                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 12 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JUAN CARLOS VALDEZ-BERNAL,                       No. 09-72575

              Petitioner,                        Agency No. A017-989-923

  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 May 4, 2011
                              Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

       Petitioner Juan Carlos Valdez Bernal a lawful permanent resident who was

born in Mexico, petitions for review of the Board of Immigration Appeals’ order

denying termination of removal. Petitioner asserts derivative citizenship through

his citizen father, Carlos Valdez. We have jurisdiction to consider nationality

pursuant to 8 U.S.C. § 1252(b)(5). Section 1252(b)(5) and traditional summary


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment rules guide our decision. Baeta v. Sonchik, 273 F.3d 1261, 1265 (9th

Cir. 2001). Because we hold that the pleadings and affidavits do not create a

genuine issue of material fact, we decide nationality. 8 U.S.C. § 1252(b)(5)(A);

Chau v. INS, 247 F.3d 1026, 1029 (9th Cir. 2001).

         We apply the derivative citizenship statute in effect when Petitioner was

born, 8 U.S.C. § 1401(a)(7) (1952). Chau, 247 F.3d at 1028 n.3. Petitioner’s

foreign birth in Mexico gives rise to a rebuttable presumption of alienage and shifts

the burden to Petitioner to produce substantial credible evidence of derivative

citizenship. If Petitioner comes forward with substantial credible evidence, the

burden shifts back to the government to prove removability by clear and

convincing evidence. Ayala-Villaneuva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir.

2009).

         The only issue in this case is whether Petitioner’s father was physically

present in the United States for ten years before October 20, 1957, with at least five

of those years after September 13, 1942, when Petitioner’s father turned age 14. 8

U.S.C. § 1401(a)(7). At most, the undisputed facts establish six or seven years of

physical presence before October 1957, beginning by mid-1950 when Petitioner’s

father enlisted to fight in the Korean War. However, Petitioner did not produce

substantial credible evidence to create a genuine issue of material fact about


                                            2
whether his father was physically present prior to 1950. Petitioner’s mother

eventually clarified her inconsistent testimony by stating that she did not meet or

know Petitioner’s father until 1953, when he was discharged from the military after

the Korean War. That Petitioner’s father may have fathered another child in the

United States in 1950 or 1951 is not probative of whether the father was physically

present in the U.S. during the critical period.

      PETITION FOR REVIEW DENIED.




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