                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

ELOISA MARIA HERNANDEZ,                          No. 16-15570

              Petitioner - Appellant,            D.C. No. 2:14-cv-00807-DJH

 v.
                                                 MEMORANDUM*
L. FRANCIS CISSNA, Director of U.S.
Citizenship and Immigration Services; et
al.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Diane J. Humetewa, District Judge, Presiding

                          Submitted December 5, 2017**
                            San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and ROSENTHAL,*** Chief
District Judge.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
      Eloisa Maria Hernandez appeals the district court’s order denying her

summary judgment motion and granting the government’s cross-motion for

summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The district court did not err in determining that clear and convincing

evidence proved that Hernandez’s certificate of citizenship had been issued in

error. Mondaca-Vega v. Lynch, 808 F.3d 413, 419–22 (9th Cir. 2015) (en banc),

cert. denied, 137 S. Ct. 36 (2016); Lee Hon Lung v. Dulles, 261 F.2d 719, 724 (9th

Cir. 1958). Reviewing the record de novo, Berezovsky v. Moniz, 869 F.3d 923,

927 (9th Cir. 2017), there is no genuine factual dispute material to determining that

Socorro Maldonado Alcaraz, a Mexican citizen, and not Bertha Hernandez Flores,

a United States citizen, was Hernandez’s birth mother. The district court properly

granted the government’s summary judgment motion on the ground that

Hernandez was ineligible for derivative citizenship under 8 U.S.C. § 1409(c).

      Three documents clearly and convincingly show that Flores was

Hernandez’s adoptive mother. The first is a Notice of Hearing for Petition for (1)

Termination of Parent-Child Relationship and (2) Adoption, entered by the

Arizona Superior Court in 1983. The Notice states that Hernandez’s natural

mother was Alcaraz and that Flores wanted to adopt Hernandez. The second

document is an Order of Adoption entered by the Arizona court. The court granted


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the adoption, creating a “relationship of natural parent(s) and child(ren)” between

Flores and Hernandez. The third document is a Form I-130, a Petition for Alien

Relative, in which Flores answered “yes” when asked whether she and Hernandez

were related by adoption. Hernandez’s deposition testimony that Flores told her, “I

adopted you,” is consistent with these documents.

      2. Other evidence in the record is not to the contrary. Hernandez’s Mexican

birth certificate, which we assume is authentic, states that Flores is Hernandez’s

“mother,” but it does not specify whether Flores was Hernandez’s birth mother or

adoptive mother. The birth certificate was issued at Flores’s request in 1980, three

years after Hernandez was born.

      The district court’s grant of summary judgment does not depend on

determining that Hernandez or her half-brother, who also testified, lacked

credibility. “If the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” United States ex rel. Kelly v. Serco, Inc., 846

F.3d 325, 329–30 (9th Cir. 2017) (internal quotation marks omitted). The

testimony on which Hernandez relies expresses subjective belief and therefore is of

scant probative value. Id.

      AFFIRMED.




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