United States v. 2020-09-02 | 09-73088 | CLARENCE HERNANDEZ V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLARENCE AGCAOILI HERNANDEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 09-73088
Agency No. A038-108-925
MEMORANDUM
*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 18, 2012
Submission Vacated November 2, 2012
Resubmitted August 31, 2020
**

Honolulu, Hawaii
Before: THOMAS, Chief Judge, and PAEZ, Circuit Judge
***
FILED
SEP 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this resubmitted case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
* * *
This case is decided by quorum of the panel. See 28 U.S.C. § 46(d);
Ninth Circuit General Order 3.2(h)

Clarence Hernandez petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) dismissing his appeal of a decision by an
immigration judge (“IJ”) determining that he had not acquired derivative
citizenship and was removable as charged. We have jurisdiction under 8 U.S.C.
§ 1252 and we deny the petition. Because the parties are familiar with the history
of the case, we need not recount it here.
Hernandez argued in his original petition for review that the BIA improperly
held that the IJ was justified in denying his fifth request for a continuance.
Because we determined there were genuine factual disputes regarding the marital
status of Hernandez’s parents at the time of his birth that were relevant to the
determination of whether he was entitled to derivative citizenship, we transferred
the petition to the District of Hawaii, pursuant to 8 U.S.C. § 1252(b)(5)(B) for the
limited purpose of making a determination of his citizenship claim. The district
court permitted lengthy discovery, conducted a bench trial, and issued extensive
findings of fact and conclusions of law. The district court concluded that
Hernandez had failed to meet his burden of proof as to his claim of derivative
citizenship.
Hernandez now contests the district court’s conclusion. However, on careful
review, we find no clear error in the district court’s conclusions. See United States
2

v. Mercado-Moreno, 869 F.3d 942, 953 (9th Cir. 2017) (“We review factual
findings . . . for clear error.” (citations and quotations omitted)). Hernandez also
claims that the district court abused its discretion in excluding a purported
marriage contract. However, the record discloses that the district court did, in fact,
admit the contract into evidence pursuant to Vatyan v. Mukasey, 508 F.3d 1179,
1183, 1185 (9th Cir. 2007).
Hernandez also argues that the district court abused its discretion in
excluding three other pieces of evidence, but we agree with the district court that
this evidence was properly excluded. Deposition testimony was properly excluded
as hearsay testimony because the deponent was available and testified. See Fed. R.
Evid. 804(b)(1). A tendered affidavit was also properly excluded as improper
hearsay testimony. See Fed. R. Evid 801(c). The district court did not abuse its
discretion in excluding a photograph that was not produced in discovery.
Moreover, none of the excluded evidence was relevant to the court’s conclusion.
Given the district court’s de novo determination that Hernandez did not
sustain his burden of proof to establish derivative citizenship, the BIA did not err
in reaching the same conclusion, nor did the IJ abuse its discretion in denying
Hernandez’s fifth request for a continuance. See An Na Peng v. Holder, 673 F.3d
3

1248, 1253 (9th Cir. 2012) (reviewing the denial of a continuance for abuse of
discretion).
Therefore, we deny the petition for review.
1
PETITION DENIED.
1
Given our determination, we vacate our prior order dated October 14, 2016
directing supplemental briefing.
4