The fate of an 83-year-old man who may have been born in Mexico or maybe Imperial, California in 1931, prompted one of 11 judges to ask why the government was trying to deport this man and not going after unscrupulous immigration lawyers.
In a long and sometimes contentious argument before an 11-judge panel of the 9th U.S. Circuit Court of Appeals Monday, the judges grappled with how high a hurdle the government must jump in order to take away 40 years of presumptive citizenship from a man who continues to insist he was born in the U.S.
Salvador Mondaca-Vega, grew up in Mexico, but came to live in the U.S. in the 1950s and has a birth certificate as Reynaldo Mondaca, that the government concedes is legitimate, but argues is not his.
His lawyer admitted Mondaca used many aliases and has been deported several times between the 1950s and 1970s but also has lived in the U.S. for at least the last 40 years and has been repeatedly found by the U.S. to be a citizen.
The government began going after Mondaca in the 1990s after he was convicted of a second degree assault.
Despite his past record, if he is a citizen, the government cannot take it away and deport him without a standard that may be even higher than beyond a reasonable doubt used in criminal cases, his lawyer maintained.
His lawyer argued the government must show by “clear, unequivocal and convincing” evidence that Mondaca is not a U.S. citizen.
When the government lawyer attempted to argue that the U.S. Supreme Court has been moving in the direction of a slightly lower standard, the 91-year-old Judge Harry Pregerson reacted.
“You’re just speculating on what the court is doing. You’re weaving all these stories together,” Pregerson said waiving his arms in the air.
“The fact is, this person has plenty of evidence in the record that he was born here. He’s got a passport. He’s got a social security number. His children were naturalized. What the hell else do you want? I don’t understand it.”
When the government lawyer responded that Pregerson made a “fair point” but the government cares about identity theft and tried to suggest Mondaca was just such a case, he was hit again by Pregerson’s anger.
“Then you should go after all these notorios and disbarred lawyers, on every corner, if you care about the immigration system. The government knows about this kind of fraud. But the government takes the position that a disbarred lawyer is better than no lawyer. There is cruelty going on every day. I grew up with them and I understand them,” Pregerson said, making it clear the government doesn’t have his vote in this case.
Judge Mary Murguia asked if the government removed his citizenship, what would happen to Mondaca’s children who gained citizenship through their father’s naturalization.
Mondaca has nine children including four school teachers, a government worker, a courthouse worker and one employed at the Hanford nuclear plant in Washington, according to his lawyer.
The government attorney indicated there is no interest in going after his children’s citizenship.
Judge Sidney Thomas said, but the government is exercising its discretion not to remove his children. “You could have a change of heart. Or another administration could change that decision,” he said.
Judge William Fletcher added, “If you look at this case it is inescapable, if this man is not a citizen then several of his children are not citizens.”
The original three-judge panel in April, 2013, split 2-1 to uphold a lower court decision that Mondaca was deportable as a non-citizen. Pregerson dissented.
The full court voted to reconsider the case before an 11-judge en banc panel.
Case: Mondaca-Vega v. Holder, No. 03-71369
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