                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            AUG 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANTONIO LOPEZ-GOMEZ,                             No.   06-75149

              Petitioner,                        D.C. No. 3:08-cv-01276-W-RBB

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                        Argued and Submitted May 9, 2017
                               Pasadena, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: PREGERSON and FRIEDLAND, Circuit Judges, and LASNIK,**
District Judge.


      In 2006, Antonio Lopez-Gomez, who was born in Mexico, petitioned this

court for review of the Board of Immigration Appeals’ final order of removal,

arguing that he had obtained derivative United States citizenship from his father

under the Immigration and Nationality Act (INA). Finding a genuine issue of

material fact, the court transferred Mr. Lopez-Gomez’s case to the federal district

court for a judicial determination of Mr. Lopez-Gomez’s claim to nationality. In

January 2014, the district court granted the Attorney General’s unopposed motion

for summary judgment, concluding that Mr. Lopez-Gomez had failed to introduce

reliable evidence supporting his claim to derivative citizenship. We agree with Mr.

Lopez-Gomez that a genuine issue of material fact remains and reverse and remand

for further proceedings in the district court under 8 U.S.C. § 1252(b)(5)(B).

      The derivative citizenship provision in effect at the time of Mr. Lopez-

Gomez’s birth, see Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990), granted

citizenship to:

             person[s] born outside the geographical limits of the United
             States . . . of parents one of whom is an alien, and the other


      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
                                           2
              a citizen of the United States who, prior to the birth of such
              person, was physically present in the United States or its
              outlying possessions for a period or periods totaling not
              less than ten years, at least five of which were after
              attaining the age of fourteen.


See former INA § 301(a)(7) (1952) (recodified in 1978 at INA § 301(g), 8 U.S.C. §

1401(a)(7)). To obtain derivative citizenship under this provision, Mr. Lopez-

Gomez must establish by a preponderance of the evidence, see Yee Tung Gay v.

Rusk, 290 F.2d 630, 631 (9th Cir. 1961), that his biological father, Stephen

Caldera, was present in the United States for ten years between September 2, 1925

(Mr. Caldera’s date of birth), and October 16, 1968 (Mr. Lopez-Gomez’s date of

birth). Of those ten years, five must occur after September 2, 1939 (Mr. Caldera’s

fourteenth birthday).

       Mr. Lopez-Gomez argues that this physical presence requirement is met and

accordingly that he is a United States citizen and not subject to removal. See

Brown v. Holder, 763 F.3d 1141, 1146–47 (9th Cir. 2014) (“[T]he government is

not permitted to deport citizens . . . .”).

       The INA provides that when a petitioner contests an Immigration Judge’s

order of removal on the grounds that he is in fact a national of the United States,

and where the court of appeals finds a genuine issue of material fact regarding the



                                              3
petitioner’s claim to nationality,1 the court of appeals shall transfer the proceeding

to a federal district court “for a new hearing on the nationality claim and a decision

on that claim as if an action had been brought in the district court under section

2201 of Title 28.” 8 U.S.C. § 1252(b)(5)(B). This de novo review of the

petitioner’s nationality claim “provide[s] a fail safe against inadvertent or

uninformed execution of a final order of removal against a person with a claim to

United States nationality.” Theagene v. Gonzales, 411 F.3d 1107, 1110 n.4 (9th

Cir. 2005).

      At the summary judgment stage, the district court must view the evidence in

the light most favorable to the non-moving party and ask whether the moving party

has met its burden of showing that no genuine issue of material fact exists. See

Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). Even when a

motion for summary judgment is unopposed, as here, the moving party retains its

burden to demonstrate the absence of any issue of material fact. See Cristobal v.



      1
         Mr. Lopez-Gomez argues on appeal that the district court’s summary
judgment order, finding no genuine issues of material fact as to Mr. Lopez-
Gomez’s claim to citizenship, contradicted this court’s 8 U.S.C. § 1252(b)(5)(B)
transfer order and thus violated the law of the case doctrine. But if the law of the
case doctrine applied in this context, where a finding that a genuine issue of
material fact exists is a prerequisite to transfer, no district court conducting a de
novo citizenship hearing under 8 U.S.C. § 1252(b)(5)(B) could ever resolve a claim
to citizenship on summary judgment. That is not the law.
                                           4
Siegel, 26 F.3d 1488, 1494–95 (9th Cir. 1994). Trial courts resolving unopposed

summary judgment motions have an obligation to evaluate independently the

sufficiency of the moving papers. Id. at 1496. This court reviews de novo a

district court’s decision to grant a motion for summary judgment. Bravo v. City of

Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011).

      We find that a genuine issue of material fact remains regarding Mr. Lopez-

Gomez’s claim to United States citizenship. The main evidence supporting

Mr. Lopez-Gomez’s contention that Mr. Caldera was present in the United States

for over five years between 1939 and 1968 is a declaration in which Mr. Caldera

testifies that between 1947 and 1972 he traveled back and forth between Mexico

and California to work as an agricultural laborer for periods of four to seven

months each year. The record also contains additional declarations and depositions

from Mr. Lopez-Gomez’s family members corroborating parts of Mr. Caldera’s

declaration testimony. Read in the light most favorable to Mr. Lopez-Gomez,

these declarations create a genuine issue of material fact regarding whether Mr.

Caldera was present in the United States for over five years following his

fourteenth birthday and preceding Mr. Lopez-Gomez’s birth.

      The district court reached a different conclusion. Because the paragraphs

addressing the years 1950 to 1972 state that Mr. Caldera traveled between Mexico


                                          5
and California for five, six, or seven months out of the year, the court concluded

that those paragraphs “do not provide enough detail for the Court to conclude that

Stephen Caldera was physically present in the United States for any particular

duration of time.” But this evaluation of Mr. Caldera’s declaration at worst

improperly viewed the evidence in the light most favorable to the moving party,

and at best weighed the evidence as a trier of fact would do.

      It is true that, due to memory loss, Mr. Caldera was unable to corroborate his

written declaration with live testimony. But the extent to which this undermines

the declaration’s reliability is a fact issue for resolution through a full evidentiary

hearing. See Brown, 763 F.3d at 1144; see also Batista v. Ashcroft, 270 F.3d 8, 15

(1st Cir. 2001) (“[W]e deem it appropriate under § 1252(b)(5) to look for a genuine

issue of material fact as to citizenship in the ‘pleadings and affidavits’ without

regard to whether such materials are part of the administrative record.”). Anything

less would undermine the INA’s “fail safe” against the inadvertent unlawful

removal of a United States citizen. See Theagene, 411 F.3d at 1110 n.4; Brown,

763 F.3d at 1146–47.




                                            6
      Because a genuine issue of material fact remains as to Mr. Lopez-Gomez’s

claim to United States citizenship, summary judgment was improper.2

      Mr. Lopez-Gomez also argues that the district court erred by failing to

obtain a knowing, voluntary waiver of Mr. Lopez-Gomez’s right to counsel before

adjudicating his citizenship claim. Because we reverse on the grounds described

above, we decline to address that question as to proceedings under 8 U.S.C.

§ 1252(b)(5)(B).

      REVERSED AND REMANDED.




      2
         Mr. Lopez-Gomez also argues that the district court applied an erroneous
burden of proof. After reciting the familiar summary judgment standard, the
district court stated that, in a de novo citizenship hearing in district court, the
petitioner “has the burden of proving his citizenship by a preponderance of the
evidence.” The district court ultimately concluded that “Petitioner fails to meet his
burden to demonstrate by a preponderance of the evidence that he is a United
States citizen through his father Stephen Caldera in accordance to 8 U.S.C.
§ 1401(a)(7) (1968).” As the non-moving party, Mr. Lopez-Gomez was not
required to prove his citizenship by a preponderance of the evidence to defeat
summary judgment. Because we reverse on other grounds, we decline to resolve
whether these statements constitute evidence of erroneous burden-shifting.
                                          7
                                                                           FILED
Lopez-Gomez v Sessions 06-75149                                             AUG 8 2017
                                                                       MOLLY C. DWYER, CLERK
FRIEDLAND, dissenting.                                                   U.S. COURT OF APPEALS


      Because I would affirm the district court’s grant of summary judgment, I

respectfully dissent.

      To prevail on his claim of derivative citizenship, Antonio Lopez-Gomez

must prove by a preponderance of the evidence that his father, Stephen Caldera,

was physically present in the United States for ten years prior to Lopez-Gomez’s

birth, at least five of which were after Caldera turned fourteen. See former INA

§ 301(a)(7) (1952); Yee Tung Gay v. Rusk, 290 F.2d 630, 631 (9th Cir. 1961).

Because Lopez-Gomez would bear this burden at trial, at summary judgment, the

Government could meet its burden as the moving party by demonstrating that

Lopez-Gomez failed to make a sufficient showing of an essential element of his

claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

Government has done so here, so it has shown that it is entitled to summary

judgment.

      The evidence presented by Lopez-Gomez does not raise a genuine issue of

material fact regarding whether Caldera was present in the United States for at

least five years between September 2, 1939 (Caldera’s fourteenth birthday) and

October 16, 1968 (Lopez-Gomez’s birth). Although the declarations and

depositions provided by Lopez-Gomez suggest specific dates when Caldera may
have been present in the United States, they do not indicate the duration of time

that Caldera was present. Moreover, at his deposition Caldera struggled to

remember dates and time periods. There is no indication that Caldera’s memory

would be any better at trial, nor is there any indication that Lopez-Gomez has

further evidence that he could produce at trial. When read in the light most

favorable to Lopez-Gomez, therefore, the declarations and depositions are

consistent with Caldera being present in the United States for the requisite five

years. But they do not contain sufficient evidence to support a conclusion by a

reasonable factfinder that Caldera was present in the United States for that length

of time, and Lopez-Gomez has not pointed to any further evidence that he could

offer were there a trial. Accordingly, I would affirm the district court’s grant of

summary judgment to the Government. 1




1
  I would also reject Lopez-Gomez’s right to counsel claim. The right to counsel
of choice in removal proceedings, see Tawadrus v. Ashcroft, 364 F.3d 1099, 1103
(9th Cir. 2004), has not been extended to district court determinations of a claim to
citizenship. Even assuming it should be so extended, there was no violation here
because Lopez-Gomez knew he was permitted to be assisted by counsel and had a
reasonable time to obtain counsel. See Biwot v. Gonzales, 403 F.3d 1094, 1098-
100 (9th Cir. 2005).
