States for the necessary period of time).

IV. Conclusion

The Court finds that Plaintiff has failed to prove by a preponderance of the evidence that Agustin was physically present in the United States for five years after he reached the age of fourteen in 1935 and prior to the year of Plaintiff's birth in 1959.

Accordingly, the Court finds that Plaintiff has not met his burden of establishing that he meets the requirements under the relevant statute for deriving citizenship from his United States citizen father, and the Court therefore finds in favor of the Government in this Action.

IT IS SO ORDERED.


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