CALEB FARES GIHA, AKA Caleb Fares Giha Hernandez v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALEB FARES GIHA, AKA Caleb
Fares Giha Hernandez,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 15-73085
Agency No.
A042-794-367
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 1, 2020
Seattle, Washington
Filed September 2, 2021
Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges,
and Richard G. Stearns,* District Judge.
Opinion by Judge Collins
* The Honorable Richard G. Stearns, United States District Judge
for the District of Massachusetts, sitting by designation.

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2 GIHA V GARLAND
SUMMARY**
Immigration
Denying Caleb Fares Giha’s petition for review of a
decision of the Board of Immigration Appeals and affirming
the district court’s grant of summary judgment for the
Government on Giha’s United States citizenship claim, the
panel concluded that Giha failed to present sufficient
evidence to permit a rational trier of fact to find, by a
preponderance of the evidence, that his parents obtained a
“legal separation,” as required for him to derive U.S.
citizenship under former § 321(a) of the Immigration and
Nationality Act (“INA”).
In removal proceedings, Giha moved to terminate on the
ground that, as a minor, he had acquired derivative U.S.
citizenship upon his father’s naturalization in 1999. The IJ
and BIA rejected that claim, and Giha petitioned this court
for review. Concluding that Giha’s petition presented a
genuine issue of material fact as to U.S. citizenship, a
motions panel transferred his case to the district court for de
novo review of that issue. The district court granted
summary judgment for the Government, and the matter was
restored to this court’s docket.
Giha contended that the district court erred by applying
a “preponderance of the evidence” standard to his citizenship
claim. Under the burden-shifting framework set out in
Mondaca-Vega v. Lynch, 808 F.3d 413 (9th Cir. 2015) (en
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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GIHA V GARLAND 3
banc), if the Government satisfies its burden of showing
evidence of foreign birth, a rebuttable presumption of
alienage arises, and the burden shifts to the alleged citizen to
present “substantial credible evidence” of citizenship. Giha
argued that the “substantial credible evidence” standard
imposes a burden that is lower than the preponderance
standard. The panel disagreed, explaining that Mondaca-
Vega’s use of “substantial credible evidence” is merely a
shorthand way of saying that the alleged citizen must present
sufficient evidence to carry his or her burden under the
applicable standard of proof, and that the applicable standard
here, as set out in the authority cited by Mondaca-Vega, is
the preponderance standard.
As relevant here, under the applicable naturalization
statute, former INA § 321(a), a child born outside the U.S.
of alien parents becomes a U.S. citizen upon the
naturalization of the parent having legal custody of the child
when there has been “a legal separation” of the parents, the
naturalization takes place while the child is unmarried and
under the age of 18, and the child is residing in the U.S.
pursuant to a lawful admission for permanent residence at
the time of the naturalization. 8 U.S.C. § 1432(a) (1999).
Here, Giha’s claim turned on whether he proved that there
was a legal separation of his parents. The panel explained
that this court has held that parents cannot be said to have
“legally separated” within the meaning of § 321(a) unless
they had a validly recognized relationship in the first place.
The panel concluded that, even assuming arguendo that
Giha’s parents had a legitimate de facto union, Giha
nonetheless failed to present sufficient evidence to establish
that his parents were legally separated under Peruvian law.
Giha alleged that his parents’ legal separation occurred as a
result of orders issued by a Peruvian court, the evidence

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4 GIHA V GARLAND
about which consisted of: (1) two orders issued by the court
authorizing Giha and his sister to travel to the U.S. with the
father; and (2) Giha’s father’s declarations and deposition
testimony about those proceedings. The panel explained that
the evidence supported a reasonable inference that the court
found that Giha’s mother had abandoned the home, that she
lost some of her parental rights, and that the father obtained
effective custody of the children. However, the panel
explained that the statute required a showing “legal
separation,” and nothing in the evidence supported the
conclusion that the Peruvian court took any action with
respect to the de facto union, much less that the court
recognized a formal termination of any such relationship.
Accordingly, the panel concluded that Giha failed to present
sufficient evidence to permit a rational trier of fact to find,
by a preponderance of the evidence, that his parents obtained
a “legal separation.”
The panel thus affirmed the district court’s grant of
summary judgment and, because Giha’s petition for review
presented no other grounds for avoiding his removal to Peru,
the panel denied the petition.
COUNSEL
Gregory J. Dubinsky (argued), Sarah Coco, and Evan H.
Stein, Holwell Shuster & Goldberg LLP, New York, New
York, for Petitioner.
Rebekah Nahas (argued), Trial Attorney; Matthew
Connelly, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.

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GIHA V GARLAND 5
OPINION
COLLINS, Circuit Judge:
Caleb Fares Giha (“Giha”) petitions this court for review
of the decision of the Board of Immigration Appeals (“BIA”)
affirming the order of the Immigration Judge mandating his
removal to Peru. Before the agency, Giha moved to
terminate his removal proceedings on the ground that, as a
minor, he had acquired derivative U.S. citizenship upon his
father’s naturalization in 1999. Concluding that Giha’s
petition presented a genuine issue of material fact as to
whether he was a U.S. citizen, a motions panel of this court
transferred his case to the U.S. District Court for the Eastern
District of California for a de novo review of his citizenship
claim. See 8 U.S.C. § 1252(b)(5)(B). The district court
(Magistrate Judge Grosjean) granted summary judgment for
the Government, concluding that Giha is not a U.S. citizen.
With the matter now restored to our docket, Giha challenges
the district court’s rejection of his claim of derivative U.S.
citizenship. Reviewing the district court’s grant of summary
judgment de novo, see Sandoval v. County of Sonoma,
912 F.3d 509, 515 (9th Cir. 2018), we affirm that decision.
And because Giha’s petition for review otherwise presents
no issues that would provide grounds for setting aside his
removal order, we deny that petition.
I
The key facts underlying Giha’s derivative citizenship
claim were largely undisputed, but to the extent that they
were, we recount them in the light most favorable to Giha.
See Rice v. Morehouse, 989 F.3d 1112, 1116 (9th Cir. 2021).

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6 GIHA V GARLAND
A
Giha was born in Lima, Peru in 1982, and his birth
certificate lists his parents as Walter Victor Giha Huarote
(“Walter”)1 and Maria del Pilar Hernandez Marquez
(“Hernandez”). At the time of Giha’s birth, Walter and
Hernandez were not formally married to one another, and
both had previously been married to other persons. Walter
had married a woman named Jesus Mansilla in Lima in
1959, and after having three children together, they divorced
in 1970. Hernandez had married Gandolfo Salvador Mestre
Saenz (“Mestre”) in Lima in 1973. Hernandez and Mestre
had a son together in March 1977, and his birth certificate
lists their status as “Married.” Giha does not dispute that the
Peruvian National Registry of Identification and Civil Status
(Registro Nacional de Identificación y Estado Civil or
“RENIEC”) contains no record of a divorce between
Hernandez and Mestre, but he contends that this may have
been because of their failure to submit the divorce record.
At some point between 1977 and 1980, Walter and
Hernandez began a relationship with one another and
eventually started living together.2 They had two children,
1 To avoid confusion, we will refer to Giha’s father, Walter Giha,
only as “Walter.” References to “Giha,” with no first name, refer only
to Petitioner Caleb Giha.
2 Walter’s testimony and declarations were inconsistent on this
point. In the immigration court, Walter submitted a declaration stating
that he met Hernandez “in 1977,” that they “began dating shortly after,”
and that they “moved in together in 1978.” In the district court, Walter
submitted a declaration stating that he had met Hernandez “at a gathering
in 1980,” that they “began dating shortly thereafter,” and that Hernandez
did not move in with him until 1982, when she was already pregnant with
Giha. At his deposition, Walter first stated that he met Hernandez at a
party in 1982, but when reminded that Giha was born in 1982, he stated

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GIHA V GARLAND 7
Giha in 1982 and a daughter in 1983. Giha does not dispute
that his parents “never married at a courthouse, a
municipality, or a church”; that they “never registered a civil
union or had a civil union recognized by Peru or any
Peruvian court”; and that RENIEC contains “no record of
marriage” between Giha’s parents. Giha claims, however,
that his parents had the equivalent of a common-law
marriage under Peruvian law, which expressly recognizes
“de facto unions.”
In early March 1987, Hernandez disappeared. Walter
initially thought that she had left to visit family, as she had
done on prior occasions, but he became concerned when she
did not return within a few days. A week after her
disappearance, he filed a report with the local police stating
that she was missing and had abandoned the family. The
report indicates that the police visited the house and saw that
Hernandez’s clothes were still in her closet. Neither her
parents nor anyone else in her family knew where she was,
and no one has heard from her since.
In May 1990, Walter sought and was granted permission
by a Peruvian court to take his two children to the United
States. In August of that same year, Walter, Giha, and
Giha’s sister were admitted to the U.S. as lawful permanent
residents. On August 19, 1999, when Giha was 17 years old,
Walter took the oath to become a naturalized U.S. citizen at
a ceremony in Pomona, California.
that they began dating around 1979 and that she moved in with him when
she was pregnant with Giha.

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8 GIHA V GARLAND
B
1
After becoming an adult, Giha committed multiple
criminal offenses that led to separate convictions in
California state court in 2003, 2009, and 2010. In particular,
in November 2010, Giha was convicted of possession of
cocaine in violation of California Health and Safety Code
§ 11350(a). Three years later, the Department of Homeland
Security initiated removal proceedings, alleging, inter alia,
that Giha was removable under § 237(a)(2)(B)(i) of the
Immigration and Nationality Act (“INA”), because he had
been convicted of an offense “relating to a controlled
substance.” See 8 U.S.C. § 1227(a)(2)(B)(i). At a hearing
in February 2014, the Immigration Judge (“IJ”) sustained
this ground for removal based on Giha’s 2010 conviction
under § 11350. See Lazo v. Wilkinson, 989 F.3d 705, 714
(9th Cir. 2021) (holding that, under the modified categorical
approach, a conviction for possession of cocaine in violation
of § 11350 is an offense “relating to a controlled substance”
under § 237(a)(2)(B)(i)). The IJ, however, granted Giha
additional time to seek relief from removal.
In July 2014, Giha moved to terminate the removal
proceedings, asserting that, under the previously-applicable
provisions of the INA, he had acquired derivative U.S.
citizenship upon his father’s naturalization in 1999. After
receiving briefing and evidence on that issue, the IJ rejected
Giha’s claim to citizenship in December 2014. At a
subsequent hearing in April 2015, Giha withdrew his
previously filed application for asylum and withholding of
removal, and the IJ ordered Giha’s removal to Peru. Giha
appealed to the BIA, arguing only that the IJ had erred in
rejecting his claim of derivative citizenship. Finding no
error, the BIA dismissed Giha’s appeal.

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GIHA V GARLAND 9
Giha timely petitioned this court for review. Because the
petition raised a claim of U.S. citizenship, this court asked
the parties to address whether the matter should be
transferred to the appropriate district court pursuant to INA
§ 242(b)(5)(B). Under that statute, this court must undertake
an initial preliminary review of any claim, in a petition for
review, that the petitioner is actually a U.S. citizen. If we
conclude that there is “no genuine issue of material fact
about the petitioner’s nationality,” then the statute directs us
to “decide the nationality claim” ourselves. 8 U.S.C.
§ 1252(b)(5)(A). But if we conclude that there is such a
“genuine issue of material fact,” then we must “transfer the
proceeding to the district court of the United States for the
judicial district in which the petitioner resides for a new
hearing on the nationality claim.” Id. § 1252(b)(5)(B).
Upon such a transfer, the district court must proceed as if the
matter were an action under the declaratory relief statute,
28 U.S.C. § 2201, and it must render a decision on the
disputed claim of U.S. citizenship. 8 U.S.C.
§ 1252(b)(5)(B). A motions panel of this court concluded
that a genuine issue of material fact did exist as to Giha’s
citizenship claim, and we therefore transferred the
proceeding to the U.S. District Court for the Eastern District
of California, where Giha was then being detained. Pending
the district court’s decision, we held Giha’s petition for
review in abeyance.
2
After the matter was transferred to the district court, the
parties conducted discovery on the relevant issues
concerning Giha’s citizenship claim, and the Government
ultimately moved for summary judgment in September
2017. Giha opposed the motion, arguing that additional
discovery was warranted or, in the alternative, that the record

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10 GIHA V GARLAND
already established his claim to derivative citizenship. The
district court agreed that additional discovery was warranted,
and it ordered the parties to file supplemental briefs after
completing that discovery. In his supplemental brief, Giha
argued that there were disputed issues of material fact
precluding granting summary judgment to the Government
or, in the alternative, that summary judgment could be
granted to him on the existing record.
The district court granted the Government’s motion. The
court first noted that the only dispute was whether Giha
satisfied the requirement, under the terms of the applicable
derivative citizenship statute, that there must have “been a
legal separation” of his parents at the time of his father’s
naturalization in August 1999. See 8 U.S.C. § 1432(a)(3)
(1999) (since repealed).3 The court held that Giha had the
burden to prove the elements of his citizenship claim—
including the existence of a legal separation of his parents—
by a preponderance of the evidence and that he failed to carry
that burden.
The district court reasoned that, under Ninth Circuit
precedent, Giha could not show that his parents had legally
separated without first showing that their alleged “de facto
union” was valid under Peruvian law. The district court
acknowledged that Peru recognizes “de facto unions,” but it
noted that, under Peruvian law, those who are already
married “are absolutely impeded from entering into a
subsequent marriage or de facto union.” Because it was
undisputed that Giha’s mother (Hernandez) had been legally
and formally married to another man (Mestre) before her
relationship with Giha’s father (Walter), the district court
3 We discuss the various requirements of the applicable statute in
greater detail below. See infra at 19–21.

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GIHA V GARLAND 11
concluded that Giha had to show that Hernandez and Mestre
had divorced. The district court held that, in light of the
Government’s showing that Peru’s RENIEC record system
contained no divorce record for Hernandez and Mestre, the
burden shifted to Giha to present sufficient evidence to
establish a triable issue as to whether there had been such a
divorce. Although Giha presented evidence showing that the
RENIEC system was imperfect and incomplete, the court
held that, at most, this raised a “theoretical question” as to
whether Hernandez might have divorced Mestre without any
record. Such speculation, the court concluded, was not
enough to “raise a genuine dispute of fact” that would allow
Giha to “meet his burden of establishing by a preponderance
of the evidence that his biological parents were legally
separated.” As a result, the court held that Giha failed to
“meet [his] burden to prove his derivative citizenship.”
Because we did not relinquish jurisdiction when, holding
the case in abeyance, we transferred the matter to the district
court for a limited purpose, the matter automatically returned
to this court upon the district court’s entry of its decision.
See Demirchyan v. Holder, 641 F.3d 1141, 1142–43 (9th Cir.
2011) (holding that a transfer under INA § 242(b)(5)(B) is
equivalent to a limited remand and does not “relinquish[]
jurisdiction”). We therefore have jurisdiction under INA
§ 242 by virtue of the original petition for review filed in
2015, see 8 U.S.C. § 1252, without the need for an additional
notice of appeal from the district court’s decision. See
Anderson v. Holder, 673 F.3d 1089, 1093–94 (9th Cir.

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12 GIHA V GARLAND
2012); see also Mujica v. AirScan, Inc., 771 F.3d 580, 590
(9th Cir. 2014).4
II
Giha initially contends that, by holding that Giha’s
burden at trial would be to prove his claimed citizenship “by
a preponderance of the evidence,” the district court applied
the incorrect standard of proof in assessing the evidence at
the summary judgment stage. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 254 (1986) (in resolving a
summary judgment motion, “the judge must view the
evidence presented through the prism” of the correct
“substantive evidentiary burden”). We reject this
contention.
In our en banc decision in Mondaca-Vega v. Lynch,
808 F.3d 413 (9th Cir. 2015), we reviewed the standards for
resolving, under § 242(b)(5) of the INA, a claim of U.S.
citizenship that is made during removal proceedings. We
began by noting that the Government “‘bears the ultimate
burden of establishing all facts supporting [removability] by
clear, unequivocal, and convincing evidence.’” Id. at 419
(citation omitted). While that of course includes the crucial
fact that the deportee who is “the subject of the [removal]
proceeding is an alien,” Iran v. INS, 656 F.2d 469, 471 (9th
Cir. 1981), we explained that the caselaw had developed a
three-step burden-shifting framework for addressing that
issue, see Mondaca-Vega, 808 F.3d at 419. First, the
Government must “present clear, convincing, and
unequivocal evidence of foreign birth.” Ramon-Sepulveda
4 In an abundance of caution, Giha had timely filed a notice of appeal
from the district court’s decision, but we dismissed that appeal as
unnecessary.

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GIHA V GARLAND 13
v. INS, 743 F.2d 1307, 1308 n.2 (9th Cir. 1984) (citation and
internal quotation marks omitted); see also Mondaca-Vega,
808 F.3d at 419. Second, if the Government satisfies that
initial burden, then a “rebuttable presumption of alienage
arises, shifting the burden to the alleged citizen to prove
citizenship.” Mondaca-Vega, 808 F.3d at 419 (simplified).
This requires the deportee claiming citizenship to present
“‘substantial credible evidence’ of the citizenship claim.”
Id. (quoting Ayala-Villanueva v. Holder, 572 F.3d 736, 737
n.3 (9th Cir. 2009)). Third, if the deportee carries that
burden, then the presumption of alienage “bursts and the
burden shifts back to the government to ‘prov[e] the
[deportee] removable by clear and convincing evidence.’”
Id. (quoting Ayala-Villanueva, 572 F.3d at 737 n.3).
Here, there is no dispute that the Government carried its
initial burden to establish Giha’s foreign birth; indeed, the
fact that Giha was born in Peru is uncontested. The burden
thus shifted to Giha to “‘prove citizenship,’” Mondaca-
Vega, 808 F.3d at 419 (citation omitted), and the district
court concluded that Giha had failed to carry that burden.
Giha asserts that, in reaching this conclusion, the district
court misapprehended Giha’s burden of proof at step two by
holding that he had to prove his U.S. citizenship by a
“preponderance of the evidence.” Giha notes that the
preponderance standard is generally viewed as being stricter
than the “substantial evidence” standard for reviewing
evidentiary sufficiency, see, e.g., Saelee v. Chater, 94 F.3d
520, 522 (9th Cir. 1996), and he argues that, as a result,
Mondaca-Vega’s statement that the alleged citizen must
present “substantial credible evidence” of citizenship
imposes only a modest burden of proof that is lower than a
preponderance standard. We disagree.

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14 GIHA V GARLAND
Mondaca-Vega’s statement that a deportee must present
“substantial credible evidence” of citizenship is merely a
shorthand way of saying that the deportee must present
sufficient evidence to carry his or her burden under the
applicable standard of proof, and it therefore does not itself
say what that underlying standard is. As we have frequently
noted, the “substantial evidence” standard refers to the
lenient standard of evidentiary sufficiency that a reviewing
court applies to the decision made by the ultimate trier of
fact, be it a jury or an administrative agency. See, e.g.,
Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“The
phrase ‘substantial evidence’ is a ‘term of art’ used
throughout administrative law to describe how courts are to
review agency factfinding. . . . It means—and means only—
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” (citation and further
internal quotation marks omitted)); Reese v. County of
Sacramento, 888 F.3d 1030, 1046–47 (9th Cir. 2018) (“A
jury’s verdict . . . must be upheld if supported by substantial
evidence. Substantial evidence is such relevant evidence as
reasonable minds might accept as adequate to support a
conclusion even if it is possible to draw two inconsistent
conclusions from the evidence.” (citations and internal
quotation marks omitted)); Campbell v. City of Los Angeles,
903 F.3d 1090, 1118 (9th Cir. 2018) (describing the
“substantial evidence” standard as “a mid- or post-trial
analogue to the test applied at summary judgment”).
Consequently, the oft-repeated statement that the
“substantial evidence” standard is “‘less than a
preponderance,’” Thomas v. CalPortland Co., 993 F.3d
1204, 1208 (9th Cir. 2021) (citation omitted), merely
confirms that the reviewing court does not apply a
preponderance standard in assessing the evidence, but that
does not mean that the trier of fact does not do so. Thus, for
example, while we review the sufficiency of the evidence to

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GIHA V GARLAND 15
support a jury verdict under the substantial evidence
standard, the jury applies the relevant standard of proof—
preponderance of the evidence, clear and convincing
evidence, or beyond a reasonable doubt—depending upon
the requirements of the underlying substantive law. See
Mondaca-Vega, 808 F.3d at 422 (“The Supreme Court has
repeatedly emphasized that there are three burdens of proof
. . . .”).
The case authority cited by Mondaca-Vega confirms that
its reference to the deportee’s need to present “substantial
credible evidence” does not define the underlying standard
of proof that the district court, as the trier of fact, would
apply to the citizenship question at a bench trial under
§ 242(b)(5)(B) of the INA. Mondaca-Vega drew that phrase
from the earlier decisions in Ayala-Villanueva, 572 F.3d at
737 n.3, and Chau v. INS, 247 F.3d 1026, 1029 n.5 (9th Cir.
2001). See Mondaca-Vega, 808 F.3d at 419. Chau, in turn,
based that phrase on our decision in Murphy v. INS, 54 F.3d
605 (9th Cir. 1995), and Murphy squarely holds that a
deportee whose case has been remanded for a “de novo
district court hearing on citizenship” under the predecessor
statute to § 242(b)(5) “bear[s] the burden of proving
citizenship by a preponderance of the evidence.” Id. at 610
(emphasis added).5 Mondaca-Vega also cited Lee Hon Lung
5 Murphy referred to a hearing under the 1995 version of “8 U.S.C.
§ 1105a(a)(5),” which was the former § 106(a)(5) of the INA. That
statute provided that, whenever a petition for review presented a non-
frivolous claim of citizenship that the court of appeals determined
involved a “genuine issue of material fact,” the court must “transfer the
proceedings to a United States district court for the district where the
petitioner has his residence for hearing de novo of the nationality claim
and determination as if such proceedings were originally initiated in the
district court under the provisions of section 2201 of title 28.” 8 U.S.C.
§ 1105a(a)(5) (1995 ed.). In 1996, Congress repealed § 106 and replaced

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16 GIHA V GARLAND
v. Dulles, 261 F.2d 719 (9th Cir. 1958), on this point, see
808 F.3d at 419, and that decision—which involved a
declaratory relief action brought by a putative citizen—
likewise affirms that the applicable burden of proof in the
district court requires the person “to establish his citizenship
by a fair preponderance of the evidence.” Lee Hon Lung,
261 F.2d at 720. The authority cited by Mondaca-Vega thus
holds that a deportee carries his burden to present substantial
credible evidence of citizenship by proving to the trier of
fact, by a preponderance of the evidence, that the deportee is
a citizen. Notably, a separate opinion joined by two judges
in Mondaca-Vega—who concurred in the relevant section of
the majority opinion—read the majority opinion in exactly
that way. See 808 F.3d at 442 (Murguia, J., concurring in
part and dissenting in part) (“All agree that the district court
correctly determined that Petitioner carried his initial burden
of proving by a preponderance of evidence that he is an
American citizen by the name of Reynaldo Mondaca-
Carlon.” (emphasis added)).
Two additional points further confirm the correctness of
this reading of the caselaw. First, § 242(b)(5) of the INA—
like former § 106(a)(5) of the INA—expressly states that,
when this court transfers a citizenship claim to the district
court, the latter court shall proceed to adjudicate “that claim
as if an action had been brought in the district court under
section 2201 of title 28,” viz., the declaratory relief statute.
See 8 U.S.C. § 1252(b)(5)(B); 8 U.S.C. § 1105a(a)(5) (1995
ed.) (similar). As we explained in Lee Hon Lung, which was
a declaratory relief action brought by an alleged citizen, the
plaintiff in such an action must bear “the ordinary burden of
proof resting on plaintiffs in civil actions” and is therefore
it with § 242. See Pub. L. No. 104-208, div. C, § 306, 110 Stat. 3009,
3009-607–3009-612 (1996).

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GIHA V GARLAND 17
“required to establish his citizenship by a fair preponderance
of the evidence.” 261 F.2d at 720; see also Berenyi v.
District Director, INS, 385 U.S. 630, 636–37 (1967) (stating
that, when a presumptive alien “seeks to obtain the privileges
and benefits of citizenship,” the “burden is on the alien
applicant to show his eligibility for citizenship in every
respect”). Because the statute squarely states that the district
court must proceed to decide the claim as if it had been
brought as a declaratory relief action, it necessarily follows
that the same standards set forth in Lee Hon Lung apply to
citizenship claims resolved in proceedings under
§ 242(b)(5). See Mondaca-Vega, 808 F.3d at 419 (citing Lee
Hon Lung).
That conclusion also makes perfect sense. A
presumptive alien who succeeds in asserting a claim of U.S.
citizenship during transferred removal proceedings under
§ 242(b)(5)(B) will not merely defeat his or her removal.
Rather, by obtaining a declaratory judgment establishing
U.S. citizenship during such proceedings, that person will
both defeat removal and be entitled thereafter to all the
benefits of U.S. citizenship. There is no reason in law or
logic why a presumptive alien who has landed in removal
proceedings should, solely by virtue of that fact, be granted
a more lenient burden of proof in establishing a claim to U.S.
citizenship than if that person had instead filed an
affirmative action for declaratory relief. The statute sensibly
recognizes that the two situations must be treated the same
on this point, and that confirms that the relevant burden of
proof is a preponderance of the evidence.
Second, the weakness of Giha’s argument is apparent
when one confronts, as we do in this case, a question of
summary judgment. Under Giha’s view, had his citizenship
claim proceeded to a bench trial, his burden at that trial

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18 GIHA V GARLAND
would merely have been to present sufficient evidence from
which one could reasonably conclude that he was a citizen.
Thus, in his view, the district court at the trial would be
required to hold that he had met his burden of proof at step
two if any reasonable trier of fact could conclude that he was
a citizen, even if the district court—who is the trier of fact—
did not itself believe that he was a citizen. And in deciding
whether summary judgment could be granted to the
Government at step two, the district court would presumably
be required to decide recursively whether any reasonable
trier of fact could conclude that a reasonable trier of fact
could conclude that Giha was a citizen. Cf. Anderson,
477 U.S. at 254–55 (in addressing a summary judgment
motion, district court must ask whether a reasonable trier of
fact could find that the burden of proof that would apply at
trial was met). None of this makes any sense.
Accordingly, the district court correctly held that Giha’s
burden of proof at step two of the three-step Mondaca-Vega
test is to prove his claim of U.S. citizenship by a
preponderance of the evidence.6 Therefore, in resolving the
6 In his appellate brief, Giha relies on a cherry-picked selection of
unpublished decisions that he claims support his position, while
overlooking other unpublished decisions that squarely reject his view
and instead apply the preponderance standard. See, e.g., Gastelum
Chavez v. Barr, 773 F. App’x 427, 427 (9th Cir. 2019) (“The district
court did not clearly err in finding that . . . Gastelum had ‘shown
“substantial credible evidence” of his citizenship claim by the
preponderance of the evidence.’”); Valadez Aguilar v. Lynch,
633 F. App’x 384, 385 (9th Cir. 2016) (if Government satisfies its
burden to prove foreign birth, the burden shifts to the presumptive alien
“to establish derivative United States citizenship by a preponderance of
the evidence”); see also Tiznado-Reyna v. Barr, 753 F. App’x 431, 432
(9th Cir. 2019) (expressly rejecting the view that Mondaca-Vega’s
reference to “substantial credible evidence” requires application of a
summary-judgment-type standard at the actual trial of the citizenship

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GIHA V GARLAND 19
Government’s summary judgment motion, the question
before the district court was whether, crediting Giha’s
evidence and drawing all reasonable inferences in his favor,
a reasonable trier of fact could find that he had established
the elements of his citizenship claim by a preponderance of
the evidence. As we explain in the next section, the district
court correctly concluded that Giha failed to meet that
burden, although our reasoning differs somewhat from that
of the district court.
III
A
The elements of Giha’s claim to U.S. citizenship turn on
the statute that was in effect “at the time the critical events
giving rise to eligibility occurred.” Minasyan v. Gonzales,
401 F.3d 1069, 1075 (9th Cir. 2005). Here, the critical event
on which Giha relied is his father’s naturalization in 1999,
and the relevant naturalization statute at the time was former
§ 321(a) of the INA. That statute, which was repealed in
2000, provided in relevant part as follows:
A child born outside of the United States
of alien parents . . . becomes a citizen of the
United States upon fulfillment of the
following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving
parent if one of the parents is deceased; or
claim). In any event, all of these unpublished decisions, including those
cited by Giha, are nonprecedential. See N INTH C IR . R. 36-3(a).

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20 GIHA V GARLAND
(3) The naturalization of the parent
having legal custody of the child when there
has been a legal separation of the parents or
the naturalization of the mother if the child
was born out of wedlock and the paternity of
the child has not been established by
legitimation; and if
(4) Such naturalization takes place while
such child is unmarried and under the age of
eighteen years; and
(5) Such child is residing in the United
States pursuant to a lawful admission for
permanent residence at the time of the
naturalization of the parent last naturalized
under clause (1) of this subsection, or the
parent naturalized under clause (2) or (3) of
this subsection, or thereafter begins to reside
permanently in the United States while under
the age of eighteen years.
8 U.S.C. § 1432(a) (1999 ed.), repealed by Pub. L. No. 106-
395, § 103(a), 114 Stat. 1631, 1632 (2000). Because the first
three clauses are linked by the word “or,” the alleged citizen
only needs to meet one of the three alternative conditions in
clauses (1)–(3). Barthelemy v. Ashcroft, 329 F.3d 1062,
1064–65 (9th Cir. 2003), overruled on other grounds as
recognized in United States v. Mayea-Pulido, 946 F.3d 1055,
1062 (9th Cir. 2020). However, because the last two clauses
are preceded by “and,” the putative citizen must in all cases
satisfy both of those conditions. Barthelemy, 329 F.3d at
1064–65. In the proceedings below, Giha relied only on the
theory that he satisfied clause (3), and that is the only theory

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GIHA V GARLAND 21
he presses on appeal.7 To prove his citizenship, Giha
therefore had to show that clauses (3), (4), and (5) were met.
The undisputed evidence establishes that clauses (4) and
(5) are satisfied here because, at the time of his father’s
naturalization, Giha was 17 years old and unmarried, and he
was residing in the United States as a lawful permanent
resident. See Cheneau v. Garland, 997 F.3d 916, 920 (9th
Cir. 2021) (en banc) (“residing in the United States pursuant
to a lawful admission for permanent residence” in former
§ 321(a)(5) refers to “‘the status of having been lawfully
accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration
laws, such status not having changed’” (quoting 8 U.S.C.
§ 1101(a)(20) (1999 ed.)). As to clause (3), Giha did not rely
on the second portion of that clause (concerning a person
“born out of wedlock”), so the only question is whether he
established that “there has been a legal separation of [his]
parents” and that his father had “legal custody” of him. The
Government does not dispute that Giha’s father had the
requisite sole “legal custody” of him. Mayea-Pulido,
946 F.3d at 1065 (holding that § 321(a)(3) requires a
showing of “sole” legal custody after the separation).
Consequently, Giha’s claim to U.S. citizenship turns
dispositively on a single issue—namely, whether he proved
that there was a “legal separation of [his] parents” at the time
of his father’s naturalization in 1999.
7 Accordingly, we do not address whether Giha presented sufficient
evidence to show that his mother was deceased at the time of his father’s
naturalization. See 8 U.S.C. § 1432(a)(2) (1999 ed.). Any such claim
has been forfeited. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018).

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22 GIHA V GARLAND
B
We held in Barthelemy that parents cannot be said to
have “legally separate[d]” within the meaning of § 321(a)(3)
unless they had a validly recognized “‘marital relationship’”
in the first place. 329 F.3d at 1065 (citation omitted); see
also Johnson v. Whitehead, 647 F.3d 120, 125–26 (4th Cir.
2011). Thus, while the second portion of § 321(a)(3) covers
children born out of wedlock, the first portion “presupposes
a valid marriage” or other comparable relationship under the
relevant law, followed by a “legal separation.” Barthelemy,
329 F.3d at 1065 & n.2. We have further held that, in
determining whether the requisite marital relationship and
legal separation existed, the relevant law would be supplied
by the “state or foreign law” under which that underlying
“legal relationship” was created or separated. Minasyan,
401 F.3d at 1076; see also Wedderburn v. INS, 215 F.3d 795,
799 (7th Cir. 2000). Here, any claimed relationship or
separation between Giha’s parents occurred in Peru, and so
Peruvian law governs both (1) whether Giha’s parents had
the requisite marital relationship and (2) whether there was
a legal separation that severed that relationship.
The Government contends that Giha failed to show either
element. According to the Government, although Peruvian
law recognizes “de facto unions” (roughly comparable to the
concept of common law marriage), Giha’s parents could
have had no such union under Peruvian law because there is
no evidence that his mother (Hernandez) ever divorced her
prior husband (Mestre). Alternatively, the Government
argues that there was no legal separation of Giha’s parents’
alleged de facto union because there was no formal act under
Peruvian law that legally terminated their relationship. We
find it unnecessary to address the Government’s first
argument and to decide whether Giha adequately showed

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GIHA V GARLAND 23
that Hernandez and Mestre were divorced. We agree that,
even assuming arguendo that they did divorce and that
Giha’s parents (Hernandez and Walter) thereafter had a
legitimate de facto union that would be recognized under
Peruvian law, Giha nonetheless failed to present sufficient
evidence to establish that his parents were legally separated
under Peruvian law.
As we explained in Minasyan, a “legal separation”
within the meaning of § 321(a)(3) is not limited “to orders
expressly so titled,” but “encompasses other forms of court-
ordered recognition of the final break up of a marriage.”
401 F.3d at 1078. We reserved, however, the question of
whether the term could also include a termination of the
marital relationship by operation of law “in the absence of a
judicial order.” Id. at 1079 n.19. Compare Nehme v. INS,
252 F.3d 415, 425–26 (5th Cir. 2001) (holding that
§ 321(a)(3) requires “a formal, judicial alteration of the
marital relationship”), with Brissett v. Ashcroft, 363 F.3d
130, 134 & n.3 (2d Cir. 2004) (expressly rejecting Nehme
and holding that § 321(a)(3) requires only a “formal act
which, under the laws of the state or nation having
jurisdiction of the marriage, alters the marital relationship
either by terminating the marriage (as by divorce), or by
mandating or recognizing the separate existence of the
marital parties”). We need not resolve that question here
because Giha’s claim of citizenship rests entirely on
Peruvian judicial proceedings in which his father sought
permission to bring Giha to the United States.
Specifically, Giha alleges that his parents’ legal
separation occurred as a result of orders issued by the Fourth
Court of Minors of Lima, Superior Court of Justice. The
only evidence in the record concerning those proceedings
consists of (1) the two orders issued by that court and

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24 GIHA V GARLAND
(2) Walter’s declarations and deposition testimony
concerning what transpired in those proceedings. Neither is
sufficient to permit a reasonable trier of fact to conclude that
there was a “court-ordered recognition of the final break up”
of a putative de facto union between Hernandez and Walter.
Minasyan, 401 F.3d at 1078.8
The two orders consist of travel authorizations issued by
the Peruvian court, one for Giha and one for his sister. The
orders are on fill-in-the-blank pre-printed forms, and they
are therefore identically worded, except for the differing
names and ages of the two children. The order authorizing
Giha’s travel to the United States, translated into English,9
reads as follows:
8 Neither Giha nor the Government has contended that, by granting
summary judgment, the district court acted inconsistently with our prior
determination that, on the record then before us, there was a “genuine
issue of material fact about the petitioner’s nationality” that warranted a
transfer under § 242(b)(5)(B). See 8 U.S.C. § 1252(b)(5)(B). We
likewise perceive no inconsistency, especially when, as here, the parties
conducted additional discovery and clarified the issues in dispute after
the proceedings were transferred to the district court.
9 Although the two authorizations have identical Spanish texts, the
translations into English in the record are inexplicably worded very
differently, although the ultimate import is the same. In rendering the
pre-printed language that is common to both orders, we have generally
used the translation provided for the sister’s order, which is more
intelligibly worded. We also note that both translations render the
Spanish phrase <el artículo 66 inciso “D”> as simply “Article D.” The
phrase actually refers to “article 66, subsection D.” See Inciso, COLLINS
S PANISH D ICTIONARY 542 (8th ed. 2005) (translating this word, in legal
usage, as “subsection”).

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GIHA V GARLAND 25
TRAVEL AUTHORIZATION
Madam Judge of the 4th Court of Minors of
Lima, the undersigned, grants the travel
authorization so that the 7-year-old minor:
CALEB FARES GIHA HERNANDEZ can
travel to the United States of America under
the responsibility of his father Mr. Victor
Walter Giha Huarote. Authorization is
granted according to Article 66 subsection D
of the Code of Minors.
Nothing in the text of this order says anything at all about
Walter’s relationship with Hernandez, much less a legal
separation of the two; indeed, Hernandez is never even
mentioned in the order. Absent some additional evidence
about the meaning of the court’s order, the proceedings that
led up to it, or the framework of Peruvian law under which
it was entered, no reasonable trier of fact could conclude that
this mere authorization to bring Giha to the United States
constituted a “court-ordered recognition of the final break up
of a marriage.” Minasyan, 401 F.3d at 1078. Giha contends,
however, that the declarations and testimony of Walter are
sufficient to establish that the travel authorization
proceedings entailed a formal termination of the asserted de
facto union between Walter and Hernandez. We reject this
argument.
In his deposition, Walter asserted that the travel
authorization amounted to a finding that Hernandez had
“abandoned the home” because he claimed that that was the
predicate for granting him permission to bring the children
to the United States. Walter stated that he was told both by
the police and by the Court of Minors judge that he had to
publicize his claim of Hernandez’s abandonment of the

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26 GIHA V GARLAND
home in the newspaper El Peruano for three days and that,
if no one came forward, then the finding of abandonment
would be made and he would be allowed to take the children
to the U.S. In one of his declarations, Walter further claimed
that the judge had orally stated at a hearing that, if no one
appeared in response to the newspaper notice, then “he
would annul the relationship between me and the children
and [Hernandez].” In that same declaration, Walter also
asserted that, after no one responded to the notice, “[t]he
judge declared the end of any relationship between me and
the children and [Hernandez] and issued the authorization
for us to travel.” According to Walter, the judge thereby
“recognized that [Hernandez] had separated herself from us
and that she had no parental rights over the children,” and
the judge “officially ended the pretense that [Hernandez]
would return to co-parent with me and that she would be my
life partner.” In another declaration, Walter stated that he
thereby “obtain[ed] full legally [sic] custody” of the children
and had it “recorded that [Hernandez] abandoned our
marriage, our two beautiful children and our home.”
We agree that Walter’s statements, together with the
orders, support a reasonable inference that the Peruvian
court found that Hernandez had abandoned the home, that
she thereby lost her parental rights (at least insofar as she
would have had a right to object to the children’s
emigration), and that Walter thereby obtained effective
custody of the children. On its face, however, the statute
requires more than a showing that Walter obtained “legal
custody” of Giha; it also requires Giha to show that there
was a “legal separation” of his parents. 8 U.S.C.
§ 1432(a)(3) (1999 ed.). Although Walter opined in
conclusory terms that the Peruvian court’s actions amounted
to a “record[ing] that [Hernandez] abandoned [the]
marriage,” Walter is not qualified to render an opinion

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GIHA V GARLAND 27
concerning the import of the court’s travel authorization
under Peruvian law, and he cites no underlying Peruvian law
to support that opinion. Although opinion testimony
concerning foreign law “may” be considered by the court
even if it is not “admissible under the Federal Rules of
Evidence,” FED. R. CIV. P. 44.1, Walter’s personal legal
conclusions about the significance of the travel-
authorization proceedings under Peruvian law are of no
material value. See id. (noting that any issue of the
substantive content of foreign law involves a “question of
law” for the court).
There are portions of Walter’s statements that could be
generously construed as testifying to the content of court
orders that were orally rendered in Peru (as opposed to
merely Walter’s legal understanding of any such order).
Even assuming that Walter’s statements on this score were
admissible to establish the content of an oral court order,
those statements do not provide any basis for concluding that
the Peruvian court actually issued an order that would
amount to anything comparable to a “court-ordered
recognition of the final break up of a marriage.” Minasyan,
401 F.3d at 1078. Although Walter stated that he was told
at a hearing that the judge would “annul the relationship
between me and the children and [Hernandez],” and that,
when he “returned to the court,” the “judge declared the end
of any relationship between me and the children and
[Hernandez]” (emphasis added), these statements
conspicuously refer—as any custody determination
necessarily would—to the relationship between the children
and the two parents. As such, Walter’s statements do not
provide any reasonable, non-speculative basis for inferring
that the Peruvian court went beyond a custody determination
and also made a determination about an alleged underlying
marital relationship between Walter and Hernandez. Nor did

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28 GIHA V GARLAND
Giha attempt to show that, under the relevant provisions of
Peruvian law that underlay the travel-authorization order, the
Peruvian court necessarily would have made a determination
concerning a purported marital relationship between Walter
and Hernandez in the course of issuing the travel
authorization. Cf. G & G Prods. LLC v. Rusic, 902 F.3d 940,
949 (9th Cir. 2018) (“[A] party relying on foreign law has an
obligation to raise the specific legal issues and to provide the
district court with the information needed to determine the
meaning of the foreign law.”).10
Accordingly, nothing in Walter’s statements
competently supports the conclusion that the Peruvian court,
in authorizing Giha’s travel to the United States, took any
action with respect to any alleged de facto union or marital
relationship between Walter and Hernandez, much less that
the court recognized a formal termination of any such
10 Although we are thus not obligated to undertake any research of
our own concerning the relevant provisions of Peruvian law on which
the travel-authorization was based, we note that the statute cited in the
travel-authorization order appears to confirm that the court’s grant of a
travel authorization does not entail deciding matters of divorce,
annulment, or termination of marital relationships. Article 66 of the
Code of Minors in force in 1990 set forth certain actions that could fall
within the jurisdiction of a judge of the Court of Minors, and subsection
(d) does in fact allow such judges to issue “[a]uthorizations for the
marriage, work, custody, and travel of minors inside and outside the
national territory.” C ÓDIGO DE M ENORES, art. 66(d) (1962) (“Las
autorizaciones para el matrimonio, trabajo, guarda y viaje de menores
dentro y fuera del territorio nacional”), reprinted in CÓDIGO DE
M ENORES , LEY 13968 (May 2, 1962), at 48 (F. Bonilla ed., 6th ed. 1975).
Notably, subsection (b) also confers jurisdiction over “[d]isputes over
parental rights or custody of minors, except in judgments of divorce,
physical separation, or annulment of the marriage.” Id., art. 66(b)
(emphasis added) (“Las contiendas sobre patria potestad o guarda de
menores, excepto en juicio de divorcio, separación de cuerpos o nulidad
de matrimonio.”).

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GIHA V GARLAND 29
relationship. For all that Giha has shown, the Peruvian
court’s travel authorization could have been entered in just
the same way even if Giha had been the offspring of an out-
of-wedlock birth to two parents whose relationship fell short
of a de facto union. But as we have explained, the second
phrase in § 321(a)(3) covers out-of-wedlock births, and the
first phrase—the one on which Giha relies—requires a
showing that there was a formal termination of a legally
valid marital relationship. See supra at 22. Nothing about
the Peruvian court’s determination that Hernandez had
abandoned the family and lost her parental rights says
anything about the type of relationship that existed between
her and Walter, much less that it had been formally
terminated.
Giha thus failed to present sufficient evidence to permit
a rational trier of fact to find, by a preponderance of the
evidence, that his parents obtained a “legal separation” as
defined by INA § 321(a)(3). We thus affirm the district
court’s grant of summary judgment. And because Giha’s
petition for review presents no other grounds for avoiding
his removal to Peru, we therefore deny the petition.
Petition for review DENIED.

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