NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR OLIVAS, No. 17-56276

Petitioner-Appellant, D.C. No. 3:14-cv-01434-WQH-BLM v.

DAVID SALAZAR, Port Director of MEMORANDUM* Calexico West Port of Entry, Customs and Border Protection; et al.,

Respondents-Appellees.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted October 11, 2018 Pasadena, California

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

Oscar Olivas claims that he is a United States citizen. Upon denial of entry

to the United States on August 23, 2011, Olivas was served with a Notice to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. Appear (“NTA”), which should have triggered a hearing before an immigration

judge. But because the government failed for over two years to file the NTA with

the immigration court, no hearing was ever scheduled. After repeated unsuccessful

attempts to inquire about the status of his hearing, on June 12, 2014, Olivas filed

this suit seeking determination of his citizenship status.

1. The district court erred in requiring Olivas to bear the burden of proving

his citizenship by a preponderance of the evidence. Instead, as we held in

Mondaca-Vega v. Lynch, a burden-shifting framework applies in alienage

determination cases. 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).1 See also Lee Hon Lung v.

Dulles, 261 F.2d 719, 724 (9th Cir. 1958) (“[W]here one has, over a long period of

1 The government argues that Mondaca-Vega does not apply because Olivas was not in removal proceedings. Instead, Olivas filed a habeas petition and an action seeking declaratory judgment as to his citizenship. However, the government concedes that had it commenced removal proceedings by filing the NTA, as it admits at oral argument that it was required to do, see 8 C.F.R. §§ 1235.3(b)(5), 1235.6, 1003.13, 1003.14(a), Mondaca-Vega would squarely control. Olivas claims that for two years, he called the government’s hotline number weekly, and visited the border at least seven times, to inquire about a hearing. He claims that agents threatened him with detention if he persisted. The government may not benefit from its own negligence.

2 years, acted in reliance upon a decision . . . admitting him as a citizen of the United

States, the fraud or error which will warrant disregard of such decision must be

established by evidence which is clear, unequivocal, and convincing.”).

2. The district court did not abuse its discretion in admitting Delia Perez’s

out-of-court statement solely for impeachment purposes. In the district court and

now on appeal, the government has identified no hearsay exception that would

apply.

3. Because we do not weigh evidence in the first instance, we remand for

the district court to apply the burden-shifting framework set forth in Mondaca-

Vega.2

Costs are awarded to Olivas.

REVERSED AND REMANDED.

2 The parties dispute whether 8 U.S.C. § 1252(g) strips the district court of jurisdiction over Olivas’s constitutional claims. We decline to address that question at this time because this provision applies only to an “alien,” a determination that will be made by the district court on remand.

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