                                                                            FILED
                           NOT FOR PUBLICATION                               MAR 19 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JESSICA ROSA GARCIA,                             No. 09-72730

             Petitioner,                         Agency No. A088-890-849

  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 December 8, 2011
                            San Francisco, California

       Before: LUCERO,** CALLAHAN, and N.R. SMITH, Circuit Judges.

       Jessica Garcia petitions for review of the Board of Immigration Appeals'

('BIA') decision affirming her removal order. Garcia argues that the government

did not meet its burden of proving that she is an alien. See Murphy v. INS, 54 F.3d


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.

                                         -1-
605, 608 (9th Cir. 1995). We grant the petition and remand. Because the parties

are familiar with the record, we recount the facts only as necessary to explain our

decision.

                                          I

      In removal proceedings, the United States must first prove alienage by 'clear

and convincing evidence' before the burden shifts to the alleged noncitizen to

prove citizenship or lawful entry by a preponderance of the evidence. Murphy, 54

F.3d at 608-09. Setting out a 'prima facie case of alienage based on circumstantial

evidence' does not shift the burden of persuasion; it 'merely requires the opponent

to go forward' with rebuttal evidence. Id. at 609.

      To prove Garcia's foreign birth, the government relied entirely on Garcia's

past statements. The government submitted evidence that Garcia told an ICE

officer that she was born in Mexico. It also presented various official documents

in which Garcia indicated she was born in Mexico.1 In response, Garcia, whose

mother died when she was a small child and whose father is unµnown, testified that

while she had held herself out as a Mexican citizen on these occasions, she did not

µnow whether she was born in the United States or in Mexico. According to




1.
  The government also presented an undisputedly fraudulent Mexican birth
certificate, which Garcia used to attend school and access other public programs.

                                         -2-
Garcia, when asµed to state her place of birth, she 'will picµ a city [to be from]

since I don't µnow . . . where . . . I was born.'

      Neither the Immigration Judge ('IJ') nor the BIA made any findings about

the credibility of this testimony purporting to contradict the government's evidence

of foreign birth. See Kalubi v. Ashcroft, 364 F.3d 1134, 1140-41 (9th Cir. 2004)

('[T]he BIA must explain what factors it has considered or relied upon sufficiently

that we are able to discern that it 'has heard, considered, and decided.''). Instead,

the IJ treated the government's evidence 'as a practical matter the only evidence

we have' and shifted the burden to Garcia to prove that she was born in the United

States. The Board affirmed the IJ's decision.

                                            II

      At the outset of our analysis, we note what this case is about and what it is

not about. The narrow issue before us is whether the government proved that

Garcia was born in Mexico. The government's sole evidence of foreign birth is the

alleged alien's prior statements, even though the alien has testified that she had no

basis for maµing those statements and the IJ failed to determine the credibility of

this testimony. This case is not about whether a person who the government has




                                           -3-
proven to be an alien may, 'simply by proclaiming 'I don't µnow where I was

born,' . . . stay in the country.' (Dissent at 2-3).

       The government's case consists of Garcia's past statements that she was

born in Mexico, but Garcia testified that she does not have µnowledge of where she

was born. Accordingly, 'whether there is clear, unequivocal and convincing

evidence that [Garcia] is an alien resolves itself into a determination of whether

[Garcia's] testimony . . . is worthy of belief.' Matter of Lugo-Guadiana, 12 I&N

Dec. 726, 729 (BIA 1968). When 'alienage is charged . . . and the Government

has introduced . . . evidence in support of the charge and the opposing side has

introduced evidence intended to rebut the Government's case[,] there must be an

evaluation . . . of all the evidence and a finding made with regard to its credibility

before the test for burden of proof . . . comes into play.' Id. at 730 (emphasis

added).

       As such, the BIA/IJ erred by shifting the burden to Garcia without first

determining whether the testimony she presented credibly contradicted the

government's prima facie evidence of foreign birth. See Murphy, 54 F.3d at 610

(explaining that prima facie evidence is 'evidence which, if unexplained or

uncontradicted, is sufficient to sustain a judgment in favor of the issue which it




                                            -4-
supports, but which may be contradicted by other evidence.'). We therefore grant

Garcia's petition and remand for the BIA to determine, after weighing the

evidence, whether the government has met its burden.

                                        III

      Petition GRANTED and REMANDED. The government's motion for

leave to file the tendered corrected brief is also GRANTED.




                                        -5-
                                                                             FILED
Garcia v. Holder, No. 09-72730                                                MAR 19 2012

                                                                          MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                       U.S . CO U RT OF AP PE A LS




      I respectfully dissent. The majority's decision exalts form over substance

while ignoring the only conclusion the evidence will support: a denial of relief.

      In its decision, the BIA correctly recognized that the government 'bears the

burden of establishing all facts supporting removability by clear, unequivocal, and

convincing evidence.' The BIA also correctly recognized that, under Matter of

Lugo-Guadiana, 12 I. & N. Dec. at 730, ''there must be an evaluation and a

weighing of all the evidence and a finding made with regard to its credibility

before'' that test for burden of proof ''comes into play.''

      The BIA found no reversible error in the Immigration Judge's ('IJ's')

determination that Garcia failed to rebut the presumption of alienage with a

preponderance of credible evidence. The BIA reasonably explained that 'virtually

all of the evidence contained in the record reflects that the respondent is a native

and citizen of Mexico.' Specifically, Garcia admitted to an immigration officer

that she was born in Mexico, a fact that the government's highly probative

immigration form reflected and that the officer testified to before the IJ. See

Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (explaining that such forms are



                                           1
presumed reliable and trustworthy in the absence of evidence to the contrary). In

addition: (1) Garcia had long represented that she and her children were Mexican

by relying on a fraudulent Mexican birth certificate; (2) Garcia claimed U.S.

citizenship only recently and only expressed uncertainty as to her place of birth

after being placed in removal proceedings; (3) neither Garcia nor her only witness,

her great aunt, were able to say that Garcia was or could have been born in the

United States; and (4) there was absolutely no documentation showing that Garcia

was or could have been born in the United States. The only contrary

evidence--the mere possibility that Garcia was born somewhere else based on her

later inconsistent statements--'does not amount to substantial credible evidence

proving United States citizenship.'

      The BIA acµnowledged the IJ did not maµe an adverse credibility finding,

but found that did not matter because 'the unclear and speculative nature' of

Garcia's and her aunt's testimony--'which is the only evidence that supports

[Garcia's] claim'--was insufficient to rebut the overwhelming evidence of

alienage. That is, the BIA determined there was no 'reliable' or 'credible'

evidence Garcia was born in the United States. The BIA would have reached this

conclusion before or after determining whether Garcia and her aunt were credible,

and before or after weighing their testimony against the government's evidence.


                                          2
      In faulting the BIA for failing to use specific words in its decision, the

majority ignores the agency's reasonable conclusion that Garcia was not born in

the United States. (Indeed, that was the only reasonable conclusion given the

record evidence. Among other things, Garcia's testimony contradicted evidence

that she, for many years, had successfully represented that she was born in

Mexico.) As a result, the majority's decision stands for the untenable proposition

that an inadmissible alien, simply by proclaiming 'I don't µnow where I was

born,' gets to stay in the country despite overwhelming evidence of foreign birth.

A remand will only require the BIA and IJ to redo what they already have

done--'evaluat[e] and . . . weigh[ ] . . . all the evidence and [maµe] a

finding . . . with regard to its credibility.' Matter of Lugo-Guadiana, 12 I. & N.

Dec. at 730. Because the government already has proven Garcia's alienage by

clear and convincing evidence, I would deny Garcia's petition for review.




                                          3
