                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 12 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GERMAN ZUNIGA-HURTADO, aka                       No. 12-70076
Herman Zuniga,
                                                 Agency No. A017-174-274
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 8, 2014
                            San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

       German Zuniga-Hurtado petitions for review of a decision of the Board of

Immigration Appeals affirming the immigration judge’s denial of his motion to

terminate removal proceedings based on Zuniga-Hurtado’s claim that he was a

citizen of the United States. We review the BIA’s decision regarding legal



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
question related to claims of citizenship de novo. See Scales v. INS, 232 F.3d

1159, 1162 (9th Cir. 2000). Because genuine issues of material fact existed with

regard to Zuniga-Hurtado’s nationality, we transferred this matter to the district

court for a determination of Zuniga-Hurtado’s claim of United States citizenship.

See 8 U.S.C. § 1252(b)(5)(B). The district court held a hearing on Zuniga-

Hurtado’s citizenship claim and denied declaratory relief. Zuniga-Hurtado now

seeks review of the district court’s decision that he failed to prove his claim of

United States citizenship. We have jurisdiction under 8 U.S.C. § 1252(b)(2).

Because the district court’s finding that Zuniga-Hurtado failed to establish that he

was a United States citizen was not clearly erroneous, we deny the petition for

review.

1.    The district court correctly applied the preponderance of the evidence

burden of proof to Zuniga-Hurtado’s citizenship claim. See Sanchez-Martinez v.

INS, 714 F.2d 72, 74 (9th Cir. 1983) (per curiam). There is no basis for us to adopt

a new burden of proof, even if we had the jurisdiction to do so. See In re Findley,

593 F.3d 1048, 1050 (9th Cir. 2010).

2.    The district court’s factual findings regarding Zuniga-Hurtado’s claim of

United States citizenship were not clearly erroneous. See Sanchez-Martinez, 714

F.2d at 74. The district court also concluded that, in the alternative, even accepting


                                           2
all of Zuniga-Hurtado’s submitted evidence, he failed to meet his burden of proof

that his mother was present in the United States for five years between 1936 and

1961. Based on a review of the record, this finding is not “(1) illogical, (2)

implausible, or (3) without support in inferences that may be drawn from the facts

in the record.”1 United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en

banc) (quotation marks omitted).

      PETITION FOR REVIEW DENIED.




      1
        Because we conclude that the district court’s alternative finding was not
clearly erroneous, we need not address Zuniga-Hurtado’s challenges to the district
court’s evidentiary findings.

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