Petersen-Palma v. Lynch, No. 3:2015cv01313 - Document 35 (S.D. Cal. 2015)

Court Description: MEMORANDUM DECISION. Signed by Judge Marilyn L. Huff on 12/16/2015.(All non-registered users served via U.S. Mail Service)(ag). (USCA Case Number 12-72776. Memorandum Decision electronically transmitted to the US Court of Appeals via regenerated NEF.) (akr).

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Petersen-Palma v. Lynch Doc. 35 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 HUGO PETERSEN-PALMA, also known as Hugo Leonel Petersen Palma, Case No.: 3:15-cv-1313-H-JMA 13 Petitioner, MEMORANDUM DECISION 14 v. 15 LORETTA E. LYNCH, Attorney General, 16 Respondent. 17 18 On June 5, 2015, the United States Court of Appeals for the Ninth Circuit transferred 19 this petition to this Court pursuant to 8 U.S.C. § 1252(b)(5)(B) for de novo review of 20 Petitioner Hugo Petersen-Palma’s allegation that he is a citizen of the United States. (Doc. 21 No. 1.) On June 25, 2015, the Court scheduled a de novo hearing for August 26, 2015. 22 (Doc. No. 5.) On August 6, 2015, the Court continued the de novo hearing to December 23 15, 2015. (Doc. No. 10 at 2.) The Court held the de novo hearing on December 15, 2015. 24 (Doc. No. 31.) Mariana Hanna represented Petitioner, and Derek Julius and Zoe Heller 25 represented Respondent.1 Petitioner participated in the hearing telephonically from Tensas 26 27 28 1 The Court granted Petitioner’s counsel’s request to withdraw from the petition as of the conclusion of the de novo hearing. Thus, Petitioner will now be proceeding pro se. 1 3:15-cv-1313-H-JMA Dockets.Justia.com 1 Parish Detention Center in Waterproof, Louisiana. 2 “The government ‘bears the ultimate burden of establishing all facts supporting 3 deportability by clear, unequivocal, and convincing evidence.’” Mondaca-Vega v. Lynch, 4 No. 03-71369, 2015 WL 8755585, at *3 (9th Cir. Dec. 15, 2015) (quoting Chau v. INS, 5 247 F.3d 1026, 1029 n.5 (9th Cir.2001)). “When, however, the government offers evidence 6 of foreign birth, a ‘rebuttable presumption of alienage’ arises, ‘shifting the burden to the 7 [alleged citizen] to prove citizenship.’” Mondaca-Vega, 2015 WL 8755585, at *3 (quoting 8 Chau, 247 F.3d at 1029 n.5). 9 During the hearing, Respondent submitted an authenticated copy of a Guatemalan 10 birth registration indicating that Hugo Leonel Petersen Palma was born to María Dorotea 11 Palma Bojorgues at Roosevelt Hospital in Guatemala, Guatemala, Guatemala on 12 November 8, 1966. The Court received the birth registration and its authenticating 13 documents as Exhibit 1. Respondent also submitted certified translations of the birth 14 registration and its authenticating documents, which the Court received as Exhibits 1A and 15 2.2 16 On September 29, 2015, the Court issued an order in which it stated, “At the hearing, 17 both Petitioner and Respondent may submit evidence. If Petitioner does not cooperate with 18 the proceedings or declines to submit evidence to rebut Respondent’s evidence, the Court 19 may rule against Petitioner.” (Doc. No. 16 at 2.) The Court directed Petitioner’s counsel 20 to send a copy of that order to Petitioner. (Id.) Petitioner did not submit contrary evidence 21 at the hearing.3 22 23 24 25 26 27 28 2 Respondent also filed the birth registration, authenticating documents, and translations on the docket on October 15, 2015. (Doc. No. 24.) The Court directed Petitioner’s counsel to forward those documents to Petitioner. (Doc. No. 16.) At the hearing, Petitioner’s counsel indicated that she had forwarded the documents. Thus, Petitioner had the opportunity in advance of the hearing to review the evidence that would be presented against him. 3 Petitioner has been anticipating this hearing for more than two years: he requested that the Ninth Circuit transfer his petition to the district court for a de novo hearing in a brief he filed on April 8, 2013. (Petitioner’s Response to Respondent’s Opposition to Transfer to District Court, Petersen-Palma v. Holder, 12-72776, at 9 (9th Cir. Apr. 8, 2013).) 2 3:15-cv-1313-H-JMA 1 The birth registration submitted by the government is properly authenticated, and it 2 bears Petitioner’s name and the same date of birth as Petitioner claimed in proceedings 3 before the Ninth Circuit. (Petitioner’s Response to Respondent’s Opposition to Transfer 4 to District Court, Petersen-Palma v. Holder, 12-72776, at 2 (9th Cir. Apr. 8, 2013).) 5 Accordingly, the Court finds that the birth registration is authentic and that it pertains to 6 Petitioner. 7 The birth registration submitted by Respondent constitutes sufficient “evidence of 8 foreign birth” to shift the burden of proof to Petitioner. Mondaca-Vega, 2015 WL 9 8755585, at *3. Petitioner did not submit any evidence to rebut Respondent’s evidence. 10 Thus, the Court concludes that Respondent has met its burden to prove by “clear, 11 unequivocal, and convincing evidence” that Petitioner was born in Guatemala and that he 12 is a citizen of Guatemala and not of the United States. See id. 13 14 The Court directs the Clerk to enter this memorandum decision, transmit a copy to the Ninth Circuit, furnish copies to the parties, and close the case. 15 IT IS SO ORDERED. 16 DATED: December 16, 2015 17 18 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 19 20 21 22 23 24 25 26 27 28 3 3:15-cv-1313-H-JMA

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