Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B. *

Mukasey has been substituted for former Attorney General Alberto R.

Gonzales.

United States Court of Appeals

For the First Circuit

No. 07-2110

ALDEVINO MANUEL LEAL SANTOS,

Petitioner, Appellant,

v.

MICHAEL B. MUKASEY, Attorney General, *

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lynch, Lipez and Howard,

Circuit Judges.

Cheryl J. Sturm on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Barry J. Pettinato, Assistant Director, and Jesse M. Bless,

Attorney, Office of Immigration Litigation, Civil Division, United

States Department of Justice, on brief for respondent.

February 13, 2008
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HOWARD, Circuit Judge. In a removal proceeding before an

Immigration Judge ("IJ"), petitioner Aldevino Manuel Leal Santos

("Santos") argued as a defense that he met the requirements for

derivative citizenship because his mother was physically present in

the United States for the requisite time prior to his birth. That

argument was rejected by the IJ and by the Board of Immigration

Appeals ("BIA"). The Third Circuit Court of Appeals transferred

the case, for reasons that will become clear later, to the District

of Massachusetts for fact-finding on Santos's derivative

citizenship claim. The district court found that his mother was

not present for the requisite time, and denied his claim of

derivative citizenship. Santos now appeals that decision. We

affirm.

I.

Santos was born in 1957 in the Azores Islands, Portugal.

He was convicted in the U.S. District Court for the district of

Massachusetts in 1997 of cocaine distribution, money laundering,

and conspiracy charges, United States v. Santos, No. 96-cr-10231

(D. Mass. Oct. 29, 2001), and subsequently was charged with removal

under 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). During his removal

proceedings, Santos argued that he satisfied the requirements for
When making derivative citizenship determinations under section 1

1401(a), courts "look to the applicable law in effect at the time

of appellant's birth". Tullius v. Albright, 240 F.3d 1317, 1320

(11th Cir. 2001).

Francelina was born in the Azores in January 1927, but her mother, 2

Aurora Augusta Leal (Santos's grandmother), was born in the United

States and was a citizen.

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derivative citizenship under 8 U.S.C. § 1401(a), as that statute

read in 1957.1

Under the statute, derivative citizenship may be

conferred upon a person born outside of the United States if the

applicant has at least one parent who is a United States citizen,

and the parent was present in the United States for at least ten

years prior to the applicant's birth. At least five of those years

must have been after the parent's fourteenth birthday.

Santos claims derivative citizenship through his mother,

Francelina Augusta Leal Santos ("Francelina"). While Santos's

removal proceedings were pending, the United States Citizenship and

Immigration Services determined Francelina to be a United States

citizen. In order for Santos to be eligible for derivative 2

citizenship under 8 U.S.C. § 1401(a) (1957), Francelina must have

spent at least ten years in the United States prior to Santos's

birth in 1957. Moreover, five of those years must have been after

Francelina's fourteenth birthday in January 1941. 

In statements to immigration officials between 2003 and

2005, Francelina indicated that she came to the United States first
Francelina was unable to testify before the district court due to 3

ill health.

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in 1928, returning to the Azores in 1934. She arrived in the

United States again in 1941, returning to the Azores in 1947. Her

grandson John Mello, an attorney who is Santos's nephew, testified

before the district court that Francelina had described to him her

childhood years in the United States using the same time frames.

However, while the IJ said that Francelina was not "evasive or

misleading," her testimony was "distraught, confused and

distressed" in that she could not remember in what years her

children were born, and that she incorrectly stated that she

herself was born in the United States.3

Francelina's 1962 visa application to the United States

was also introduced as evidence. In response to the question in

the visa application, "Since my sixteenth birthday my places of

residence for six months or more have been . . .", Francelina

listed only two addresses, both in the Azores, for the years 1943

to 1962. Thus, Francelina's and Mello's more recent statements

that she returned to the Azores in 1947 are inconsistent with the

response in her 1962 visa application stating that she lived in the

Azores from 1943 to 1962. 

The IJ in Santos's removal proceedings concluded that

Santos failed to prove that he satisfied the requirements for

derivative citizenship. The BIA affirmed this ruling; Santos
No issue has been raised in this appeal about either the propriety 4

of the transfer or whether this is the appropriate court to review

the district court's findings. See 28 U.S.C. § 1294(1) (appeals

from reviewable district court decisions shall be in the court of

appeals for the circuit embracing the district.)

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petitioned the Third Circuit Court of Appeals for review. In

reviewing the BIA decision, the Third Circuit found that there

existed "a genuine issue of material fact" as to whether Santos met

the requirements for derivative citizenship and transferred the

case to the District of Massachusetts for fact-finding. This

procedure was pursuant to 8 U.S.C. § 1252(b)(5)(B), which provides

for a transfer to the "judicial district in which the petitioner

resides" for further fact-finding. As Santos, previously

incarcerated in Pennsylvania, had already been deported, the Third

Circuit elected to transfer the case to the District of

Massachusetts for the convenience of Francelina, a Massachusetts

resident.4

In July 2007, the district court held an evidentiary

hearing on the factual question of whether Francelina was

physically present in the United States for the requisite amount of

time prior to Santos's birth. Leal Santos v. Gonzales, 495 F.

Supp. 2d 180 (D. Mass. 2007). The district court concluded that

although she had come to the United States twice as a child, she

had not stayed long enough the second time, after attaining the age

of fourteen. Specifically, the district court found that
Santos made several additional arguments before the IJ and BIA, 5

which he did not raise before this court and has thus waived. 

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Francelina was in the United States from 1928 to 1934, and from

1941 to 1943. Santos now appeals to this court.

II.

We review the district court's legal conclusions de novo.

Janeiro v. Urological Surgery Prof'l Ass'n, 457 F.3d 130, 138 (1st

Cir. 2006). We review the factual determination of the district

court as to Santos's eligibility for derivative citizenship under

a clearly erroneous standard. Id.

Santos argues that the district court incorrectly placed

the burden of proof on him to show that he met the eligibility

requirements for derivative citizenship. In addition, he contends

that, even if the district court was correct in assigning the

burden of proof to him, the court erred in its interpretation of

the evidence.5

First, Santos argues that the government bears the burden

of proving alienage in removal proceedings. 8 C.F.R. § 1240.8(c)

(2007). This is true; however, evidence that the person in removal

proceedings was born abroad meets that burden unless the person can

prove, by a fair preponderance of the evidence, that he possesses

derivative citizenship. See Batista v. Ashcroft, 270 F.3d 8, 15

(1st Cir. 2001); Matter of Tijerina-Villarreal, 13 I. & N. Dec.

327, 330-31 (BIA 1969); see also Scales v. INS, 232 F.3d 1159, 1163
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(9th Cir. 2000). Thus, we agree with the district court that it

was Santos's burden to prove by a preponderance of the evidence

that Francelina lived in the United States from 1941 until at least

1946, in addition to spending five years in the United States prior

to age fourteen.

Santos next argues that he met that burden, as the

evidence shows, in his view, that Francelina remained in the United

States until 1947. He contends that the district court came to the

wrong conclusion based on the evidence before it. 

In challenging the district court's conclusion, Santos

argues that the testimony of John Mello corroborated Francelina's

version of when she was in the United States. Although some of

Francelina's statements may have demonstrated confusion, he argues

that Mello's credible testimony wholly supports her account.

Santos also argues that the district court gave undue

weight to Francelina's 1962 visa application. As Francelina is

illiterate in both English and Portugese, he argues, she did not

prepare the application herself and it may not be accurate.

Further, he argues, the 1962 visa application is ambiguously

worded. The visa application requires the applicant to list

"places of residence" since the applicant's sixteenth birthday. A

minor's "residence," he argues, can be understood as the home of

one's parents. Here, he suggests, Francelina was a minor between

the years 1943 and 1946, and may have answered the question to
Santos makes a final attack on the district court's conclusion 6

with an appeal to historical context. He suggests that it is

unlikely that Francelina would have crossed the Atlantic Ocean in

1943, during World War II, to return to the Azores. In response,

we note first there is nothing on the record to suggest that the

district court's finding is clearly erroneous. Further, even if

Santos were able to show that Francelina could only have returned

to the Azores after the conclusion of World War II in 1945, that is

still insufficient to prove that he met the requirements for

derivative citizenship. Again, he must show that Francelina

remained in the United States until at least 1946.

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reflect where her parents were living at this time rather than

where she herself was living.6

While Santos's interpretation of the evidence is

admittedly plausible, the view adopted by the district court --

Francelina left the United States in 1943 -- is also plausible.

Due to her inability to recall dates, the district court found

Francelina's testimony before the IJ unreliable with respect to the

precise years she had been in the United States as a child. In

contrast, the district court did credit Francelina's statements in

the visa application, which was completed several decades closer to

the material time periods and, as the district court noted, "at a

time when the stakes were not yet known." We cannot find the

district court's choice between two plausible interpretations of

the facts to be clearly erroneous. United States v. Weidul, 325

F.3d 50, 53 (1st Cir. 2003).

Affirmed.