                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 04 2012

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



                            FOR THE NINTH CIRCUIT


ALFREDO CARRILLO-LOZANO, a.k.a                   No. 07-73779
Alfredo Lozano Carrillo,
                                                 Agency No. A014-603-497
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



ALFREDO CARRILLO-LOZANO, a.k.a                   No. 08-70147
Alfredo Lozano Carrillo,
                                                 Agency No. A014-603-497
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



ALFREDO CARRILLO-LOZANO, A                       No. 09-17802
United States citizen,
                                                 D.C. No. 2:07-cv-01861-GMS


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
              Petitioner - Appellant,

  v.

CHARLES DE ROSA, Warden, Eloy
Detention Center; et al.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona


                             Submitted May 17, 2012**
                              San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.



       Alfredo Carrillo-Lozano (“Carrillo”) petitions pro se for review of the Board

of Immigration Appeals’ (“BIA”) dismissal of his appeal of an Immigration

Judge’s (“IJ”) decision denying termination based on his citizenship claim. The

BIA found that Carrillo failed to establish citizenship through his mother and that

the Department of Homeland Security (“DHS”) met its burden of proof on the

alienage issue. Carrillo additionally petitions for review of the BIA’s denial of his



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
motion to reconsider. The two previous petitions were consolidated and

transferred to the District Court for the District of Arizona for a determination of

Carrillo’s citizenship claim. Carrillo now seeks review of the district court’s

determination that he is not a United States citizen. Lastly, Carrillo seeks review

of the district court’s denial of his habeas petition challenging his detention. We

have jurisdiction under 8 U.S.C. § 1252. We deny the petitions and affirm the

district court’s determination that Carrillo is not a United States citizen.

1.    The district court did not abuse its discretion in appointing an expert in

Mexican family law, under either Federal Rule of Civil Procedure 44.1 or Federal

Rule of Evidence 706. Even though the district judge was friends with the expert,

there is no evidence of bias. Additionally, the district court’s interpretation of

Mexican law as applied to these facts was not error.

      The district court did not err in admitting the marriage certificate, because it

complied with Federal Rule of Evidence 902(3). The district court also did not

abuse its discretion in excluding evidence that Carrillo’s parents lived in a free

union, because it was hearsay and not reliable. See Fed. R. Evid. 403. Even if the

district court erred in excluding this evidence, such error was harmless. The

district court concluded that, even if the document were admissible, it was not

persuasive.


                                           3
2.    After a bench trial, a district court’s “[f]indings of fact . . . must not be set

aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6). “This has been

interpreted to mean that the trial judge’s finding of fact cannot be set aside unless,

‘although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’”

Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316, 1318 (9th Cir.

1982) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see

also United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010) (“In order to

reverse a district court’s factual findings as clearly erroneous, we must determine

that the district court’s factual findings were illogical, implausible, or without

support in the record.”). Here, the district court’s factual determination that

Carrillo’s parents were married at the time of Carrillo’s birth is not clearly

erroneous. Therefore, under former INA § 309(c), 8 U.S.C. § 1409(c), Carrillo

does not qualify for citizenship.




                                            4
3.    Carrillo’s habeas appeal was reinstated and is properly before this court.

Because Carrillo’s habeas petition on appeal only challenges his detention based

upon a citizenship claim,1 the appeal of that issue is denied as moot.2

    PETITIONS FOR REVIEW DENIED; HABEAS APPEAL
DISMISSED AS MOOT.




      1
        In his habeas petition, Carrillo also challenged the length of his detention
without a bond hearing, which the district court denied as moot after Carrillo
received a bond hearing. Carrillo did not challenge this denial in his opening brief.
Thus, it is waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996) (issue not argued in opening brief deemed waived).
      2
       Carrillo’s F.R.A.P. 23(b) Motion for Release from Custody Pending
Habeas Corpus Appeal as of Right and motion to reinstate oral argument are also
denied as moot.

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