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Lopez-Gomez v. Gonzales

United States District Court, Ninth Circuit

January 7, 2014

ANTONIO LOPEZ-GOMEZ, Petitioner,
v.
ALBERTO GONZALES, Attorney General, Respondent.

ORDER GRANTING RESPONDENT'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DOC. 36]

THOMAS J. WHELAN, District Judge.

On June 12, 2008, Petitioner Antonio Lopez-Gomez filed a petition for review of a Board of Immigration Appeals ("BIA") order entered on October 2, 2006. That order affirmed an immigration judge's decision finding Petitioner removable as charged under § 212(a)(6)(A)(I) of the Immigration and Nationality Act ("INA") and denying Petitioner's motion to terminate proceedings based on his claim to derivative citizenship. Now pending before the Court is Respondent's motion for summary judgment. To date, Petitioner has not opposed.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS Respondent's unopposed motion for summary judgment.

I. BACKGROUND[1]

Stephen Caldera, who is also known as Trinidad Caldera and Estaban Caldera, is Petitioner's father. (SOF ¶¶ 1-2.) He was born on September 2, 1925, in Buena Park, California. (Id. ¶ 2.) According to a Baptismal Certificate, Stephen Caldera was baptized on September 20, 1925 in the Church of Saint Boniface in Anaheim, California. (Id. ¶ 3.) He attended the Lindbergh School of the Buena Park School District between 1932-1936 and for half of the 1938-1939 school year. (Id. ¶ 4.) According to the Buena Park School District, they "could find no evidence of attendance for the school years 1936/37 or 1937/38." (Id. ¶ 5.)

On July 26, 1937, the California Department of Motor Vehicles issued Jesus Caldera, Petitioner's paternal grandfather, an Operator's License, indicating that he resided in Buena Park, California. (SOF ¶¶ 6, 8.) And a Lindbergh Parents and Teachers Association membership card indicates that Mariana Caldera, Petitioner's paternal grandmother, was a member of the association from 1938 to 1939. (Id. ¶¶ 7, 9.)

In 1936, Jesus Caldera sought a settlement with the Mexican government regarding the repatriation of land in Baja California, Mexico. (SOF ¶ 10.) On August 2, 1939, the Mexican Consulate indicated that Jesus Caldera had proved that he was a Mexican citizen, and granted him a certificate of residence for repatriation to Baja California, Mexico. (Id. ¶ 11.) That same year, Jesus Caldera was repatriated into Mexico, taking his household goods and accompanied by his son Stephen and his wife Mariana Caldera. (Id. ¶ 12.) The Mexican government gave Jesus Caldera approximately 20 hectares of land, and Stephen Caldera helped his father work the land. (Id. ¶ 13.)

According to Respondent, "[t]here is no documentary evidence regarding the physical whereabouts of Stephen Caldera, from August 3, 1939 (the time he repatriated to Mexico with his family) to November 26, 1973, a more than thirty-four year period." (SOF ¶ 14.) Respondent also presents evidence that shows that "[a] search of United States Census Records yielded no information Stephen Caldera ever resided in the United States from 1930 to 1960." (Id. ¶ 15.)

On October 16, 1968, Petitioner was born in Ensenada, Mexico. (SOF ¶ 16.)

On November 26, 1973, Stephen Caldera was issued his first identification card as a resident citizen of the United States. (SOF ¶ 17.) He does not recall how long he was present in the United States prior to the birth of his son, or where he permanently resided between 1925 and 1968. (Id. ¶¶ 18-19.) Stephen Caldera also does not remember when he started working for Sebastian and Cruz Sedillo, and how long he worked for them; he could not even approximate how many years he worked for them. (Id. ¶ 20.) Stephen Caldera could not approximate how long he would stay in the United States or Mexico during the time he worked for the Sedillos. (Id. ¶ 21.) However, at an unspecified time between 1961 to the early 1970s, Stephen Caldera worked in Mexico for "Russians who owned a chocolate and olive tree plantation." (Id. ¶ 22.)

Margarita Gomez is Petitioner's mother. (SOF ¶ 23.) She was born on November 4, 1940 in Mexico. (Id. ¶ 24.) Margarita Gomez married Rosalio Lopez on July 19, 1957. (Id. ¶ 25.) Though Petitioner's birth certificate lists Rosalio Lopez as his biological father, Respondent proceeds under the premise that Petitioner's biological father is Stephen Caldera based on Petitioner's and Stephen Caldera's testimony. (See id. ¶ 26; Resp't's Ex. J; Stephen Caldera Dep. 22:8-9; Antonio Lopez-Gomez Dep. 9:19-23.)

Petitioner has the following four half-siblings who were all born in Ensenada, Mexico to parents Margarita Gomez and Rosalio Lopez: (1) half-sister Josefina Lopez-Gomez, currently Josefina Saak, who was born on March 19, 1959; (2) half-sister Maria Elena Lopez, currently Maria Centeno, who was born on June 6, 1961; (3) half-sister Rosa Maria Lopez-Gomez, currently Rosa Maria Luttrull, who was born on May 19, 1964; and (4) half-brother Jose Jesus Lopez-Gomez, who was born on August 30, 1966. (SOF ¶¶ 26-29.) Each of Petitioner's half-siblings testified that they remember Stephen Caldera from their childhood. (Id. ¶¶ 30-35.) Josefina Saak testified that Stephen Caldera would visit her house in Mexico, and the Sedillos would come to her home in Mexico to drive Stephen Caldera to Wilmington, California between 1968 to 1972. (Id. ¶ 31.) Maria Centeno and Rose Maria Luttrull testified that they had similar memories around roughly the same time period. (Id. ¶¶ 33-34.)

In 1974, Margarita Gomez and her children moved to the United States to live with Stephen Caldera. (SOF ¶ 37.) And on July 8, 1974, Stephen Caldera began working for the Corona Foothill Lemon Company in Corona, California. (Id. ¶ 38.)

On June 24, 1975, Margarita Gomez and Rosalio Lopez divorced. (SOF ¶ 39.) Then on July 14, 1975, Margarita Gomez and Stephen Caldera married ...


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