                                                                              FILED
                            NOT FOR PUBLICATION                               APR 20 2012

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



                            FOR THE NINTH CIRCUIT


NORBERTO VEGA-ALVARADO, a.k.a.                   No. 08-73551
Norberto Vega, a.k.a. Norberto Alvarado,
                                                 Agency No. A013-086-266
              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 March 12, 2012
                           San Francisco, California

Before: WALLACE, D.W. NELSON, and BEA, Circuit Judges.

       Vega-Alvarado petitions for review of a decision of the Board of

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

terminate removal. Because we determined there to be a genuine issue of material

fact about Vega-Alvarado’s nationality, the proceeding was transferred to the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
district court for a new hearing and decision on Vega-Alvarado’s claim of United

States nationality. See 8 U.S.C. § 1252(b)(5)(B). Vega-Alvarado seeks review of

the district court’s finding that he failed to prove his claim to United States

citizenship. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition

for review.

       The issue before the district court was whether Vega-Alvarado established

by preponderance of the evidence that his father, Agustin Vega (Agustin), was

physically present in the United States for at least ten years before

Vega-Alvarado’s birth in 1959, five of which were after Agustin turned fourteen in

1935. See Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990) (“The 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”);

Immigration and Nationality Act of 1952, ch. 477, Title III, ch. 1, § 301, 66 Stat.

235, codified at 8 U.S.C. § 1401(a)(7) (repealed 1966).

       Reviewing the district court’s credibility determinations for clear error,

Papakosmas v. Papakosmas, 483 F.3d 617, 623 (9th Cir. 2007), we hold that the

district court did not clearly err in finding testimony by Maria Rosario Carrera,

Jovita Banda Bermejo, Eliseo Vega, and Esperanza Lopez Alvarado to be biased or

not credible. The district court separately analyzed the testimony of each witness


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and determined it to be unreliable in light of the factual deficiencies combined with

the familial relationships. This is consistent with our circuit precedent. See Cuellar

v. Joyce, 596 F.3d 505, 511 (9th Cir. 2010) (probative value of sister’s report was

“limited given the sister’s likely bias,” along with other factors).

      In light of the district court’s credibility determinations and lack of

documentary evidence to support Vega-Alvarado’s claim, we hold that the district

court did not clearly err in finding that Vega-Alvarado failed to prove that his

father was present in the United States for the requisite time. See Wilson v. United

States, 645 F.2d 728, 731 (9th Cir. 1981) (district court’s determination that a party

did not carry his burden to prove a fact is reviewed for clear error). Because our

holding would be the same even if the district court had not excluded as hearsay

the testimony regarding Agustin’s statements about time spent working in the

United States and Agustin’s alleged reputation in the community for working in

the United States, we need not reach the propriety of the district court’s decision

not to admit the testimony under Federal Rules of Evidence 803(19), 804(b)(4)(A),

and 807.

      PETITION FOR REVIEW DENIED.




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