                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SALVADOR MONDACA-VEGA,                    No. 03-71369
                   Petitioner,
                                           Agency No.
                 v.                       A019-263-384

LORETTA E. LYNCH, Attorney
General,                                  ORDER AND
                      Respondent.          OPINION


        On Petition for Review of an Order of the
            Board of Immigration Appeals

            Argued En Banc March 17, 2014
              Submitted February 3, 2015
               San Francisco, California

                Filed December 15, 2015

    Before: Sidney R. Thomas, Chief Judge and Harry
Pregerson, Alex Kozinski, Barry G. Silverman, William A.
 Fletcher, Johnnie B. Rawlinson, Jay S. Bybee, N. Randy
   Smith, Mary H. Murguia, Jacqueline H. Nguyen and
            Andrew D. Hurwitz, Circuit Judges.

                         Order;
               Opinion by Judge Hurwitz
 Partial Concurrence and Partial Dissent by Judge N.R.
                         Smith;
Partial Concurrence and Partial Dissent by Judge Murguia
2                 MONDACA-VEGA V. HOLDER

                           SUMMARY*


                           Immigration

     The en banc court denied petitioner’s petition for review
from the Board of Immigration Appeals’ decision finding him
deportable, based on the en banc court’s affirmance of the
district court’s determination following a bench trial pursuant
to this court’s transfer under 8 U.S.C. § 1252(b)(5)(B) finding
that petitioner is not a United States citizen.

    Judge Hurwitz wrote an opinion joined by the full panel
as to Parts I–III; by Judges Kozinski, Silverman, Rawlinson,
Bybee, Murguia and Nguyen as to Part IV; and by Judges
Kozinski, Silverman, Rawlinson and Bybee as to Parts V and
VI.

    In Parts I–III, Judge Hurwitz wrote that petitioner
presented substantial credible evidence that he was a U.S.
citizen and that the government satisfied its burden to rebut
his claim by clear and convincing evidence.

    In Part IV, Judge Hurwitz wrote that the district court
determined only a factual question regarding whether
petitioner was a U.S. or Mexican citizen, and that
independent review was not appropriate.

   In Part V, Judge Hurwitz concluded that this court is
required under Fed. R. Civ. P. 52(a) to review the district
court’s factual findings, including its ultimate conclusion that

* *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                MONDACA-VEGA V. HOLDER                         3

petitioner is not a citizen because he was born in Mexico, for
clear error. Judge Hurwitz wrote that Lim v. Mitchell,
431 F.2d 197 (9th Cir. 1970), an alienage-determination case
applying independent review to findings of fact, has been
overruled.

    In Part VI, Judge Hurwitz denied the petition for review.

    Judge N.R. Smith wrote an opinion concurring in part and
dissenting in part. Chief Judge Thomas and Judges Pregerson
and W. Fletcher joined as to Part I, in which Judge N.R.
Smith would hold that the government must prove by clear,
unequivocal, and convincing evidence that a petitioner
claiming to be a U.S. citizen is deportable. Judge N.R. Smith
also concurred in Sections I–III and in the result of Section V
and VI of the majority decision; writing that although he did
not agree with the majority’s holding on the burden of proof,
he concurred in the judgment to deny the petition.

    Judge Murguia wrote an opinion concurring in part and
dissenting in part, which Judge Nguyen joined in full and
which Chief Judge Thomas and Judges Pregerson and W.
Fletcher joined as to Parts A, B and D. In Parts A, B and D,
Judge Murguia would find that whether petitioner procured
U.S. citizenship illegally or by fraud is a question of law to be
reviewed de novo, and would reverse the district court and
grant the petition for review. In Part C, Judge Murguia would
hold that Lim, which applied an independent standard of
review in an alienage determination case, is sound and should
be followed. In Part E, upon independently reviewing the
district court’s determination that the government met its
burden and reviewing for clear error the district court’s
underlying findings of fact, Judge Murguia would reverse the
district court and grant the petition for review.
4              MONDACA-VEGA V. HOLDER

                        COUNSEL

Matt Adams (argued), Northwest Immigrant Rights Project,
Seattle, Washington; and Martha H. Rickey, Northwest
Immigrant Rights Project, Granger, Washington, for
Petitioner.

August E. Flentje (argued), Stuart F. Delery, Colin A. Kisor,
Elizabeth J. Stevens, Aaron S. Goldsmith, Katherine E.M.
Goettel, United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for
Respondent.

Holly S. Cooper, Davis, California, as and for Amicus Curiae
U.C. Davis Immigration Law Clinic.

Devin T. Theriot-Orr, Gibbs Houston Pauw, Seattle,
Washington, for Amicus Curiae American Immigration
Lawyers Association.

Charles Roth, Chicago, Illinois, as and for Amicus Curiae
National Immigrant Justice Center.
               MONDACA-VEGA V. HOLDER                       5

                          ORDER

   The petition for review is denied.

    Judge Hurwitz wrote an opinion joined by the full panel
as to Parts I–III; by Judges Kozinski, Silverman, Rawlinson,
Bybee, Murguia and Nguyen as to Part IV; and by Judges
Kozinski, Silverman, Rawlinson and Bybee as to Parts V and
VI.

    Judge N.R. Smith wrote an opinion concurring in part and
dissenting in part, which Chief Judge Thomas, and Judges
Pregerson and W. Fletcher join as to Part I. Judge N.R. Smith
concurs in the result of (but does not join) Parts V and VI of
Judge Hurwitz’s opinion.

    Judge Murguia wrote an opinion concurring in part and
dissenting in part, which Judge Nguyen joins in full and
which Chief Judge Thomas, and Judges Pregerson and W.
Fletcher join as to Parts A, B and D.

   Judges Kozinski, Silverman, Rawlinson, Bybee, N.R.
Smith, and Hurwitz would deny the petition for review.
Chief Judge Thomas and Judges Pregerson, W. Fletcher,
Murguia, and Nguyen would grant the petition for review.
6                 MONDACA-VEGA V. HOLDER

                             OPINION

HURWITZ, Circuit Judge, joined by the full panel as to parts
I–III of his opinion; joined in full as to his entire opinion by
KOZINSKI, SILVERMAN, RAWLINSON, and BYBEE,
Circuit Judges; joined in the results of Parts V and VI by N.R.
SMITH, Circuit Judge; and joined in Part IV by MURGUIA
and NGUYEN, Circuit Judges:

    Our task is to review a district court determination—made
after a bench trial—that the petitioner1 was born in Mexico,
not the United States. After finding the petitioner had
introduced sufficient evidence that he is a U.S. citizen, the
district court shifted the burden to the government to rebut by
“clear, unequivocal, and convincing” evidence, and found
that it had done so.

    The petitioner claims that the district court erred in
concluding that “clear, unequivocal, and convincing”
evidence—a phrase we have used to describe the
government’s burden in alienage-determination proceedings
—is identical to the traditional civil intermediate burden of
proof. He argues the proper burden is instead more akin to
the “beyond a reasonable doubt” standard that applies in
criminal cases. We disagree, and hold that “clear,
unequivocal, and convincing” is the familiar intermediate
standard used in civil cases when particularly important
individual interests are at stake.



    1
    Because the core question in these proceedings is one of identity, we
refer to the petitioner by that title rather than as Reynaldo Mondaca
Carlon, his asserted name, or Salvador Mondaca-Vega, the name the
district court found to be his true name.
                   MONDACA-VEGA V. HOLDER                                7

    Because we find no error in the district court’s application
of the burden of proof, we also reach the second substantial
question presented in this case—the standard of review
applicable to the trial court’s findings of fact. The petitioner
argues we must review the district court’s findings de novo.
We hold, instead, that the “clear error” standard of Federal
Rule of Civil Procedure 52(a) applies. Under that standard,
the petition for review must be denied.

                                    I.

                                    A.

     Although the parties sharply contest whether the
petitioner is a U.S. citizen, much of the evidence in this case
is a matter of public record and undisputed.

    1. Two authentic birth certificates are in the record—one
of Salvador Mondaca-Vega, born on June 3, 1931 in Sinaloa,
Mexico, the other of Renoldo2 Mondaca Carlon, born on July
17, 1931 in Imperial, California. Although the petitioner
concedes he has on multiple occasions identified himself as
Salvador Mondaca-Vega, he claims he is really Reynaldo
Mondaca Carlon, a U.S. citizen.

    2. It is uncontested that regardless of his place of birth,
the petitioner grew up in El Fuerte, Sinaloa, Mexico. He
came to the United States around 1951, when he was about
twenty years old, to look for work. A long series of contacts
with law enforcement and immigration authorities ensued.



  2
    The petitioner claims his true first name is Reynaldo, not Renoldo, and
that the birth certificate misspells his name.
8               MONDACA-VEGA V. HOLDER

    His rap sheet indicates that in July 1951, the petitioner,
identifying himself as Salvador Mondaca, was taken into
custody by the Sheriff’s Office in Auburn, California and
transferred to federal immigration officials. In September
1951, the petitioner accepted voluntary departure under the
name Salvador Mondaca-Vega.

    3. The record also reflects various actions taken in 1952
and 1953 by individuals identifying themselves by the names
on the birth certificates; the parties dispute whether these
actions were taken by the petitioner. In September 1952,
someone identifying himself as Salvador Mondaca
unsuccessfully applied for a social security card, naming his
place of birth as Mexico and stating that his date of birth was
April 13, 1931. Also in September 1952, someone
identifying himself as Reynaldo Mondaca Carlon registered
for selective service in Salinas, California; he was later found
unacceptable for induction.

    In May 1953, a person claiming to be Reynaldo C.
Mondaca and identifying his date of birth as July 17, 1931
and his place of birth as Imperial, California, successfully
applied for a social security card. Handwriting analysis
suggests the signature on this application belongs to the
petitioner. Although the district court made no finding as to
who made the first social security card application and the
selective service registration, the court concluded that the
May 1953 application was made by the petitioner.

   4. According to the rap sheet, in May 1953 and
September 1954, the petitioner, claiming first to be Salvador
Mondaca-Vega, then Salvador Mondaca, was transferred to
immigration authorities in Washington State and deported to
Mexico. A 1994 fingerprint analysis by the Seattle Police
                 MONDACA-VEGA V. HOLDER                           9

Department indicates that fingerprints taken on both
occasions were from the same individual, and that they
belong to the petitioner.

    5. In September 1954, the petitioner, in a sworn interview
with an INS official, stated that his name is Salvador
Mondaca-Vega, that he was born on April 16, 1931 in
Sinaloa, Mexico, and that he is a Mexican citizen. Expert
handwriting analysis submitted by both parties suggests the
signature on the statement was made by the petitioner.

    6. The rap sheet indicates that on at least two occasions
after his 1954 deportation, the petitioner received voluntary
departure—once in 1956 as Salvador Mondaca-Vega, and
once in 1966 under the name Jose Valdez-Vega. The name
Salvador Mondaca-Vega also appears in an October 1969
entry for a bench warrant issued in California for failure to
appear.3

    7. In August 1970, the petitioner married Aurelia
Estrella. They had nine children, six born in Mexico and
three in the United States. In 1977, the petitioner successfully
petitioned for adjustment of status for his wife and two of his
Mexico-born children based on his asserted status as a U.S.
citizen; the remaining four Mexico-born children received
certificates of citizenship based on their father’s purported
status. The Department of State issued the petitioner a U.S.
passport in April 1998, and a replacement passport in
September 2005 after the original was lost.



  3
    Between 1969 and 1994, the petitioner was charged with numerous
offenses under the name Reynaldo Mondaca Carlon and variations
thereof. On at least one occasion, he was charged as a U.S. citizen.
10                MONDACA-VEGA V. HOLDER

                                  B.

    The convoluted procedural history of this case begins in
1994, when the petitioner, after a conviction in Washington
state court for second-degree assault, was charged with entry
without inspection and making a false claim of U.S.
citizenship and placed in removal proceedings.

    1. After an evidentiary hearing, an immigration judge
found by “clear, convincing and unequivocal” evidence that
the petitioner is a non-citizen who entered without inspection
and by misrepresentation. The BIA affirmed.

     2. On review, we found the petitioner’s claim of U.S.
citizenship presented genuine issues of material fact and,
pursuant to the statute now codified at 8 U.S.C.
§ 1252(b)(5)(B),4 transferred the proceedings to the Eastern
District of Washington for a de novo determination of the
petitioner’s alienage. Mondaca-Vega v. Ashcroft, 104 F.
App’x 627, 628 (9th Cir. 2004). The district court denied the
parties’ cross-motions for summary judgment, Mondaca-
Vega v. Holder, No. 2:04-cv-00339-FVS, 2011 WL 1195877,
at *3 (E.D. Wash. Mar. 29, 2011), and conducted a bench
trial.

    3. At trial, the petitioner admitted that he had used the
name Salvador Mondaca-Vega (and other names he could not
remember). He claimed, however, that he never knew the
real Salvador Mondaca-Vega and could not recall how he
came up with the name. He explained that he repeatedly used



   4
     At the time, this provision was codified at 8 U.S.C. § 1105a(a)(5)
(repealed 1996).
                  MONDACA-VEGA V. HOLDER                            11

the name of a non-citizen with authorities because friends
told him a U.S. citizen would be detained longer.

     The district court found the petitioner had carried his
initial burden of proof by offering a U.S. passport and
showing that his wife and children had adjusted status and
obtained citizenship through him. Mondaca-Vega v. Holder,
No. 2:04-cv-00339-FVS, 2011 WL 2746217, at *9 (E.D.
Wash. July 14, 2011). The court then shifted the burden to
the government to rebut the petitioner’s claim of citizenship
by “clear and convincing” evidence, and, after hearing the
government’s case, found this burden satisfied. Id. at *9–10.
This conclusion was based in part on the district judge’s
finding that the petitioner’s testimony was not credible. Id.
at *7–8, *10.

   4. On April 25, 2013, a divided three-judge panel of this
Court found no clear error in the district court’s conclusion.
Mondaca-Vega v. Holder, 718 F.3d 1075, 1086 (9th Cir.
2013). A majority of the non-recused active judges then
voted to rehear the case en banc.5

                                  II.

    The government “bears the ultimate burden of
establishing all facts supporting deportability by clear,
unequivocal, and convincing evidence.” Chau v. INS,
247 F.3d 1026, 1029 n.5 (9th Cir. 2001). When, however, the
government offers evidence of foreign birth, a “rebuttable
presumption of alienage” arises, “shifting the burden to the


 5
   After hearing argument on March 17, 2014, the en banc panel vacated
submission and referred the case to mediation. The case was resubmitted
on February 3, 2015, after mediation efforts failed.
12              MONDACA-VEGA V. HOLDER

[alleged citizen] to prove citizenship.” Id. Upon production
by a petitioner of “substantial credible evidence” of the
citizenship claim, this presumption bursts and the burden
shifts back to the government to “prov[e] the respondent
removable by clear and convincing evidence.” Ayala-
Villanueva v. Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009);
see also Lee Hon Lung v. Dulles, 261 F.2d 719, 724 (9th Cir.
1958) (“[W]here one has, over a long period of years, acted
in reliance upon a decision . . . admitting him as a citizen of
the United States, the fraud or error which will warrant
disregard of such decision must be established by evidence
which is clear, unequivocal, and convincing.”).

                             III.

    To the extent the government contends that the petitioner
failed to offer even “substantial credible evidence” of U.S.
citizenship, we reject this claim. The petitioner possessed a
valid U.S. passport and successfully petitioned for the
adjustment of status of his wife and children based on his
purported status as a U.S. citizen. This is “substantial
credible evidence” of U.S. citizenship. Ayala-Villanueva,
572 F.3d at 737 n.3.

                             IV.

    At issue, then, is whether the government bore its burden
of proving the petitioner’s alienage. Id.; see also Lee Hon
Lung, 261 F.2d at 724 (noting that when the burden shifts
back to the government, the question is whether sufficient
evidence “warrant[s] disregard[ing]” the petitioner’s proof of
citizenship). The threshold issue is whether the district court
erred in holding the government to a “clear and convincing”
burden of proof. We review the district court’s determination
                   MONDACA-VEGA V. HOLDER                             13

of the appropriate quantum of proof de novo. United States
v. Gill, 280 F.3d 923, 930 (9th Cir. 2002).

                                   A.

     The petitioner correctly notes that our alienage-
determination6 cases often describe the government’s burden
as proof by “clear, unequivocal, and convincing” evidence.
See, e.g., Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970)
(citing Chaunt v. United States, 364 U.S. 350, 353 (1960),
and Knauer v. United States, 328 U.S. 654, 657 (1946)); Lee
Hon Lung, 261 F.2d at 723 (citing Schneiderman v. United
States, 320 U.S. 118, 123, 125 (1943), and Baumgartner v.
United States, 322 U.S. 665, 670 (1944)). The petitioner
argues that the word “unequivocal” must add some meaning
to the words “clear and convincing,” and that “clear,
unequivocal, and convincing” thus signifies a higher burden
than simply “clear and convincing.”

    We disagree. Our task today is not to apply canons of
statutory construction; the burden of proof in alienage-
determination proceedings is entirely a judicial construct.7
Cf. Woodby v. INS, 385 U.S. 276, 284 (1966) (“[D]egree of
proof . . . is the kind of question which has traditionally been


 6
   We use the term “alienage determination” to refer to adjudications
made pursuant to 8 U.S.C. § 1252(b)(5)(B) and 8 U.S.C. § 1503(a).
  7
    Although Congress has provided for varying burdens of proof within
the Immigration and Nationality Act, it has not specifically addressed the
burden in § 1252(b)(5)(B) proceedings. Notably, in 8 U.S.C.
§ 1229a(c)(3)(A), Congress required the government to establish
deportability by “clear and convincing” evidence. The relevant regulation,
on the other hand, requires that deportability be proved by “clear,
unequivocal, and convincing” evidence. 8 C.F.R. § 1240.46(a).
14              MONDACA-VEGA V. HOLDER

left to the judiciary to resolve . . . .”). The Supreme Court has
repeatedly used the phrases “clear, unequivocal, and
convincing” and “clear and convincing” interchangeably.
Compare Baumgartner, 322 U.S. at 671 (describing the
burden on the government in denaturalization cases as proof
by “clear, unequivocal, and convincing” evidence), with
Pullman-Standard v. Swint, 456 U.S. 273, 286 n.16 (1982)
(describing the issue in Baumgartner as “whether or not the
findings of the two lower courts satisfied the clear and
convincing standard of proof necessary to sustain a
denaturalization decree”). We have repeatedly done the
same. See, e.g., United States v. Arango, 670 F.3d 988, 992
(9th Cir. 2012); Lopez-Chavez v. INS, 259 F.3d 1176,
1180–81 (9th Cir. 2001); United States v. Meza-Soria,
935 F.2d 166, 169 (9th Cir. 1991). We therefore cannot
mechanistically conclude that the phrase signifies a burden of
proof higher than the familiar intermediate standard simply
because it contains the additional word “unequivocal.”

                               B.

    We are troubled, moreover, by the possible alternative
interpretations of the phrase “clear, unequivocal, and
convincing.” This phrase cannot, as Judge N.R. Smith’s
separate opinion contends, plausibly be interpreted to mean
“beyond a reasonable doubt.” The Supreme Court surely
knows how to use the phrase “beyond a reasonable doubt”
when it wants to. In the citizenship context, however, it has
never done so. Rather, it has consistently described “clear,
unequivocal, and convincing evidence” as the familiar civil
intermediate standard. See Woodby, 385 U.S. at 285 (“In
denaturalization cases the Court has required the Government
to establish its allegations by clear, unequivocal, and
convincing evidence. . . . That standard of proof is no
                   MONDACA-VEGA V. HOLDER                             15

stranger to the civil law.” (footnote omitted)); Schneiderman,
320 U.S. at 125 (“[A] certificate of citizenship is . . . closely
analogous to a public grant of land. To set aside such a grant
the evidence must be clear, unequivocal, and convincing—it
cannot be done upon a bare preponderance of evidence which
leaves the issue in doubt.” (citations and internal quotation
marks omitted)); cf. California ex rel. Cooper v. Mitchell
Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981) (per
curiam) (“[T]he Court has never required the ‘beyond a
reasonable doubt’ standard to be applied in a civil case. This
unique standard of proof . . . is regarded as a critical part of
the moral force of the criminal law.” (internal quotation
marks omitted)); United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 737 (1966) (“Although the [Norris-LaGuardia
Act] does not define ‘clear proof,’ . . . Congress meant at least
to signify a meaning like that commonly accorded such
similar phrases as ‘clear, unequivocal, and convincing proof.’
Under this standard, the plaintiff in a civil case is not required
to satisfy the criminal standard of reasonable doubt . . . .”
(citing Schneiderman, 320 U.S. at 125)). These cases make
plain that the phrase “clear, unequivocal, and convincing” is
simply one of the many articulations of the intermediate
burden of proof, not a counterintuitive way to say “beyond a
reasonable doubt.”8 Cf. Meza-Soria, 935 F.2d at 169


  8
    Judge Smith relies on a statement in Addington v. Texas that “[t]he
term ‘unequivocal,’ taken by itself, means proof that admits of no doubt,
a burden approximating, if not exceeding, that used in criminal cases.”
441 U.S. 418, 432 (1979) (emphasis added) (footnote omitted); see also
Ward v. Holder, 733 F.3d 601, 605 (6th Cir. 2013) (relying on Addington
for the proposition that “[t]he ‘clear, unequivocal, and convincing
standard’ is a more demanding degree of proof than the ‘clear and
convincing’ standard”). But Addington also clarifies that the word
“unequivocal,” when used together with words such as “clear” and
“convincing,” simply refers to the intermediate standard. 441 U.S. at 424;
16                 MONDACA-VEGA V. HOLDER

(concluding that a determination of alienage by “clear,
unequivocal, and convincing evidence” in deportation
proceedings could not have collateral estoppel effect in
criminal reentry prosecutions because that burden “is not the
same as proof beyond a reasonable doubt”).

      Equally implausible is the notion that “clear, unequivocal,
and convincing” signifies a fourth burden of proof—
something between clear and convincing evidence and proof
beyond a reasonable doubt. The Supreme Court has
repeatedly emphasized that there are three burdens of proof,
and expressly noted that the word “unequivocal” is among the
many adjectives used to describe the intermediate burden.
See Cooper, 454 U.S. at 93 (“Three standards of proof are
generally recognized, ranging from the ‘preponderance of the
evidence’ standard employed in most civil cases, to the ‘clear
and convincing’ standard reserved to protect particularly
important interests in a limited number of civil cases, to the
requirement that guilt be proved ‘beyond a reasonable doubt’
in a criminal prosecution.” (footnote omitted)); Addington v.
Texas, 441 U.S. 418, 424 (1979) (“The intermediate standard
. . . usually employs some combination of the words ‘clear,’
‘cogent,’ ‘unequivocal,’ and ‘convincing’ . . . .”). Three is
enough. It defies reason to think that a fourth burden of proof


see also Cooper, 454 U.S. at 93 (distinguishing the burden applied in the
deportation and denaturalization contexts from proof beyond a reasonable
doubt). Other isolated statements by individual Justices in non-majority
opinions suggesting “clear, unequivocal, and convincing” may
“approximate[]” or be “substantially identical” to proof beyond a
reasonable doubt, see Klapprott v. United States, 335 U.S. 601, 612 (1949)
(opinion of Black, J.); id. at 617 (Rutledge, J., concurring); Kungys v.
United States, 485 U.S. 759, 795 (1988) (Stevens, J., concurring in the
judgment), have “never commanded a majority of the Court,” Meza-Soria,
935 F.2d at 169.
                MONDACA-VEGA V. HOLDER                       17

could be meaningfully distinguished and distinctly applied.
See Addington, 441 U.S. at 424 (“[E]fforts to analyze . . . the
differences among [burdens of proof] . . . may well be largely
an academic exercise . . . .”); 2 McCormick on Evidence
§ 340 (listing adjectives used to describe the intermediate
burden and stating that “[n]o high degree of precision can be
attained by” them). We have never saddled district courts
with the hair-splitting exercise of discerning a burden located
in between clear and convincing evidence and proof beyond
a reasonable doubt, and we decline the invitation to do so
now.

     To be sure, standards of proof serve a symbolic function.
See Addington, 441 U.S. at 425 (“In cases involving
individual rights, whether criminal or civil, the standard of
proof at a minimum reflects the value society places on
individual liberty.” (alterations and internal quotation marks
omitted)). But the intermediate burden of proof requires “an
abiding conviction that the truth of [the] factual contentions”
at issue is “highly probable.” Colorado v. New Mexico,
467 U.S. 310, 316 (1984). For this reason, it is appropriately
employed when, as here, “particularly important interests” are
at stake. Cooper, 454 U.S. at 93; see Santosky v. Kramer,
455 U.S. 745, 747–48 (1982) (termination of parental rights);
Addington, 441 U.S. at 432–33 (civil commitment); United
States v. Ruiz-Gaxiola, 623 F.3d 684, 692 (9th Cir. 2010)
(forcible medication of non-dangerous detainees). The
symbolic value of the intermediate standard matches the
gravity of the task in these proceedings. It is not necessary to
create, out of whole cloth, a nebulous fourth burden to
recognize that an alienage determination implicates important
rights. We therefore conclude that the district court did not
err in its articulation of the government’s burden of proof.
18              MONDACA-VEGA V. HOLDER

                              V.

    Because we find no error in the district court’s use of the
intermediate burden of proof, we must next determine the
standard of review applicable to the district court’s finding
that this burden was satisfied. The petitioner argues that,
notwithstanding the factual nature of the district court’s
findings, our review is independent—i.e., that this Court
reviews the trial judge’s factual determinations without
deference and independently determines what the evidence
below establishes. Again, we disagree.

                              A.

    Federal Rule of Civil Procedure 52(a)(6) provides in plain
terms that district court “[f]indings of fact, whether based on
oral or other evidence, must not be set aside unless clearly
erroneous.” The petitioner argues that because the Supreme
Court has created an exception to “clear error” review for
“ultimate” findings of fact in denaturalization proceedings,
the same standard should govern our review here.

                              B.

    Baumgartner was the first case to expressly articulate the
principle of independent review in denaturalization cases.
The question was whether evidence purporting to show
Baumgartner’s loyalty to the Third Reich supported a finding
that he had obtained his naturalization decree by fraud.
322 U.S. at 666. The Court held that the evidence did not
support a finding of fraud, and, in so doing, set aside the
findings of the district court. Id. at 670–71, 677–78. The
opinion acknowledged the usual rule of deference to trial
court factfinding, but found that the rule did not apply to “the
                MONDACA-VEGA V. HOLDER                      19

conclusion that may appropriately be drawn from the whole
mass of evidence,” which, although technically a finding of
fact, implicated “broadly social judgments—judgments lying
close to opinion regarding the whole nature of our
Government and the duties and immunities of citizenship.”
Id. at 671.

    Subsequent denaturalization cases underscored that
independent review was motivated by concern about the risk
of political persecution uniquely present in the
denaturalization context. Thus, in Knauer—which involved
the validity of an oath of allegiance—the Court explained that
without independent review of lower court findings,
“valuable rights would rest upon a slender reed, and the
security of the status of our naturalized citizens might depend
in considerable degree upon the political temper of majority
thought and the stresses of the times.” 328 U.S. at 658–59
(quoting Schneiderman, 320 U.S. at 159).

    First Amendment concerns are also prevalent in the
denaturalization cases. In Nowak v. United States, for
example, the government sought to prove that the petitioner
“was not ‘attached’ to the principles of the Constitution by
showing that he has been a member of the Communist Party
with knowledge that the Party advocated the overthrow of the
Government by force and violence.” 356 U.S. 660, 665
(1958). The Court applied independent review and set aside
a denaturalization decree, emphasizing that party membership
and “expression of opinions or predictions about future
events” was not enough, under its seditious-speech
jurisprudence, to show advocacy of violent overthrow. Id. at
663–68 (citing Yates v. United States, 354 U.S. 298 (1957),
overruled by Burks v. United States, 437 U.S. 1 (1978), and
Dennis v. United States, 341 U.S. 494 (1951)).
20              MONDACA-VEGA V. HOLDER

    Because the denaturalization cases often pose First
Amendment concerns, they have naturally been linked with
the Supreme Court’s First Amendment jurisprudence. See,
e.g., Schneiderman, 320 U.S. at 119 (“We brought this
[denaturalization] case here on certiorari because of its
importance and its possible relation to freedom of thought.”
(citation omitted)). In the First Amendment context,
independent review is also sometimes applied. See Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
505–08 (1984) (noting that the Court has independently
reviewed factual records in First Amendment cases involving
fighting words, incitement to imminent lawless action,
obscenity, and defamation). Independent review in this
context protects not only a litigant’s First Amendment rights,
but also facilitates the appellate courts’ “role in marking out
the limits of the [constitutional] standard through the process
of case-by-case adjudication.” Id. at 503. Thus, appellate
courts “conduct[] an independent review of the record both to
be sure that the speech in question actually falls within the
unprotected category and to confine the perimeters of any
unprotected category within acceptably narrow limits in an
effort to ensure that protected expression will not be
inhibited.” Id. at 505; see also Knauer, 328 U.S. at 659–60
(emphasizing the blurred line between facts and law in
determinations of loyalty and fraud); Baumgartner, 322 U.S.
at 671 (noting the “so-called ultimate ‘facts’” under review
“clearly implie[d] the application of standards of law”).

    The Supreme Court, however, has never extended
independent review to alienage determinations. And, as this
case demonstrates, the Court’s reasoning for applying
independent review in denaturalization cases does not apply
here.
               MONDACA-VEGA V. HOLDER                      21

    The question for the district court was straightforward:
Who is the petitioner? Is he Reynaldo Mondaca Carlon, a
native and citizen of the United States, or Salvador Mondaca-
Vega, a native and citizen of Mexico? Nothing about this
determination implicates “broadly social judgments” or
opinions “regarding the whole nature of our Government and
the duties and immunities of citizenship.” Baumgartner,
322 U.S. at 671; see also Chaunt, 364 U.S. at 353. Nor does
it implicate free-speech or political-persecution concerns.
See Knauer, 328 U.S. at 658–60; Schneiderman, 320 U.S. at
119. And, most importantly, there were no questions of
law—nor mixed questions of law and fact, nor questions that
could conceivably bear on the future definition of a legal
right—before the district court. See Baumgartner, 322 U.S.
at 671. Under § 1252(b)(5)(B), we refer proceedings to the
district court for the sole purpose of resolving a “genuine
issue of material fact.” 8 U.S.C. § 1252(b)(5)(B); see, e.g.,
Anderson v. Holder, 673 F.3d 1089, 1093, 1097 (9th Cir.
2012) (alienage-determination proceedings involving
question of whether petitioner’s “paternity was established by
legitimation before he turned twenty-one”); Ayala-
Villanueva, 572 F.3d at 739–40 (alienage-determination
proceedings involving identity of petitioner’s father); Chau,
247 F.3d at 1030 (alienage-determination proceedings
involving identity of petitioner’s father and satisfaction of
residency requirements). The petitioner is either Reynaldo or
Salvador, and the entirely fact-bound answer to this question
has no implications for future cases. See Bose, 466 U.S. at
503–06. Independent review therefore has no role to play in
these proceedings.
22              MONDACA-VEGA V. HOLDER

                              C.

    The petitioner urges that we follow Lim, an alienage-
determination case applying independent review to findings
of fact. 431 F.2d at 199–200. Lim derived this independent
review principle by unelaborated analogy to the Supreme
Court’s denaturalization jurisprudence. Id. at 199. If Lim is
good law, it indeed controls the outcome here. But, for the
reasons explained above, we conclude that the analogy to the
denaturalization cases does not withstand critical scrutiny.

    Moreover, in the years since Lim, the Supreme Court has
questioned whether there can ever be independent appellate
review of a question of fact. In Pullman-Standard, the Court
reversed the Fifth Circuit for independently reviewing a
finding of intentional discrimination in a Title VII case.
456 U.S. at 285–90. In doing so, the Court emphasized that
the “clearly erroneous” standard of Federal Rule of Civil
Procedure 52(a) “does not make exceptions or purport to
exclude certain categories of factual findings,” and, “in
particular, it does not divide findings of fact into those that
deal with ‘ultimate’ and those that deal with ‘subsidiary’
facts.” Id. at 287; see also Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985) (reemphasizing that Rule 52(a) has
no exceptions). And, just last term, the Supreme Court
reversed the Federal Circuit for failing to apply clear-error
review to factual findings underlying the construction of a
patent claim. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.
Ct. 831, 836–39 (2015). The Court held that although the
scope of a patent claim is a question of law, underlying
evidentiary determinations are nevertheless questions of fact
and therefore subject to clear-error review under Rule 52(a),
which applies to all factual findings without exception. Id.
                  MONDACA-VEGA V. HOLDER                             23

    Under these cases, the relevant distinction for standard-of-
review purposes is no longer between primary and ultimate
facts, but facts and law. See Pullman-Standard, 456 U.S. at
286 n.16 (“Whatever Baumgartner may have meant . . . [, its]
discussion of ‘ultimate facts’ referred not to pure findings of
fact . . . but to findings that clearly imply the application of
standards of law.” (alteration and internal quotation marks
omitted)). To be sure, the law-fact distinction is often
“vexing.” Id. at 288. But not today. There are no mixed
questions of law and fact nor standards that require
development “through the process of case-by-case
adjudication” that could blur the dividing line in this case.
Bose, 466 U.S. at 503. Here, as in Lim, only historical facts
need be determined. See Lim, 431 F.2d at 199–204. Lim’s
independent-review principle therefore has no continued
vitality.9

                                  D.

    In urging independent review, the petitioner also
emphasizes the severity of the deprivation at stake. We do
not minimize the point. The value of citizenship is well
acknowledged in the case law. See, e.g., Fedorenko v. United
States, 449 U.S. 490, 505–06 (1981); Baumgartner, 322 U.S.
at 671, 673. And, the petitioner arguably stands to lose just



 9
   The panel majority in this case concluded that Pullman-Standard and
Anderson had also repudiated the independent review principle in the
Baumgartner line of cases. 718 F.3d at 1080. Although there is some
force in that reasoning, today we need only conclude that Lim has been
overruled, leaving the Supreme Court to decide whether it has also
implicitly repudiated its own decisions. See United States v. Easterday,
564 F.3d 1004, 1010 (9th Cir. 2009) (as amended); Miller v. Gammie,
335 F.3d 889, 899 (9th Cir. 2003) (en banc).
24                  MONDACA-VEGA V. HOLDER

as much from a determination that he is not a citizen as a
naturalized citizen does from a denaturalization decree.10

    But the value of citizenship and the hardship of
deportation are not the only, or even the primary, factors that
motivated independent review in the denaturalization cases.
Nor could they be. We review findings of lower courts with
deference in a broad array of settings that implicate precious
rights and severe deprivations. We even apply the deferential
Jackson11 standard in reviewing the sufficiency of the
evidence supporting convictions in death penalty cases. See
Davis v. Woodford, 384 F.3d 628, 639–41 (9th Cir. 2004) (as
amended). Indeed, in deportation proceedings, where “[t]he
immediate hardship . . . is often greater than that inflicted by
denaturalization,” Woodby, 385 U.S. at 286, we nevertheless
review agency factfinding with deference, see 8 U.S.C.
§ 1252(b)(4)(B) (“[T]he administrative findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .”). No greater
scrutiny should apply to the factual findings of an Article III
judge in alienage determinations.

                                   E.

    For these reasons, we conclude that we are required under
Rule 52(a) to review the district court’s factual
findings—including its ultimate conclusion that the petitioner


     10
      At oral argument, the government admirably and unequivocally
represented that it has “no interest in challenging the [status of the
petitioner’s] children.” Accordingly, the only legal interests at stake in
this case are the petitioner’s.
 11
      Jackson v. Virginia, 443 U.S. 307 (1979).
                   MONDACA-VEGA V. HOLDER                             25

is not a citizen because he was born in Mexico—for clear
error. Under this standard, we must defer to the district
court’s findings unless we are “left with the definite and firm
conviction that a mistake has been committed.” Anderson,
470 U.S. at 573 (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). We may not “duplicate the role
of the lower court.” Id. Thus, “[i]f the district court’s
account of the evidence is plausible in light of the record
viewed in its entirety, [we] may not reverse it even though
convinced that had [we] been sitting as the trier of fact, [we]
would have weighed the evidence differently.” Id. at 573–74.
As long as “there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly
erroneous.” Id. at 574.

                                   F.

    The following facts are beyond dispute: the petitioner has
accepted voluntary departure on multiple occasions, he has
been deported under the name Salvador Mondaca-Vega, he
signed a sworn statement under the name Salvador Mondaca-
Vega, and fingerprints taken for Salvador Mondaca-Vega by
the INS match his fingerprints. These facts give rise to a
reasonable—if not inevitable—inference that the petitioner is
Salvador Mondaca-Vega, born in Mexico.12 See United


   12
      Although the petitioner admits he used the name Salvador Mondaca-
Vega, he argues there is insufficient evidence linking him to the Salvador
Mondaca-Vega born in Sinaloa, Mexico on June 3, 1931. He emphasizes
that he gave the wrong birth date for this individual when he signed a
sworn statement attesting that he is Salvador Mondaca-Vega. At his
deposition, however, when asked why he used the name Salvador
Mondaca-Vega, the petitioner testified that “[i]t just came to my mind to
use that name” and that he had “never heard that name before.” Perhaps
it was merely a coincidence that the petitioner, when selecting an alias,
26                 MONDACA-VEGA V. HOLDER

States v. Bucher, 375 F.3d 929, 931 (9th Cir. 2004)
(“[R]easonable inferences from th[e] facts are the province of
the trier of fact.”); see also Anderson, 470 U.S. at 573–74
(explaining that we must defer to the factfinder’s reasonable
conclusions that are based on “physical or documentary
evidence or inferences from other facts”).

    To be sure, there is evidence to the contrary. The
petitioner’s wife and one of his daughters attested that he is
Reynaldo Mondaca Carlon, a U.S. citizen. And the petitioner
testified that although he has used various aliases, Reynaldo
Mondaca Carlon is his true name and identity, that he began
to use the name Salvador Mondaca-Vega with authorities
because he believed he would be released from detention
faster as a Mexican citizen,13 and that he continued to use the
name because the authorities already knew him as Salvador.

    Acting as the finder of fact, however, the district court
was entitled to discount this evidence. Much of it turned on
credibility. See Allen v. Iranon, 283 F.3d 1070, 1078 n.8 (9th
Cir. 2002) (citing Anderson, 470 U.S. at 573) (noting the
“special deference” due to credibility determinations). For
example, in her first declaration, the petitioner’s wife referred
to Sinaloa, Mexico as “the rancho of [the petitioner’s] birth.”
She later retracted this statement, but the district court was
surely entitled to draw an adverse inference from the


chose the exact name and year of birth of an individual with an authentic
Mexican birth certificate. But the district court was entitled to conclude
otherwise. See Mondaca-Vega, 2011 WL 2746217, at *8 (addressing the
inconsistent dates of birth “in light of the record as a whole”).
  13
     He admitted at trial, however, that he continued to use the name
Salvador Mondaca-Vega to be released from detention even after he
allegedly had documentary proof of citizenship.
                MONDACA-VEGA V. HOLDER                        27

inconsistency, see Gibbs v. Pierce Cnty. Law Enforcement
Support Agency, 785 F.2d 1396, 1402 (9th Cir. 1986) (“In
cases of conflicting testimony where credibility is necessarily
at issue, we must be especially reluctant to set aside the
findings of the trial court.” (internal quotation marks
omitted)).

    The district court also found the petitioner’s testimony
inconsistent and implausible. The petitioner claims he
received the California birth certificate from his mother in
Mexico after being deported in May 1953. The court
reasonably noted, however, that it made little sense for the
petitioner thereafter to continue to use the name of a non-
citizen with immigration authorities, particularly given that
he claimed to “always” carry the birth certificate with him.
The petitioner’s testimony was also inconsistent with his
deposition and some of the documentary evidence. See
Mondaca-Vega, 2011 WL 2746217, at *5–6 (noting
discrepancies); cf. Masayesva v. Zah, 65 F.3d 1445, 1457 (9th
Cir. 1995) (“The court found some of the testimony
implausible or contradictory. There was no clear error.”).

    There are some minor errors in the district court’s
factfinding. For example, the government admits that the
petitioner was not removed in July or September of 1951 or
November of 1952, as the district court had concluded. But
this error is inconsequential in light of undisputed evidence
showing that the petitioner has indeed been removed under
the name Salvador Mondaca-Vega on other occasions. The
district court also incorrectly believed that the petitioner
would have had to show a birth certificate in order to obtain
a social security number. There was no evidence to this
effect in the record, and no stated basis for judicial notice of
this fact. But it is hardly conceivable that absent this mistake,
28                 MONDACA-VEGA V. HOLDER

the district court would have reached a different conclusion,
given the ample other reasons to doubt the petitioner’s
credibility.14

     Finally, the petitioner emphasizes the various occasions
on which the government appears to have accepted that he is
a citizen—directly, by issuing him passports and adjusting the
status of his family members, and indirectly, by charging him
with a crime as a citizen or conducting investigations into his
citizenship status that terminated favorably or inconclusively.
These facts should weigh in the petitioner’s favor before the
finder of fact. Ultimately, however, the petitioner’s position
is simply that the evidence could plausibly be read as
supporting his claim that he was born in this country. But the
district judge found to the contrary, and the clear error
standard “does not vest[] us with power to reweigh the
evidence presented at trial in an attempt to assess which items
should and which should not have been accorded credibility.”
Cataphote Corp. v. De Soto Chem. Coatings, Inc., 356 F.2d
24, 26 (9th Cir. 1966).

    Based “on the entire evidence,” we are not “left with the
definite and firm conviction that a mistake has been
committed.” Anderson, 470 U.S. at 573 (quoting U.S.
Gypsum, 333 U.S. at 395). That ends the analysis; we are not
entitled to reject the district court’s findings of fact because,
on a cold record, we would have come out differently or


  14
     Other errors asserted by the petitioner are not errors—and, in any
event, are of no consequence to the ultimate determination. For example,
the petitioner argues the district court improperly concluded that he was
deported as Salvador Mondaca-Vega in July of 1953. The petitioner had
been referred to the INS at this time, and a reasonable inference is that he
was also deported, given that he had been deported before.
                 MONDACA-VEGA V. HOLDER                        29

because we weigh the equities in the petitioner’s favor. We
are therefore constrained to deny the petition for review.

                               VI.

    The petition for review is DENIED.



N.R. SMITH, Circuit Judge, dissenting in part, with whom
THOMAS, Chief Judge, and PREGERSON and FLETCHER,
Circuit Judges, join in Part I, but concurring in Sections I–III
and in the result of Section V and VI of the majority decision:

     United States citizenship is “a right no less precious than
life or liberty.” United States v. Dang, 488 F.3d 1135, 1138
(9th Cir. 2007) (quoting Klapprott v. United States, 335 U.S.
601, 616 (1949) (Rutledge, J., concurring)). The Supreme
Court has noted, “It is better that many . . . immigrants should
be improperly admitted than that one natural born citizen of
the United States should be permanently excluded from his
country.” Fat v. White, 253 U.S. 454, 464 (1920). Yet today,
the majority diminishes a citizen’s ability to protect his
citizenship, by allowing the government to prove that
Petitioner is not a United States citizen by the traditional, less
demanding, standard of proof used in general civil litigation.
Thus, this 84-year-old Petitioner (whom the government has
previously recognized as a United States citizen) will be
stripped of his claimed citizenship and deported, without
forcing the government to meet its “heavy burden of proof”
to submit “clear, unequivocal, and convincing” evidence
(“not leav[ing] the issue in doubt”) that he is not a citizen.
Dang, 488 F.3d at 1139 (quoting Fedorenko v. United States,
449 U.S. 490, 505 (1981)).
30                 MONDACA-VEGA V. HOLDER

     This case does present a conflicting history of Petitioner’s
life. However, amid all of the confusion, no one disputes that
Petitioner (as Reynaldo Mondaca-Carlon (“Reynaldo”)) has
presented himself to the government as a United States
citizen, and the United States has treated Petitioner as a
United States citizen. Thus, no one disputes that the
government bore the burden to submit evidence that clearly,
unequivocally, and convincingly (not leaving the issue in
doubt) showed Petitioner was not Reynaldo.

    Because I agree with Petitioner that the district court
erroneously reached its decision, when it only required the
government to present clear and convincing evidence
regarding his citizenship, this case demands remand to the
district court to redetermine the issue using the correct burden
of proof. Because remand is necessary, I would not address
Petitioner’s remaining issues.1

    Even though I do not agree with the majority’s holding on
the burden of proof, I reluctantly concur in the judgment to
deny the petition (Section VI). Applying the clearly
erroneous standard of review to the district court’s findings
of fact under Federal Rule of Civil Procedure 52(a) and using


  1
     In this appeal, Petitioner makes four challenges. First, Petitioner
argues that the district court erred in its application of the standard of
proof, applying a lower burden of proof than that required by “clear,
unequivocal, and convincing.” Second, Petitioner argues that the district
court erred in finding that the government presented clear, unequivocal,
and convincing evidence that Petitioner’s identity and United States
citizenship was procured by fraud or error. Third, Petitioner argues that
the district court’s factual findings were based on assumptions,
speculation, and conjecture. Fourth, Petitioner asserts that we must review
de novo the district court’s findings of fact, which assertion the
government opposes.
                MONDACA-VEGA V. HOLDER                       31

the majority’s “clear and convincing” burden of proof, I
cannot grant the petition for review. There would also be no
benefit to remanding this case to the district court, because
the outcome would not change.

I. The burden of proof required for clear, unequivocal,
   and convincing evidence is greater than the burden of
   proof required for clear and convincing evidence.

   A. Federal courts have recognized a higher burden of
      proof for clear, unequivocal, and convincing
      evidence.

    The Supreme Court has recognized three general
standards of proof—preponderance of the evidence (the
minimum standard), clear-and-convincing evidence (the
intermediate standard), and beyond a reasonable doubt (the
high standard). See Addington v. Texas, 441 U.S. 418,
423–24 (1979). However, the Supreme Court has never
suggested that standards of proof are limited to these three
general levels. To the contrary, the Supreme Court and other
courts have expressly recognized variants to the intermediate
standard of proof. See California ex rel. Cooper v. Mitchell
Bros.’ Santa Ana Theater, 454 U.S. 90, 93 (1981) (per
curiam) (“This Court has, on several occasions, held that the
‘clear and convincing’ standard or one of its variants is the
appropriate standard of proof in a particular civil case.”). “In
cases involving individual rights, whether criminal or civil,
‘the standard of proof at a minimum reflects the value society
places on individual liberty.’” Addington, 441 U.S. at 425
(alterations and citation omitted).

    In both deportation and denaturalization proceedings,
federal case law and regulations governing deportability
32                 MONDACA-VEGA V. HOLDER

require that the government establish by “clear, unequivocal,
and convincing evidence” that the petitioner is removable.
See Chaunt v. United States, 364 U.S. 350, 353 (1960);
Woodby v. INS, 385 U.S. 276, 285–86 (1966); 8 C.F.R.
§ 1240.46(a). We have also applied this same clear,
unequivocal, and convincing standard in cases where
citizenship is at issue. See Lim v. Mitchell, 431 F.2d 197, 199
(9th Cir. 1970); Lee Hon Lung v. Dulles, 261 F.2d 719, 724
(9th Cir. 1958). This case requires us to determine whether
the addition of the word “unequivocal” changes the
government’s burden of proof to a standard above “clear and
convincing evidence.”

    In Addington, the Supreme Court settled this very issue.
In Addington, the Supreme Court was faced with the question
of the appropriate standard of proof to apply in civil
commitment proceedings.2 441 U.S. at 422. In determining
the appropriate standard of proof, the Supreme Court
recognized that the addition of the word “unequivocal”
created a burden “approximating, if not exceeding, that used
in criminal cases,” which higher burden was required for
cases with “unusually drastic” consequences. Id. at 432
(emphasis added).3 The Supreme Court further recognized
that a higher burden of proof in denaturalization cases was
appropriate, because those issues “were basically factual and
therefore susceptible of objective proof,” as opposed to civil


 2
  The Supreme Court noted that states varied the standard between “clear
and convincing,” “clear, cogent, and convincing,” and “clear, unequivocal
and convincing.” Addington, 441 U.S. at 431–32.
  3
    The Supreme Court further noted that “the term ‘unequivocal’ is not
constitutionally required, although the states are free to use that [higher]
standard.” Addington, 441 U.S. at 432.
                   MONDACA-VEGA V. HOLDER                             33

commitment proceedings that are dependent on subjective
proof. Id.

    Similarly, in Kungys v. United States, the Supreme Court
considered whether Kungys misrepresented or concealed
facts to obtain citizenship. 485 U.S. 759, 765–66 (1988)
(plurality opinion by Scalia, J.). The Supreme Court
remanded the matter to the Third Circuit, but cautioned the
court to “bear[] in mind” that “clear, unequivocal, and
convincing” standard required an “unusually high burden of
proof.” Id. at 776 (emphasis added). Justice Stevens, in his
concurrence,4 emphasized the “special burden on the
Government,” which “in this kind of civil proceeding is
equivalent to that enforced in criminal cases.” Id. at 791–92
(Stevens, J., concurring).

    This higher burden of proof has also been recognized in
other cases. See Klapprott, 335 U.S. at 612 (Black, J.,
announcing judgment of the Court and delivering the opinion)
(plurality opinion)5 (noting that the clear, unequivocal, and


 4
   Justice Stevens concurred in the opinion, because he believed that the
majority’s “new burden-shifting presumption . . . lowers the standard of
proof required for the Government to prevail in a denaturalization
proceeding.” Kungys, 485 U.S. at 792 (Stevens, J., concurring).
     5
     Justice Douglas joined the opinion. Justice Rutledge and Murphy
concurred in the result, concluding that a higher burden of proof exists.
Justice Burton joined the “judgment of the Court as limited to the special
facts of this case and without expressing an opinion upon any issues not
now before this Court.” Klapprott, 335 U.S. at 616. Justice Burton noted
that he agreed that a judgment of denaturalization could be entered by
default, but determined that in this case the petitioner should be granted
a hearing on the merits. Justice Burton did not suggest that a higher
burden of proof should not be applied in a merits hearing. However,
because the judgment was modified in a subsequent order on a more
34               MONDACA-VEGA V. HOLDER

convincing “burden is substantially identical with that
required in criminal cases—proof beyond a reasonable
doubt”); id. at 617 (Rutledge, J., concurring) (noting that the
“burden of proof for denaturalization . . . approximates the
burden demanded for conviction in criminal cases, namely,
proof beyond a reasonable doubt”); Schneiderman v. United
States, 320 U.S. 118, 122, 135 (1943) (holding citizenship
“should not be taken away without the clearest sort of
justification and proof,” and that proof cannot “leave the issue
in doubt”); see also United States v. Horwitz, 140 F. Supp.
839, 840 (E.D. Va. 1956) (“Moreover, with so dire
consequences in the balance, the proof must be made by
‘clear, unequivocal and convincing evidence which does not
leave the issue in doubt,’ in effect, ‘proof beyond a
reasonable doubt.’”).

    Our sister circuits have also recognized this higher burden
of proof when revocation of citizenship is at issue. For
example, in United States v. Sprogis, the Second Circuit
noted:

        The government bears a heavy burden of
        proof in attempting to revoke an individual’s
        citizenship. Because citizenship is such a
        precious right, the government to succeed
        must prove its case by clear, unequivocal, and
        convincing evidence which does not leave the
        issue in doubt. In addition, “the facts and the
        law should be construed as far as is
        reasonably possible in favor of the citizen.”


narrow ground, I do not suggest that the majority agreed on a common
reasoning regarding the burden of proof. See Marks v. United States,
430 U.S. 188, 193–94 (1977).
                MONDACA-VEGA V. HOLDER                      35

763 F.2d 115, 121 (2d Cir. 1985) (emphasis added) (citing
Fedorenko, 449 U.S. at 505, and quoting Schneiderman,
320 U.S. at 122).

    The Sixth Circuit, relying on Addington, concluded that
the word “unequivocal” raised the level of proof necessary
above the intermediate standard of proof. See Ward v.
Holder, 733 F.3d 601, 605–06 (6th Cir. 2013). In Ward, the
government sought to remove the petitioner, arguing that he
had “abandoned his lawful-permanent-resident status.” Id. at
602. The Sixth Circuit concluded that the appropriate degree
of proof required was “clear, unequivocal, and convincing
evidence.” Id. The court then examined the level of proof
that this standard required. Id. at 605. The Sixth Circuit,
applying Addington, concluded that the word “‘unequivocal’
ma[de] a difference,” and therefore “[t]he ‘clear, unequivocal,
and convincing standard’ is a more demanding degree of
proof than the ‘clear and convincing’ standard.” Id.

    The BIA has also recognized that the addition of the word
“unequivocal” to the “clear and convincing” standard alters
the burden of proof. See Matter of Patel, 19 I. & N. Dec.
774, 783 (BIA 1988). In addressing the standards of proof,
the BIA recognized that “[t]he clear and convincing standard
imposes a lower burden than the clear, unequivocal, and
convincing standard applied in deportation and
denaturalization proceedings because it does not require that
the evidence be unequivocal or of such a quality as to dispel
all doubt.” Id.

    Because consequences were “unusually drastic—loss of
citizenship and expulsion from the United States,” the
Supreme Court has explained that the higher burden was
appropriate in citizenship cases. Addington, 441 U.S. at 432.
36              MONDACA-VEGA V. HOLDER

This unusually high burden of proof reflects the value that
society places on one’s citizenship. See Trop v. Dulles,
356 U.S. 86, 93 (1958) (plurality opinion) (noting that United
States citizenship itself is a fundamental right).

     This higher burden of proof is consistent with the
Supreme Court’s discussions with regard to the value of
United States citizenship. Removal of Petitioner implicates
a loss of a serious liberty interest; a determination of this loss
requires a heavy burden. See Kungys, 485 U.S. at 792 (noting
“[t]his Court has long recognized the plain fact that to deprive
a person of his American citizenship is an extraordinarily
severe penalty. . . . To deport one who so claims to be a
citizen, obviously deprives him of liberty. It may result also
in loss of both property and life; or of all that makes life
worth living.” (internal alterations and quotation marks
omitted) (quoting Klapprott, 335 U.S. at 611-12));
Fedorenko, 449 U.S. at 505–06 (“Any less exacting standard
would be inconsistent with the importance of the right that is
at stake in a denaturalization proceeding.”). Additionally, the
Supreme Court has recognized that the loss of citizenship can
have “severe and unsettling consequences.” Fedorenko,
449 U.S. at 505. The potential loss of citizenship, regardless
of whether obtained through birth or naturalization, is
significant. See Knauer v. United States, 328 U.S. 654, 658
(1946) (holding that citizenship obtained through birth or
naturalization “carries with it all of the rights and
prerogatives of citizenship obtained by birth in this country
‘save that of eligibility to the Presidency’”). Although “a
deportation proceeding is not a criminal prosecution,” the
Supreme Court “has not closed its eyes to the drastic
deprivations that may follow when a resident of this country
is compelled by our Government to forsake all the bonds
formed here and go to a foreign land where he often has no
               MONDACA-VEGA V. HOLDER                      37

contemporary identification.” Woodby, 385 U.S. at 285.
“The immediate hardship of deportation is often greater than
that inflicted by denaturalization,” because “many resident
aliens have lived in this country longer and established
stronger family, social, and economic ties here than some
who have become naturalized citizens.” Id. at 286. Thus, the
Supreme Court has required “the solidity of proof . . . for a
judgment entailing the consequences of deportation,
particularly in the case of an old man who has lived in this
country for [more than sixty] years.” Id. at 285.

   B. Past imprecise language does not “overrule” clear
      precedent.

    In this decision, the majority ignores this precedent,
instead reading the word unequivocal out of the phrase,
concluding that “clear and convincing” is the same standard
as “clear, unequivocal, and convincing.” Thus, it determines
that the word “unequivocal” is meaningless, because the
phrases have been used “interchangeably” in the past.

    Imprecise usage or improper citation is not a proper basis
for concluding that words have no meaning, especially in
light of the Supreme Court’s clear and unambiguous directive
regarding the burden of proof. It is especially improper,
because the majority does not cite (and I cannot find) any
Supreme Court citizenship cases that suggest these standards
are the same. Congress has not addressed the required
standard of proof, and the Supreme Court has never overruled
the precedent. Thus, the majority cites precedent where the
Supreme Court and other courts have, in other contexts, used
the standard interchangeably without regard to whether there
is a different standard being applied. However, those
38              MONDACA-VEGA V. HOLDER

mistakes in other contexts should not alter our application of
this Supreme Court precedent.

    The majority not only ignores the term “unequivocal,” it
also ignores the dependent clause used by the Supreme Court
in citizenship cases, which helps explain the term
unequivocal. The Supreme Court has explained time and
time again in the context of citizenship issues that “‘clear,
unequivocal, and convincing’ evidence . . . does not leave the
issue in doubt.” See Schneiderman, 320 U.S. at 135
(emphasis added); see also Baumgartner v. United States,
322 U.S. 665, 670 (1944); Knauer, 328 U.S. at 657;
Klapprott, 335 U.S. at 612 (plurality opinion); Perez v.
Brownell, 356 U.S. 44, 47 n.2 (1958), overruled on separate
grounds by Afroyim v. Rusk, 387 U.S. 253 (1967); Nowak v.
United States, 356 U.S.660, 663 (1958); Chaunt, 364 U.S. at
353; Costello v. United States, 365 U.S. 265, 269 (1961);
Fedorenko, 449 U.S. at 505; Kungys, 485 U.S. at 781. The
clear and convincing standard (highly probable) is not
equivalent to this language.

     The majority’s conclusion could only suggest that,
because the Supreme Court inartfully chose its words in
several non-citizenship cases, citizenship cases deserve
nothing better. However, Supreme Court precedent suggests
it is much more likely that the Supreme Court selected its
words carefully for a select type of cases, and this court is
bound to follow its precedent until such time as the Supreme
Court overrules itself. See Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a
precedent of [the Supreme] Court has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case
                MONDACA-VEGA V. HOLDER                       39

which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.”).

   C. Comparing burdens of proof in immigration
      contexts further supports a conclusion that clear,
      unequivocal, and convincing evidence has a greater
      burden of proof than clear and convincing evidence.

    To again justify its decision, the majority notes that its
“task today is not to apply canons of statutory construction;
the burden of proof in alienage-determination proceedings is
entirely a judicial construct.” Maj. Op. 13. I agree that we
are examining judicial precedent. However, when we
determine the burden of proof, we must be mindful that “the
standard of proof at a minimum reflects the value society
places on individual liberty.” Addington, 441 U.S. at 425
(alterations omitted) (quoting Tippett v. Maryland, 436 F.2d
1153, 1166 (4th Cir. 1971)).

    Let us examine how these phrases are used by Congress.
Congress has mandated that, in removal proceedings under
8 U.S.C. § 1229a, an alien “be ordered removed in absentia
if the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided
and that the alien is removable (as defined in subsection
(e)(2) of this section).” § 1229a(b)(5)(A) (emphasis added);
see also 8 C.F.R. § 1003.26. In contrast, Congress has also
mandated (1) if an alien is an applicant for admission, the
alien must establish that he or she is “clearly and beyond
doubt entitled to be admitted and is not inadmissible under
section 1182,” § 1229a(c)(2)(A) (emphasis added), or (2) if
an alien is asserting that he or she is “lawfully present in the
United States pursuant to a prior admission,” then the alien
40              MONDACA-VEGA V. HOLDER

must establish this fact “by clear and convincing evidence,”
§ 1229a(c)(2)(B) (emphasis added).

    Applying rules of statutory interpretation to § 1229a, “[i]t
is our duty ‘to give effect, if possible, to every clause and
word of a statute.’” United States v. Menasche, 348 U.S. 528,
538-39 (1955) (quoting Inhabitants of Montclair Tp. v.
Ramsdell, 107 U.S. 147, 152 (1883)). “[T]he use of different
words or terms within a statute demonstrates that Congress
intended to convey a different meaning for those words.”
SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003). Thus,
we cannot suggest that Congress intended each subsection of
§ 1229a to require the same intermediate burden of proof. If
so, we would ignore “the familiar canon of statutory
construction,” which requires that “[a]bsent a clearly
expressed legislative intention to the contrary, [the language
of the statute itself] must ordinarily be regarded as
conclusive.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980). Further, because
Congress used different standards of proof language in
§ 1229a, “[w]e would not presume to ascribe this difference
to a simple mistake in draftsmanship.” Russello v. United
States, 464 U.S. 16, 23 (1983). Therefore, Congress must
have intended different standards of proof in the three
contexts of immigration proceedings.

    In interpreting § 1229a(b)(5)(A), Congress thus meant for
aliens only to be removed in absentia after the government
had met a higher burden of proof than the general “clear and
convincing” intermediate standard. In establishing this
burden, Congress “is presumed to be knowledgeable about
existing law pertinent to any new legislation it enacts.”
Native Vill. of Venetie I.R.A. Council v. Alaska, 944 F.2d 548,
554 (9th Cir. 1991). Thus, the majority’s ruling today
                MONDACA-VEGA V. HOLDER                      41

suggests that Congress enacted § 1229a(b)(5)(A), providing
a higher societal value to an alien who did not get proper
notice of a hearing (and with no claim to citizenship) than to
this Petitioner’s claim that he was being robbed of his
citizenship. The ruling cannot reflect the value society places
on United States citizenship, as we must.

   D. Conclusion

    In deportation hearings, where a petitioner (who claims to
be a United States citizen) will be deported and removed from
the United States, the government must prove by clear,
unequivocal, and convincing evidence that he or she is
deportable. Again, quoting the Sixth Circuit and the BIA,
this standard of proof requires a “more demanding degree of
proof than the ‘clear and convincing’ standard.” Ward,
733 F.3d at 605; Matter of Patel, 19 I. & N. Dec. at 783
(“The clear and convincing standard imposes a lower burden
than the clear, unequivocal, and convincing standard applied
in deportation and denaturalization proceedings because it
does not require that the evidence be unequivocal or of such
a quality as to dispel all doubt.”). Removal of Petitioner
implicates the loss of a serious liberty interest; a
determination of this loss requires a heavy burden, for which
we must require the higher burden of proof. See Kungys,
485 U.S. at 791 (Stevens, J., concurring) (noting “[t]his Court
has long recognized the plain fact that to deprive a person of
his American citizenship is an extraordinarily severe
penalty. . . . To deport one who so claims to be a citizen,
obviously deprives him of liberty. It may result also in loss
of both property and life; or of all that makes life worth
living.” (quoting Ng Fung Ho v. White, 259 U.S. 276, 284
(1922))).
42              MONDACA-VEGA V. HOLDER

II. Federal Rule of Civil Procedure 52(a) mandates the
    appropriate standard of review.

    I agree with the majority that the proper appellate
standard of review for district court nationality
determinations is clear error. However, I reach that
conclusion differently than my colleagues, because I believe
Congress has spoken to the scope of judicial review in these
cases.

    Congress requires that this court review a district court’s
final order in nationality claims as we would a district court’s
decision in a declaratory judgment action. Federal Rule of
Civil Procedure 52(a)(6) sets forth that review, requiring
findings of fact “not be set aside unless clearly erroneous.”

    In 1961, Congress enacted . . . 8 U.S.C. § 1105a (1976
ed.), in order ‘to create a single, separate, statutory form of
judicial review of administrative orders for the deportation of
aliens from the United States.’” Agosto v. INS, 436 U.S. 748,
752 (1978) (alteration omitted) (quoting H.R. Rep. No. 1086,
at 22 (1961), as printed in 1961 U.S.C.C.A.N. 2950, 2966.3).
In enacting § 1105a, “Congress carved out one class of cases,
however, where de novo review in district court would be
available: cases in which the person subject to deportation
claims to be a United States citizen.” Id. at 753. The
Supreme Court noted that, “[i]n carving out this class of
cases, Congress was aware of our past decisions [such as Ng
Fung Ho, 259 U.S. 276], holding that the Constitution
requires that there be some provision for de novo judicial
                   MONDACA-VEGA V. HOLDER                               43

determination of claims to American citizenship in
deportation proceedings.”6 Id.

    In addition to carving out this class of cases, Congress
also mandated the proper scope and standard of judicial
review. See 8 U.S.C. § 1252(b). Congress provided for two
types of review when nationality claims were at issue.
8 U.S.C. § 1252(b)(5). First, if a petitioner raised a
nationality claim and presented no genuine issue of material
fact, we may decide the issue of nationality subject to the
administrative record and the administrative finding of fact.
§ 1252(b)(4),7 (5)(A).8 Second, if the petitioner raises issues
of material fact, then we must remand the matter to the
district court to conduct a hearing and decide the issue as if it




 6
   Prior to this enactment, the Supreme Court has provided a standard of
review in denaturalization cases, which required courts to undertake an
independent review of the record. See, e.g., Baumgartner, 322 U.S. at
670; Fedorenko, 449 U.S. at 506. However, none of the Supreme Court
cases (setting forth this standard of review) were brought under former
§ 1105a(a)(5) or the present § 1252(b)(5)(B).
     7
     Section 1252(b)(4) provides: “Except as provided in paragraph
(5)(B)–(A) the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based, (B) the
administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary . . . .”
 8
   Section 1252(b)(5)(A) allows for the court to determine the nationality
claim, “[i]f the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine
issue of material fact about the petitioner’s nationality is presented, the
court shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A).
44                 MONDACA-VEGA V. HOLDER

were a declaratory judgment. § 1252(b)(5)(B).9 Once the
remand to the district court occurs, there is no basis for an
appellate court to treat the case any differently than it would
an appeal from a declaratory judgment.

    Congress was clear then and is clear now—the district
court is to conduct the de novo hearing and make a decision,
just as if the action was brought as a declaratory judgment
action under § 2201.10 In declaratory judgment actions (such
as this) tried by the district court without a jury, the district
court shall “find the facts specially” and review of those
factual findings “must not be set aside unless clearly
erroneous.” Fed. R. Civ. P. 52(a)(1), (6); see also Sessions,
Inc. v. Morton, 491 F.2d 854, 858 (9th Cir. 1974).

    In enacting § 1252(b)(5), Congress took into
consideration the Supreme Court’s mandate that a de novo
review of citizenship claims must be undertaken prior to
removal. In doing so, it specifically concluded that the


 9
   Section 1252(b)(5)(B) requires us to transfer the nationality claim “[i]f
the petitioner claims to be a national of the United States and the court of
appeals finds that a genuine issue of material fact about the petitioner’s
nationality is presented, the court shall transfer the proceeding to the
district court of the United States for the judicial district in which the
petitioner resides 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 [Declaratory Judgment Action.].”
(emphasis added).
 10
     Section 2201 provides that “any court of the United States, upon the
filing of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be reviewable as
such.” (emphasis added).
                MONDACA-VEGA V. HOLDER                       45

district court was “better positioned than another to decide the
issue in question.” Cf. Miller v. Fenton, 474 U.S. 104, 114
(1985). It specifically declined to have this court review
issues of fact de novo. If Congress wanted this court to
independently review the district court’s ultimate findings of
fact, it could have easily provided for that review. It did not.

    It is not relevant that the Supreme Court has not yet
specifically addressed this court’s standard of appellate
review under former § 1105a(a)(5) or § 1252(b)(5)(B), nor is
it relevant that the Supreme Court has not overruled
Baumgartner and its progeny. Congress has provided the
scope and standard of review as to this class of cases. This
court is bound to follow Congress’s mandate.

    With the exception of Lim, 431 F.2d 197, no other case in
the Ninth Circuit has addressed this specific issue. In light of
the statutory enactment of § 1105a, Lim was wrongly
decided. It relied on Knauer and Baumgartner without
considering whether the new statutory framework precluded
continued reliance on that standard of review.

    Lastly, even if there were any question with regard to the
appropriate standard of review, the Supreme Court cleared
any remaining doubt, in Pullman-Standard v. Swint, 456 U.S.
273 (1982); Anderson v. City of Bessemer City, 470 U.S. 564
(1985); and Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831 (2015). In Teva, the Supreme Court noted that
Rule 52(a)(6) “does not make exceptions or purport to
exclude certain categories of factual findings from the
obligation of a court of appeals to accept a district court’s
findings unless clearly erroneous.” Id. at 837 (quoting
Pullman-Standard, 456 U.S. at 287). “Rule 52(a) applies to
findings of fact, including those described as ‘ultimate facts’
46              MONDACA-VEGA V. HOLDER

because they may determine the outcome of litigation.” Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501
(1984). The district court’s finding that it was highly
probable that Petitioner was Mondaca Vega is an “ultimate
fact,” which determines the outcome of this litigation. This
determination is purely fact based, and made after
considering the evidence of Petitioner’s identity submitted to
the district court. Thus, because the majority did not find an
error of law here, we must give deference to the district
court’s determination that Petitioner is Mondaca Vega unless
such determination is clearly erroneous.



MURGUIA, Circuit Judge, joined in full by NGUYEN,
Circuit Judge, and as to Parts A, B, and D by THOMAS,
Chief Judge, and PREGERSON and W. FLETCHER, Circuit
Judges, concurring in part and dissenting in part:

    This case involves “the vexing nature of the distinction
between questions of fact and questions of law.” See
Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982). On
some questions, the answer is easy. How many times was
Petitioner deported? Under what name? Did Petitioner
successfully apply for a social security number? Has he ever
been convicted of a crime as a U.S. citizen? How many
children does he have, and what is the status of their
citizenship? Is the Petitioner’s testimony persuasive? These
are undoubtedly questions of fact, and we review the district
court’s answers to these questions for clear error. See Fed. R.
Civ. P. 52(a)(6).

   On others, the fact-or-law distinction is more difficult.
Did the Government prove by “clear, unequivocal, and
                   MONDACA-VEGA V. HOLDER                                47

convincing” evidence that Petitioner’s evidence of U.S.
citizenship was illegally procured or obtained by fraud?1 Lee
Hon Lung v. Dulles, 261 F.2d 719, 724 (9th Cir. 1958). The
Government contends, and the majority concludes, that this
is a question of fact, subject to deference under clear error
review. I believe that the district court’s answer to this
question is not a “pure finding[] of fact,” but a finding that
“‘clearly impl[ies] the application of standards of law.’” See
Pullman-Standard, 456 U.S. at 286 n.16 (quoting
Baumgartner v. United States, 322 U.S. 665, 671 (1944)).
Therefore, I would review that question de novo. See id. I
consequently would reverse the district court and grant the
petition for review.

                                    A.

    The Supreme Court first prescribed a de novo standard for
reviewing the Government’s burden of proof in citizenship
cases in Baumgartner v. United States. 322 U.S. 665. There,
the Supreme Court considered whether the Government had
proven by clear, unequivocal, and convincing evidence that
Carl Baumgartner, a naturalized U.S. citizen, had obtained his
citizenship through fraud. See id. at 671–72. The answer to
this question, according to the Court, “more clearly impli[ed]
the application of standards of law” than pure findings of fact.
See id. at 671. De novo review was necessary because
otherwise the “emphasis” on the Government’s high burden
of proof in citizenship cases “would be lost” if the district
court’s ultimate conclusion on that question was “deemed a
‘fact’ of the same order as all other ‘facts,’ not open to


 1
   I agree with the majority that the district court did not err in requiring
the Government to satisfy the intermediate burden of proof and therefore
concur in Sections I–IV of the majority opinion. See Maj. Op. at 12–17.
48                 MONDACA-VEGA V. HOLDER

review.” See id. at 671 (internal citation omitted). Notably,
the Court distinguished the ultimate burden of proof question,
which required a “conclusion . . . drawn from the whole mass
of evidence,” from “subsidiary” findings of fact, such as who
said what, when, and where. See id. at 670–71.

     As in Baumgartner, when “Congress has not spoken and
[when] the issue falls somewhere between a pristine legal
standard and a simple historical fact, the fact/law distinction
at times has turned on a determination that, as a matter of the
sound administration of justice, one judicial actor is better
positioned than another to decide the issue in question.” See
Miller v. Fenton, 474 U.S. 104, 113–14 (1985). Considering
the gravity of the interest at stake—U.S. citizenship and all its
attendant rights—and the correspondingly high burden of
proof, the Supreme Court deliberately chose to designate the
question of the Government’s burden of proof as a question
of law subject to independent, or de novo, review.2 See
Baumgartner, 322 U.S. at 670–71.

    When deciding issues of citizenship in denaturalization
cases, the Supreme Court has not strayed from its reasoning
in Baumgartner. See, e.g., Fedorenko v. United States,
449 U.S. 490, 506 (1981) (“[I]n reviewing denaturalization
cases, we have carefully examined the record ourselves.”);
Costello v. United States, 365 U.S. 265, 269–70 (1961) (“The

  2
   As used in Baumgartner, the phrase “independent assessment” is the
functional equivalent of de novo review. By using this term, I do not
suggest that Baumgartner allows “de novo” review of the entire record or
the district court’s underlying factual determinations. It does not. Even
where the Supreme Court has prescribed “independent review,” we still
must afford proper deference to any factual finding to which Rule 52(a)(6)
applies. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
499–500 (1984).
                 MONDACA-VEGA V. HOLDER                        49

issue in these cases is so important to the liberty of the citizen
that the weight normally given concurrent findings of two
lower courts does not preclude reconsideration here.”);
Chaunt v. United States, 364 U.S. 350, 353 (1960) (same);
Nowak v. United States, 356 U.S. 660, 663 (1958)
(scrutinizing the record in a denaturalization case “with the
utmost care”); Knauer v. United States, 328 U.S. 654, 657–58
(1946) (“We reexamine the facts to determine whether the
United States has carried its burden of proving by ‘clear,
unequivocal, and convincing’ evidence, which does not leave
‘the issue in doubt,’ that the citizen who is sought to be
restored to the status of an alien obtained his naturalization
certificate illegally.”).

                               B.

    As the majority recognizes, we have previously applied
Baumgartner’s independent standard of review in an alienage
determination case. See Lim v. Mitchell, 431 F.2d 197, 199
(9th Cir. 1970). In Lim, the plaintiff asked for a judgment
declaring him to be a citizen of the United States after the
Immigration and Naturalization Service began to question his
identity. Id. at 198–99. At the time of the lawsuit, Lim had
been considered a derivative citizen for almost thirty-six
years. See id. The Government argued that Lim was not
entitled to citizenship because he was actually related to Jew
Look, a Chinese citizen, not Lim Sam, a U.S. citizen. See id.
at 199. The district court agreed, holding that the
Government had shown that Lim was not a U.S. citizen. Id.
at 200. Independently reviewing this question, we reversed,
holding that in light of the Service’s prior determination of
citizenship and Lim’s reliance on it, the Government had
failed to show “clear, unequivocal, and convincing evidence”
that Lim was not a U.S. citizen. See id. at 204.
50              MONDACA-VEGA V. HOLDER

    As in Lim, the Government here has treated Petitioner as
a citizen. He has been issued more than one U.S. Passport.
He has been convicted and sentenced to prison as a U.S.
citizen. And six of his children have been awarded derivative
citizenship or lawful permanent resident status based on
Petitioner’s own citizenship. Although none of these actions
have the conclusiveness of a formal naturalization, Petitioner
has relied on these actions, made his home here, and
established the ties and roots of permanent citizenship. In
cases such as this—where the Government has treated an
individual like a citizen for years—we have held that:

       [T]he practical effect of a decision favorable
       to the Government in this case is the same as
       that which results from a decision favorable to
       the Government in a denaturalization case. In
       either case, the individual is stripped of what
       [the Supreme Court] termed “the priceless
       benefits” which derive from the status of
       citizenship. In either case, the Government
       “seeks to turn the clock back,” with possible
       grievous consequences.

Lee Hon Lung, 261 F.2d at 724 (internal citation omitted)
(quoting Schneiderman v. United States, 320 U.S. 118, 122
(1943)); cf. Sanchez-Martinez v. INS, 714 F.2d 72, 74 (9th
Cir. 1983) (distinguishing Lim and applying a clear error
standard of review because “there ha[d] been no prior
determination of citizenship” and petitioner’s “claim to
United States citizenship [was] based solely on his own belief
and the recollections of others as to his putative birth”).
Because the Government repeatedly treated Petitioner as a
citizen over the course of forty years, I would follow the clear
                   MONDACA-VEGA V. HOLDER                               51

direction of Lim and apply Baumgartner’s two-step standard
of review to this case.

                                    C.

    The majority agrees that Lim squarely addresses this case.
See Maj. Op. at 22 (“If Lim is good law, it indeed controls the
outcome here.”). In order to get around Lim, which has been
the law of our Circuit for forty-five years, the majority
overrules it.3

   The majority concludes that Baumgartner simply does not
apply because Lim, and this case, involved an alienage




  3
    The other dissent also would overrule Lim, but on different grounds.
See Judge N.R. Smith’s Dissent at 45. According to the other dissent,
Congress prescribed the appropriate scope and standard of judicial review
in 8 U.S.C. § 1252(b). As discussed above, I agree that Rule 52(a)(6)
requires us to review the district court’s findings of fact for clear error.
See supra note 2. The question here is not whether Rule 52(a)(6) applies,
but whether the district court’s ultimate determination as to the
Government’s burden of proof is a finding of fact or a conclusion of law.
On that question, Congress has remained silent and has not, as the dissent
suggests, concluded that the district court was “better positioned than
another to decide the issue in question.” Judge N.R. Smith’s Dissent at
44–45 (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)). Miller, on
which the dissent relies, was a habeas case that did not involve citizenship
claims. Moreover, the Court in Miller reaffirmed that “the ultimate
question of the admissibility of a confession merits treatment as a legal
inquiry requiring plenary federal review.” 474 U.S. at 115. Similarly,
both the Supreme Court and this Court have definitively held that the issue
here “more clearly impli[es] the application of standards of law” and
therefore should be reviewed de novo. See Baumgartner, 322 U.S. at 671;
Lim, 431 F.2d at 199–200; see also Pullman-Standard, 456 U.S. at 286
n.16.
52                MONDACA-VEGA V. HOLDER

determination, not a denaturalization proceeding.4 But the
majority uses too blunt a knife. Although the Supreme Court
has generally stated the importance of citizenship in
denaturalization and expatriation cases, it has never suggested
that the wrongful deportation of a United States citizen is a
lesser loss of liberty than the stripping of one’s citizenship.
See Baumgartner, 322 U.S. at 680 (Murphy, J., concurring)
(“The naturalized citizen has as much right as the natural born
citizen to exercise the cherished freedoms of speech, press
and religion . . . .”); Woodby v. INS, 385 U.S. 276, 286 (1966)
(“The immediate hardship of deportation is often greater than
that inflicted by denaturalization, which does not,
immediately at least, result in expulsion from our shores.”);
see also Lee Hon Lung, 261 F.2d at 724 (noting that the
practical effect of a judgment declaring someone to be a non-
citizen is the same as a denaturalization order). As plainly
illustrated in this case, the important interests of citizenship
present in denaturalization proceedings can also permeate
alienage determinations made in the context of deportation
proceedings.         In seeking to remove Petitioner, the
Government’s sole argument is that Petitioner is not actually
who he said he was—i.e., that Petitioner’s citizenship was
obtained through fraud. This is the same allegation that the
Government made against the petitioners in the
denaturalization cases. Cf. Baumgartner, 322 U.S. at 671–72
(“The gravamen of the Government’s complaint and of the

     4
       As further justification for erecting a rigid barrier between
denaturalization and alienage determinations made in the context of
deportation proceedings, the majority suggests that Baumgartner only
applies when a case implicates free-speech or political persecution. See
Maj. Op. at 20–21. These concerns, according to the majority, are
“uniquely present in the denaturalization context.” See Maj. Op. at 19.
But the risk of political persecution does not arise only in the
denaturalization context; it is also present in deportation proceedings.
                   MONDACA-VEGA V. HOLDER                                53

findings and opinion below is . . . in short, that Baumgartner
was guilty of fraud.”).

    The majority’s hard-line distinction between
denaturalization and deportation proceedings further ignores
the fact that the Supreme Court and this court have
consistently applied the same intermediate burden of proof to
both types of proceedings.5 See Chaunt, 364 U.S. at 353;
Woodby, 385 U.S. at 286. We have also applied the same
burden of proof to cases where citizenship is at issue. See
also Lim, 431 F.2d at 199; Lee Hon Lung, 261 F.2d at 723.
And that is the same burden of proof that the majority applies
today. Maj. Op. at 11–12. The burden of proof issue cannot
be separated from the appellate standard of review in this
case. It was only because of this “exacting standard of proof”
that the Baumgartner Court applied de novo review to the
district court’s ultimate determination. See Baumgartner, 322
U.S. at 671 (indicating that the trial court burden of proof
“would be lost” without heightened appellate review).
Together, the burden of proof and standard of review work to
safeguard the “most valuable right[]” of citizenship. See
Gorbach v. Reno, 219 F.3d 1087, 1098 (9th Cir. 2000) (en
banc). For these reasons, I would hold that Lim is sound and
should be followed.


 5
   The majority notes that in deportation proceedings we typically review
agency fact finding with deference. Maj. Op. at 24. However, we do not
provide deference to agency fact finding in nationality claims, such as this
one, where there are genuine issues of fact. See 8 U.S.C. § 1252 (b)(4)
(specifically exempting 8 U.S.C. § 1252(b)(5)(B) from the deferential
scope of review); id. § 1252(b)(5)(B) (directing the court of appeals to
“transfer the proceeding to the district court . . . for a new hearing on the
nationality claim” if “the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine issue of material fact
about the petitioner’s nationality is presented”).
54             MONDACA-VEGA V. HOLDER

                             D.

     The majority also suggests that the Baumgartner standard
of review, as adopted by this court in Lim, has been impliedly
overruled by the Supreme Court in Pullman-Standard v.
Swint, 456 U.S. 273 (1982), and Anderson v. City of Bessemer
City, N.C., 470 U.S. 564 (1985). Maj. Op. at 22–23. The
majority concludes that Lim is no longer good law because
“the Supreme Court has questioned whether there can ever be
independent appellate review of a question of fact.” Maj. Op.
at 22. According to the majority, the court “need only
conclude that Lim has been overruled, leaving the Supreme
Court to decide whether it has also implicitly repudiated its
own decisions.” Maj. Op. at 23 n.9. But that is a distinction
without a difference. Lim merely adopted Baumgartner and
its progeny’s appellate standard of review. See Lim, 431 F.2d
at 199–200. Therefore, the two cases rise and fall together.
Until the Supreme Court holds otherwise, Baumgartner and
its progeny remain good law.

    In contrast to Baumgartner, both Pullman-Standard and
Anderson concerned a question of fact—the finding of
intentional discrimination in discrimination cases. See
Anderson, 470 U.S. at 573–76; Pullman-Standard, 456 U.S.
at 286–90. Indeed, the fact/law distinction was abundantly
clear in Pullman-Standard and Anderson because Congress
had designated the question of intentional discrimination as
“a pure question of fact.” See Pullman-Standard, 456 U.S. at
286 n.16.

    Significantly, the Court in Pullman-Standard expressly
distinguished Baumgartner as not involving a question of
fact. Id. Affirming that Baumgartner applied independent
review to “the conclusion . . . that the exacting standard of
                MONDACA-VEGA V. HOLDER                       55

proof had been satisfied” in citizenship determinations, the
Pullman-Standard Court explained that the Baumgartner
Court’s designation of this question as an “ultimate fact”
“referred not to pure findings of fact—as [it found]
discriminatory intent to be in this context—but to findings
that ‘clearly impl[y] the application of standards of law.’” Id.
(second alteration in original) (quoting Baumgartner,
322 U.S. at 671). As the Pullman-Standard Court
recognized, Rule 52(a)’s mandate for clear error review
simply “does not apply to conclusions of law.” Id. at 287; see
also id. at 289 n.19 (declining to address “the much-mooted
issue of the applicability of the Rule 52(a) standard to mixed
questions of law and fact”).

    The Supreme Court’s recent decision in Teva
Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831
(2015), did not change this distinction. Teva, like Pullman-
Standard and Anderson, did not address the Government’s
burden of proof in citizenship cases. Rather, Teva addressed
the appropriate standard of review to be applied to
“subsidiary factual matters” made in the course of patent
claim construction. Id. at 836. The Court concluded that
these “subsidiary factual matters” were questions of pure fact
subject to clear error review under Rule 52(a). Id. at 836–37.
Notably, the Court did not disturb its previous conclusion that
Baumgartner dealt with an issue of law, not fact. See
Pullman-Standard, 456 U.S. at 286 n.16. The Court also did
not change its decades-old guidance on how to make the
fact/law distinction. See id.

    In light of the Supreme Court’s clear distinction of
Baumgartner and its repeated refusals to overrule that
precedent, I would hold that Baumgartner’s independent
standard of review, as applied to alienage determinations in
56              MONDACA-VEGA V. HOLDER

Lim, remains binding on this Circuit. See State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997) (“[I]t is [the Supreme] Court’s
prerogative alone to overrule one of its precedents.”); see also
United States v. Zajanckauskas, 441 F.3d 32, 37–38 & n.5
(1st Cir. 2006) (holding that Baumgartner is “still valid” and
has “not been overruled in any way”).

                               E.

    Independently reviewing the district court’s ultimate
determination that the Government met its burden of proof
and reviewing the district court’s underlying findings of fact
for clear error, Baumgartner, 322 U.S. at 670–71, I would
reverse the district court and grant the petition.

    All agree that the district court correctly determined that
Petitioner carried his initial burden of proving by a
preponderance of evidence that he is an American citizen by
the name of Reynaldo Mondaca-Carlon. Maj. Op. at 12. The
Government thus was required to present clear, unequivocal,
and convincing evidence that Petitioner was not who he
claimed to be. Maj. Op. at 11–12. The Government did not
meet its high burden.

    First, several of the district court’s underlying findings of
fact were clearly erroneous. See McCormack v. Hiedeman,
694 F.3d 1004, 1018 (9th Cir. 2012) (when reviewing for
clear error a district court’s factual findings “may be reversed
only if ‘illogical, implausible, or without support in
inferences that may be drawn from the facts in the record’”
(quoting Am. Trucking Ass’ns, Inc. v. City of L.A., 660 F.3d
384, 395 (9th Cir. 2011))).
                MONDACA-VEGA V. HOLDER                       57

    As the Government admits, and the majority agrees, there
is no evidence in the record to support the district court’s
findings that Petitioner was deported in July 1951, September
1951, or November 1952. Maj. Op. at 27.

    There is also no evidence in the record supporting the
district court’s conclusion that Petitioner would have had to
show a birth certificate in order to obtain a social security
card. Maj. Op. at 27; see also United States v. Berber-
Tinoco, 510 F.3d 1083, 1091 (9th Cir. 2007) (“A trial judge
is prohibited from relying on his personal experience to
support the taking of judicial notice.” (internal quotation
marks omitted) (citation omitted)). This error is not
inconsequential. The district court solely relied on this
erroneous conclusion to discount Petitioner’s testimony that
he obtained his authentic U.S. birth certificate from his
mother after he was deported the first time. Thus, the district
court had no basis to conclude that Petitioner did not rightly
possess an authentic U.S. birth certificate.

    The district court relied on several other clearly erroneous
findings in discounting Petitioner’s testimony. For example,
the district court found it implausible that Petitioner would
not have identified himself as a U.S. citizen each time he was
deported in part because deportation was against his financial
interest. But there is no evidence in the record to support the
district court’s findings regarding employment opportunities
for a farm worker in the 1950s, much less Petitioner’s own
personal financial motives. Similarly, the district court
improperly speculated that Petitioner only began using the
name Reynaldo Mondaca after he was married in order to
obtain the benefits of a U.S. citizen. This finding is flatly
contradicted by the record, which shows that Petitioner
58              MONDACA-VEGA V. HOLDER

obtained a Social Security number under Reynaldo’s name in
1953, almost twenty years before his marriage.

    Without these clearly erroneous findings, but considering
all the other facts as found by the district court, I would
conclude that the Government has not proven by clear,
unequivocal, and convincing evidence that Petitioner is
Salvador Mondaca-Vega, citizen of Mexico.

    For each finding of fact offered by the Government, there
is an equal or more significant finding of fact favoring the
Petitioner. For example, it is undisputed that Petitioner has
accepted voluntary departure and has been deported under the
name Salvador Mondaca-Vega. But it is also undisputed that
the Government has repeatedly treated Petitioner as Reynaldo
Mondaca-Carlon, a U.S. citizen. In 1953, Petitioner obtained
a Social Security number, which he continues to use today.
In fact, according to the Social Security Administration,
Petitioner is currently qualified for Social Security benefits.
Similarly, the U.S. Department of State issued Petitioner a
valid passport at least two times, once in 1998 and again in
2005. The United States also granted Petitioner’s children
derivative citizenship based on his status. inally, and perhaps
most damaging to the Government’s position, the
Government charged Petitioner in federal court as a U.S.
citizen. There is no evidence in the record that the
Government ever questioned Petitioner’s citizenship in
conjunction with that proceeding.

    The Government also points to Petitioner’s signed
statement sworn under the name Salvador Mondaca-Vega.
But Petitioner signed many other documents under the name
                   MONDACA-VEGA V. HOLDER                              59

Reynaldo Mondaca-Carlon.6 For example, in his 1953
application for a Social Security card, Petitioner indicated
that his parents were Marin Mondaca and Antonia Carlon and
that he was born in Imperial, California. Petitioner also listed
his name as Reynaldo on all family documents, including
documents that have no relation to his citizenship status. He
is likewise listed as Reynaldo on all of his children’s
baptismal certificates filed with his parish in Mexico.

    The fingerprint evidence is similarly inconclusive.
Although Petitioner’s fingerprints match those taken by the
INS for Salvador Mondaca-Vega, Petitioner’s fingerprints
also match an FBI Identification Record that identifies
Petitioner as a U.S. citizen, born in California.

   In light of the conflicting “whole mass of evidence,” see
Baumgartner, 322 U.S. at 671, I find it impossible to
conclude that the Government has met its burden by clear,
unequivocal, and convincing evidence. See Lim, 431 F.2d at
203. I would reverse the district court and grant the petition.
Therefore, I respectfully dissent.




 6
   Petitioner acknowledged that he used various aliases, but testified that
Reynaldo Mondaca-Carlon is his true name and identity. The district
court gave little weight to this testimony, finding that the testimony was
inconsistent and implausible. As discussed above, much of the district
court’s adverse credibility determination was based on clearly erroneous
findings of fact and improper speculation. That said, the district court
provided other reasons for discounting Petitioner’s testimony that were not
clearly erroneous. For example, the district court noted discrepancies
between the Petitioner’s testimony and his deposition and other
documentary evidence. See Maj. Op. at 27. Given this credibility
determination, I likewise accord little weight to Petitioner’s testimony.
