Unpublished Disposition, 842 F.2d 335 (9th Cir. 1984)

MEMORANDUM

Mondaca-Ugalde petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen deportation proceedings. He also seeks to have his case transferred to the United States district court for de novo determination of his claim to citizenship under section 106(a) (5) (B) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a) (5) (B). We have jurisdiction to consider Mondaca-Ugalde's claims under 8 U.S.C. § 1105a(a). We transfer these proceedings to the United States district court for a de novo hearing on Mondaca-Ugalde's claim of citizenship.

The facts underlying Mondaca-Ugalde's claims were outlined in our previous decision. Mondaca-Ugalde v. INS, No. 84-7501, memorandum (9th Cir. Dec. 3, 1984). In that phase of this case, Mondaca-Ugalde petitioned for review of a deportation order entered by the BIA. In this phase, he petitions for review of a subsequent denial of his motion to reopen. He also seeks relief under section 106(a) (5) of the Immigration and Nationality Act, which directs that whenever a petitioner claiming to be a national of the United States makes a nonfrivolous showing of his citizenship, a court reviewing an order of the BIA must transfer the proceedings to a United States district court for a de novo hearing if a genuine issue of material fact as to the petitioner's nationality is presented. 8 U.S.C. § 1105a(a) (5).

Mondaca-Ugalde's claim is not frivolous, and a genuine issue of material fact bearing on his claim of derivative citizenship is presented by the affidavits presented to the BIA. Thus, under section 106(a) (5) (B), we must transfer this proceeding to the district court for the Southern District of California, the district in which Mondaca-Ugalde resides, for a de novo hearing on Mondaca-Ugalde's claim of citizenship. Agosto v. INS, 436 U.S. 748, 756 (1978) ("a court of appeals cannot refuse to allow a de novo review of a citizenship claim if 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").

The Immigration and Naturalization Service (INS) contends that Mondaca-Ugalde's petition to transfer his claim of citizenship to the district court is barred by section 106(c) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(c). Section 106(c) states that a petition for review shall not be entertained if the validity of the order being appealed has been previously determined in any civil or criminal proceeding unless the petitioner presents grounds that could not have been presented in the prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order. 8 U.S.C. § 1105a(c). The INS argues that because we previously upheld the BIA's determination that Mondaca-Ugalde was a deportable alien, we lack jurisdiction to entertain Mondaca-Ugalde's claim that he is entitled to transfer under section 106(a) (5).

In the rather unique facts of this case, we need not decide whether section 106(c) should prevail over section 106(a) (5). Mondaca-Ugalde does not merely seek to relitigate the validity of the BIA's deportation order. He seeks a judicial determination that the evidence he submitted to the BIA creates a factual issue entitling him to a transfer to the district court. Although a prior panel of this court reviewed the BIA's deportation order, the majority did not consider whether Mondaca-Ugalde was entitled to a de novo hearing on his claim of derivative citizenship. Instead, the majority merely reviewed the BIA's finding that Mondaca-Ugalde was a deportable alien.

Thus, we have not previously determined the merits of Mondaca-Ugalde's jurisdictional challenge. Because the prior panel majority that affirmed the deportation order limited its review to the question whether the BIA's findings were supported by substantial evidence, it considered only the evidence presented during the deportation hearing. Although Mondaca-Ugalde presented the first panel with evidence creating a genuine issue of material fact regarding his mother's place of abode prior to his birth, the majority declined to consider that evidence pursuant to a petition for rehearing. Instead, the majority affirmed the BIA's decision on the grounds that its order was supported by substantial evidence but withheld its mandate, apparently to enable the BIA to consider Mondaca-Ugalde's evidence of citizenship pursuant to a motion to reopen deportation proceedings. By declining to consider whether Mondaca-Ugalde's evidence created a genuine issue of material fact, we did not determine whether Mondaca-Ugalde was entitled to transfer under section 106(a) (5); we postponed this determination to allow the BIA to consider and develop this evidence in the first instance. Cf. Ramirez-Durazo v. INS, 794 F.2d 491, 500 n. 7 (9th Cir. 1986) (petitioner who proffers new evidence on appeal which attorney should have developed before the BIA should move to reopen deportation proceedings); Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir. 1985) (petitioner seeking to present additional evidence in support of his challenge to deportation order may move to reopen deportation proceedings, thereby avoiding premature interference with agency's processes and affording the court the benefit of an adequate record); Tejeda v. INS, 346 F.2d 389, 392 (9th Cir. 1965) (remanding to BIA for further factual findings where administrative record was insufficient to enable court to determine merits of petitioner's claim to relief).

We recognize that an alien may not seek to relitigate the validity of a deportation order previously upheld in a prior judicial proceeding in an appeal from the BIA's denial of his motion to reopen unless he falls within one of the exceptions in section 106(c). Mondragon v. INS, 625 F.2d 270, 272 (9th Cir. 1980) (per curiam). In Mondragon, we held that an alien who failed to raise a colorable defense to deportation both in his initial deportation proceeding before the BIA and before the reviewing court could not bring a second challenge to the deportation order. Id. Here, however, Mondaca-Ugalde's claim that he is entitled to transfer under section 106(a) is not a second challenge to the validity of an order previously upheld by this court; it involves a claim for relief that has not been "previously determined in any civil or criminal proceeding." Section 106(c) thus does not deprive us of jurisdiction to transfer Mondaca-Ugalde's citizenship claim to the district court.

Under the circumstances of this case, we conclude that Mondaca-Ugalde is entitled to transfer of these proceedings to the United States District Court for the Southern District of California. We express no view as to the merits of Mondaca-Ugalde's claim to derivative citizenship. The petition for review of the BIA's refusal to reopen deportation proceedings is held in abeyance pending resolution of that litigation; consequently, the order of deportation is stayed pending further action by the district court.

MATTER TRANSFERRED TO THE SOUTHERN DISTRICT OF CALIFORNIA.