NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONARDO TAPIA-FELIX, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 14-73994 

Agency No. A027-530-663 

No. 17-15518 

D.C. No. 2:15-cv-01464-SPL 

MEMORANDUM*

LEONARDO TAPIA-FELIX, 

Petitioner-Appellant, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent-Appellee.

On Petition for Review of an Order of the

Board of Immigration Appeals

and

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted October 11, 2018*

Pasadena, California

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

OCT 25 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District

Judge.

Leonardo Tapia-Felix previously petitioned for review of the Board of 

Immigration Appeals’ decision upholding his final order of removal from the 

United States. We stayed that matter and transferred Tapia-Felix’s claim that he is 

a United States citizen by birth to the district court for de novo review. Tapia-Felix 

now appeals the district court’s adverse ruling on his citizenship claim, and we 

consolidated his two appeals on July 27, 2017. We have jurisdiction under 8 

U.S.C. § 1252(b) and 28 U.S.C. § 1291. We vacate and remand.

The district court correctly found—and the government concedes—that the 

government bears the burden of proving by clear and convincing evidence TapiaFelix’s alienage.

1

 See Mondaca-Vega v. Lynch, 808 F.3d 413, 419–20 (9th Cir. 

2015) (en banc), cert. denied, 137 S. Ct. 36 (2016) (applying a burden-shifting 

framework in which the government presents evidence of alienage, the petitioner 

responds with substantial credible evidence of citizenship, and then the burden 

shifts back to the government to prove alienage by clear and convincing evidence).

 

** The Honorable Michael H. Simon, United States District Judge for the 

District of Oregon, sitting by designation.

1 The parties agree that under Mondaca-Vega’s burden-shifting 

framework, Tapia-Felix met his burden at step two of the analysis of showing 

substantial credible evidence of citizenship, which then shifted the burden back to 

the government to prove his alienage.
3 

This case centers on dueling authenticated birth certificates: one issued in 

1972 in Mexico near the time of Tapia-Felix’s birth showing that he was born in 

Sonora, Mexico, and the other issued in 1990 in California showing that he was 

born in Santa Ana, California. 

In concluding that the government met its burden of showing by clear and 

convincing evidence that Tapia-Felix is a Mexican national, the district court stated 

that “at the heart of [its] conclusion is [Tapia-Felix’s] authenticated Mexican 

registration of birth.” The district court, however, rejected Tapia-Felix’s

California delayed registration of birth. As the district court stated, “the strength 

of the [birth] record depends on the evidence relied on by the state officials who 

issued it.” The district court found that California officials relied on a baptismal 

certificate showing that Tapia-Felix was baptized “on December 17, 1972, at the 

Our Lady Queen of Angels Church in in [sic] Los Angeles, California.” The 

district court reasoned that because the baptismal certificate was unreliable, no 

“credible documentary evidence issued in close proximity to the time of 

Petitioner’s birth” “detract[ed] from the evidentiary value of [Tapia-Felix’s] 

Mexican birth certificate.” 

The parties, however, had stipulated to the fact of Tapia-Felix’s baptism. 

Without notice or an adequate opportunity to respond, the district court rejected 

this stipulation. We hold that the district court erred in doing so. Factual 
4 

stipulations, unlike legal stipulations, are ordinarily binding on courts and “are 

‘formal concessions . . . that have the effect of withdrawing a fact from issue and 

dispensing wholly with the need for proof of the fact.’” Christian Legal Soc’y

Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 

676–78 (2010) (quoting 2 K. Broun, McCormick on Evidence § 254, p. 181 (6th 

ed. 2006); accord Dexter v. Kirschner, 984 F.2d 979, 984–85 (9th Cir. 1992), as 

amended on denial of reh’g and reh’g en banc (Jan. 29, 1993); see also D. Ariz. 

L.R. 83.7 (2016–17) (stating that written or oral stipulations given in open court 

are binding, except that “in the interests of justice the Court shall have the 

discretion to reject any such agreement”). Thus, at a minimum, the district court 

must notify the parties and provide them with a reasonable opportunity to respond

before rejecting a factual stipulation. Because the district court’s rejection of the 

stipulation appears to play a central role in its rejection of Tapia-Felix’s California 

birth certificate, we cannot say the error was harmless.

The district court also erred in rejecting parts of expert witness Gretchen 

Kuhner’s testimony. Ms. Kuhner testified to a census study commissioned by the 

Mexican government in order to better understand transnational families’ practice 

of dual birth registration in the United States and Mexico. The study revealed that 

nearly half of 550,000 transnational families registered U.S.-born children in 

Mexico. In finding this testimony inadmissible, the district court relied on United 
5 

States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005), which is easily 

distinguishable. Because Bahena-Cardenas relied on a small sample size (5 or 6 

out of 56 people), we found that the district court did not abuse its discretion in 

rejecting such testimony because it would “encourage or require jurors to rely on 

cultural stereotypes.” Id. at 1078. In contrast, Ms. Kuhner offered a sample size of 

over half-a-million people in a formal study commissioned by the Mexican 

government. The district court therefore abused its discretion in finding her 

opinion inadmissible.

Finally, Tapia-Felix challenges the district court’s credibility findings for 

numerous witnesses. Although we do not find these evaluations to be clearly 

erroneous, the district court is free to revisit them on remand. In light of the 

district court’s errors with respect to the parties’ stipulation and the expert 

witness’s testimony, we vacate and remand for the district court to reevaluate 

whether the government has carried its burden of showing by clear and convincing 

evidence that Tapia-Felix was born in Mexico.

VACATED AND REMANDED.