     Case: 17-50379      Document: 00514507880         Page: 1    Date Filed: 06/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                      No. 17-50379                          FILED
                                                                        June 11, 2018
                                                                       Lyle W. Cayce
MARIO CANDELA-RIOS,                                                         Clerk

              Petitioner - Appellant

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CV-220


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       A district court determined that Mario Candela-Rios was born in Mexico,
rather than the United States as he claims. Candela-Rios appeals, arguing
that the district court erroneously (1) admitted a Mexican birth record and (2)
assigned him the burden to prove his birth in the United States. We conclude
the district court properly admitted the Mexican birth record. We AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 17-50379
                                 I.      Background
      The Government initiated removal proceedings against Candela-Rios in
2014. During the proceedings, Candela-Rios admitted to being a native and
citizen of Mexico. He sought asylum. In December 2014, he filed an asylum
application on which he wrote that he was born in Mexico on November 27,
1967. Later, Candela-Rios argued he could not be removed from the United
States because he was a United States citizen by virtue of his birth in Texas.
The Government maintained he was born in Mexico.
      The immigration judge found that Candela-Rios is a native and citizen
of Mexico who was present in the United States without inspection or parole.
He ordered Candela-Rios removed. Candela-Rios appealed to the Board of
Immigration Appeals, but it dismissed his appeal.
      Candela-Rios filed in this court a petition for review of the BIA’s decision.
The Government moved for summary disposition, arguing that no genuine
issue of material fact exists because the evidence shows that Candela-Rios was
born in Mexico. Candela-Rios opposed, claiming that he was born in the United
States.    A previous panel of this court denied summary disposition and
transferred the case to the United States District Court for the Western
District of Texas, under 8 U.S.C. § 1252(b)(5)(B), “for a fact finding
determination of where petitioner was born.” Candela-Rios v. Lynch, No. 15-
60685 (5th Cir. Jan. 7, 2016)
      At the hearing before the district court, Candela-Rios and the
Government each presented evidence about where Candela-Rios was born.
Candela-Rios primarily relied on a Texas birth certificate indicating he was
born on Highway 83, N., in Crystal City, Texas, on December 17, 1967.
Candela-Rios offered no medical or vaccination records, school records, church
records,   bills,   property    rental    statements,    immigration     paperwork,
photographs, or other evidence showing he was born in the United States or
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                                No. 17-50379
even that his family was in the United States at the relevant time.
      The Government, by contrast, presented significant evidence about
Candela-Rios’s early life. Its most significant piece of evidence was a Mexican
birth record, which stated that Candela-Rios was born in Piedras Negras,
Coahuila, Mexico, on November 27, 1967. Candela-Rios’s father personally
registered the birth three days later—weeks before his Texas birth certificate
reported he was born. Though Candela-Rios objected to the admission of the
Mexican birth record, the district court admitted it as a self-authenticating
foreign public record under Federal Rule of Evidence 902(3).
      The district court concluded that Candela-Rios was born in Mexico. It
initially assigned the burden of proof to Candela-Rios. After weighing all the
evidence, the district court made 52 findings of fact, including that Candela-
Rios was born in Mexico, is a Mexican citizen, and is not a United States
citizen. In response to a request from Candela-Rios to modify the judgment,
the district court modified its findings of fact and conclusions of law.      It
determined that Candela-Rios’s Texas birth certificate was “prima facie
evidence” of birth in the United States. But it went on to conclude that the
Government “rebutted” that prima facie evidence with the Mexican birth
record and “evidence that [Candela-Rios] repeatedly stated under oath that he
was born in Mexico.” Candela-Rios moved a second time to modify the district
court’s judgment, which the district court denied. Candela-Rios now appeals.
                               II.   Discussion
      Candela-Rios argues that the district court improperly admitted the
Mexican birth record and improperly assigned him the burden of proof to prove
birth in the United States. We reject his argument about the Mexican birth
record before explaining why we need not address his argument about the
burden of proof.


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                                       No. 17-50379
   A. The Mexican birth record was properly admitted.
       The district court properly admitted the Mexican birth record. 1 Federal
Rule of Evidence 902(3) explicitly permits admission of foreign public
documents as self-authenticating documents.                The district court correctly
concluded that the Mexican birth record was admissible under Rule 902(3)
because the birth record was a copy of a record issued by the Civil Registry in
Mexico, was attested to by an authorized person, and was accompanied by an
authentication certificate signed by the Consul of the United States. Candela-
Rios has not identified why any of these conclusions were an abuse of
discretion. 2 He also argues the document is hearsay, but Federal Rule of
Evidence 803(9) permits public records of vital statistics to be used as an
exception to the hearsay rule. See United States v. Medrano, 356 F. App’x 102,
109 (10th Cir. 2009) (admitting a Mexican birth record under Federal Rules of
Evidence 803 and 902); see also United States v. Vidrio-Osuna, 198 F. App’x
582, 583 (9th Cir. 2006) (mem. op.) (admitting a Mexican birth record under
Federal Rule of Evidence 807).
       Candela-Rios complains that the birth record is not the original birth
record and that the district court “misapprehended the [the Mexican birth
record] as being contemporaneous with [Candela-Rios’s] birth.”                     But the



       1 We “review district court rulings on the admissibility of evidence for abuse of
discretion.” Guzman v. Jones, 804 F.3d 707, 710 (5th Cir. 2015) (citing Arthur J. Gallagher
& Co. v. Babcock, 703 F.3d 284, 293 (5th Cir. 2012)).
       2 Candela-Rios cites two inapposite Ninth Circuit cases to argue against admissibility.
Those cases addressed (1) documents that did not satisfy the requirements of the Federal
Rules of Evidence or (2) factual disputes over handwritten notations on a document. See
United States v. Bustamante, 687 F.3d 1190, 1194 (9th Cir. 2012) (rejecting a typewritten
affidavit by a private investigator regarding a birth record); Dent v. Holder, 627 F.3d 365,
371, 375–76 (9th Cir. 2010) (transferring to a district court to determine whether
handwritten notations on a document had any bearing on the outcome of removal
proceedings). Those cases are irrelevant to the record in this case.

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                                     No. 17-50379
district court explicitly acknowledged that it was not an “original record”
created contemporaneous to Candela-Rios’s birth. The Mexican birth record
presented in court did not have to be contemporaneously created in order for
the district court to conclude that his birth was registered contemporaneously;
it still satisfied the rules of admissibility and could, therefore, be relied on for
the truth of the facts asserted in it. The district court did not err by admitting
the Mexican birth record or inferring that Candela-Rios’s father had registered
a birth record with the Mexican government when he did.
   B. The Government proved Candela-Rios was born in Mexico even
      accepting Candela-Rios’s argument regarding burden.
       Candela-Rios asserts that the district court erred by allocating the
burden of proof to Candela-Rios to prove birthright citizenship. He contends
that the district court should have used the burden-shifting scheme employed
by the Ninth Circuit in a similar case, 3 or required the Government to bear the
burden regardless of shifting. We need not decide that question because the
district court’s findings of fact and conclusions of law, as modified following
Candela-Rios’s motion to modify, as well as the overwhelming amount of
evidence against Candela-Rios, establish that the Government would have
prevailed even under Candela-Rios’s preferred burden allocation.
       We begin with the evidence against Candela-Rios. The Government
presented ample evidence that Candela-Rios was born in Mexico and never
claimed to be born in Texas until much later in life:
          • A Mexican birth record indicates that Candela-Rios was born in
            Mexico on November 27, 1967. The event was registered by his
            father three days after the date on the record.
          • Candela-Rios was baptized in Mexico in June 1969.


      3  See Mondaca-Vega v. Lynch, 808 F.3d 413, 419 (9th Cir. 2015) (en banc). Under this
burden shifting-scheme, the Government bears the initial burden to prove alienage and then
bears it again if the alleged alien presents evidence of birth in the United States.
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         • Candela-Rios attended elementary school and some secondary
           education in Mexico. He never attended school in the United
           States.
         • Candela-Rios applied for and received a border-crossing card when
           he was 14 years old. Border crossing cards are issued to “eligible
           Mexican citizens, who are residents of Mexico, to facilitat[e] their
           entry into the United States.” When Candela-Rios applied for the
           card, he reported his birth date was the same as on the Mexican
           birth record: November 27, 1967.
         • During 1999 and 2000, Candela-Rios was apprehended attempting
           to enter the United States three different times. Each time, the
           record of the apprehension reported his birth date was November
           26, 1967—right around the time on his Mexican birth record.
           Candela-Rios never claimed U.S. citizenship and instead accepted
           voluntary return to Mexico.
         • Candela-Rios conceded that he was issued a CURP number in
           2007, which is “an identification system the federal Mexican
           government created in 1996 to give a unique identification number
           to each Mexican citizen.”
         • When the Government first instituted removal proceedings
           against Candela-Rios, he initially attested, under penalty of
           perjury, that he was a Mexican citizen and raised no claim of U.S.
           nationality. He only later asserted that he was born in the United
           States.
      The only evidence tending to show that Candela-Rios was born in the
United States is testimony of interested witnesses and the Texas birth
certificate. The Government, however, has undermined the credibility of the
Texas birth certificate:
         • The Texas birth certificate indicates Candela-Rios was born in
           Texas on December 17, 1967, some seventeen days after his father
           registered his birth in Mexico (and three weeks after he was born,
           according to the Mexican birth certificate). Thus, on its face, the
           Texas birth certificate is highly suspect in light of the earlier
           registry of a different (and earlier) birth date in Mexico.
         • Further, the Texas birth certificate had previously been called into
           question by the State Department when Candela-Rios applied for
           a passport. The State Department rejected his use of the Texas
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                                 No. 17-50379
            birth certificate to prove citizenship because the midwife
            responsible for registering the birth was suspected of submitting
            false birth records. Candela-Rios never submitted additional
            evidence to the State Department or requested a hearing to
            support his claim to birth in the United States. The Texas birth
            certificate’s validity was called into question well before this
            hearing, and Candela-Rios did nothing to resolve the concerns.
         • Additionally, the district court concluded that the Texas birth
           certificate was not signed by either of Candela-Rios’s parents. It
           was registered with the local registrar and Texas Bureau of Vital
           Statistics by the midwife only after the Mexican birth record had
           already been registered by his father.
         • Candela-Rios’s only theory for why he has a Mexican birth
           certificate is that his father fraudulently obtained one around the
           time Candela-Rios began school so he could attend school in
           Mexico. But the birth record indicates his birth was registered just
           three days after his birth on November 27, 1967—years before his
           father would have registered him for school.
         • Candela-Rios changed his story about how he learned of his true
           birth location. He initially claimed that his mother first told him
           when he was 15 years old that he was born in the United States.
           Later, he claimed his mother told him when he was 36 years old.
           Thus, Candela-Rios’s story about when and how he learned about
           his Texas birth lacks credibility.
         • Other than the Texas birth certificate, Candela-Rios could not
           provide any evidence contemporaneous to his birth that
           demonstrated he was born in the United States or that his mother
           was present there at the relevant time.
Thus, Candela-Rios has presented no credible evidence undermining the
Mexican birth record. The Government, however, has presented overwhelming
evidence showing that Candela-Rios was born in Mexico.
      The district court’s findings of fact accord with this view of the evidence.
It concluded that Candela-Rios was born in Mexico in November 1967, which
his father registered days later. The Texas birth certificate did not discredit
the Mexican birth record because the Texas birth certificate post-dated the
Mexican birth record and was registered by an individual that had been
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                                No. 17-50379
accused of filing false birth certificates. When the State Department rejected
the Texas birth certificate’s efficacy, Candela-Rios did nothing to resolve the
State Department’s concerns.     The district court also cited Candela-Rios’s
schooling in Mexico, actions during his many border crossings, and sworn
statements about his citizenship as further evidence that he was not an
American citizen.
      This case is not a close call, which the district court recognized. In
response to Candela-Rios’s first request to modify the judgment, the district
court acknowledged that Candela-Rios made out a prima facie case of U.S.
birth through his Texas birth certificate.      It then concluded that the
Government rebutted all of that evidence with its own more powerful evidence
about his birth. The district court thus implicitly determined that even if the
Government bore the burden, it presented sufficient evidence to prove
Candela-Rios was born in Mexico.
      Because this case is not close, any error in misallocating the burden was
harmless error under Federal Rule of Civil Procedure 61. Even under Candela-
Rios’s preferred burden allocation, the Government would have prevailed. The
district court’s amended judgment, in conjunction with the overwhelming
amount of evidence against Candela-Rios, make it unnecessary to resolve
Candela-Rios’s arguments regarding the burden of proof.
      AFFIRMED.




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                                         17-50379
STEPHEN A. HIGGINSON, Circuit Judge, concurring:
       I agree that, in light of the overwhelming evidence of Candela-Rios’s
Mexican birth, the judgment of the district court should be affirmed. Given
the significance of the issue, the severity of its consequences, and its likelihood
of recurrence, I would take this opportunity to clarify that the government bore
the ultimate burden of proving foreign citizenship by clear, unequivocal, and
convincing evidence. See Mondaca-Vega v. Lynch, 808 F.3d 413, 417, 419 (9th
Cir. 2015) (en banc). 1
       The parties agree that, in removal proceedings against a person alleged
to be present without being admitted or paroled—as was the case here—“the
Service must first establish the alienage of the respondent,” 8 C.F.R. §
1240.8(c), and it must do so by clear, unequivocal, and convincing evidence.
See Woodby v. INS, 385 U.S. 276, 277 (1966) (“[I]t is incumbent upon the
Government in [removal] proceedings to establish the facts supporting
deportability by clear, unequivocal, and convincing evidence.”); Matadin v.
Mukasey, 546 F.3d 85, 91 (2d Cir. 2008) (stating that absent a contrary
directive from Congress, Woodby controls and the government must establish
facts supporting removal by clear, unequivocal, and convincing evidence). 2 The


       1  It is worth noting that in Mondaca-Vega, the government—including in its
opposition to certiorari—accepted that in a § 1252(b)(5)(B) proceeding in which the petitioner
claims birthright citizenship, the government bears the ultimate burden to prove alienage by
clear, unequivocal, and convincing evidence. See Brief for Respondent in Opposition at 8–13,
Mondaca-Vega v. Lynch, No. 15-1153 (June 2016).
        2 Prior to the enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Congress was silent as to the burden of proof in
removal proceedings. See Ward v. Holder, 733 F.3d 601, 604 (6th Cir. 2013). In the absence
of a statement from Congress, the Supreme Court held in Woodby that the government must
“establish all the facts supporting deportability by clear, unequivocal, and convincing
evidence.” 385 U.S. at 277. With IIRIRA, Congress arguably lowered the government’s
burden of proof to clear and convincing evidence in cases in which it sought to remove
someone based on one of the deportability grounds enumerated in 8 U.S.C. § 1227(a). See 8
U.S.C. § 1229a(c)(3) (“[T]he Service has the burden of establishing by clear and convincing
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government has argued in this case that the burden flips in proceedings under
§ 1252(b)(5)(B), which are treated “as if an action had been brought in the
district court under section 2201 of Title 28 [the Declaratory Judgement Act].”
8 U.S.C. § 1252(b)(5)(B). But that procedural distinction makes no substantive
difference to the assignment of the burden of proof. See Medtronic, Inc. v.
Mirowski Family Ventures, L.L.C., 134 S. Ct. 843, 849 (2014) (holding that the
Declaratory Judgment Act is procedural only and does not affect substantive
rights including the allocation of the burden of proof). The burden is on the
government to prove alienage, and § 1252(b)(5)(B) does nothing to change
that. 3
          In placing the burden of proof on Candela-Rios, the district court and the
government rely on cases involving claims of citizenship by naturalization
rather than by birth. But those cases do not answer the question before us.
When foreign birth is conceded, as it necessarily is in any case involving a claim



evidence that, in the case of an alien who has been admitted to the United States, the alien
is deportable.”); see also Ward, 733 F.3d at 605 (citing Addington v. Texas, 441 U.S. 418
(1979), and holding that the “‘clear, unequivocal, and convincing standard’ is a more
demanding degree of proof than the ‘clear and convincing’ standard”). But see Mondaca-Vega,
808 F.3d at 421–22 (citing Addington and concluding that “clear and convincing” and “clear,
unequivocal, and convincing” are the same standard). Here, however, Candela-Rios was
never admitted to the United States, and the government charged him not as deportable but
as inadmissible on one of the grounds enumerated in 8 U.S.C. § 1182, namely, being present
without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i). Because Congress has not
spoken to the burden of proof in such proceedings, Woodby’s requirement of clear,
unequivocal, and convincing evidence continues to apply. See Matadin, 546 F.3d at 91.
        3 We have previously held that, in a proceeding under 8 U.S.C. § 1503(a)—the

predecessor to § 1252(b)(5)(B) and the provision that continues to apply to persons seeking
declarations of citizenship in contexts other than removal proceedings—one seeking a
declaration of citizenship after having been ordered removed bears the burden “to prove that
she is an American citizen.” De Vargas v. Brownell, 251 F.2d 869, 871 (5th Cir. 1958). But
De Vargas was decided before both Woodby, which clearly places the burden on the
government in removal proceedings, and Medtronic, which clearly holds that the fact that an
action is for a declaratory judgment does not alter the allocation of the burden of proof. Those
cases abrogate De Vargas. See United States v. Boche-Perez, 755 F.3d 327, 334 (5th Cir.
2014).
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to naturalization, there appropriately is a presumption of alienage. See Scales
v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000) (stating that concession of foreign
birth “giv[es] rise to the presumption of alienage”). Accordingly, in such cases,
the burden shifts to the person claiming naturalization to rebut the
presumption of alienage and prove that he or she qualifies for naturalization.
See Leal Santos v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008) (stating, in context of
claim to derived citizenship, that “evidence that the person in removal
proceedings was born abroad meets [the government’s] burden [of proving
alienage] unless the person can prove, by a fair preponderance of the evidence,
that he possesses derivative citizenship.”); see also Bustamante-Barrera v.
Gonzales, 447 F.3d 388, 394 (5th Cir. 2006) (“As Petitioner was not born in the
United States, naturalization is his sole source for a claim of citizenship . . .
[and he] has the burden of proving that he qualifies for naturalization . . . .”).
But where, as here, a person present in the United States asserts birthright
citizenship, foreign birth is, of course, not conceded, and the government
therefore retains the burden of proving alienage. 4
       In summary, when a person in the United States is alleged to be present
without being admitted or paroled, and challenges, in a § 1252(b)(5)(B)
proceeding, the government’s assertion of alienage by claiming birthright




       4 The government also relies on cases involving passport applications to support its
position that, in proceedings under §§ 1503 and 1252(b)(5)(B), the person seeking a
declaration of citizenship bears the burden of proof. But such cases are distinguishable. In
the context of passport applications, federal regulations place the burden to prove citizenship
on the applicant. 22 C.F.R. § 51.40 (“The applicant has the burden of proving that he or she
is a U.S. citizen or non-citizen national.”). Because declaratory judgment proceedings under
either §§ 1503 or 1251(b)(5)(B) do not change the allocation of the burden of proof, which is
derived from the underlying substantive law, and because passport applications and removal
proceedings are governed by different bodies of substantive law, passport cases are irrelevant
to the question presented here.
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citizenship, the government bears the burden of proving foreign citizenship by
clear, unequivocal, and convincing evidence.




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