Julio Cesar Bazurto-Romo sought to reopen removal proceedings to assert a claim of derivative United States citizenship. The Immigration Judge and the Board of Immigration Appeals (BIA) declined to reopen the case, finding that Bazurto failed to present substantial credible evidence to support his claim. Bazurto argued that his father was a U.S. citizen and that he acquired citizenship at birth in 1979 under 8 U.S.C. § 1401(g). The statute required that the U.S. citizen parent be physically present in the United States for ten years, at least five of which were after age fourteen. Bazurto submitted affidavits from his father, relatives, and a coworker, along with an investigative report and a polygraph. The BIA rejected this evidence as insufficient, but the Ninth Circuit reviewed whether a genuine issue of material fact existed under summary judgment standards.
The court began by distinguishing the standard of review for discretionary decisions to reopen from the statutory mandate to review citizenship claims. While the agency's decision to reopen is generally discretionary and unreviewable, 8 U.S.C. § 1252(b)(5) requires the court to evaluate claims to United States nationality. The court clarified that in this context, the inquiry is not whether the petitioner met the agency's 'substantial credible evidence' burden, but whether there is a 'genuine issue of material fact' regarding nationality. Applying traditional summary judgment principles, the court viewed the evidence in the light most favorable to Bazurto. The court noted that the applicable law is the statute in effect at the time of birth, which required the father's physical presence for ten years, five after age fourteen. Bazurto's evidence, including affidavits and a polygraph, was sufficient to create a genuine dispute over the father's physical presence. The court emphasized that it need not weigh the evidence or determine if the BIA applied the correct burden; it only needed to determine if a factual dispute existed. Because such a dispute existed, the court was required to transfer the proceeding to the district court.
The Ninth Circuit transferred the case to the United States District Court for the District of Arizona. The petition for review is held in abeyance pending the district court's de novo determination of Bazurto's citizenship claim. The district court will now adjudicate the factual dispute regarding the father's physical presence in the United States without the constraint of the BIA's substantial credible evidence standard.
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