Mondaca-Vega v. Holder

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.