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