FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOCORRO COLINVILLAVICENCIO,

Petitioner,

 v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-507

Agency No.

A075-600-791

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 7, 2023

Submission Withdrawn December 14, 2023

Resubmitted July 17, 2024

Pasadena, California

Filed July 23, 2024

Before: J. Clifford Wallace, William A. Fletcher, and Ryan 

D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge Wallace;

Dissent by Judge W. Fletcher
2 COLIN-VILLAVICENCIO V. GARLAND

SUMMARY*

Immigration

Denying Socorro Colin-Villavicencio’s petition for 

review of a decision of the Board of Immigration Appeals, 

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

citizenship claim, and (2) concluded that substantial 

evidence supported the denial of relief under the Convention 

Against Torture (CAT).

Although Colin-Villavicencio, a native and citizen of 

Mexico, did not raise a claim to derivative United States 

citizenship before the court, the panel excused the waiver on 

the ground that deporting a United States citizen would 

result in manifest injustice. The panel thus requested 

supplemental briefing on whether she derived citizenship, 

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

As relevant here, Colin-Villavicencio had to satisfy 

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

could establish that there had “been a legal separation of 

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

this pathway because she admitted that her parents never 

married. Second, she could establish that her paternity had 

“not been established by legitimation.” The panel concluded 

that she could not meet this pathway because her birth 

certificate included her father’s name and signature and, 

under Baja California law, her father thus acknowledged

paternity.

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

been prepared by court staff for the convenience of the reader.
COLIN-VILLAVICENCIO V. GARLAND 3

Therefore, the panel concluded that the undisputed 

record foreclosed Colin-Villavicencio’s derivativecitizenship claim and, because she had neither disputed her 

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

there was no material dispute of fact requiring transfer to a 

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

As to CAT relief, the panel concluded that ColinVillavicencio has not shown a particularized risk of torture 

in Mexico and had not shown that police would acquiesce in 

her torture.

Concurring, Judge Wallace fully joined the majority 

opinion, but wrote separately in response to the dissent to 

elaborate on why no genuine dispute of material fact existed 

as to legitimation. Judge Wallace wrote that, consistent with 

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

existed regarding a matter where Colin-Villavicencio had 

not put forth any argument or evidence. Further, Judge 

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

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

view.

Dissenting, Judge W. Fletcher wrote that the government 

waived any argument that Colin-Villavicencio failed to 

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

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

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

denied Colin-Villavicencio’s claim based on an argument 

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

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

extra-record materials that no party had the opportunity to 

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

the family law of Baja California).
4 COLIN-VILLAVICENCIO V. GARLAND

COUNSEL

Elizabeth F. Rodriguez (argued), E-Rod Law Office, San 

Diego, California; Murray D. Hilts, Law Office of Murray 

D. Hilts, San Diego, California; for Petitioner.

Michael C. Heyse (argued), Trial Attorney; Jonathan A. 

Robbins, Assistant Director; Brian M. Boynton, Principle 

Deputy Assistant Attorney General; Civil Division, Office 

of Immigration Litigation, United States Department of 

Justice, Washington, D.C.; for Respondent.

OPINION

R. NELSON, Circuit Judge:

Socorro Colin-Villavicencio petitions for review of a 

Board of Immigration Appeals decision denying her request 

for relief under the Convention Against Torture and asks us 

to consider her derivative-citizenship claim under 8 U.S.C. 

§ 1432(a). We deny her petition and derivative-citizenship

claim.

I

Colin-Villavicencio, born in 1983, is a native and citizen 

of Mexico. In 1988, she entered the United States lawfully

after being issued a border crossing card. A decade later, 

Colin-Villavicencio’s mother, Sandra Villavicencio, became 

a naturalized citizen. Within a year, Colin-Villavicencio had 

filed a Form I-485 application for adjustment of status to 

lawful permanent resident. After she missed a fingerprint 

appointment, U.S. Citizenship and Immigration Services 

(USCIS) considered her application for adjustment of status
COLIN-VILLAVICENCIO V. GARLAND 5

abandoned. The application was reopened, but she missed 

another fingerprint appointment. She received a Notice to 

Appear (NTA) in 2002, but an Immigration Judge (IJ)

administratively closed those proceedings shortly after at the

parties’ request.

In June 2015, the Department of Homeland Security 

(DHS) commenced removal proceedings after ColinVillavicencio was convicted of two counts of felony child 

abuse, one count of possession of a controlled substance for 

sale, and one count of possession of a controlled substance.

Colin-Villavicencio represented herself pro se at her

initial removal proceedings in 2015. She claimed that she 

was a citizen based on her mother’s naturalization seventeen 

years earlier. She testified that her parents never married and

her father, who had died by 2009, became a lawful 

permanent resident, but never naturalized. To support her 

citizenship claim, she provided (1) her mother’s 

naturalization certificate, (2) her authorization for parole 

form, (3) her Mexican birth certificate, and (4) her border 

crossing card. Ultimately, an IJ denied her derivativecitizenship claim because she did not demonstrate that she 

became a lawful permanent resident as a minor. The IJ thus 

found her removeable and provided her a Form I-589 

application so she could support a claim for asylum, 

withholding of removal, or Convention Against Torture

(CAT) protection.

In 2019, Colin-Villavicencio submitted her Form I-589 

application for a removal hearing before a different IJ. On 

her application, she listed her mother as “Sandra 

Villavicencio” and her father as “Vidal Colin.” At the 

hearing, Colin-Villavicencio conceded that she was 

ineligible for asylum and withholding of removal because 
6 COLIN-VILLAVICENCIO V. GARLAND

her prior convictions were for “particularly serious crimes.” 

She sought CAT relief, asserting that she feared returning to 

Mexico and becoming the target of a criminal organization. 

She testified that her brother was deported from the United 

States in 2005 because of criminal convictions and 

subsequently, in 2015, was “threatened, beaten, and stabbed 

by organized criminals” in Mexico. She believed her brother 

was targeted because he had lived in the United States. Prior 

to her brother’s stabbing, her mother was extorted several 

times and paid money to keep her brother safe in Mexico. 

She also testified that the police took a report of her brother’s 

stabbing, but she was not sure if it was investigated. She

believed that she would be similarly targeted, threatened, 

and extorted if she were deported from the United States 

because criminals would assume she had money. She 

submitted the Mexico 2018 Human Rights Report and 

articles on country conditions. 

That same day, the IJ issued a decision reaffirming the 

previous IJ’s finding that Colin-Villavicencio was not a 

United States citizen under the Immigration and Nationality 

Act (INA) § 320 because she had not established that she 

obtained lawful permanent residence status as a minor. The 

IJ also found that by using drugs in her children’s presence—

resulting in detectible levels of controlled substances in their 

systems—Colin-Villavicencio committed a “particularly 

serious crime.” This precluded withholding of removal. The 

IJ found her ineligible for asylum because of her aggravated 

felony conviction. The IJ then denied her CAT claim and 

ordered her removed.

On appeal to the Board of Immigration Appeals (BIA), 

Colin-Villavicencio challenged the denial of CAT relief but 

not the IJ’s denial of her derivative-citizenship claim under 

INA § 320. The BIA affirmed the IJ’s denial of CAT relief. 
COLIN-VILLAVICENCIO V. GARLAND 7

The BIA affirmed the IJ’s determination that ColinVillavicencio did not establish that it is more likely than not 

that she will be tortured in Mexico with the acquiescence of 

the government. The BIA agreed with the IJ that the 

background country conditions were not sufficiently 

relevant to support her risk of torture and that she had not 

provided evidence showing the circumstances of the attack 

on her brother. The BIA also affirmed the IJ’s determination 

that the police report of the stabbing of Colin-Villavicencio’s 

brother weighed against a finding that public officials would 

be complicit. The BIA further agreed with the IJ that

evidence of country conditions showing that Mexican 

government officials have acted in concert with criminals 

does not establish that they would in Colin-Villavicencio’s 

case. Accordingly, the BIA affirmed the IJ’s determination 

that Colin-Villavicencio had not established eligibility for 

CAT relief.

II

We review legal questions de novo and factual findings 

for substantial evidence. Gonzalez-Rivera v. I.N.S., 22 F.3d 

1441, 1444 (9th Cir. 1994). The BIA’s “findings of fact are 

conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Nasrallah v. Barr, 

590 U.S. 573, 584 (2020) (quoting 8 U.S.C. 

§ 1252(b)(4)(B)). 

We have jurisdiction to hear nationality claims under 8 

U.S.C. § 1252(b)(5). Nationality claims do not require 

administrative exhaustion. Iasu v. Smith, 511 F.3d 881, 890 

(9th Cir. 2007). For a citizenship claim, we may consider 

evidence outside the administrative record. Brown v. 

Holder, 763 F.3d 1141, 1145 n.2 (9th Cir. 2014) (citing 8 

U.S.C. § 1252(b)(5)(B)). Petitioner bears the burden of 
8 COLIN-VILLAVICENCIO V. GARLAND

showing credible evidence to support her derivativecitizenship claim. See Berenyi v. I.N.S., 385 U.S. 630, 637 

(1967); Hussein v. Barrett, 820 F.3d 1083, 1088 (9th Cir. 

2016).

Under § 1252(b)(5)(A), if the record presents “no 

genuine issue of material fact about the petitioner’s 

nationality” then the court of appeals “shall decide the 

nationality claim.” But if “the petitioner claims to be a 

national of the United States and . . . a genuine issue of 

material fact about the petitioner’s nationality is presented, 

the court shall transfer the proceeding to the district court of 

the United States for the judicial district in which the 

petitioner resides for a new hearing . . . .” § 1252(b)(5)(B). 

“Traditional summary judgment rules guide our decision 

concerning transfer.” Ayala-Villanueva v. Holder, 572 F.3d 

736, 738 (9th Cir. 2009) (citing Chau v. I.N.S., 247 F.3d 

1026, 1029 (9th Cir. 2001)). “Where ‘the evidence 

presented in support of the claim would be sufficient to 

entitle a litigant to trial were such evidence presented in 

opposition to a motion for summary judgment,’ transfer for 

a de novo determination of the citizenship claim is statutorily 

mandated.” Id. (citing Chau, 247 F.3d at 1029). 

III

A

Colin-Villavicencio petitioned this court for review of 

the BIA’s decision. Although she did not raise her 

derivative-citizenship claim before us, we may review the 

issue to avoid “manifest injustice.” Alcaraz v. I.N.S., 384 

F.3d 1150, 1161 (9th Cir. 2004) (quoting United States v. 

Ullah, 976 F.2d 509, 514 (9th Cir. 1992)). Because 

deporting a United States citizen would result in manifest 

injustice, we asked for two rounds of supplemental briefing 
COLIN-VILLAVICENCIO V. GARLAND 9

addressing whether there are genuine issues of material fact 

relevant to Colin-Villavicencio’s derivative-citizenship 

claim.

As noted in our supplemental briefing order, our

precedent about what is required under § 1432(a) to be 

eligible for derivative citizenship changed since ColinVillavicencio’s appeal to the BIA. Under INA § 320 in 

effect when Colin-Villavicencio’s mother naturalized, a 

naturalized parent’s minor child acquired derivative 

citizenship if she was residing in the country at the time of 

the naturalization “pursuant to a lawful admission for 

permanent residence” or “thereafter beg[an] to reside 

permanently in the United States while under the age of 

eighteen years.” § 1432(a)(5) (1998). In Romero-Ruiz v. 

Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008), we 

interpreted “begins to reside permanently in the United 

States” as requiring that a minor be a legal permanent 

resident. But three years ago, we overruled Romero-Ruiz 

and held that the “begins to reside permanently in the United 

States” pathway “does not require that the child have 

necessarily been granted lawful permanent residency, 

although the child must have demonstrated an objective 

official manifestation of permanent residence.” Cheneau v. 

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

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

derivative-citizenship claim, it properly did so under thenexisting precedent. Consistent with Romero-Ruiz, the IJ 

determined that Colin-Villavicencio did not acquire

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

become a legal permanent resident before turning 

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

Cheneau, which established a new legal standard for 
10 COLIN-VILLAVICENCIO V. GARLAND

derivative citizenship that neither the IJ nor BIA had an 

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

In the first round of supplemental briefing, we ordered 

the parties to address how our intervening decision in 

Cheneau affected Colin-Villavicencio’s derivativecitizenship claim. In her first round of supplemental 

briefing, Colin-Villavicencio argued that she is eligible for 

derivative citizenship because she began to reside 

permanently in the United States while under the age of 

eighteen and after her mother naturalized as required by 8 

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

she demonstrated an intent to reside permanently in the 

United States. The government asserted that ColinVillavicencio did not demonstrate the requisite intent to 

reside permanently in the United States because she 

abandoned her application to become a legal permanent 

resident. In their first supplemental briefs, both parties 

focused only on the requirements for derivative citizenship 

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

In the second round of supplemental briefing, we ordered 

the parties to address whether Colin-Villavicencio satisfied 

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

response, Colin-Villavicencio only asserted that 

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

because her mother naturalized, and she was born out of 

wedlock. Colin-Villavicencio did not address the other 

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

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

established by legitimation. The government again argued 

that Colin-Villavicencio did not demonstrate the requisite 

intent to reside permanently in the United States required by 

§ 1432(a)(5).
COLIN-VILLAVICENCIO V. GARLAND 11

There is no exhaustion requirement of a citizenship 

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

not required to raise her derivative-citizenship claim before 

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

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

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

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

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

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

Still, Colin-Villavicencio could have raised her

derivative-citizenship claim under Cheneau in her petition to 

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

since allowing a citizen to be deported would result in 

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

because her citizenship claim turns on a legal question 

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

B

Section 1432 provides the conditions that the child of a 

naturalized citizen must meet to obtain derivative 

citizenship:

(a) A child born outside of the United States 

of alien parents . . . becomes a citizen of the 

United States upon fulfillment of the 

following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent 

if one of the parents is deceased; or

(3) The naturalization of the parent having 

legal custody of the child when there has been 

a legal separation of the parents or the 

naturalization of the mother if the child was 
12 COLIN-VILLAVICENCIO V. GARLAND

born out of wedlock and the paternity of the 

child has not been established by 

legitimation; and if

(4) Such naturalization takes place while 

such child is under the age of eighteen years; 

and

(5) Such child is residing in the United States 

pursuant to a lawful admission for permanent 

residence at the time of the naturalization of 

the parent last naturalized under clause (1) of 

this subsection, or the parent naturalized 

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

thereafter begins to reside permanently in the 

United States while under the age of eighteen 

years.

§ 1432(a) (1998) (repealed 2000).1

Colin-Villavicencio cannot meet the requirements of 

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

undisputed that her mother naturalized in 1998 when she was 

fifteen, and her father became a lawful permanent resident 

but never naturalized.

Colin-Villavicencio also cannot meet the requirements 

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

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

die before her mother’s naturalization or before Colin1

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

time the critical events giving rise to eligibility occurred.” AyalaVillanueva, 572 F.3d at 738 (quoting Minasyan v. Gonzales, 401 F.3d 

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

effect when Colin-Villavicencio’s mother naturalized in 1998.
COLIN-VILLAVICENCIO V. GARLAND 13

Villavicencio turned eighteen. It is undisputed that her 

father died in 2008 or 2009.

Given this, Colin-Villavicencio must meet both 

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

genuine issue of material fact related to both provisions, 

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

But Colin-Villavicencio cannot show that she meets 

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

question. Therefore, her citizenship claim necessarily fails.

3

1

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

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

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

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

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

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

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

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

however, that her parents never married, and admitted the 

same in her supplemental briefing before us. This 

concession is conclusive for purposes of the first part of 

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

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

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

When she admitted that her parents were unmarried, she 

failed to carry that burden.

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

when her mother was naturalized.

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

address § 1432(a)(5). 
14 COLIN-VILLAVICENCIO V. GARLAND

The dissent disagrees with our conclusion that there is no 

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

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

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

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

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

Colin-Villavicencio never argued that her parents entered a 

de facto union in her supplemental briefing. ColinVillavicencio bears the burden to establish these factual 

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

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

Nothing more was presented that would suggest any de facto 

union. There are no factual disputes supporting a de facto 

union despite the dissent’s theorizing about potential factual 

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

basis that has been presented to us to conclude that ColinVillavicencio’s parents were in a de facto union.

The persuasive authority cited by the dissent reinforces 

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

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

presented evidence including affidavits, a police report, and 

a legal memorandum prepared by a Peruvian law firm, to 

argue that his parents had a de facto marriage. ColinVillavicencio presented nothing similar here. Rather, she 

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

out of wedlock.” The dissent asserts that ColinVillavicencio had no reason to clarify her parents’ marital 

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

two rounds of supplemental briefing to provide her with the 

opportunity to make such a clarification. She failed to make 

any argument or present evidence to us about her parents’ 

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

transferred to a district court.
COLIN-VILLAVICENCIO V. GARLAND 15

2

Neither can Colin-Villavicencio make a showing under 

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

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

and that paternity has not been established by legitimation. 

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

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

established by legitimation.4

Colin-Villavicencio was born in Mexicali Baja 

California, Mexico, and resided in Mexicali until she came 

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

Mexico’s laws to determine whether paternity was 

established by legitimation. See Romero-Mendoza v. 

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

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

residence or the father’s residence.”).

5

When Colin-Villavicencio was born in 1983, under Baja 

California’s civil code, a parent could establish parental 

rights by voluntarily acknowledging the child on the birth 

4 Neither Colin-Villavicencio nor the government argued in 

supplemental briefing whether her father’s paternity was established by 

legitimation. Because Colin-Villavicencio bears the burden to establish 

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

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

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

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

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

the legal issue here.

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

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

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

not analyze other jurisdictions’ laws.
16 COLIN-VILLAVICENCIO V. GARLAND

record before the Civil Registry Officer.

6

 Her birth 

certificate located in the Office of the Civil Registrar of 

Mexicali Baja, California, lists Jose Vidal Colin Ortiz as 

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

signature. Thus, her father voluntarily acknowledged 

paternity, and she cannot make a showing under 

§ 1432(a)(3)’s second pathway.

The undisputed record therefore forecloses ColinVillavicencio’s derivative-citizenship claim. She has neither 

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

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

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

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

F.3d at 740.

The dissent takes no issue with these facts. The dissent 

never suggests any basis for not concluding Ortiz is ColinVillavicencio’s father. Instead, the dissent disputes the legal 

conclusion that Ortiz’s act satisfies the legitimation 

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

it is not clear from the 2004 Library of Congress report 

whether the “acknowledgment” of paternity by the father 

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

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

for its position. And our precedent suggests that the 

dissent’s manufactured distinction has no relevance here.

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

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

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

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

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

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

to determine whether paternity had been established by legitimation).
COLIN-VILLAVICENCIO V. GARLAND 17

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

courts of appeals and the BIA have held that statutes 

abolishing the distinction between legitimate and 

illegitimate children suffice to meet the requirement of 

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

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

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

legal distinctions are eliminated between children born to 

married parents and those born out of wedlock, the children 

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

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

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

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

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

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

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

at 425) (citation to BIA opinion omitted). 

Under the Baja California Civil Code, “all children have 

equal rights regardless of whether they were born within a 

union not bound by marriage or within a marriage.” 

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

that Baja California requires that a child born outside of 

marriage “have their rights implemented” by a father 

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

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

applicable [law] distinguishes between ‘legitimation’ and 

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

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

The definition of “legitimation,” and the correct 

interpretation of Baja California laws, are legal questions 

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

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

amended on denial of reh’g and reh’g en banc (Nov. 14, 
18 COLIN-VILLAVICENCIO V. GARLAND

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

to that legal question.7

The dissent also ignores that Colin-Villavicencio never 

disputed that her father’s paternity was established by 

legitimation. The dissent objects to our legal conclusion that 

Colin-Villavicencio’s paternity was established by 

legitimation. But Colin-Villavicencio never argued that her 

paternity was not established by legitimation, either before 

the IJ, or in responding to our request for supplemental 

briefing. In one sentence of her second supplemental brief, 

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

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

wedlock.” She did not address the legitimation requirement 

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

does not meet the requirement. More importantly, ColinVillavicencio never presented any evidence that would 

create a dispute about legitimation. And the dissent cites no 

evidence that could undermine legitimation. This hardly 

constitutes a dispute. The dissent argues that the government 

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

failing to excuse any waiver by Colin-Villavicencio. But 

Colin-Villavicencio bears the burden of showing credible 

evidence to support her citizenship claim, not the 

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

conclusion from the evidence presented is that there is no 

question of fact about Ortiz’s paternity of Colin7 The dissent also conflates factual and legal issues by suggesting that 

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

summarized portions of the legitimation laws of Baja California, because 

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

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

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

similar report to decide legitimation. See Iracheta, 730 F.3d at 424–25.
COLIN-VILLAVICENCIO V. GARLAND 19

Villavicencio. Thus, she cannot establish citizenship under 

§ 1432(a)(3). 

The dissent criticizes us for conducting our own review 

of the record to determine whether Colin-Villavicencio

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

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

Chau, 247 F.3d at 1030. The alternative is to deny ColinVillavicencio’s derivative-citizenship claim for not arguing 

that her father did not establish paternity by legitimation.

We have no authority to transfer a legal question to a 

district court for consideration in the first instance. If the 

record presents no genuine factual dispute, then this court

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

(emphasis added). 

The INA in effect when Colin-Villavicencio’s mother 

naturalized does not provide derivative citizenship for 

children in her circumstance. The statute is silent about 

children with unmarried parents, a father who established 

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

statutory construction that judges should not fill a gap in a 

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

Garner, Reading Law: The Interpretation of Legal Texts 95 

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

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

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

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

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

Accordingly, Colin-Villavicencio’s derivative-citizenship 

claim is denied.
20 COLIN-VILLAVICENCIO V. GARLAND

IV

That leaves Colin-Villavicencio’s CAT claim. We 

review the denial of CAT relief for substantial evidence. 

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

substantial evidence supports the denial of the CAT claim.

8

 

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

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

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

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

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

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

acquiescence of, a public official acting in an official 

capacity or other person acting in an official capacity.” 

§ 1208.18(a)(1).

In determining the likelihood of torture, the agency 

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

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

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

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

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

8 Colin-Villavicencio also asserts that the immigration court lacked 

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

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

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

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

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

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

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

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

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

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

NTA in June 2015 to begin removal proceedings, which was 

supplemented with a notice setting Colin-Villavicencio’s initial hearing.
COLIN-VILLAVICENCIO V. GARLAND 21

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

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

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

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

awareness of the activity (or consciously close their eyes to 

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

responsibility to intervene to prevent the activity because 

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

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

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

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

torture of its citizens merely because it is aware of torture 

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

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

Colin-Villavicencio has not shown a particularized risk 

of torture. She offers only the speculative conclusion that 

her brother was “threatened, beaten, and stabbed by 

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

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

unsupported leap is unwarranted. Her brother was attacked 

ten years after being deported, and could have been attacked 

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

hook on which we can conclude that she faces the same 

dangers. Nor has she shown that the police would acquiesce

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

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

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

record supports a conclusion that they would acquiesce to 

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

evidence, and her CAT claim fails.
22 COLIN-VILLAVICENCIO V. GARLAND

V

Colin-Villavicencio does not have derivative citizenship 

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

supports the BIA’s denial of CAT relief.

PETITION DENIED.

WALLACE, Circuit Judge, concurring: 

I fully join the majority opinion. I write separately in 

response to the dissent to elaborate on why no genuine 

dispute of material fact exists as to whether Petitioner 

Socorro Colin-Villavicencio’s paternity has been established 

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

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

I.

Both the majority opinion and the dissent agree that 

Colin-Villavicencio must satisfy one of the conditions listed 

in sections 1432(a)(1)–(3) to succeed on her derivativecitizenship claim. That is precisely why our second 

supplemental briefing order directed the parties to address 

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

whether Petitioner has satisfied any of the specific 

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

government merely reasserted its previous argument that 

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

1 The majority opinion accurately details Colin-Villavicencio’s 

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

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

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

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

any of those provisions for her derivative-citizenship claim.
COLIN-VILLAVICENCIO V. GARLAND 23

another statutory prerequisite for her derivative-citizenship 

claim. Although Colin-Villavicencio was more responsive 

to our second supplemental briefing order, in that she 

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

relevant portion of the subsection in its entirety. 

The dissent reads the government’s non-responsiveness 

to our second supplemental briefing order as either “tacitly 

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

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

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

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

sidesteps the shortcomings in Colin-Villavicencio’s second 

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

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

material fact requiring transfer to the district court for 

additional fact-finding. Although the government’s briefing 

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

failure to demonstrate a genuine issue of material fact with 

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

us to decide her derivative-citizenship claim.

Under section 1432(a)(3)’s second pathway, ColinVillavicencio must show the “naturalization of [her] mother 

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

not been established by legitimation.” As the majority 

opinion correctly points out, Colin-Villavicencio’s entire 

argument that she satisfied the second pathway under 

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

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

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

Critically, Colin-Villavicencio did not argue that her 

paternity has not been established by legitimation, as 

required under section 1432(a)(3)’s second pathway.
24 COLIN-VILLAVICENCIO V. GARLAND

II.

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

be a United States citizen “and the court of appeals finds 

from the pleadings and affidavits that no genuine issue of 

material fact about the petitioner’s nationality is presented, 

the court shall decide the nationality claim.” If, however, 

“the court of appeals finds that a genuine issue of material 

fact about the petitioner’s nationality is presented, the court 

shall transfer the proceeding to the district court . . . in which 

the petitioner resides for a new hearing on the nationality 

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

The question for us is whether the lack of argument from 

either party as to a statutory requirement—which is 

dispositive of Colin-Villavicencio’s derivative-citizenship 

claim—presents a genuine issue of material fact requiring 

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

Precedent from this court and the Supreme Court compels us 

to answer in the negative. 

“In determining whether a genuine issue of material fact 

exists, traditional summary judgment principles apply.” 

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

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

evidentiary hearing,” Colin-Villavicencio “must satisfy 

traditional summary judgment principles, such as tendering 

sufficient evidence for each statutory element.” Baeta v. 

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

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

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

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

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

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

“universally accepted” principle “that the burden is on the 
COLIN-VILLAVICENCIO V. GARLAND 25

alien applicant to show his eligibility for citizenship in every 

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

(1967).

As discussed above, Colin-Villavicencio did not argue 

that her father has not established paternity by legitimation, 

let alone tender evidence to that effect. 2 Nor did ColinVillavicencio attempt to supplement the administrative 

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

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

court of appeals may go beyond the administrative record 

when it transfers a matter to the district court because there 

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

So, we are left with mere speculation about what arguments 

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

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

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

demolition of which is a primary goal of summary 

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

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

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

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

at 1265 (concluding there were “no genuine issues of 

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

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

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

omission. Regardless, the same could be said about ColinVillavicencio’s failure to address whether her father has established 

paternity by legitimation.

3

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

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

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

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

court of appeals to review “pleadings and affidavits”). 
26 COLIN-VILLAVICENCIO V. GARLAND

material fact” because petitioner “did not tender any 

evidence” that his parents or grandmother were United 

States citizens). Consistent with our precedent, no genuine 

issue of material fact exists regarding a matter where ColinVillavicencio has not put forth any argument or evidence.4

III.

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

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

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

fact, we must decide the nationality claim.” AyalaVillanueva v. Holder, 572 F.3d 736, 740 (9th Cir. 2009), 

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

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

record to determine whether Colin-Villavicencio has 

satisfied the statutory requirements for derivative citizenship 

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

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

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

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

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

derivative-citizenship claim).

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

petitioner’s counsel, as the dissent does, constructing 

arguments on her behalf to manufacture a factual dispute. 

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

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

is restrained service as impartial arbiters of disputes framed 

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

4

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

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

by legitimation under a relevant jurisdiction’s laws.
COLIN-VILLAVICENCIO V. GARLAND 27

counsel when litigants make poor arguments, or when they 

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

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

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

omitted).

Colin-Villavicencio’s lack of argument or evidence that 

her father has not established paternity by legitimation fails 

to create a genuine issue of material fact requiring transfer 

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

considering the record contains Colin-Villavicencio’s 

undisputed birth certificate signed by her father. 

Accordingly, the majority opinion is correct to decide ColinVillavicencio’s derivative-citizenship claim on the record 

before us.

W. Fletcher, J., dissenting.

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

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

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

our decision in Cheneau, a minor child whose parent 

naturalized as an American citizen had two pathways to 

derive citizenship from the naturalized parent. Under the 

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

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

naturalization, he or she had to achieve LPR status before 

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

child of a naturalized parent does not need to have achieved 

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

have “demonstrated an objective official manifestation of 

permanent residence” before that age. Id. at 918.
28 COLIN-VILLAVICENCIO V. GARLAND

Petitioner Socorro Colin-Villavicencio has never had 

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

years old, her mother became a naturalized citizen. While 

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

the removal proceedings at issue in this case, ColinVillavicencio argued that the government could not remove 

her from the United States because she had automatically 

obtained derivative citizenship when her mother naturalized. 

Our circuit’s pre-Cheneau precedent requiring LPR status 

was fatal to her argument. The IJ properly rejected her 

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

her appeal without citing Cheneau and without addressing 

her claim to citizenship. 

Under Cheneau, Colin-Villavicencio has derivative 

citizenship from her mother if, before turning eighteen, she 

“demonstrated an objective official manifestation of 

permanent residence” and fulfilled the other relevant 

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

majority that we should address Colin-Villavicencio’s claim 

of citizenship. However, I strongly disagree with the result 

reached by the panel majority. 

The panel majority concludes that Colin-Villavicencio is 

not a citizen based on an argument that the government has 

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

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

majority improperly acts as both a government advocate and 

a district court factfinder, and it approves an order of 

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

an American citizen.

I dissent. 
COLIN-VILLAVICENCIO V. GARLAND 29

I. Background

A. Statutory Background

When Colin-Villavicencio’s mother was naturalized in 

1998, a child of a naturalized citizen was automatically 

entitled to derivative citizenship as follows: 

§ 1432. Children born outside the United 

States of alien parents; conditions for 

automatic citizenship

(a) A child born outside of the United States 

of alien parents . . . becomes a citizen of the 

United States upon fulfillment of the 

following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving 

parent if one of the parents is deceased; or

(3) The naturalization of the parent 

having legal custody of the child when 

there has been a legal separation of the 

parents or the naturalization of the mother 

if the child was born out of wedlock and 

the paternity of the child has not been 

established by legitimation; and if

(4) Such naturalization takes place while 

such child is under the age of eighteen 

years; and 

(5) Such child . . . of the parent 

naturalized under clause . . . (3) of this 

subsection . . . thereafter begins to reside 

permanently in the United States while 

under the age of eighteen years. 

8 U.S.C. § 1432 (repealed in 2000).
30 COLIN-VILLAVICENCIO V. GARLAND

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

person in Colin-Villavicencio’s position must satisfy any 

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

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

and (a)(5).

The parties agree that Colin-Villavicencio satisfied 

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

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

case, we specifically asked the parties to provide 

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

having been invited to do so, the government made no 

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

argued in its supplemental briefing only that ColinVillavicencio did not satisfy § 1432(a)(5); it did not address 

Colin-Villavicencio’s argument that she has satisfied 

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

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

supplemental briefing—indeed, the government has never 

addressed—Colin-Villavicencio’s argument that she has 

satisfied § 1432(a)(3). 

The panel majority does not reach the government’s 

argument that Colin-Villavicencio’s has failed to satisfy 

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

question, it would be required to conclude that the 

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

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

factual error about what is in the administrative record.

Notwithstanding the government’s failure to address 

§ 1432(a)(3), the panel majority concludes that ColinVillavicencio has not satisfied that subsection.
COLIN-VILLAVICENCIO V. GARLAND 31

B. Factual Background

Colin-Villavicencio was born in Mexico and lawfully 

entered the United States with her mother when she was five 

years old. She remained in the United States lawfully and 

continuously throughout the rest of her childhood. In 1998, 

when Colin-Villavicencio was fifteen years old, her mother 

became a naturalized United States citizen.

Before she naturalized, Colin-Villavicencio’s mother 

had petitioned for Colin-Villavicencio to be eligible for 

adjustment to LPR status. The petition was approved a 

month before her mother naturalized. In June 2000, ColinVillavicencio was granted advance parole, which allowed 

her to leave the country without affecting her application for 

adjustment of status to LPR.

Though her advance parole permitted her to leave the 

country, Colin-Villavicencio did not leave the United States 

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

her application for adjustment of status was still pending. 

According to her uncontradicted testimony before the IJ, a 

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

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

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

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

turned eighteen, Colin-Villavicencio has remained 

continuously in the United States since she was five years 

old.

Colin-Villavicencio was placed in removal proceedings 

in 2015. Representing herself, Colin-Villavicencio argued 

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

mother” because her mother naturalized before she turned 

eighteen. The government responded that ColinVillavicencio’s application for adjustment of status “was 
32 COLIN-VILLAVICENCIO V. GARLAND

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

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

United States citizen.”

At the time, the controlling precedent in our circuit was 

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

which held that the child of a naturalized citizen cannot 

derive citizenship from the naturalized parent unless the 

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

the parent naturalizes. Id. at 1063. The IJ in ColinVillavicencio’s case agreed with the government and told 

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

permanent resident.” Applying Romero-Ruiz, the IJ 

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

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

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

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

solely on her lack of LPR status, the IJ denied ColinVillavicencio’s claim to American citizenship.

The IJ ordered Colin-Villavicencio removed, and she 

appealed to the BIA. Romero-Ruiz remained the governing 

precedent when the parties filed their briefs before the BIA. 

Colin-Villavicencio did not raise her then-doomed 

citizenship claim in her briefs. We decided Cheneau after 

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

completed. The BIA dismissed Colin-Villavicencio’s 

appeal without addressing Cheneau and the citizenship 

issue. The present petition followed.

II. Discussion

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

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

her case, Colin-Villavicencio had to satisfy three 

requirements in order to automatically obtain derivative 
COLIN-VILLAVICENCIO V. GARLAND 33

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

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

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

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

portions of § 1432(a)(3) and (a)(5): 

§ 1432. Children born outside the United 

States of alien parents; conditions for 

automatic citizenship

(a) A child born outside of the United States 

of alien parents . . . becomes a citizen of the 

United States upon fulfillment of the 

following conditions:

. . . 

(3) The naturalization of the parent 

having legal custody of the child when 

there has been a legal separation of the 

parents or the naturalization of the mother 

if the child was born out of wedlock and 

the paternity of the child has not been 

established by legitimation; and if . . . 

(5) Such child . . . of the parent 

naturalized under clause . . . (3) of this 

subsection . . thereafter begins to reside 

permanently in the United States while 

under the age of eighteen years. 

8 U.S.C. § 1432 (repealed in 2000).

A. Government’s Argument to Us

The government argues to us only that ColinVillavicencio did not satisfy § 1432(a)(5). In the view of the 

government, Colin-Villavicencio did not satisfy 

§ 1432(a)(5) because she abandoned her application for 
34 COLIN-VILLAVICENCIO V. GARLAND

adjustment of status by failing to obtain advance parole 

before leaving the country.

In holding that Colin-Villavicencio has no viable claim 

to citizenship, the panel majority does not contend that she 

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

majority is unwilling to embrace the government’s 

argument. The government is clearly wrong.

Colin-Villavicencio legally came to the United States 

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

remained in the United States without interruption until after 

she turned eighteen. A month before her mother became a 

citizen, when Colin-Villavicencio was fifteen, she applied 

for LPR status. Under Cheneau, this is sufficient to 

demonstrate an objective official manifestation of 

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

The government argues that Colin-Villavicencio 

abandoned her quest for LPR status when, shortly after her 

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

premise for the government’s argument is that ColinVillavicencio did not have advance parole status when she 

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

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

The administrative record contains a copy of her grant of 

advance parole, and the IJ specifically found that she had 

advance parole. Directly contradicting its argument before 

our court, the government conceded during ColinVillavicencio’s removal proceedings before the IJ that she 

did not abandon her application for adjustment of status 

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

Further, even if Colin-Villavicencio had not had advance 

parole status when she went to Mexico, and had thereby 

“abandoned” her application for LPR status, that would not 
COLIN-VILLAVICENCIO V. GARLAND 35

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

just discussed, it is clear that Colin-Villavicencio satisfied 

§ 1432(a)(5) when her mother was naturalized. ColinVillavicencio automatically became a citizen if, at that time, 

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

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

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

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

government has thus effectively conceded that ColinVillavicencio automatically became a citizen if she satisfied 

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

her mother naturalized, later abandoning her attempt to 

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

effect on her citizenship. 

B. Waiver by the Government

Colin-Villavicencio argues to us that she has satisfied 

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

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

but it has failed to do so.

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

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

asked for two rounds of supplemental briefing directed to 

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

first request for supplemental briefing, the government did 

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

answer to the citizenship question might depend on whether 

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

a second round of briefing specifically addressing the 

question “whether Petitioner has satisfied any of the specific 

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

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

did not address § 1432(a)(3). Instead, the government 
36 COLIN-VILLAVICENCIO V. GARLAND

continued to rely exclusively on its baseless argument that 

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

In these circumstances, I would hold that the government 

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

me, is the end of the case. 

C. The Panel Majority’s Decision

Despite the government’s clear waiver, the panel 

majority denies Colin-Villavicencio’s claim of citizenship 

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

addressing and denying Colin-Villavicencio’s argument on 

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

take them in order.

1. Failure to Transfer to the District Court

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

the court of appeals from an order of removal is determined 

as follows: 

(5) Treatment of nationality claims

(A) Court determination if no issue of 

fact

If the petitioner claims to be a 

national of the United States and the court 

of appeals finds from the pleadings and 

affidavits that no genuine issue of 

material fact about the petitioner’s 

nationality is presented, the court shall 

decide the nationality claim.

(B) Transfer if issue of fact

If the petitioner claims to be a 

national of the United States and the court 

of appeals finds that a genuine issue of 
COLIN-VILLAVICENCIO V. GARLAND 37

material fact about the petitioner’s 

nationality is presented, the court shall 

transfer the proceeding to the district 

court of the United States for the judicial 

district in which the petitioner resides for 

a new hearing on the nationality 

claim . . . . 

(C) Limitation on determination

The petitioner may have such 

nationality claims decided only as 

provided in this paragraph. 

8 U.S.C. § 1252(b)(5).

The panel majority concludes that there are no genuine 

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

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

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

district court to rule on the question of citizenship.

The panel majority’s conclusion is clearly wrong. Based 

on its understanding of Mexican law, the panel majority 

concludes that there are no genuine issues of material fact as 

to whether Colin-Villavicencio’s paternity was “established 

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

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

majority properly understands Mexican law with respect to 

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

panel majority were right about Mexican law and right about 

that law’s application to Colin-Villavicencio, further 

material factual questions still would require us to transfer 

this case.

First, it is not clear from the record whether ColinVillavicencio’s father naturalized. If he naturalized, she is a 
38 COLIN-VILLAVICENCIO V. GARLAND

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

§ 1432(a)(3). The panel majority says it is clear that ColinVillavicencio’s father did not naturalize because she stated 

during her removal proceedings before the IJ that she 

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

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

conclusive information about whether her long-absent father 

had naturalized. This was so because her citizenship claim 

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

naturalization status. She has not conceded in her briefing 

to us that her father did not naturalize. 

Second, it is not clear from the record whether ColinVillavicencio’s parents were ever married. We know that 

they were separated. If they were married and then 

separated, Colin-Villavicencio is a citizen under the first 

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

parents, regardless of whether she satisfies the second clause 

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

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

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

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

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

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

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

think Colin-Villavicencio was expressing an expert opinion 

about the status of her parents’ relationship under Mexican 

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

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

Other circuits faced with similar statements by 

petitioners have allowed those petitioners to present 

evidence showing that their parents’ relationship qualified as 

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

have understood” that marriage for purposes of § 1432(a)(3) 
COLIN-VILLAVICENCIO V. GARLAND 39

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

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

distinguish Espichan because the petitioner in that case 

presented evidence to the immigration judge showing that 

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

precisely the point. The only difference between Espichan

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

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

no reason to present such evidence during her removal 

proceedings because her claim was barred by Romero-Ruiz. 

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

present that evidence to the district court. 

2. Misunderstanding of Relevant Law

Instead of transferring this case for determination of the 

factual issues just described, the panel majority decides 

those factual questions itself. It then addresses the legal 

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

The panel majority concludes that Colin-Villavicencio’s 

paternity was “established by legitimation” within the 

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

American citizen because she has not satisfied that 

subsection.

The majority’s conclusion that Colin-Villavicencio’s 

paternity was “established by legitimation” rests entirely on 

its reading of a three-page document describing, in 

summarized form, portions of the family law of Baja 

California, Mexico, as that law existed nine years before 

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

“Baja California, Mexico: Parentage, Filiation, and 

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

is described as a “Senior Research Specialist” at the United 
40 COLIN-VILLAVICENCIO V. GARLAND

States Library of Congress. A caution at the beginning of 

the document states:

This report is provided for reference purposes 

only. It does not constitute legal advice and 

does not represent the official opinion of the 

United States Government. The information 

provided reflects research undertaken as of 

the date of writing. It has not been updated.

Id. at unnumbered page (emphasis added). 

Relying on the “legal advice” disclaimed by the 

document, the majority concludes that Colin-Villavicencio 

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

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

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

provided argument about the meaning or applicability of the 

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

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

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

majority found on the internet, a document that explicitly 

warns it “does not constitute legal advice.” 

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

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

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

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

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

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

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

BIA has held that the child of an unmarried couple is 

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

had eliminated legal distinctions between children based on 

the marital status of their parents. Matter of Cross, 26 I. & 
COLIN-VILLAVICENCIO V. GARLAND 41

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

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

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

paternity is not established without the requisite act, even if 

the jurisdiction has enacted a law to place children on equal 

footing without regard to the circumstances of their birth.” 

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

for Colin-Villavicencio’s claim.

The document relied upon by the majority states that 

Baja California, Mexico, is a jurisdiction where children are 

placed on equal legal footing “regardless of whether they 

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

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

that for children born outside of marriage “to have their 

rights implemented,” they need to “have their parentage 

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

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

can be established by “voluntary acknowledgment of the 

child.” Id.

The document states that a father’s voluntary 

acknowledgment may be done in any of five specified ways. 

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

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

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

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

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

It is far from clear whether the “acknowledgment” the 

document describes is the same as “legitimation” for 

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

code that is cited by the document uses the term 

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

not “legitimation.” Código Civil [CC], art. 366, Periódico 
42 COLIN-VILLAVICENCIO V. GARLAND

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

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

that legitimation must be the means through which paternity 

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

other way [is] insufficient to defeat citizenship.” FloresTorres v. Holder, 680 F. Supp. 2d 1099, 1105 (N.D. Cal. 

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

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

petitioner’s paternity had to have been established by 

legitimation, as opposed to the alternative mechanism of 

acknowledgment, for him to fall within the terms of the 

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

wonder that the document contains an explicit disclaimer 

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

not constitute legal advice and does not represent the official 

opinion of the United States Government.” 

To justify its reliance on the document it found on the 

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

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

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

light years away from Iracheta. The documents in Iracheta

were presented by the parties, and the Fifth Circuit heard 

“the arguments of the parties regarding their meaning.” 

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

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

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

majority relies. See id. at 425. 

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

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

provides even less support than Iracheta. The panel in 

Brown granted the petitioner’s request for judicial notice, 

citing the statutory provision that allows us to consider the 

parties’ “pleadings and affidavits” in addition to the 
COLIN-VILLAVICENCIO V. GARLAND 43

administrative record when deciding whether to transfer a 

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

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

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

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

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

genuine issue of material fact sufficient to transfer the case 

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

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

sought judicial notice of the materials that the panel majority 

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

materials appear anywhere in the parties’ “pleadings and 

affidavits.”

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

document upon which the majority relies is pertinent to 

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

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

the parties on that question. Better still would be expert 

opinions about the actual legitimation process under Baja 

California law in 1983. 

The panel majority concludes it does not need anything 

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

expressly disclaims reliability because it claims our 

precedent makes clear that Colin-Villavicencio’s paternity 

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

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

are directly contrary to its position. All of the panel 

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

jurisdiction does not require any affirmative act by the father 

establishing parentage in order for a child of an unmarried 

couple to have the same legal rights as children of married 

couples, children of unmarried couples automatically meet 

the “legitimation” requirement of § 1432(a)(3). See, e.g., 
44 COLIN-VILLAVICENCIO V. GARLAND

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

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

affirmative act by the father, legitimation is not automatic. 

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

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

is whether or not the law of the governing jurisdiction 

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

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

I. & N. Dec. at 490).

The document on which the panel majority relies says 

that Baja California in 1974 was a jurisdiction where 

paternity was not established absent an affirmative act by the 

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

entire reasoning depends describes one kind of affirmative 

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

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

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

document assesses the relevant law, and (3) whether 

establishing paternity by what the document calls 

“acknowledgment” and what the actual Mexican law it cites 

calls “reconocimiento” is the same as establishing paternity 

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

circuit’s cases answer those questions.

Without precedent from our court to justify its approach, 

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

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

majority cites simply highlight its errors. Iracheta explained 

that the civil code of Tamaulipas, the Mexican jurisdiction 

where the petitioner in that case was born, had entirely 

separate chapters “for ‘legitimation’ and ‘acknowledgment’ 

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

recognized that “the textual distinction between 

‘legitimation’ and ‘acknowledgment’ in the Tamaulipas 
COLIN-VILLAVICENCIO V. GARLAND 45

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

ultimately it held that under the particularities of Tamaulipas 

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

acknowledgment by the father was sufficient for the child’s 

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

26.

No case from our circuit has either reached that 

conclusion about Baja California law or has adopted 

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

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

statutory text requiring a child’s paternity to be established 

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

often carries a specific legal meaning distinct from other 

methods of establishing parentage. Supreme Court case law 

and other provisions of the INA also distinguish legitimation 

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

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

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

need only make a written acknowledgment of paternity 

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

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

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

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

actually more difficult to satisfy than the statute in Nguyen

because § 1432 is limited to legitimation under local law, 

while the statute in Nguyen permitted paternal 

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

Conclusion

The decisive question in this case is whether ColinVillavicencio has satisfied § 1432(a)(3). 

Colin-Villavicencio argues that she has satisfied 

§ 1432(a)(3). Despite having been specifically directed to 
46 COLIN-VILLAVICENCIO V. GARLAND

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

would therefore hold that the government has waived any 

argument that Colin-Villavicencio has failed to satisfy 

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

Without acknowledging the fact that the government has 

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

holds that Colin-Villavicencio has failed to satisfy 

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

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

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

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

and affidavits that no genuine issue of material fact about the 

petitioner’s nationality is presented.”

Second, the panel majority violates the rule of party 

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

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

of neutral arbiter of matters the parties present.” Greenlaw 

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

function to raise and argue claims on the government’s 

behalf. The concurring opinion accuses me of also violating 

this rule by identifying the problems with the panel 

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

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

argument for the government is not the same as the panel 

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

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

argument the panel majority advances for the government 

because the government has never made that argument. By 

contrast, the government has had plenty of opportunity to 

come up with the argument the panel majority raises on its 

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

even when we ordered it to do so.
COLIN-VILLAVICENCIO V. GARLAND 47

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

appellate court does not decide issues” that no other court 

has decided first. Planned Parenthood of Greater Wash. & 

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

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

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

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

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

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

could not ‘have tried his case differently either by 

developing new facts in response to or advancing distinct 

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

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

Fourth, the panel majority reaches a decision on the 

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

before it. The document upon which the panel majority 

relies expressly disclaims reliability, and the analysis in the 

document may not even apply to the question before us.

To state it plainly, the panel majority denies ColinVillavicencio’s claim of citizenship based on an argument 

that the government has never made and based on extrarecord materials that no party has had the opportunity to 

address or perhaps even seen. The panel majority acts as 

both a government advocate and a district court factfinder. 

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

a person who may be an American citizen.

I dissent.