NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTEBAN TIZNADO-REYNA, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 13-72690 

Agency No. A090-219-302 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 7, 2019

Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

An immigration judge (“IJ”) ordered Esteban Tiznado-Reyna removed, 

rejecting his claim of derivative United States citizenship. After the Board of 

Immigration Appeals dismissed Tiznado’s appeal, he filed this petition for review. 

Pursuant to 8 U.S.C. § 1252(b)(5)(B), we transferred the proceedings to the district 

court for a de novo nationality determination. The only disputed factual issue was 

whether Tiznado’s father was born in this country, which the government agrees 

 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 15 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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under the facts of this case would have entitled Tiznado to derivative citizenship. 

See 8 U.S.C. §§ 1401(g), 1409(a). After a trial based almost entirely on 

documentary evidence, the district court found that Tiznado had not produced 

“substantial credible evidence” that his father was born in the United States. In light 

of the district court’s factual findings, we deny the petition for review.

1. In a § 1252(b)(5)(B) proceeding, if “the government offers evidence of 

foreign birth, a ‘rebuttable presumption of alienage’ arises, ‘shifting the burden to 

the [alleged citizen] to prove citizenship.’” Mondaca-Vega v. Lynch, 808 F.3d 413, 

419 (9th Cir. 2015) (en banc) (alteration in original) (quoting Chau v. INS, 247 F.3d 

1026, 1029 n.5 (9th Cir. 2001)). “Upon production by a petitioner of ‘substantial 

credible evidence’ of the citizenship claim, this presumption bursts and the burden 

shifts back to the government to ‘prov[e] the respondent removable by clear and 

convincing evidence.’” Id. (alteration in original) (quoting Ayala-Villanueva v. 

Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)). 

2. The district court found that Tiznado did not produce credible evidence 

that his father was born in the United States. Tiznado claims that the district court 

erred at the second step of the Mondaca-Vega analysis, arguing that the term 

“substantial credible evidence” describes only a burden of production, satisfied by

producing evidence that, taken in light most favorable to the petitioner, is sufficient 

to survive a motion for summary judgment. We disagree.
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3. A remand for the district court to engage in a de novo determination of 

nationality occurs only after “the court of appeals finds that a genuine issue of 

material fact about the petitioner’s nationality is presented.” 8 U.S.C. 

§ 1252(b)(5)(B). Thus, the proceedings in the district court necessarily began from 

the premise that Tiznado had presented sufficient evidence to avoid summary 

judgment on the nationality issue. See Fed. R. Civ. P. 56(a) (authorizing summary 

judgment only if “there is no genuine dispute as to any material fact”); 8 U.S.C. 

§ 1252(b)(5)(A) (“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.”).

4. Mondaca-Vega emphasized that if foreign birth is established, a petitioner

must come forth with “credible” evidence in support of a claim of United States 

nationality. 808 F.3d at 419. The term “credible” necessarily describes a burden of 

persuasion, not production. Because a district court must, in considering summary 

judgment, view the submitted evidence in the light most favorable to the non-moving 

party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the use of the 

word “credible” in Mondaca-Vega is inconsistent with a summary judgment 

standard. Rather, it describes a burden of persuasion, because the only purpose of 

the remand is to allow the district court to assess the weight of evidence on the issue 
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of citizenship, a process that necessarily involves credibility determinations. See 

Mondaca-Vega, 808 F.3d at 427. The district court did not clearly err in that 

assessment here. Id. at 428 (noting that “the clear error standard ‘does not vest[] us 

with power to reweigh the evidence presented at trial in an attempt to assess which 

items should and which should not have been accorded credibility’”) (alteration in 

original) (quoting Cataphote Corp. v. De Soto Chem. Coatings, Inc., 356 F.2d 24, 

26 (9th Cir. 1966)).

5. The district court did not absolve the government of its ultimate burden to 

prove non-citizenship by “clear, unequivocal, and convincing evidence.” Id. at 419. 

The record here, which included not only the uncontested fact of Tiznado’s foreign 

birth, but also other evidence establishing that his father was born in Mexico, 

satisfied that standard. See Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 n.2 (9th 

Cir. 1984) (noting that for a presumption of alienage to arise, “the government must 

first present ‘clear, convincing, and unequivocal’ evidence of foreign birth”). 

PETITION DENIED.