The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
Petitioner, who entered the United States as a lawful permanent resident in 1991, was convicted of marijuana and cocaine possession in 2004, and sentenced to four years in prison. The Department of Homeland Security subsequently initiated removal proceedings against him pursuant to8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i), and following a hearing on the merits, an immigration judge ordered Petitioner removed from the United States. The Board of Immigration Appeals affirmed the immigration judge's decision. Petitioner then appealed to the Ninth Circuit, which transferred the case to this Court for a hearing on the question whether Petitioner is a United States citizen and therefore not subject to removal. This Court reviews the decision of the immigration judge de novo. Martinez-Madera v. Holder, 559 F.3d 937, 940 (9th Cir. 2009).
The Court held two hearings, the first on January 3, 2011 and the second on February 17, 2011. Both hearings focused on the same question: Whether Petitioner derived citizenship at birth through his father, Jose Guadalupe-Fierro, on the ground that the father was present in the United States for 120 months before Petitioner was born. At the time of Petitioner's birth, derivative citizenship applied to "[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." 8 U.S.C. § 1401(g) (1982).
Petitioner's initial position, based on the present testimony of his father, was that his father was in the United States continuously from October 18, 1968 through November 1977, and intermittently from November 1977 until Petitioner's birth on September 7, 1982, for a total of 156 months. (Doc. No. 8-1 at 8.) The Court reasonably discredited this account. During the Petitioner's removal proceedings before the immigration judge on February 5, 2009, Petitioner's father testified that he first came to the United States as a seasonal worker, not that he stayed in the country continuously from October 1968 through November 1977:
Q: When you came to work here in 1968, how long did you stay?
A: I worked seven, eight, nine months.
A: I went to Mexico and I stayed three to four months and then came back here.
Q: And during the time that you were here for the seven, eight, nine months, did you also make occasional visits to Mexico to visit your family?
A: Yes. (Doc. No. 9 at 9.) Petitioner's father also indicated in a Green Card application that he filed on July 28, 1977 that he left the United States in 1971, which is obviously at odds with the account that he stayed in the country from the date of his arrival until November 1977. (Doc.No. 9 at 14.) Petitioner attempted to explain away these inconsistencies by arguing, in essence, that his father was confused (and ill-advised) during his removal hearing, and that he did not fill out the Green Card application himself.
At the January 3, 2011 hearing, Petitioner's father stuck to the story that he came to the United States in 1968 and didn't leave until 1977, doing farm and harvesting work in the warmer months ...