Maria Cristina Lopez, Guadalupe Rosario Lopez, Jose Maurilio Lopez, and Juan Luis Lopez v. Eric H. Holder, Jr., U.s. Attorney General

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60797
MARIA CRISTINA LOPEZ, GUADALUPE ROSARIO LOPEZ, JOSE
MAURILIO LOPEZ, AND JUAN LUIS LOPEZ
Petitioners
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL
Respondent
_____________
No. 06-41768
_____________
MARIA CRISTINA LOPEZ, GUADALUPE ROSARIO LOPEZ, JOSE
MAURILLO LOPEZ, AND JUAN LUIS LOPEZ
Petitioners-Appellants
v.
A.G. WINFREY, INTERIM FIELD OFFICE DIRECTOR DHS HLG/DO, and
UNITED STATES OF AMERICA
Respondents-Appellees
Appeals from the United States District Court
for the Southern District of Texas, McAllen Division
Before JOLLY, DAVIS and DEMOSS, Circuit Judges.
United States Court of Appeals
Fifth Circuit
F I L E D
March 17, 2009
Charles R. Fulbruge III
Clerk

-- 1 of 8 --

No. 05-60797 consolidated with 06-41768
2
W. EUGENE DAVIS, Circuit Judge:
Petitioners Maria Cristina Lopez, Guadalupe Del Rosario Lopez, Jose
Maurilio Lopez, and Juan Luis Lopez (petitioners) appeal the denial of their
claims of citizenship by the district court. Based on our conclusion that the
magistrate judge did not have jurisdiction to try this case after remand without
the consent of the petitioners, we vacate and remand.
I.
The former Immigration and Naturalization Service (INS) placed
petitioners in removal proceedings. In defense, the petitioners claimed that they
were United States citizens by virtue of having been born in this country. A
hearing was held and the parties presented conflicting evidence regarding
whether the children were born in the United States. The petitioners’ mother,
Evangelina Perez de Lopez (Perez), testified that she had six children, four of
whom were the petitioners, and that she registered their births in Mexico.
However, she testified that none of her children was born in Mexico; rather, they
were all born in Donna, Texas, at the home of Andrea Jackson. She said that
she came to the United States to give birth each time, and subsequently obtained
birth certificates for her children in the United States. She also admitted that
she pleaded guilty to improperly obtaining food stamps for her children, because
they were registered as born in Mexico.
Yolanda Jackson Hernandez testified that she was the daughter of Andrea
Jackson, and that Perez came to her mother’s house in Donna to have her
children. She identified the four petitioners as being born at her mother’s house.
However, she admitted that she was not always present at the times of the
births. The parties introduced birth certificates for the petitioners from Mexico
as well as delayed Texas birth certificates.
The immigration judge (IJ) concluded that the petitioners had
demonstrated citizenship, finding the testimony of both Hernandez and Perez

-- 2 of 8 --

No. 05-60797 consolidated with 06-41768
3
credible and giving more weight to the Texas birth certificates than to the
Mexican ones. However, the Board of Immigration Appeals (BIA) disagreed with
the IJ’s assessment of the facts and credibility, concluded that the petitioners
were not born in the United States, and ordered that the petitioners be deported.
The BIA later denied reconsideration but remanded to allow the petitioners to
seek relief from deportation. The IJ denied their request for relief from
deportation and again ordered the petitioners to be deported.
The petitioners then filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 in the district court in 2003. In addition to habeas relief, the
petitioners sought a declaratory judgment pursuant to 28 U.S.C. § 2201. They
specifically requested a de novo hearing to prove their claim of United States
citizenship. Subsequently, the parties consented to proceed before a magistrate
judge, and the district court entered an order transferring the matter to a
magistrate judge.
A magistrate judge concluded that the district court lacked jurisdiction
over claims of citizenship, which are required to be made in the court of appeals.
The petitioners appealed. While the appeal was pending, Congress enacted the
REAL ID Act, which eliminated federal habeas jurisdiction over removal
proceedings, providing that a petition for review filed in a court of appeals is the
sole means for judicial review of removal orders. Hernandez-Castillo v. Moore,
436 F.3d 516, 518 (5th Cir. 2006). The parties then filed a joint motion to
convert the pending appeal to a petition for review. In addition, the parties
asserted that genuine issues of material fact were present regarding the
petitioners’ claims of citizenship and requested that the converted petition for
review be transferred to the district court for a new hearing on the claim of
nationality pursuant to 8 U.S.C. § 1252(b)(5)(B). This court granted the motion,
transferring the matter to the same district court for a de novo hearing on the
petitioners’ citizenship and nationality claims.

-- 3 of 8 --

No. 05-60797 consolidated with 06-41768
The original appeal from the habeas case was docketed in this court under Case No.1
05-40557. When the case was converted to a petition for review under the REAL ID Act, it was
assigned Case No. 05-60797 and Case No. 05-40557 was dismissed. After the case was
transferred to the district court for review of petitioners’ claims of citizenship, the appeal from
the magistrate judge’s decision was docketed under Case No. 06-41768. Case Nos. 05-60797
and 06-41768 are consolidated in this appeal.
4
Back in the district court, the petitioners moved to withdraw their consent
to proceed before the magistrate judge. Although the Government did not
oppose the motion, the magistrate judge denied the motion to withdraw consent.
The magistrate judge held an evidentiary hearing on petitioners’
citizenship and the evidence was similar to that presented to the IJ. The
magistrate judge concluded that the petitioners had not carried their burden of
demonstrating citizenship by a preponderance of the evidence. The magistrate
judge noted various problems with credibility of both Hernandez and Perez and
gave little weight to the Texas birth certificates, given the circumstances
surrounding them. She gave more weight to the Mexican certificates as they
were obtained much closer to the time that the petitioners were born.
The respondents timely appealed. The appeal was consolidated with the
earlier petition for review.1
II.
The first issue we must address is whether this court’s review is of the
magistrate judge’s decision, the BIA’s decision, or both. Petitioners argue that
there are now two rulings for review; the BIA’s decision, under the original
petition for review, and the magistrate judge’s ruling, pursuant to the “new”
proceeding. Similarly, the Government addresses both the BIA’s decision and
the magistrate judge’s decision.
“A person generally may pursue a citizenship claim in two ways.” Rios-
Valenzuela v. DHS, 506 F.3d 393, 396 (5th Cir. 2007). First, he may assert
citizenship as a defense to a removal proceeding. Id. If the IJ rejects the

-- 4 of 8 --

No. 05-60797 consolidated with 06-41768
5
defense, the person may petition a court of appeals under § 1252(b) for review.
Id. If the IJ accepts the claim, the removal proceeding is terminated. Id. at 396-
97. Second, the person may seek proof of citizenship by filing an application for
citizenship under 8 U.S.C. § 1452(a). Id. at 397. If unsuccessful, he may file an
administrative appeal and if that is unsuccessful, he may seek a judicial
declaration under 8 U.S.C. § 1503. Id.
Here, the petitioners claimed citizenship as a defense to removal
proceedings and then sought habeas relief, which was converted to a petition for
review under § 1252(b). Although that statute limits federal appellate
jurisdiction to review removal orders, it also provides a specific procedure for
determining questions of nationality. Specifically, § 1252(b)(5) provides that if
the petitioner claims to be a national of the United States and the court of
appeals finds that the pleadings and affidavits present no genuine issue of
material fact regarding nationality, the court of appeals “shall decide the
nationality claim.” 8 U.S.C. § 1252(b)(5)(A). However, if the case presents a
genuine issue of material fact, the court of appeals shall transfer the case to the
district court for the district where the petitioner resides “for a new hearing on
the nationality claim and a decision on that claim as if an action had been
brought in the district court under” 28 U.S.C. § 2201, commonly called the
Declaratory Judgment Act. 8 U.S.C. § 1252(b)(5)(B); see Lawson v. Callahan,
111 F.3d 403, 405 (5th Cir. 1997). A petitioner may have a nationality claim
decided only as provided in § 1252(b). See 8 U.S.C. § 1252(b)(5)(C).
Under the above provisions, this court has held that “[i]n the context of an
order of removal, the INA explicitly places the determination of nationality
claims in the hands of the courts.” Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.
2004). Thus, a court of appeals is directed to conduct a de novo determination,
based on the record, of an alien’s claim of nationality. Marquez-Marquez v.
Gonzales, 455 F.3d 548, 554 (5th Cir. 2006). If the record presents genuine

-- 5 of 8 --

No. 05-60797 consolidated with 06-41768
6
issues of material fact, the court of appeals must transfer the case to a district
court for a de novo hearing, as occurred in this case. 8 U.S.C. § 1252(b)(5)(B).
Given that the question of nationality is vested in the court of appeals and
may be decided solely under the procedure set forth in § 1252(b)(5), and that a
transfer to a district court is required if the record presents genuine issues of
material fact, the BIA’s decision is no longer relevant. Rather, a plain reading
of the statute reveals that our only review in this case is of the ruling of the
district court. See, e.g., Leal Santos v. Mukasey, 516 F.3d 1, 3 (1st Cir. 2008)
(reviewing district court’s decision regarding derivative citizenship following §
1252(b)(5) transfer); Joseph v. Att’y Gen. of the United States, 421 F.3d 224, 233
nn.16 & 18 (3d Cir. 2005) (noting that in light of conflicting testimony before the
IJ, a de novo determination was required; that the district court could reject the
testimony of the petitioner and his witnesses; and that any claim that the
admission of certain documents in the administrative proceeding violated due
process did not need to be decided given the de novo review).
III.
We must also address the petitioners’ contention that the magistrate judge
lacked jurisdiction over the case once it was transferred from this court to the
district court for a new hearing. Petitioners’ argument is that the consent form
they executed for the habeas case did not constitute consent for the transferred
case. Further, they state that they did not expressly or implicitly consent to the
magistrate judge’s jurisdiction in the transferred case but rather sought to
“remove the case from her Court.” They also argue that the “habeas nature of
the appeal was lost with the REAL ID Act, when it was converted to a petition
for review and assigned a new number by this court.” They also point out that
if they “had moved in the interim,” the case would have been transferred to a
different court, as the statute requires transfer to a district in which the
petitioner resides. It was only coincidence that the district court where they

-- 6 of 8 --

No. 05-60797 consolidated with 06-41768
7
filed their habeas action was the same district in which they resided for purposes
of the transferred case. However, they argue, that coincidence did not make the
transferred proceeding a continuation of the habeas proceeding.
Pursuant to 28 U.S.C. § 636(c), a magistrate judge may, with consent,
preside over civil matters without violating Article III of the Constitution.
United States v. Muhammed, 165 F.3d 327, 333 (5th Cir. 1999). Removal
proceedings generally are considered civil in nature, they are conducted
administratively, and they do not come with the procedural and Constitutional
protections afforded criminal defendants. United States v. Lopez-Ortiz, 313 F.3d
225, 230 (5th Cir. 2002). Thus, there is no statutory or Constitutional
impediment to the exercise of jurisdiction by a magistrate judge to determine
nationality in a judicial proceeding under § 1252(b)(5).
However, in order for a magistrate judge to exercise jurisdiction under
§636, there must be both consent and a referral order from the district judge.
Muhammed, 165 F.3d at 333. The crux of the petitioners’ argument is that the
transferred proceeding was new and distinct from the original habeas
proceeding; thus, a new consent and referral order were required. We agree.
The transferred proceeding was not a continuation of the habeas proceeding but
was a new proceeding given that it flowed from a petition for review, mandated
by the REAL ID Act, and a § 1252(b)(5) transfer. As the petitioners point out,
the transfer under § 1252(b)(5) could have been to a district court different from
the one that heard their habeas case, as § 1252(b)(5)(B) mandates that the de
novo hearing be conducted by a court for the district where the petitioners
reside. Under 28 U.S.C. § 636, the authority of a magistrate judge extends to
“the district court or courts he serves.” Accordingly, consent to proceed before
a magistrate judge in one district would not necessarily be valid in another
district. On remand, the petitioners should have been given a renewed option

-- 7 of 8 --

No. 05-60797 consolidated with 06-41768
8
to consent to trial before the magistrate judge or have their case heard by the
district court.
IV.
For the foregoing reasons, we vacate the judgment of the district court and
remand this case for further proceedings consistent with this opinion.
VACATED. REMANDED.

-- 8 of 8 --