Leonardo Tapia-Felix v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION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

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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 Tapia-
Felix’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.

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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

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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

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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.

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