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Sanchez-Sanchez v. United States Immigration and Naturalization Service

filed*fn*: February 24, 1992.

JESUS SANCHEZ-SANCHEZ, PETITIONER,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A24-349-143.

Before: William C. Canby, Jr., William A. Norris and Edward Leavy, Circuit Judges.

Author: Per Curiam

Per Curiam:

Jesus Sanchez-Sanchez petitions for review of a decision of the Board of Immigration Appeals ("BIA") reversing the determination of the immigration Judge ("IJ") and finding Sanchez-Sanchez deportable to Mexico pursuant to 8 U.S.C. §§ 1251(a)(2) & (11) as an alien who entered the United States without inspection and was convicted of possession of a controlled substance. Sanchez-Sanchez also seeks to have his case transferred to the United States district court for de novo determination of his claim to United States nationality pursuant to 8 U.S.C. § 1105a(a)(5)(B). We have jurisdiction to consider Sanchez-Sanchez's claim under 8 U.S.C. § 1105a(a). We transfer these proceedings to the United States district court for a de novo hearing on Sanchez-Sanchez's claim of citizenship.

Section 1105a(a)(5)(B) provides that whenever a petitioner claiming to be a national of the United States makes a nonfrivolous showing of his citizenship, a court reviewing an order of the BIA must transfer the proceedings to a United States district court for a de novo hearing if a genuine issue of material fact as to the petitioner's nationality is presented. 8 U.S.C. § 1105a(a)(5)(B). In determining whether a genuine issue of material fact exists, Fed. R. Civ. P. 56 summary judgment principles are controlling, and thus "a court of appeals cannot refuse to allow a de novo review of a citizenship claim if the evidence presented in support of the claim would be sufficient to entitle a litigant to trial were such evidence presented in opposition to a motion for summary judgment." Agosto v. INS, 436 U.S. 748, 754-56, 56 L. Ed. 2d 677 , 98 S. Ct. 2081 (1978).

Here, our review of the record indicates, and the Immigration and Naturalization Service concedes, that Sanchez-Sanchez's claim is not frivolous, and a genuine issue of material fact as to his nationality is presented by the evidence before the BIA.*fn1 Accordingly, we transfer this proceeding to the district court for the District of Arizona, the district in which Sanchez-Sanchez resides, for a de novo hearing on Sanchez-Sanchez's claim to United States nationality. See 8 U.S.C. § 1105a(a)(5)(B); Agosto, 436 U.S. at 756. We express no view as to Sanchez-Sanchez's nationality claim, and hold this petition for review in abeyance pending judicial determination of this claim.

MATTER TRANSFERRED TO THE DISTRICT ...


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