Colin-Villavicencio v. Garland

108 F.4th 1103

Socorro COLIN-VILLAVICENCIO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-507

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 7, 2023

Submission Withdrawn December 14, 2023

Resubmitted July 17, 2024 Pasadena, California

Filed July 23, 2024

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-791

Elizabeth F. Rodriguez (argued), E-Rod Law Office, San Diego, California; Murray D. Hilts, Law Office of Murray D. Hilts, San Diego, California; for Petitioner.

Michael C. Heyse (argued), Trial Attorney; Jonathan A. Robbins, Assistant Director; Brian M. Boynton, Principle Deputy Assistant Attorney General; Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

Before: J. Clifford Wallace, William A. Fletcher, and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge Wallace;

Dissent by Judge W. Fletcher

OPINION

R. NELSON, Circuit Judge:

Socorro Colin-Villavicencio petitions for review of a Board of Immigration Appeals decision denying her request for relief under the Convention Against Torture and asks us to consider her derivative-citizenship claim under 8 U.S.C. § 1432(a). We deny her petition and derivative-citizenship claim.

I

Colin-Villavicencio, born in 1983, is a native and citizen of Mexico. In 1988, she entered the United States lawfully after being issued a border crossing card. A decade later, Colin-Villavicencio's mother, Sandra Villavicencio, became a naturalized citizen. Within a year, Colin-Villavicencio had filed a Form I-485 application for adjustment of status to lawful permanent resident. After she missed a fingerprint appointment, U.S. Citizenship and Immigration Services (USCIS) considered her application for adjustment of status abandoned. The application was reopened, but she missed another fingerprint appointment. She received a Notice to Appear (NTA) in 2002, but an Immigration Judge (IJ) administratively closed those proceedings shortly after at the parties' request.

In June 2015, the Department of Homeland Security (DHS) commenced removal proceedings after Colin-Villavicencio was convicted of two counts of felony child abuse, one count of possession of a controlled substance for sale, and one count of possession of a controlled substance.

Colin-Villavicencio represented herself pro se at her initial removal proceedings in 2015. She claimed that she was a citizen based on her mother's naturalization seventeen years earlier. She testified that her parents never married and her father, who had died by 2009, became a lawful permanent resident, but never naturalized. To support her citizenship claim, she provided (1) her mother's naturalization certificate, (2) her authorization for parole form, (3) her Mexican birth certificate, and (4) her border crossing card. Ultimately, an IJ denied her derivative-citizenship claim because she did not demonstrate that she became a lawful permanent resident as a minor. The IJ thus found her removeable and provided her a Form I-589 application so she could support a claim for asylum, withholding of removal, or Convention Against Torture (CAT) protection.

In 2019, Colin-Villavicencio submitted her Form I-589 application for a removal hearing before a different IJ. On her application, she listed her mother as "Sandra Villavicencio" and her father as "Vidal Colin." At the hearing, Colin-Villavicencio conceded that she was ineligible for asylum and withholding of removal because her prior convictions were for "particularly serious crimes." She sought CAT relief, asserting that she feared returning to Mexico and becoming the target of a criminal organization. She testified that her brother was deported from the United States in 2005 because of criminal convictions and subsequently, in 2015, was "threatened, beaten, and stabbed by organized criminals" in Mexico. She believed her brother was targeted because he had lived in the United States. Prior to her brother's stabbing, her mother was extorted several times and paid money to keep her brother safe in Mexico. She also testified that the police took a report of her brother's stabbing, but she was not sure if it was investigated. She believed that she would be similarly targeted, threatened, and extorted if she were deported from the United States because criminals would assume she had money. She submitted the Mexico 2018 Human Rights Report and articles on country conditions.

That same day, the IJ issued a decision reaffirming the previous IJ's finding that Colin-Villavicencio was not a United States citizen under the Immigration and Nationality Act (INA) § 320 because she had not established that she obtained lawful permanent residence status as a minor. The IJ also found that by using drugs in her children's presence—resulting in detectible levels of controlled substances in their systems—Colin-Villavicencio committed a "particularly serious crime." This precluded withholding of removal. The IJ found her ineligible for asylum because of her aggravated felony conviction. The IJ then denied her CAT claim and ordered her removed.

On appeal to the Board of Immigration Appeals (BIA), Colin-Villavicencio challenged the denial of CAT relief but not the IJ's denial of her derivative-citizenship claim under INA § 320. The BIA affirmed the IJ's denial of CAT relief. The BIA affirmed the IJ's determination that Colin-Villavicencio did not establish that it is more likely than not that she will be tortured in Mexico with the acquiescence of the government. The BIA agreed with the IJ that the background country conditions were not sufficiently relevant to support her risk of torture and that she had not provided evidence showing the circumstances of the attack on her brother. The BIA also affirmed the IJ's determination that the police report of the stabbing of Colin-Villavicencio's brother weighed against a finding that public officials would be complicit. The BIA further agreed with the IJ that evidence of country conditions showing that Mexican government officials have acted in concert with criminals does not establish that they would in Colin-Villavicencio's case. Accordingly, the BIA affirmed the IJ's determination that Colin-Villavicencio had not established eligibility for CAT relief.

II

We review legal questions de novo and factual findings for substantial evidence. Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1444 (9th Cir. 1994). The BIA's "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Nasrallah v. Barr, 590 U.S. 573, 584, 140 S.Ct. 1683, 207 L.Ed.2d 111 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).

We have jurisdiction to hear nationality claims under 8 U.S.C. § 1252(b)(5). Nationality claims do not require administrative exhaustion. Iasu v. Smith, 511 F.3d 881, 890 (9th Cir. 2007). For a citizenship claim, we may consider evidence outside the administrative record. Brown v. Holder, 763 F.3d 1141, 1145 n.2 (9th Cir. 2014) (citing 8 U.S.C. § 1252(b)(5)(B)). Petitioner bears the burden of showing credible evidence to support her derivative-citizenship claim. See Berenyi v. I.N.S., 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir. 2016).

Under § 1252(b)(5)(A), if the record presents "no genuine issue of material fact about the petitioner's nationality" then the court of appeals "shall decide the nationality claim." But if "the petitioner claims to be a national of the United States and . . . 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 . . . ." § 1252(b)(5)(B). "Traditional summary judgment rules guide our decision concerning transfer." Ayala-Villanueva v. Holder, 572 F.3d 736, 738 (9th Cir. 2009) (citing Chau v. I.N.S., 247 F.3d 1026, 1029 (9th Cir. 2001)). "Where 'the evidence presented in support of the claim would be sufficient to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment,' transfer for a de novo determination of the citizenship claim is statutorily mandated." Id. (citing Chau, 247 F.3d at 1029).

III

A

Colin-Villavicencio petitioned this court for review of the BIA's decision. Although she did not raise her derivative-citizenship claim before us, we may review the issue to avoid "manifest injustice." Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)). Because deporting a United States citizen would result in manifest injustice, we asked for two rounds of supplemental briefing addressing whether there are genuine issues of material fact relevant to Colin-Villavicencio's derivative-citizenship claim.

As noted in our supplemental briefing order, our precedent about what is required under § 1432(a) to be eligible for derivative citizenship changed since Colin-Villavicencio's appeal to the BIA. Under INA § 320 in effect when Colin-Villavicencio's mother naturalized, a naturalized parent's minor child acquired derivative citizenship if she was residing in the country at the time of the naturalization "pursuant to a lawful admission for permanent residence" or "thereafter beg[an] to reside permanently in the United States while under the age of eighteen years." § 1432(a)(5) (1998). In Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008), we interpreted "begins to reside permanently in the United States" as requiring that a minor be a legal permanent resident. But three years ago, we overruled Romero-Ruiz and held that the "begins to reside permanently in the United States" pathway "does not require that the child have necessarily been granted lawful permanent residency, although the child...