Colin-Villavicencio v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOCORRO COLIN- No. 22-507

VILLAVICENCIO,

Agency No.

A075-600-791

Petitioner,

v.

OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 7, 2023

Submission Withdrawn December 14, 2023

Resubmitted July 17, 2024

Pasadena, California

Filed July 23, 2024

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

2 COLIN-VILLAVICENCIO V. GARLAND

SUMMARY*

Immigration

Denying Socorro Colin-Villavicencio’s petition for

review of a decision of the Board of Immigration Appeals,

the panel (1) denied Colin-Villavicencio’s derivative

citizenship claim, and (2) concluded that substantial

evidence supported the denial of relief under the Convention

Against Torture (CAT).

Although Colin-Villavicencio, a native and citizen of

Mexico, did not raise a claim to derivative United States

citizenship before the court, the panel excused the waiver on

the ground that deporting a United States citizen would

result in manifest injustice. The panel thus requested

supplemental briefing on whether she derived citizenship,

under 8 U.S.C. § 1432(a), when her mother naturalized.

As relevant here, Colin-Villavicencio had to satisfy

§ 1432(a)(3), and could do so in one of two ways. First, she

could establish that there had “been a legal separation of

[her] parents.” The panel concluded that she could not meet

this pathway because she admitted that her parents never

married. Second, she could establish that her paternity had

“not been established by legitimation.” The panel concluded

that she could not meet this pathway because her birth

certificate included her father’s name and signature and,

under Baja California law, her father thus acknowledged

paternity.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

COLIN-VILLAVICENCIO V. GARLAND 3

Therefore, the panel concluded that the undisputed

record foreclosed Colin-Villavicencio’s derivative-

citizenship claim and, because she had neither disputed her

birth certificate’s authenticity nor her father’s paternity,

there was no material dispute of fact requiring transfer to a

district court under 8 U.S.C. § 1252(b)(5).

As to CAT relief, the panel concluded that Colin-

Villavicencio has not shown a particularized risk of torture

in Mexico and had not shown that police would acquiesce in

her torture.

Concurring, Judge Wallace fully joined the majority

opinion, but wrote separately in response to the dissent to

elaborate on why no genuine dispute of material fact existed

as to legitimation. Judge Wallace wrote that, consistent with

this court’s precedent, no genuine issue of material fact

existed regarding a matter where Colin-Villavicencio had

not put forth any argument or evidence. Further, Judge

Wallace wrote that it is not this court’s function to assume

the role of petitioner’s counsel, as the dissent did, in his

view.

Dissenting, Judge W. Fletcher wrote that the government

waived any argument that Colin-Villavicencio failed to

satisfy § 1432(a)(3) by failing to address it, despite being

specifically directed to do so. In Judge Fletcher’s view, that

should have been the end of the case. Instead, the majority

denied Colin-Villavicencio’s claim based on an argument

that the government never made (i.e., that her claim failed

under § 1432(a)(3)’s legitimation element) and based on

extra-record materials that no party had the opportunity to

address or perhaps even saw (i.e., a document summarizing

the family law of Baja California).

4 COLIN-VILLAVICENCIO V. GARLAND

COUNSEL

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.

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

COLIN-VILLAVICENCIO V. GARLAND 5

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

6 COLIN-VILLAVICENCIO V. GARLAND

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.

COLIN-VILLAVICENCIO V. GARLAND 7

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 (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

8 COLIN-VILLAVICENCIO V. GARLAND

showing credible evidence to support her derivative-

citizenship claim. See Berenyi v. I.N.S., 385 U.S. 630, 637

(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

COLIN-VILLAVICENCIO V. GARLAND 9

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 must have demonstrated an objective

official manifestation of permanent residence.” Cheneau v.

Garland, 997 F.3d 916, 917–18 (9th Cir. 2021) (en banc).

So in 2015, when the IJ rejected Colin-Villavicencio’s

derivative-citizenship claim, it properly did so under then-

existing precedent. Consistent with Romero-Ruiz, the IJ

determined that Colin-Villavicencio did not acquire

derivative citizenship under § 1432(a) because she did not

become a legal permanent resident before turning

eighteen. The IJ’s finding, however, is insufficient under

Cheneau, which established a new legal standard for

10 COLIN-VILLAVICENCIO V. GARLAND

derivative citizenship that neither the IJ nor BIA had an

opportunity to analyze. See Cheneau, 997 F.3d at 918.

In the first round of supplemental briefing, we ordered

the parties to address how our intervening decision in

Cheneau affected Colin-Villavicencio’s derivative-

citizenship claim. In her first round of supplemental

briefing, Colin-Villavicencio argued that she is eligible for

derivative citizenship because she began to reside

permanently in the United States while under the age of

eighteen and after her mother naturalized as required by 8

U.S.C. § 1432(a)(5). Colin-Villavicencio also argued that

she demonstrated an intent to reside permanently in the

United States. The government asserted that Colin-

Villavicencio did not demonstrate the requisite intent to

reside permanently in the United States because she

abandoned her application to become a legal permanent

resident. In their first supplemental briefs, both parties

focused only on the requirements for derivative citizenship

under § 1432(a)(5)—the provision at issue in Cheneau.

In the second round of supplemental briefing, we ordered

the parties to address whether Colin-Villavicencio satisfied

any of the conditions at 8 U.S.C. § 1432(a)(1)–(3). In

response, Colin-Villavicencio only asserted that

§ 1432(a)(3) applied. She argued that it applied to her

because her mother naturalized, and she was born out of

wedlock. Colin-Villavicencio did not address the other

clause in § 1432(a)(3), which requires a child born out of

wedlock to prove that the paternity of the child has not been

established by legitimation. The government again argued

that Colin-Villavicencio did not demonstrate the requisite

intent to reside permanently in the United States required by

§ 1432(a)(5).

COLIN-VILLAVICENCIO V. GARLAND 11

There is no exhaustion requirement of a citizenship

claim. Iasu, 511 F.3d at 890. Thus, Colin-Villavicencio was

not required to raise her derivative-citizenship claim before

the BIA. And, as discussed above, before Cheneau she did

not have a viable derivative-citizenship claim, and “aliens

need not exhaust in cases ‘where resort to the agency would

be futile.’” Vasquez-Rodriguez v. Garland, 7 F.4th 888,

895–96 (9th Cir. 2021) (quoting Sun v. Ashcroft, 370 F.3d

932, 943 (9th Cir. 2004)).

Still, Colin-Villavicencio could have raised her

derivative-citizenship claim under Cheneau in her petition to

us. She failed to do so. That said, we excuse the waiver

since allowing a citizen to be deported would result in

manifest injustice. Cf. Alcaraz, 384 F.3d at 1161. And

because her citizenship claim turns on a legal question

without any disputed facts, we address it. See § 1252(b)(5).

B

Section 1432 provides the conditions that the child of a

naturalized citizen must meet to obtain derivative

citizenship:

(a) A child born outside of the United States

of alien parents . . . becomes a citizen of the

United States upon fulfillment of the

following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent

if one of the parents is deceased; or

(3) The naturalization of the parent having

legal custody of the child when there has been

a legal separation of the parents or the

naturalization of the mother if the child was

12 COLIN-VILLAVICENCIO V. GARLAND

born out of wedlock and the paternity of the

child has not been established by

legitimation; and if

(4) Such naturalization takes place while

such child is under the age of eighteen years;

and

(5) Such child is residing in the United States

pursuant to a lawful admission for permanent

residence at the time of the naturalization of

the parent last naturalized under clause (1) of

this subsection, or the parent naturalized

under clause (2) or (3) of this subsection, or

thereafter begins to reside permanently in the

United States while under the age of eighteen

years.

§ 1432(a) (1998) (repealed 2000).1

Colin-Villavicencio cannot meet the requirements of

§ 1432(a)(1)—that both parents were naturalized. It is

undisputed that her mother naturalized in 1998 when she was

fifteen, and her father became a lawful permanent resident

but never naturalized.

Colin-Villavicencio also cannot meet the requirements

of § 1432(a)(2)—the naturalization of a surviving parent if

one of the parents is deceased—because her father did not

die before her mother’s naturalization or before Colin-

1

“[D]erivative citizenship is determined under the law in effect at the

time the critical events giving rise to eligibility occurred.” Ayala-

Villanueva, 572 F.3d at 738 (quoting Minasyan v. Gonzales, 401 F.3d

1069, 1075 (9th Cir. 2005)). Thus, we look to the version of the INA in

effect when Colin-Villavicencio’s mother naturalized in 1998.

COLIN-VILLAVICENCIO V. GARLAND 13

Villavicencio turned eighteen. It is undisputed that her

father died in 2008 or 2009.

Given this, Colin-Villavicencio must meet both

conditions of §§ 1432(a)(3) and (5).2 Or, if she can show a

genuine issue of material fact related to both provisions,

transfer to a district court is warranted. See § 1252(b)(5)(B).

But Colin-Villavicencio cannot show that she meets

§ 1432(a)(3)’s requirement—or that there is a dispute on that

question. Therefore, her citizenship claim necessarily fails.3

1

Section 1432(a)(3) can be satisfied in one of two ways.

Colin-Villavicencio cannot meet § 1432(a)(3)’s first

pathway because she cannot show that her parents “legal[ly]

separate[ed]” before she turned eighteen. A prerequisite of

such separation is marriage. See Barthelemy v. Ashcroft, 329

F.3d 1062, 1065 (9th Cir. 2003), overruled on other grounds

as recognized in United States v. Mayea-Pulido, 946 F.3d

1055, 1062 (9th Cir. 2020). Colin-Villavicencio testified,

however, that her parents never married, and admitted the

same in her supplemental briefing before us. This

concession is conclusive for purposes of the first part of

§ 1432(a)(3). Colin-Villavicencio had the burden to

establish a genuine dispute of fact. Anheuser–Busch, Inc. v.

Nat. Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995).

When she admitted that her parents were unmarried, she

failed to carry that burden.

2

Section 1432(a)(4) is met because Colin-Villavicencio was fifteen

when her mother was naturalized.

3

Because Colin-Villavicencio cannot meet § 1432(a)(3), we need not

address § 1432(a)(5).

14 COLIN-VILLAVICENCIO V. GARLAND

The dissent disagrees with our conclusion that there is no

genuine dispute of fact about Colin-Villavicencio’s parents’

marital status. Relying on Giha v. Garland, 12 F.4th 922,

933–37 (9th Cir. 2021), the dissent contends that it is an open

question in this circuit whether a “de facto union” is a

sufficient “legal relationship” to satisfy § 1432(a)(3). But

Colin-Villavicencio never argued that her parents entered a

de facto union in her supplemental briefing. Colin-

Villavicencio bears the burden to establish these factual

disputes. She has failed to carry that burden. The only fact

we have is that Colin-Villavicencio was born out of wedlock.

Nothing more was presented that would suggest any de facto

union. There are no factual disputes supporting a de facto

union despite the dissent’s theorizing about potential factual

disputes that were never raised. There is no factual or legal

basis that has been presented to us to conclude that Colin-

Villavicencio’s parents were in a de facto union.

The persuasive authority cited by the dissent reinforces

our conclusion. In Espichan v. Attorney General, 945 F.3d

794, 799–800 (3d Cir. 2019), for example, the petitioner

presented evidence including affidavits, a police report, and

a legal memorandum prepared by a Peruvian law firm, to

argue that his parents had a de facto marriage. Colin-

Villavicencio presented nothing similar here. Rather, she

cites the record in support of her position that “she was born

out of wedlock.” The dissent asserts that Colin-

Villavicencio had no reason to clarify her parents’ marital

status before her current appeal. This is true. We requested

two rounds of supplemental briefing to provide her with the

opportunity to make such a clarification. She failed to make

any argument or present evidence to us about her parents’

marital status to us. If she had done so, we could have

transferred to a district court.

COLIN-VILLAVICENCIO V. GARLAND 15

2

Neither can Colin-Villavicencio make a showing under

the second pathway of § 1432(a)(3), which requires the

mother’s naturalization if the child was born out of wedlock

and that paternity has not been established by legitimation.

Again, it is undisputed that she was born out of wedlock.

Thus, she must show that her father’s paternity was not

established by legitimation.4

Colin-Villavicencio was born in Mexicali Baja

California, Mexico, and resided in Mexicali until she came

to the United States. Accordingly, we apply Baja California,

Mexico’s laws to determine whether paternity was

established by legitimation. See Romero-Mendoza v.

Holder, 665 F.3d 1105, 1108 (9th Cir. 2011) (“Legitimation

may be established under either the law of the child’s

residence or the father’s residence.”).5

When Colin-Villavicencio was born in 1983, under Baja

California’s civil code, a parent could establish parental

rights by voluntarily acknowledging the child on the birth

4

Neither Colin-Villavicencio nor the government argued in

supplemental briefing whether her father’s paternity was established by

legitimation. Because Colin-Villavicencio bears the burden to establish

her basis for relief, Hussein, 820 F.3d at 1088, she arguably waived this

as any basis for her citizenship claim, see Lopez-Vasquez v. Holder, 706

F.3d 1072, 1079–80 (9th Cir. 2013). We retain discretion to address

waived legal issues. Alcaraz, 384 F.3d at 1161. Because of the

importance of determining a petitioner’s citizenship status, we address

the legal issue here.

5

Colin-Villavicencio also resided in California for over twenty-seven

years, and her father resided in Chicago, Illinois. But because paternity

by legitimation is established under Baja California’s civil code, we need

not analyze other jurisdictions’ laws.

16 COLIN-VILLAVICENCIO V. GARLAND

record before the Civil Registry Officer. 6 Her birth

certificate located in the Office of the Civil Registrar of

Mexicali Baja, California, lists Jose Vidal Colin Ortiz as

Colin-Villavicencio’s father and includes her father’s

signature. Thus, her father voluntarily acknowledged

paternity, and she cannot make a showing under

§ 1432(a)(3)’s second pathway.

The undisputed record therefore forecloses Colin-

Villavicencio’s derivative-citizenship claim. She has neither

disputed her birth certificate’s authenticity nor her father’s

paternity. Absent a material dispute of fact, transfer to a

district court is unwarranted. Compare Roy v. Barr, 960

F.3d 1175, 1180 (9th Cir. 2020) with Ayala-Villanueva, 572

F.3d at 740.

The dissent takes no issue with these facts. The dissent

never suggests any basis for not concluding Ortiz is Colin-

Villavicencio’s father. Instead, the dissent disputes the legal

conclusion that Ortiz’s act satisfies the legitimation

requirement under § 1432(a)(3). The dissent contends that

it is not clear from the 2004 Library of Congress report

whether the “acknowledgment” of paternity by the father

under Baja California law is the same as “legitimation” for

purposes of § 1432(a)(3). But the dissent cites no authority

for its position. And our precedent suggests that the

dissent’s manufactured distinction has no relevance here.

6

See Norma C. Gutiérrez, The Law Library of Congress, Baja

California, Mexico: Parentage, Filiation and Paternity Laws, L.L. File

No. 2004–00642 (2004) (interpreting the civil code of Baja California

officially published in 1974), https://www.loc.gov/item/2021699506/;

see also Iracheta v. Holder, 730 F.3d 419, 424–25 (5th Cir. 2013)

(relying on a similar Library of Congress Report for Tamaulipas, Mexico

to determine whether paternity had been established by legitimation).

COLIN-VILLAVICENCIO V. GARLAND 17

We have acknowledged that “[i]n multiple cases, federal

courts of appeals and the BIA have held that statutes

abolishing the distinction between legitimate and

illegitimate children suffice to meet the requirement of

‘legitimation.’” Anderson v. Holder, 673 F.3d 1089, 1099

(9th Cir. 2012). And we have held this for purposes of

§ 1432. See Romero-Mendoza, 665 F.3d at 1109 (“When

legal distinctions are eliminated between children born to

married parents and those born out of wedlock, the children

born out of wedlock are deemed to be legitimated as of the

date the laws are changed.”). The First Circuit has followed

suit: “[a]lthough the INA does not expressly define

‘legitimation’ . . . the BIA has defined the term ‘as the act

of putting a child born out of wedlock in the same legal

position as a child born in wedlock.’” Miranda v. Sessions,

853 F.3d 69, 74 (1st Cir. 2017) (quoting Iracheta, 730 F.3d

at 425) (citation to BIA opinion omitted).

Under the Baja California Civil Code, “all children have

equal rights regardless of whether they were born within a

union not bound by marriage or within a marriage.”

Gutiérrez, supra note 6, at 3. It is of no legal significance

that Baja California requires that a child born outside of

marriage “have their rights implemented” by a father

“acknowledging” them rather than by “legitimation.” Id.;

see Iracheta, 730 F.3d at 426 (“It is of no moment that the

applicable [law] distinguishes between ‘legitimation’ and

‘acknowledgment’ in its text.”); see also id. (“[I]t is the

substance that matters, not the legal label.”).

The definition of “legitimation,” and the correct

interpretation of Baja California laws, are legal questions

that appellate courts can—and do—decide. See e.g., de

Fontbrune v. Wofsy, 838 F.3d 992, 997 (9th Cir. 2016), as

amended on denial of reh’g and reh’g en banc (Nov. 14,

18 COLIN-VILLAVICENCIO V. GARLAND

2016). And the dissent points to no factual dispute relevant

to that legal question.7

The dissent also ignores that Colin-Villavicencio never

disputed that her father’s paternity was established by

legitimation. The dissent objects to our legal conclusion that

Colin-Villavicencio’s paternity was established by

legitimation. But Colin-Villavicencio never argued that her

paternity was not established by legitimation, either before

the IJ, or in responding to our request for supplemental

briefing. In one sentence of her second supplemental brief,

Colin-Villavicencio argues that she satisfied § 1432(a)(3)

“because her mother naturalized, and she was born out of

wedlock.” She did not address the legitimation requirement

nor explain why her father’s signature on the birth certificate

does not meet the requirement. More importantly, Colin-

Villavicencio never presented any evidence that would

create a dispute about legitimation. And the dissent cites no

evidence that could undermine legitimation. This hardly

constitutes a dispute. The dissent argues that the government

waived any argument under § 1432(a)(3) and accuses us of

failing to excuse any waiver by Colin-Villavicencio. But

Colin-Villavicencio bears the burden of showing credible

evidence to support her citizenship claim, not the

government. See Berenyi, 385 U.S. at 637. And the only

conclusion from the evidence presented is that there is no

question of fact about Ortiz’s paternity of Colin-

7

The dissent also conflates factual and legal issues by suggesting that

we improperly relied on the 2004 Library of Congress Report, which

summarized portions of the legitimation laws of Baja California, because

it is outside the record. That the report was not included in the record

provided by the BIA is not relevant. See, e.g., Brown v. Holder, 763 F.3d

1141, 1145 n.2 (9th Cir. 2014). Indeed, the Fifth Circuit has relied on a

similar report to decide legitimation. See Iracheta, 730 F.3d at 424–25.

COLIN-VILLAVICENCIO V. GARLAND 19

Villavicencio. Thus, she cannot establish citizenship under

§ 1432(a)(3).

The dissent criticizes us for conducting our own review

of the record to determine whether Colin-Villavicencio

satisfied this requirement in § 1432(a)(3). But conducting

our own review of the record is not out of the ordinary. C.f.

Chau, 247 F.3d at 1030. The alternative is to deny Colin-

Villavicencio’s derivative-citizenship claim for not arguing

that her father did not establish paternity by legitimation.

We have no authority to transfer a legal question to a

district court for consideration in the first instance. If the

record presents no genuine factual dispute, then this court

“shall decide the nationality claim.” § 1252(b)(5)(A)

(emphasis added).

The INA in effect when Colin-Villavicencio’s mother

naturalized does not provide derivative citizenship for

children in her circumstance. The statute is silent about

children with unmarried parents, a father who established

paternity, and a naturalized mother. And it is a principle of

statutory construction that judges should not fill a gap in a

statute left open by Congress. Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 95

(2012). To hold otherwise would result in “an enlargement

of [the statute] by the court, so that what was omitted . . .

may be included within its scope.” Lamie v. U.S. Tr., 540

U.S. 526, 538 (2004) (quoting Iselin v. United States, 270

U.S. 245, 251 (1926)). We will not take that step.

Accordingly, Colin-Villavicencio’s derivative-citizenship

claim is denied.

20 COLIN-VILLAVICENCIO V. GARLAND

IV

That leaves Colin-Villavicencio’s CAT claim. We

review the denial of CAT relief for substantial evidence.

Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). Here,

substantial evidence supports the denial of the CAT claim.8

To prevail on a CAT claim, an alien must prove that “it is

more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). “Torture is an extreme form of cruel and

inhuman treatment,” § 1208.18(a)(2), that must be “inflicted

by, or at the instigation of, or with the consent or

acquiescence of, a public official acting in an official

capacity or other person acting in an official capacity.”

§ 1208.18(a)(1).

In determining the likelihood of torture, the agency

should consider (1) “[e]vidence of past torture,”

(2) evidence relating to the noncitizen’s ability to internally

relocate, (3) evidence of human rights violations within the

country, and (4) any other country conditions evidence.

§ 1208.16(c)(3)(i)-(iv). The applicant must show that any

8

Colin-Villavicencio also asserts that the immigration court lacked

jurisdiction under 8 C.F.R. § 1003.14(a) because DHS filed an NTA

without setting the date and time for her hearing pursuant to 8 U.S.C.

§ 1229(a). We have concluded that “the ‘jurisdiction vests’ phraseology

of 8 C.F.R. § 1003.14(a)” is “colloquial—that is to say, not denoting

‘subject matter jurisdiction’ or the court’s fundamental power to act.”

United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022).

Furthermore, an NTA without a date and time later supplemented with

an appropriate notice complies with the requirements of § 1003.14(a).

See id.; Karingithi v. Whitaker, 913 F.3d 1158, 1159–60 (9th Cir. 2019).

Thus, DHS has complied with § 1003.14(a) where it filed an undated

NTA in June 2015 to begin removal proceedings, which was

supplemented with a notice setting Colin-Villavicencio’s initial hearing.

COLIN-VILLAVICENCIO V. GARLAND 21

risk of torture is particularized. See Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).

“Public officials acquiesce in torture if, ‘prior to the

activity constituting torture,’ the officials: (1) have

awareness of the activity (or consciously close their eyes to

the fact it is going on); and (2) breach their legal

responsibility to intervene to prevent the activity because

they are unable or unwilling to oppose it.” Garcia-Milian v.

Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (quoting

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir.

2006)). But “[a] government does not acquiesce in the

torture of its citizens merely because it is aware of torture

but powerless to stop it.” Id. (quoting Mouawad v. Gonzales,

485 F.3d 405, 413 (8th Cir. 2007)).

Colin-Villavicencio has not shown a particularized risk

of torture. She offers only the speculative conclusion that

her brother was “threatened, beaten, and stabbed by

organized criminals” because “[h]e was deported.” From

this, she concludes that she faces the same risk. Such an

unsupported leap is unwarranted. Her brother was attacked

ten years after being deported, and could have been attacked

because of his criminal conduct. On this record, there is no

hook on which we can conclude that she faces the same

dangers. Nor has she shown that the police would acquiesce

to her torture. In fact, Colin-Villavicencio testified that the

police created a report of her brother’s stabbing, showing

that the police did not acquiesce to his attack. Nothing in the

record supports a conclusion that they would acquiesce to

hers. Thus, the BIA’s decision is supported by substantial

evidence, and her CAT claim fails.

22 COLIN-VILLAVICENCIO V. GARLAND

V

Colin-Villavicencio does not have derivative citizenship

based on 8 U.S.C. § 1432(a). And substantial evidence

supports the BIA’s denial of CAT relief.

PETITION DENIED.

WALLACE, Circuit Judge, concurring:

I fully join the majority opinion. I write separately in

response to the dissent to elaborate on why no genuine

dispute of material fact exists as to whether Petitioner

Socorro Colin-Villavicencio’s paternity has been established

by legitimation—a requirement under 8 U.S.C.

§ 1432(a)(3)’s second pathway to derivative citizenship.1

I.

Both the majority opinion and the dissent agree that

Colin-Villavicencio must satisfy one of the conditions listed

in sections 1432(a)(1)–(3) to succeed on her derivative-

citizenship claim. That is precisely why our second

supplemental briefing order directed the parties to address

“whether a genuine issue of material fact is presented as to

whether Petitioner has satisfied any of the specific

conditions listed at § 1432(a)(1)–(3).” In response, the

government merely reasserted its previous argument that

Colin-Villavicencio did not satisfy section 1432(a)(5),

1

The majority opinion accurately details Colin-Villavicencio’s

undisputed testimony that (i) her father never naturalized; (ii) her father

died after she turned eighteen; and (iii) her parents never married, thus

precluding satisfaction of 8 U.S.C. §§ 1432(a)(1) and (a)(2), as well as

(a)(3)’s first pathway. At any rate, Colin-Villavicencio does not rely on

any of those provisions for her derivative-citizenship claim.

COLIN-VILLAVICENCIO V. GARLAND 23

another statutory prerequisite for her derivative-citizenship

claim. Although Colin-Villavicencio was more responsive

to our second supplemental briefing order, in that she

addressed section 1432(a)(3), she did not address the

relevant portion of the subsection in its entirety.

The dissent reads the government’s non-responsiveness

to our second supplemental briefing order as either “tacitly

conced[ing] that [Colin-Villavicencio] has satisfied

§ 1432(a)(3),” Dissent at 35, or “waiv[ing] any argument

based on § 1432(a)(3),” either way insisting that is “the end

of the case,” id. at 36. As discussed below, the dissent

sidesteps the shortcomings in Colin-Villavicencio’s second

supplemental brief. Importantly, it is Colin-Villavicencio’s

burden, not the government’s, to create a genuine dispute of

material fact requiring transfer to the district court for

additional fact-finding. Although the government’s briefing

was unfortunate in its omissions, it is Colin-Villavicencio’s

failure to demonstrate a genuine issue of material fact with

respect to section 1432(a)(3)’s second pathway that compels

us to decide her derivative-citizenship claim.

Under section 1432(a)(3)’s second pathway, Colin-

Villavicencio must show the “naturalization of [her] mother

if [she] was born out of wedlock and [her] paternity . . . has

not been established by legitimation.” As the majority

opinion correctly points out, Colin-Villavicencio’s entire

argument that she satisfied the second pathway under

section 1432(a)(3) is contained in one sentence: “Here,

clause (3) of section 1432 applies to petitioner because her

mother naturalized, and she was born out of wedlock.”

Critically, Colin-Villavicencio did not argue that her

paternity has not been established by legitimation, as

required under section 1432(a)(3)’s second pathway.

24 COLIN-VILLAVICENCIO V. GARLAND

II.

Under 8 U.S.C. § 1252(b)(5)(A), if a petitioner claims to

be a United States citizen “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.” If, however,

“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 . . . in which

the petitioner resides for a new hearing on the nationality

claim and a decision on that claim . . . .” Id. § 1252(b)(5)(B).

The question for us is whether the lack of argument from

either party as to a statutory requirement—which is

dispositive of Colin-Villavicencio’s derivative-citizenship

claim—presents a genuine issue of material fact requiring

transfer to a district court under section 1252(b)(5)(B).

Precedent from this court and the Supreme Court compels us

to answer in the negative.

“In determining whether a genuine issue of material fact

exists, traditional summary judgment principles apply.”

Chau v. I.N.S., 247 F.3d 1026, 1029 (9th Cir. 2001). Thus,

“[i]n order to create a genuine issue of fact that warrants an

evidentiary hearing,” Colin-Villavicencio “must satisfy

traditional summary judgment principles, such as tendering

sufficient evidence for each statutory element.” Baeta v.

Sonchik, 273 F.3d 1261, 1265 (9th Cir. 2001), citing Chau,

247 F.3d at 1028; see also Agosto v. I.N.S., 436 U.S. 748, 757

(1978) (“The evidence adduced by petitioner to support his

claim of American citizenship creates ‘genuine issue[s] of

material fact’ that can only be resolved in a de novo hearing

in the District Court.”). This is consistent with the

“universally accepted” principle “that the burden is on the

COLIN-VILLAVICENCIO V. GARLAND 25

alien applicant to show his eligibility for citizenship in every

respect.” Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630, 637

(1967).

As discussed above, Colin-Villavicencio did not argue

that her father has not established paternity by legitimation,

let alone tender evidence to that effect. 2 Nor did Colin-

Villavicencio attempt to supplement the administrative

record with evidence bearing on the issue. See Brown v.

Holder, 763 F.3d 1141, 1145 n.2 (9th Cir. 2014) (“[T]he

court of appeals may go beyond the administrative record

when it transfers a matter to the district court because there

is a genuine issue of fact.”, citing 8 U.S.C. § 1252(b)(5)(B)).3

So, we are left with mere speculation about what arguments

Colin-Villavicencio could have made (but did not given the

opportunity do so). But “[s]peculation does not create a

genuine issue of fact; instead, it creates a false issue, the

demolition of which is a primary goal of summary

judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181

(11th Cir. 2005), quoting Hedberg v. Indiana Bell Tel. Co.,

47 F.3d 928, 932 (7th Cir. 1995). Our prior cases applying

section 1252(b)(5) recognized this. See e.g., Baeta, 273 F.3d

at 1265 (concluding there were “no genuine issues of

2

The dissent states that the “government’s failure to address

§ 1432(a)(3) cannot have been inadvertent.” Dissent at 35. I do not

infer, nor think it appropriate to infer, any motive for the government’s

omission. Regardless, the same could be said about Colin-

Villavicencio’s failure to address whether her father has established

paternity by legitimation.

3

In a similar vein, if Colin-Villavicencio wanted to clarify her prior

testimony regarding her father’s naturalization status or her parents’

legal and marital status, she could have done so by affidavit. See Brown,

763 F.3d at 1145 n.2; see also 8 U.S.C. § 1252(b)(5)(A) (instructing the

court of appeals to review “pleadings and affidavits”).

26 COLIN-VILLAVICENCIO V. GARLAND

material fact” because petitioner “did not tender any

evidence” that his parents or grandmother were United

States citizens). Consistent with our precedent, no genuine

issue of material fact exists regarding a matter where Colin-

Villavicencio has not put forth any argument or evidence.4

III.

The dissent proclaims that “[i]t is not our function to

raise and argue claims on the government’s behalf.” Dissent

at 46. Yet, “[i]n the absence of a genuine issue of material

fact, we must decide the nationality claim.” Ayala-

Villanueva v. Holder, 572 F.3d 736, 740 (9th Cir. 2009),

citing 8 U.S.C. § 1252(b)(5)(A). In my view, having found

no such factual dispute, the majority opinion’s review of the

record to determine whether Colin-Villavicencio has

satisfied the statutory requirements for derivative citizenship

is well within our role. See Baeta, 273 F.3d at 1265 (“[A]fter

a careful review of the record, we conclude that there are no

genuine issues of material fact and that [petitioner’s]

citizenship claim must be denied.”); Chau, 247 F.3d at 1030

(conducting “[o]ur own review of the record” for a

derivative-citizenship claim).

However, it is not our function to assume the role of

petitioner’s counsel, as the dissent does, constructing

arguments on her behalf to manufacture a factual dispute.

This type of advocacy, while laudable from the bar, is

improper from the bench. “As judges, the essence of our role

is restrained service as impartial arbiters of disputes framed

by litigants. It is not, I respectfully suggest, to act as backup

4

Indeed, Colin-Villavicencio made no attempt to argue that her birth

certificate signed by her father in the record does not establish paternity

by legitimation under a relevant jurisdiction’s laws.

COLIN-VILLAVICENCIO V. GARLAND 27

counsel when litigants make poor arguments, or when they

come into court without first having figure[d] out their cases

. . . .” Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir.

2004) (O’Scannlain, J., dissenting) (internal quotation marks

omitted).

Colin-Villavicencio’s lack of argument or evidence that

her father has not established paternity by legitimation fails

to create a genuine issue of material fact requiring transfer

to a district court under section 1252(b)(5)(B). Especially,

considering the record contains Colin-Villavicencio’s

undisputed birth certificate signed by her father.

Accordingly, the majority opinion is correct to decide Colin-

Villavicencio’s derivative-citizenship claim on the record

before us.

W. Fletcher, J., dissenting.

After the parties in this case filed their briefs in the Board

of Immigration Appeals (“BIA”), we decided Cheneau v.

Garland, 997 F.3d 916 (9th Cir. 2021) (en banc). Prior to

our decision in Cheneau, a minor child whose parent

naturalized as an American citizen had two pathways to

derive citizenship from the naturalized parent. Under the

pathway relevant to this case, if the child was not a lawful

permanent resident (“LPR”) at the time of the parent’s

naturalization, he or she had to achieve LPR status before

turning eighteen. See id. at 917. But under Cheneau, the

child of a naturalized parent does not need to have achieved

LPR status before turning eighteen. He or she needs only to

have “demonstrated an objective official manifestation of

permanent residence” before that age. Id. at 918.

28 COLIN-VILLAVICENCIO V. GARLAND

Petitioner Socorro Colin-Villavicencio has never had

LPR status. On September 26, 1998, when she was fifteen

years old, her mother became a naturalized citizen. While

representing herself before the Immigration Judge (“IJ”) in

the removal proceedings at issue in this case, Colin-

Villavicencio argued that the government could not remove

her from the United States because she had automatically

obtained derivative citizenship when her mother naturalized.

Our circuit’s pre-Cheneau precedent requiring LPR status

was fatal to her argument. The IJ properly rejected her

argument under the law as it then stood. The BIA dismissed

her appeal without citing Cheneau and without addressing

her claim to citizenship.

Under Cheneau, Colin-Villavicencio has derivative

citizenship from her mother if, before turning eighteen, she

“demonstrated an objective official manifestation of

permanent residence” and fulfilled the other relevant

requirements of 8 U.S.C. § 1432. I agree with the panel

majority that we should address Colin-Villavicencio’s claim

of citizenship. However, I strongly disagree with the result

reached by the panel majority.

The panel majority concludes that Colin-Villavicencio is

not a citizen based on an argument that the government has

never made and based on extra-record materials that no party

has presented or likely even seen. In so doing, the panel

majority improperly acts as both a government advocate and

a district court factfinder, and it approves an order of

removal from the United States of a person who may well be

an American citizen.

I dissent.

COLIN-VILLAVICENCIO V. GARLAND 29

I. Background

A. Statutory Background

When Colin-Villavicencio’s mother was naturalized in

1998, a child of a naturalized citizen was automatically

entitled to derivative citizenship as follows:

§ 1432. Children born outside the United

States of alien parents; conditions for

automatic citizenship

(a) A child born outside of the United States

of alien parents . . . becomes a citizen of the

United States upon fulfillment of the

following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving

parent if one of the parents is deceased; or

(3) The naturalization of the parent

having legal custody of the child when

there has been a legal separation of the

parents or the naturalization of the mother

if the child was born out of wedlock and

the paternity of the child has not been

established by legitimation; and if

(4) Such naturalization takes place while

such child is under the age of eighteen

years; and

(5) Such child . . . of the parent

naturalized under clause . . . (3) of this

subsection . . . thereafter begins to reside

permanently in the United States while

under the age of eighteen years.

8 U.S.C. § 1432 (repealed in 2000).

30 COLIN-VILLAVICENCIO V. GARLAND

In order to gain “automatic citizenship” under § 1432, a

person in Colin-Villavicencio’s position must satisfy any

one of the conditions listed in § 1432(a)(1)–(3). The person

must also satisfy both of the conditions listed in § 1432(a)(4)

and (a)(5).

The parties agree that Colin-Villavicencio satisfied

§ 1432(a)(4). Colin-Villavicencio has argued that she also

satisfies § 1432(a)(3) and (a)(5). After oral argument in this

case, we specifically asked the parties to provide

supplemental briefs addressing § 1432(a)(1)–(3). Despite

having been invited to do so, the government made no

argument addressing § 1432(a)(1)–(3). The government

argued in its supplemental briefing only that Colin-

Villavicencio did not satisfy § 1432(a)(5); it did not address

Colin-Villavicencio’s argument that she has satisfied

§ 1432(a)(3). I repeat for emphasis: Despite having been

asked to do so, the government did not address in its

supplemental briefing—indeed, the government has never

addressed—Colin-Villavicencio’s argument that she has

satisfied § 1432(a)(3).

The panel majority does not reach the government’s

argument that Colin-Villavicencio’s has failed to satisfy

§ 1432(a)(5). If the panel majority were to reach that

question, it would be required to conclude that the

government’s argument is clearly wrong. As I will explain

below, the government’s argument is based on an obvious

factual error about what is in the administrative record.

Notwithstanding the government’s failure to address

§ 1432(a)(3), the panel majority concludes that Colin-

Villavicencio has not satisfied that subsection.

COLIN-VILLAVICENCIO V. GARLAND 31

B. Factual Background

Colin-Villavicencio was born in Mexico and lawfully

entered the United States with her mother when she was five

years old. She remained in the United States lawfully and

continuously throughout the rest of her childhood. In 1998,

when Colin-Villavicencio was fifteen years old, her mother

became a naturalized United States citizen.

Before she naturalized, Colin-Villavicencio’s mother

had petitioned for Colin-Villavicencio to be eligible for

adjustment to LPR status. The petition was approved a

month before her mother naturalized. In June 2000, Colin-

Villavicencio was granted advance parole, which allowed

her to leave the country without affecting her application for

adjustment of status to LPR.

Though her advance parole permitted her to leave the

country, Colin-Villavicencio did not leave the United States

before turning eighteen on March 11, 2001. On that date,

her application for adjustment of status was still pending.

According to her uncontradicted testimony before the IJ, a

few days after she turned eighteen, she left the United States

for one day. Documents she submitted to the IJ confirm that

she reentered the country on March 17, 2001, under her grant

of advance parole. Except for this one-day trip after she

turned eighteen, Colin-Villavicencio has remained

continuously in the United States since she was five years

old.

Colin-Villavicencio was placed in removal proceedings

in 2015. Representing herself, Colin-Villavicencio argued

that she “qualif[ied] for U.S. citizenship through [her]

mother” because her mother naturalized before she turned

eighteen. The government responded that Colin-

Villavicencio’s application for adjustment of status “was

32 COLIN-VILLAVICENCIO V. GARLAND

never adjudicated, never completed,” and that she “never

became a lawful permanent resident. Thus, she cannot be a

United States citizen.”

At the time, the controlling precedent in our circuit was

Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008),

which held that the child of a naturalized citizen cannot

derive citizenship from the naturalized parent unless the

child resides in the country and has LPR status at the time

the parent naturalizes. Id. at 1063. The IJ in Colin-

Villavicencio’s case agreed with the government and told

her that the “evidence does not show that you were a lawful

permanent resident.” Applying Romero-Ruiz, the IJ

explained that “[i]f you were a lawful permanent resident

and your mother had naturalized, then you may have a claim

to citizenship. But I don’t find that the evidence shows that

you were a lawful permanent resident at that time.” Based

solely on her lack of LPR status, the IJ denied Colin-

Villavicencio’s claim to American citizenship.

The IJ ordered Colin-Villavicencio removed, and she

appealed to the BIA. Romero-Ruiz remained the governing

precedent when the parties filed their briefs before the BIA.

Colin-Villavicencio did not raise her then-doomed

citizenship claim in her briefs. We decided Cheneau after

briefing in Colin-Villavicencio’s appeal to the BIA was

completed. The BIA dismissed Colin-Villavicencio’s

appeal without addressing Cheneau and the citizenship

issue. The present petition followed.

II. Discussion

Under 8 U.S.C. § 1432, the now-repealed provision of

the Immigration and Nationality Act (“INA”) that applies to

her case, Colin-Villavicencio had to satisfy three

requirements in order to automatically obtain derivative

COLIN-VILLAVICENCIO V. GARLAND 33

citizenship based on her mother’s citizenship: any one of

§ 1432(a)(1)–(3), and both § 1432(a)(4) and (a)(5). The

parties agree that Colin-Villavicencio satisfied § 1432(a)(4).

For the convenience of the reader, I quote again the relevant

portions of § 1432(a)(3) and (a)(5):

§ 1432. Children born outside the United

States of alien parents; conditions for

automatic citizenship

(a) A child born outside of the United States

of alien parents . . . becomes a citizen of the

United States upon fulfillment of the

following conditions:

...

(3) The naturalization of the parent

having legal custody of the child when

there has been a legal separation of the

parents or the naturalization of the mother

if the child was born out of wedlock and

the paternity of the child has not been

established by legitimation; and if . . .

(5) Such child . . . of the parent

naturalized under clause . . . (3) of this

subsection . . thereafter begins to reside

permanently in the United States while

under the age of eighteen years.

8 U.S.C. § 1432 (repealed in 2000).

A. Government’s Argument to Us

The government argues to us only that Colin-

Villavicencio did not satisfy § 1432(a)(5). In the view of the

government, Colin-Villavicencio did not satisfy

§ 1432(a)(5) because she abandoned her application for

34 COLIN-VILLAVICENCIO V. GARLAND

adjustment of status by failing to obtain advance parole

before leaving the country.

In holding that Colin-Villavicencio has no viable claim

to citizenship, the panel majority does not contend that she

failed to satisfy § 1432(a)(5). For good reason, the panel

majority is unwilling to embrace the government’s

argument. The government is clearly wrong.

Colin-Villavicencio legally came to the United States

with her mother when she was five years old, and she

remained in the United States without interruption until after

she turned eighteen. A month before her mother became a

citizen, when Colin-Villavicencio was fifteen, she applied

for LPR status. Under Cheneau, this is sufficient to

demonstrate an objective official manifestation of

permanent residence and thereby to satisfy § 1432(a)(5).

The government argues that Colin-Villavicencio

abandoned her quest for LPR status when, shortly after her

eighteenth birthday, she went to Mexico for one day. The

premise for the government’s argument is that Colin-

Villavicencio did not have advance parole status when she

went to Mexico. But the government’s premise is mistaken.

Colin-Villavicencio did, in fact, have advance parole status.

The administrative record contains a copy of her grant of

advance parole, and the IJ specifically found that she had

advance parole. Directly contradicting its argument before

our court, the government conceded during Colin-

Villavicencio’s removal proceedings before the IJ that she

did not abandon her application for adjustment of status

when she left the country for one day in March 2001.

Further, even if Colin-Villavicencio had not had advance

parole status when she went to Mexico, and had thereby

“abandoned” her application for LPR status, that would not

COLIN-VILLAVICENCIO V. GARLAND 35

matter if she had already become a United States citizen. As

just discussed, it is clear that Colin-Villavicencio satisfied

§ 1432(a)(5) when her mother was naturalized. Colin-

Villavicencio automatically became a citizen if, at that time,

she satisfied § 1432(a)(3) and (a)(4) in addition to

§ 1432(a)(5). The government has explicitly conceded that

Colin-Villavicencio satisfied § 1432(a)(4), and it has tacitly

conceded that she has satisfied § 1432(a)(3). The

government has thus effectively conceded that Colin-

Villavicencio automatically became a citizen if she satisfied

§ 1432(a)(5). If she automatically became a citizen when

her mother naturalized, later abandoning her attempt to

obtain LPR status would be irrelevant, for it would have no

effect on her citizenship.

B. Waiver by the Government

Colin-Villavicencio argues to us that she has satisfied

§ 1432(a)(3). The government has had ample opportunity to

argue that Colin-Villavicencio did not satisfy § 1432(a)(3),

but it has failed to do so.

The government’s failure to address § 1432(a)(3) cannot

have been inadvertent. After oral argument in this case, we

asked for two rounds of supplemental briefing directed to

Colin-Villavicencio’s citizenship claim. In response to our

first request for supplemental briefing, the government did

not address § 1432(a)(3). Since we recognized that the

answer to the citizenship question might depend on whether

Colin-Villavicencio satisfied § 1432(a)(1)–(3), we asked for

a second round of briefing specifically addressing the

question “whether Petitioner has satisfied any of the specific

conditions listed at § 1432(a)(1)–(3).” Second Order for

Supplemental Briefing, Dkt. 43, at 2. The government still

did not address § 1432(a)(3). Instead, the government

36 COLIN-VILLAVICENCIO V. GARLAND

continued to rely exclusively on its baseless argument that

Colin-Villavicencio failed to satisfy § 1432(a)(5).

In these circumstances, I would hold that the government

has waived any argument based on § 1432(a)(3). That, for

me, is the end of the case.

C. The Panel Majority’s Decision

Despite the government’s clear waiver, the panel

majority denies Colin-Villavicencio’s claim of citizenship

by holding that she has failed to satisfy § 1432(a)(3). In

addressing and denying Colin-Villavicencio’s argument on

the merits, the panel majority makes two obvious errors. I

take them in order.

1. Failure to Transfer to the District Court

Citizenship (or “nationality”) of a person petitioning to

the court of appeals from an order of removal is determined

as follows:

(5) Treatment of nationality claims

(A) Court determination if no issue of

fact

If 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.

(B) Transfer if issue of fact

If the petitioner claims to be a

national of the United States and the court

of appeals finds that a genuine issue of

COLIN-VILLAVICENCIO V. GARLAND 37

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 . . . .

(C) Limitation on determination

The petitioner may have such

nationality claims decided only as

provided in this paragraph.

8 U.S.C. § 1252(b)(5).

The panel majority concludes that there are no genuine

issues of material fact with respect to Colin-Villavicencio’s

nationality claim. Based on this conclusion, it holds that 8

U.S.C. § 1252(b)(5) instructs our court rather than the

district court to rule on the question of citizenship.

The panel majority’s conclusion is clearly wrong. Based

on its understanding of Mexican law, the panel majority

concludes that there are no genuine issues of material fact as

to whether Colin-Villavicencio’s paternity was “established

by legitimation” for purposes of § 1432(a)(3). As I will

explain in the next section, it is not at all clear that the panel

majority properly understands Mexican law with respect to

“legitimation” as it relates to § 1432(a)(3). But even if the

panel majority were right about Mexican law and right about

that law’s application to Colin-Villavicencio, further

material factual questions still would require us to transfer

this case.

First, it is not clear from the record whether Colin-

Villavicencio’s father naturalized. If he naturalized, she is a

38 COLIN-VILLAVICENCIO V. GARLAND

citizen under § 1432(a)(1) regardless of whether she satisfies

§ 1432(a)(3). The panel majority says it is clear that Colin-

Villavicencio’s father did not naturalize because she stated

during her removal proceedings before the IJ that she

“believe[d]” he obtained LPR status but did not naturalize.

But Colin-Villavicencio had no reason at the time to find

conclusive information about whether her long-absent father

had naturalized. This was so because her citizenship claim

could not survive Romero-Ruiz regardless of her father’s

naturalization status. She has not conceded in her briefing

to us that her father did not naturalize.

Second, it is not clear from the record whether Colin-

Villavicencio’s parents were ever married. We know that

they were separated. If they were married and then

separated, Colin-Villavicencio is a citizen under the first

clause of § 1432(a)(3) based on the “legal separation” of her

parents, regardless of whether she satisfies the second clause

of § 1432(a)(3). Mexico recognizes common law marriages.

Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 817 (9th Cir.

2004). Our circuit has left open the question whether a “de

facto union[]” that is “roughly comparable to the concept of

common law marriage” is a sufficient “legal relationship” to

satisfy the first clause of § 1432(a)(3). Giha v. Garland, 12

F.4th 922, 933–34 (9th Cir. 2021). There is no reason to

think Colin-Villavicencio was expressing an expert opinion

about the status of her parents’ relationship under Mexican

law, for purposes of the first clause of § 1432(a)(3), when

she stated in her testimony that her parents were not married.

Other circuits faced with similar statements by

petitioners have allowed those petitioners to present

evidence showing that their parents’ relationship qualified as

a de facto union, recognizing that the petitioners “may not

have understood” that marriage for purposes of § 1432(a)(3)

COLIN-VILLAVICENCIO V. GARLAND 39

“included de facto marriages.” Espichan v. Att’y Gen., 945

F.3d 794, 799–800 (3d Cir. 2019). The majority purports to

distinguish Espichan because the petitioner in that case

presented evidence to the immigration judge showing that

his parents had a de facto marriage. Maj. Op. at 14. That is

precisely the point. The only difference between Espichan

and this case is that Colin-Villavicencio has never, until

now, had reason to clarify her parents’ legal status. She had

no reason to present such evidence during her removal

proceedings because her claim was barred by Romero-Ruiz.

Now that it is relevant, she should have an opportunity to

present that evidence to the district court.

2. Misunderstanding of Relevant Law

Instead of transferring this case for determination of the

factual issues just described, the panel majority decides

those factual questions itself. It then addresses the legal

merits of Colin-Villavicencio’s claim under § 1432(a)(3).

The panel majority concludes that Colin-Villavicencio’s

paternity was “established by legitimation” within the

meaning of § 1432(a)(3), and then it holds that she is not an

American citizen because she has not satisfied that

subsection.

The majority’s conclusion that Colin-Villavicencio’s

paternity was “established by legitimation” rests entirely on

its reading of a three-page document describing, in

summarized form, portions of the family law of Baja

California, Mexico, as that law existed nine years before

Colin-Villavicencio was born. See Norma C. Gutiérrez,

“Baja California, Mexico: Parentage, Filiation, and

Paternity Laws” (March 2004). The author of the document

is described as a “Senior Research Specialist” at the United

40 COLIN-VILLAVICENCIO V. GARLAND

States Library of Congress. A caution at the beginning of

the document states:

This report is provided for reference purposes

only. It does not constitute legal advice and

does not represent the official opinion of the

United States Government. The information

provided reflects research undertaken as of

the date of writing. It has not been updated.

Id. at unnumbered page (emphasis added).

Relying on the “legal advice” disclaimed by the

document, the majority concludes that Colin-Villavicencio

has not satisfied § 1432(a)(3). The document appears

nowhere in the record or briefing in this case. It was never

presented to the IJ, to the BIA, or to our court. No party has

provided argument about the meaning or applicability of the

document. As far as I am aware, no party has ever even seen

the document. In other words, the sole basis for the panel

majority’s legal analysis is a three-page document the panel

majority found on the internet, a document that explicitly

warns it “does not constitute legal advice.”

Even if the “legal advice” in the document is accurate

(which it may or may not be), it is not clear that the document

uses the term “legitimation” in the way that term is used in

§ 1432(a)(3). To add to the difficulty, “legitimation” is a

term of art in the INA, and the BIA has interpreted the term

to mean different things in different places in the statute. As

used in the definition of “child” in 8 U.S.C. § 1101(c)(1), the

BIA has held that the child of an unmarried couple is

“legitimate” as long as he or she was born in a country that

had eliminated legal distinctions between children based on

the marital status of their parents. Matter of Cross, 26 I. &

COLIN-VILLAVICENCIO V. GARLAND 41

N. Dec. 485, 492 (BIA 2015). But “legitimation” as used in

§ 1432(a)(3) requires more: “[W]here a jurisdiction requires

an affirmative act to legitimate an out-of-wedlock child,

paternity is not established without the requisite act, even if

the jurisdiction has enacted a law to place children on equal

footing without regard to the circumstances of their birth.”

Id. at 490. That is the relevant definition of “legitimation”

for Colin-Villavicencio’s claim.

The document relied upon by the majority states that

Baja California, Mexico, is a jurisdiction where children are

placed on equal legal footing “regardless of whether they

were born within a union not bound by marriage or within a

marriage.” Gutiérrez, supra, at 1. The document also states

that for children born outside of marriage “to have their

rights implemented,” they need to “have their parentage

established.” Id. The parentage of the mother is established

by the “mere fact of birth.” Id. The parentage of the father

can be established by “voluntary acknowledgment of the

child.” Id.

The document states that a father’s voluntary

acknowledgment may be done in any of five specified ways.

The document does not specify what “rights ” may be (or can

only be) “implemented” in the manner it describes. The

majority’s decision rests on one line in the document stating

that this “acknowledgment” can be done, among other ways,

“[o]n the birth record.” Id.; see Maj. Op. at 15–16.

It is far from clear whether the “acknowledgment” the

document describes is the same as “legitimation” for

purposes of § 1432(a)(3). The actual Baja California legal

code that is cited by the document uses the term

“reconocimiento,” or “recognition,” to describe this process,

not “legitimation.” Código Civil [CC], art. 366, Periódico

42 COLIN-VILLAVICENCIO V. GARLAND

Oficial [PO] 31-01-1974. Courts in our circuit have

concluded that “[t]he word ‘by’ [in § 1432(a)(3)] indicates

that legitimation must be the means through which paternity

was established” and that “[p]aternity established in some

other way [is] insufficient to defeat citizenship.” Flores-

Torres v. Holder, 680 F. Supp. 2d 1099, 1105 (N.D. Cal.

2009); see also Anderson v. Holder, 673 F.3d 1089, 1099 n.9

(9th Cir. 2012) (“. . . Flores-Torres meant that the

petitioner’s paternity had to have been established by

legitimation, as opposed to the alternative mechanism of

acknowledgment, for him to fall within the terms of the

statute.”). Given the complexity of this issue, it is little

wonder that the document contains an explicit disclaimer

saying it is “provided for reference purposes only” and “does

not constitute legal advice and does not represent the official

opinion of the United States Government.”

To justify its reliance on the document it found on the

internet, the panel majority cites Iracheta v. Holder, 730

F.3d 419 (5th Cir. 2013), as having considered similar

analyses of Mexican law. Maj. Op. at 16 n.6. This case is

light years away from Iracheta. The documents in Iracheta

were presented by the parties, and the Fifth Circuit heard

“the arguments of the parties regarding their meaning.”

Iracheta, 730 F.3d at 424. The documents in Iracheta

specifically described the law as it stood at the time of the

petitioner’s birth, unlike the document on which the panel

majority relies. See id. at 425.

The panel majority also relies on Brown v. Holder, 763

F.3d 1141 (9th Cir. 2014), Maj. Op. at 7, 18 n.7, but Brown

provides even less support than Iracheta. The panel in

Brown granted the petitioner’s request for judicial notice,

citing the statutory provision that allows us to consider the

parties’ “pleadings and affidavits” in addition to the

COLIN-VILLAVICENCIO V. GARLAND 43

administrative record when deciding whether to transfer a

citizenship claim. Brown, 763 F.3d at 1145 n.2 (citing 8

U.S.C. § 1252(b)(5)); see also Batista v. Ashcroft, 270 F.3d

8, 13 (1st Cir. 2001) (“[W]hen an alien claims citizenship in

the petition for review, we are required to determine on the

basis of the ‘pleadings and affidavits’ whether there is a

genuine issue of material fact sufficient to transfer the case

to the district court for a new hearing and decision.”); Brown,

763 F.3d at 1145 n.2 (citing Batista). But no party has

sought judicial notice of the materials that the panel majority

found on its own and upon which it now relies. Nor do the

materials appear anywhere in the parties’ “pleadings and

affidavits.”

To reach a reasoned conclusion about how, if at all, the

document upon which the majority relies is pertinent to

“legitimation” as that term is used in § 1432(a)(3), we would

need, at minimum, briefing, argument, and evidence from

the parties on that question. Better still would be expert

opinions about the actual legitimation process under Baja

California law in 1983.

The panel majority concludes it does not need anything

more than its own assessment of a three-page document that

expressly disclaims reliability because it claims our

precedent makes clear that Colin-Villavicencio’s paternity

was established by legitimation. See Maj. Op. at 16–17. The

cases it cites are not just unhelpful to the panel majority; they

are directly contrary to its position. All of the panel

majority’s cases state the same basic rule: When a

jurisdiction does not require any affirmative act by the father

establishing parentage in order for a child of an unmarried

couple to have the same legal rights as children of married

couples, children of unmarried couples automatically meet

the “legitimation” requirement of § 1432(a)(3). See, e.g.,

44 COLIN-VILLAVICENCIO V. GARLAND

Romero-Mendoza v. Holder, 665 F.3d 1105, 1109 & n.2 (9th

Cir. 2011). But when a jurisdiction does require an

affirmative act by the father, legitimation is not automatic.

See, e.g., Anderson, 673 F.3d at 1099 n.9 (“Legitimation

need not always require[] some formal legal act; the question

is whether or not the law of the governing jurisdiction

requires such a formality.” (emphasis in original)); Miranda

v. Sessions, 853 F.3d 69, 74 (1st Cir. 2017) (citing Cross, 26

I. & N. Dec. at 490).

The document on which the panel majority relies says

that Baja California in 1974 was a jurisdiction where

paternity was not established absent an affirmative act by the

father. Indeed, the line of the report on which the majority’s

entire reasoning depends describes one kind of affirmative

act that the report says established paternity at that time. See

Maj. Op. at 15–16. What remains unclear is (1) whether the

document’s legal analysis is correct, (2) whether the

document assesses the relevant law, and (3) whether

establishing paternity by what the document calls

“acknowledgment” and what the actual Mexican law it cites

calls “reconocimiento” is the same as establishing paternity

“by legitimation,” as required by § 1432(a)(3). None of our

circuit’s cases answer those questions.

Without precedent from our court to justify its approach,

the panel majority turns again to the Fifth Circuit’s decision

in Iracheta. Maj. Op. at 17. Once again, the cases the panel

majority cites simply highlight its errors. Iracheta explained

that the civil code of Tamaulipas, the Mexican jurisdiction

where the petitioner in that case was born, had entirely

separate chapters “for ‘legitimation’ and ‘acknowledgment’

of children.” Iracheta, 730 F.3d at 425. The Fifth Circuit

recognized that “the textual distinction between

‘legitimation’ and ‘acknowledgment’ in the Tamaulipas

COLIN-VILLAVICENCIO V. GARLAND 45

Code is not necessarily without difference.” Id. at 426. But

ultimately it held that under the particularities of Tamaulipas

law and the Iracheta panel’s interpretation of § 1432(a)(3),

acknowledgment by the father was sufficient for the child’s

paternity to be “established by legitimation.” See id. at 425–

26.

No case from our circuit has either reached that

conclusion about Baja California law or has adopted

Iracheta’s expansive interpretation of § 1432(a)(3). And the

Fifth Circuit’s reading of the statute is in tension with the

statutory text requiring a child’s paternity to be established

by “legitimation”—a term that, as Iracheta makes clear,

often carries a specific legal meaning distinct from other

methods of establishing parentage. Supreme Court case law

and other provisions of the INA also distinguish legitimation

from acknowledgment. See 8 U.S.C. § 1409(a)(4); see also

Nguyen v. I.N.S., 533 U.S. 53, 71 (2001) (under § 1409(a)(4)

“a father who has not legitimated his child by formal means

need only make a written acknowledgment of paternity

under oath in order to transmit citizenship to his child”).

Others of our sister circuits have done so too. See, e.g., Tineo

v. Att’y Gen., 937 F.3d 200, 215 (3d Cir. 2019); see also id.

at 220 (Smith, C.J., concurring in part) (“Section 1432 is

actually more difficult to satisfy than the statute in Nguyen

because § 1432 is limited to legitimation under local law,

while the statute in Nguyen permitted paternal

acknowledgment via two additional methods . . . .”).

Conclusion

The decisive question in this case is whether Colin-

Villavicencio has satisfied § 1432(a)(3).

Colin-Villavicencio argues that she has satisfied

§ 1432(a)(3). Despite having been specifically directed to

46 COLIN-VILLAVICENCIO V. GARLAND

address § 1432(a)(3), the government failed to do so. I

would therefore hold that the government has waived any

argument that Colin-Villavicencio has failed to satisfy

§ 1432(a)(3). That should be the end of the case.

Without acknowledging the fact that the government has

waived any argument under § 1432(a)(3), the panel majority

holds that Colin-Villavicencio has failed to satisfy

§ 1432(a)(3). In so doing, the panel majority errs.

First, the panel majority fails to comply with 8 U.S.C.

§ 1252(b)(5), which requires us to transfer a citizenship

claim to district court unless it is clear “from the pleadings

and affidavits that no genuine issue of material fact about the

petitioner’s nationality is presented.”

Second, the panel majority violates the rule of party

presentation—the basic principle that “we rely on the parties

to frame the issues for decision and assign to courts the role

of neutral arbiter of matters the parties present.” Greenlaw

v. United States, 554 U.S. 237, 243 (2008). It is not our

function to raise and argue claims on the government’s

behalf. The concurring opinion accuses me of also violating

this rule by identifying the problems with the panel

majority’s reasoning. To state what should be obvious:

Pointing out the flaws in the panel majority’s made-up

argument for the government is not the same as the panel

majority’s error in making up that argument in the first place.

Colin-Villavicencio has never had a chance to respond to the

argument the panel majority advances for the government

because the government has never made that argument. By

contrast, the government has had plenty of opportunity to

come up with the argument the panel majority raises on its

behalf, but it has failed to say anything about § 1432(a)(3)

even when we ordered it to do so.

COLIN-VILLAVICENCIO V. GARLAND 47

Third, the panel majority also violates the rule that “an

appellate court does not decide issues” that no other court

has decided first. Planned Parenthood of Greater Wash. &

N. Idaho v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d

1100, 1110 (9th Cir. 2020). That rule includes an exception

for “purely legal issue[s]” when all of the material facts are

clear from the record, but this case does not come close to

satisfying that standard. See id. at 1111 (“[N]ot only must

the record be complete, but it must be clear that a litigant

could not ‘have tried his case differently either by

developing new facts in response to or advancing distinct

legal arguments against the issue.’” (quoting United States

v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978))).

Fourth, the panel majority reaches a decision on the

merits that is, to say the least, unsupported by the materials

before it. The document upon which the panel majority

relies expressly disclaims reliability, and the analysis in the

document may not even apply to the question before us.

To state it plainly, the panel majority denies Colin-

Villavicencio’s claim of citizenship based on an argument

that the government has never made and based on extra-

record materials that no party has had the opportunity to

address or perhaps even seen. The panel majority acts as

both a government advocate and a district court factfinder.

And it affirms an order of removal from the United States of

a person who may be an American citizen.

I dissent.