N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

UNITED STATES OF AM ER IC A, Plaintiff - Appe lle e , v. M AR ISELA C ASTR O -JUAR EZ, AKA Judy M a ric e lla

Jua re z , AKA M a rise la C a s tro Va rga s, De fe nda

nt - Appe lla

nt. No. 14-56080

D.C . No. 3:12-c v-02643-JLSW VG
M EM O R ANDUM *

Appe a l from

the Unite d

Sta t e s Distric t C ourt for the Southe rn Distric t of C a lifornia Ja nis L. Sa m m a rtino, Distric t Judge , Pre siding Argue d a nd Subm itte d M a y 2, 2016 Pa sa de n a , C a l ifornia B e fore : PR EGER SON, B Y B EE, a nd N.R . SM ITH, C i rc u it Judge s. De fe nda nt-a ppe l la nt M a rise la

C a stro-Jua

re z (C a s tro) a

ppe a ls the distric t
c ourt’ s gra

nt of sum m a ry judgm e nt in fa

vor of the Unite d State s stripping C a stro of he r na tura liz e d

U.S. c itiz e nship. The distric t c ourt found tha t C a stro willfully 

# FIL ED
JUN 28 2016 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by 9th C ir. R . 36-3.m isre pre se nte d a nd c onc e a le d

m a te ria l fa c ts to proc ure U.S. c i tiz e nship be c a use she fa ile d to disc lose he r c rim ina l history on he r a pplic a tion for na

tura liz a tion a

nd in he r INS inte rvie w. C a s tro c o nc e de s tha t she m isre pre se n t e d he r c rim ina l history , but a

rgue s tha t she did not do so willfully . She c onte nds she wa s una ble to
re c a ll those fa c ts a

t the tim e she fille d out the form , due to tra um a tic e ve nts in he r pa st tha t c a use d he r to re pre ss he r m e m orie s. C a stro a lso a rgue s tha t he r c rim ina l history wa s not m a te ria l be c a

u se the a c ts oc c urre d outside the re le va nt five -y e a r pe riod le a ding up to he r a pplic a tion for na

tura liz a tion, a

nd tha t the gove rnm e nt ha s not suffic ie ntly

shown tha

t he r c rim ina l history re nde rs he r ine ligible for
na tura liz a tion. W e ha ve jurisdic tion unde r 28 U.S.C . § 1291, a nd we a ffirm
. Sum m a ry judgm e nt is re vie we d de novo. The m o ving pa rty be a rs the initia l burde n of ide ntify ing e vide nc e in the re c ord tha t “ it be lie ve s de m o nstra

te s the
a bse nc e of a ge nuine issue of m a te ria l fa c t .” C e lote x C o rp. v . C atre tt , 477 U.S. 317, 323 (1986). Onc e the m oving pa rty doe s so, howe ve r, the burde n shifts to the
nonm o ving pa

rty to pre se nt “ spe c ific fa c ts showing tha t the re is a ge nuine issue for tria l .” Ande rson v . Libe rty Lobby , Inc

. , 477 U.S. 242, 250 (1986); se e also Fe d. R
. C iv. P. 56(c ). The gove rnm e n t is re quire d to de m o nstra te by c l e a r, c onvinc ing, a

nd
une quivoc a l e vide nc e tha t C a stro willfully

m isre pre se nte d m a te ria l fa c t s on he r 2a

pplic a tion for na

tura liz a tion. K

ungy s v . Unite d State

s , 485 U.S. 759, 767, 772 (1988). The re is no dispute tha t the gove rnm e nt m e t its initia l burde n on sum

m a ry judgm e nt. The que stion is whe the r C a stro c re a te d a ge nuine dispute of fa c t a s to he r state of m ind a

t the tim e she fille d

out he r na tura liz at ion a

pplic ation. C a stro’ s
m isre pre se ntation is “willful” if it wa s “ de l ibe ra te and volunta ry .” EspinozaEspinoza v . I.N

.S. , 554 F.2d 921, 925 (9th C ir. 1977). Ty pic a lly , a pa rty ’ s sta te of
m ind is a fa c tua l issue ina

p propria te for re s olution a

t the sum m a ry judgm e nt sta ge . Howe ve r, whe re the fa c ts a re undispute d, issue s of sta te of m ind c a n be c om e que stions of la

w. Brax ton-Se c re t v . A.H. Robins C o . , 769 F.2d 528, 531 (9th C ir. 1985). C a stro subm itte d a

n a ffida vit sta

t ing tha t the re pe a te d

se xua l a buse she suffe re d a s a

c hild, a s we ll a s he r tim e spe nt in foste r c a re during a d o le sc e nc e , c a use d he r to re pre s s he r m e m o rie s of he r y e a rs of ille g a l drug use , the ne a r-y e a r she spe nt in juve nile ha ll on burgla ry c ha rge s, a nd he r a d ditiona l a

rre st a s a n a dult for use of PC P for whic h she m a de an a ppe a ra nc e in c o urt a fte r ha

ving spe nt two nights in ja

il. C a stro sta

te s tha t while she wa s in prison on unre la te d c h a rge s ove r
a de c a d e late r, she spe nt hundre ds of hours in the ra py a nd re a liz e d tha

t the tra um a of he r pa st ha d c a

use d he r to re pre ss m e m orie s of tha t pa s t, inc luding he r c rim ina l history . C a stro subm its no othe r e vide nc e in support of he r de c la ra tion.
3C a stro fa ile d to c re a te a ge nuine dispute of m a te ria l fa c t he re . “ A
c onc lusory , se lf-se rving a ffida vit, la c king de ta ile d fa c ts a nd a ny supporting
e vide nc e , is insuffic ie nt to c re a te a ge n uine issue of m a te ria l fa c t.” FTC v . Publ’g C le aring House

, Inc

. , 104 F.3d 1168, 1171 (9th C ir. 1997); se e also Hanse n v . Unite d State s , 7 F.3d 137, 138 (9th C ir. 1993) (“ W he n the nonm o ving pa rty re lie s only on its own a ffida vits to oppose sum m a ry judgm e n t, it c a nnot re ly on
c onc lusory

a lle ga tions unsupporte d

by fa c t ua l da ta to c re a te an issue of m a te ria l fa c t .” ). W hile C a stro’ s a ffida vit is quite de ta ile d a s to he r history

of a buse , she give s re la tive ly

fe w de ta ils a

bout the e ve nts she c la im s a re so c ritic a l to he r c a se : the fa c t tha

t she we nt through the ra

py , disc ove re d she ha d

re p re sse d he r m e m orie s,
a nd in so doing wa s a

ble to re c a

pture y e a rs worth of tra

um a tic m e m orie s tha

t she ha d a ppa re ntly lost. And, a lthough she c la im e d she suffe re d

tra um a a s a re sult of
se xua l and phy sic a l a

buse , she offe re d no e xpla na tion a s to why

tha t a ffe c te d he r
m e m o ry with re spe c t to he r juve nile inc a rc e ra tion of ne a rly a y e a r a nd he r subse q ue nt a rre st a nd ja iling on drug c ha

rge s. Furthe rm ore , e ve n if she ha d trie d to m a k e suc h a c onne c tion, C a stro, a s a la y pe rson, is not qua

lifie d to a tte st tha t he r pa st tra

um a c a use d he r m e m ory

loss. Se e Frisone

v . Unite d State

s , 270 F.2d 401, 402 (9th C ir. 1959); Law son v . Law son , No. 3:14-c v -00345-W GC , 2015 W L 5474763, a t *2 (D. Ne v. Se pt. 17,
42015) (“ Pla intiff m a y te s tify a bout his m e nta l sta

te and his phy sic a l c ondition, but he m a y not te stify

a s to c a usat i on a n d c a nnot e xpre ss m e dic a l dia gnose s.” ). Abse nt
a ny e xpe rt e vide nc e c orrobora ting C a stro’ s sta te m e nts, the distric t

c ourt did not e rr in re fusing to a c c e pt C a stro’ s a ffida vit a s e vide n c e tha t he r history

of a buse c a use d he r to forge t he r c rim i na l history . C a stro thus fa ile d to pre se nt a n y e vide nc e suffic i e nt to ra ise a

ge nuine dispute of m a te ria l fa c t a s to he r state of m ind. As to m a te ria lity , C a stro’ s m isre pre se ntations we re m a te ria l. A
m isre pre se ntation is m a te ria l if it is “ pre dic ta bly c a pa ble of a ffe c ting, i.e

. , [ha s] a
na tura l te nde nc y

to a ffe c t, the offic ia l de c i sion.” K u ngy s , 485 U.S. a

t 771 (e m pha sis in origina

l). In a ddition, the gove rnm e nt m u st ra ise a “ fa ir infe re nc e ” that the a pplic a nt is sta

t u torily ine l igible for na tura liz a tion. Unite d State s v . Pue rta , 982 F.2d 1297, 1304 (9th C ir. 1992) (quoting K ungy s , 485 U.S. a

t 783–84 (B re nna n , J., c onc urring)). The gove rnm e nt subm itte d a n a ffida vit from

a Hom e la nd Se c urity

a ge nt indic a ting tha

t, ha d im m i gra tion offic ia ls known a bout the o utsta nding wa rra nt for C a stro’ s a

rre s t, he r na tura liz a tion a

pplic a tion would not ha ve be e n a pprove d. Additionally , it a ppe a rs tha

t C a stro did not m e e t the good

“ m ora l c ha

ra c te r” re quire m e nt ne c e ssa ry for na tura liz a tion be c a

u se she te s tifie d fa lse ly during he r im

m igra tion inte rvie w re ga

rding he r c rim ina l history
. S e e 8 U.S.C . § 1101(f)(6) (pre c luding a finding of good m

ora l c ha ra c te r whe re the
5a

pplic a nt ha s give n fa lse te stim ony in orde r to obta in a

n im m igra tion be ne fit); 8 C .F.R . 316.10(a )(2)(vi). The gove rnm e nt ha s ra ise d m ore tha n a fa ir infe re nc e tha

t C a stro wa s ine ligible for na tura liz a tion. AFFIR M ED.

61 United States v. Castro

- Juarez , No. 14

- 56080 Pregerson, J., dissenting
Revoking Marisela Castro

- Juarez ’s (“ Marisela Castro”) U.S. citizenship through summary judgment, thereby bypassing a trial on the merits, is inappropriate and cruel
. It is no exaggeration to describe Marisela Castro’s adolescent and teenage years as a “living hell.” From the age of six, Marisela Castro suffered ceaseless sexual abuse at the hands of multiple predatory men : two uncles, a tenant in her mother’s house, a nd her mother’s boyfriend
. Her mother abandoned her when she was 1 1 , choosing an abusive boyfriend over her own daughter. Marisela Castro spent the next eight years bouncing around more than twenty foster home s and living on the streets. She frequently considered taking her own life. During this time, when she was only fifteen, Marisela Castro was arrested for trespassing and spent six months in Juvenile Hall . She was homeless at the time, and she and a friend were in an abandoned home, looking for a p lace to sleep. On many other occasions, t he police would find Marisela Castro sleeping in an abandoned home or in a field and take her to Juvenile Hall for the night or return her to her foster home. 

# FILED
JUN 28 2016 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 When she was eighteen , Marisela Castro spent two nigh ts in jail after being arrested by the Fresno police for drug intoxication. Having spent many nights in jail without having been arrested, Marisela Castro did not understand the circumstances of this arrest, and she assumed she was taken to Fresno jail to sleep off her condition. Marisela Castro was depressed and angry and often felt like she did not care whether she lived or died. T o survive this traumatic and unstable time in her young life , she blocked out nega tive painful and destructive memories
. Yet Marisela Castro was able to overcome her devastating past. S he went back to school to earn her GED and to complete a medical assistant course. She now works full time as a sous - chef in a restaurant and single

- handedly supports her three U.S. citizen children. Her two sons live with her, and her oldest daughter
a ttends college
. I find it hard to justify depriving Marisela Castro of her American citizenship through summary judgment
. It is important to keep in mind that “[i] n a denaturalization proceeding, the government bears a ‘heavy burden’ of providing ‘ clear, unequivocal, and convincing ’ evidence that citizenship should be revoked.” United States v. Arango , 670 F.3d 988 , 992 (9th Cir. 2012) (emphasis adde d) (quoting United States v. Dang , 488 F.3d 1135, 1139 (9th Cir. 2007)).3 As the Supreme Court has emphasized , and we have reiterated, “The government bears the burden of such a high degree of proof in denaturalization proceedings because of the ‘importan ce of the right that is at stake.’” Id. (quoting Federenko v. United States , 449 U.S. 490, 505

– 06) ( 1981)). Considering this “heavy burden, ” summary judgment for the government is rarely warranted. Id. Marisela Castro raised a genuine issue of material fact as to whether the government met this high burden regarding the willfulness of her misrepresentations during her naturalization proceedings. Marisela Castro provided an extremely detailed sworn declaration. In h er declar ation, she described her criminal history

— her stay in Juvenile Hall after being picked up for trespassing and the two nights she spent in Fresno Jail . She also described her mental state during the time of her naturalization proceedings to explain her ina bility to recall that history . She explained that she had deeply suppressed painful memories from her traumatic and abusive past in order to survive on the streets. She described the period of time in which these arrests took place as covered by a “menta l fog
. ” The majority argues that Marisela Castro should have provided corroborating evidence regarding her “mental fog.” But, as we have stated, “[A party’s] sworn statements cannot be disbelieved at the summary judgment stage simply because [her] state ments are in [her] interest and in conflict with other4 evidence .” Arango , 6 70 F.3d at 994
. Marisela Castro’s declaration speaks to her failure to accurately represent her criminal history and how she recovered her suppressed memories only after intensive individual and group therapy in prison that lasted several years
. Her declaration provides direct evidence of the central fact in dispute. The fact that Marisela Castro was able to recall some information, such as past residences, from the sa me time period does not discount the fact that her memory of this time period was not wholly reliable. Recent studies on PTSD and episodic amnesia support Marisela Castro’s experience of memory loss
. As one recent study on trauma and memory indicates, “I f you are motivated to try to prevent yourself from reliving a flashback of [your] initial trauma, anything that you experience around that period of time of suppression tends to get sucked up into this black hole as well.” Nicola Davis, Suppressing Traum atic Memories Can Cause Amnesia, Research Suggests , G UARDIAN , Mar. 15, 201 6
. 1 Had there been a trial, an expert could have testified about the nature of memory suppression to support Marisela Castro’s description of her “mental fog
. ” At the summary judg ment stage, accepting Marisela Castro’s experience of memory loss as true, she certainly has raised an issue of fact for trial. The majority

1 For the full study, see Justin C. Hulbert et al., Inducing Amnesia Through Systemic Suppression , 7 N ATURE C OMM . 11003 (2016).5 correctly notes that issues of a party’s state of mind are typically inappropriate for resolution on summary judgm ent. Maj. at 3 (citing Braxton

- Secret v. A.H. Robins Co. , 769 F.2d 528, 531 (9th Cir. 1985) )
. Marisela Castro’s case is no different. Marisela Castro has provided evidence sufficient to overcome summary judgment. Her American citizenship is too precious to be torn from her without even a hearing where the government has to prove its case with clear, unequivocal, and convincing evidence
. This is why I dissent.