NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o s : 04-1575, 05-3579, 05-4569

D A V ID JOHNSON,

Petitioner

v. A T T O R N E Y GENERAL OF THE UNITED STATES;

D E P A R T M E N T OF HOMELAND SECURITY

(A g e n c y No. A76 019 731)

05-3579

D A V ID JOHNSON

v. W IL L IA M RILEY, PHILADELPHIA DISTRICT DIRECTOR,

IM M IG R A T IO N AND CUSTOMS ENFORCEMENT; DEPARTMENT

O F HOMELAND SECURITY; ATTORNEY GENERAL OF THE

UNITED STATES

(D .C . No. 04-cv-02523)

D A V ID JOHNSON

v. A T T O R N E Y GENERAL OF THE UNITED STATES

D E P A R T M E N T OF HOMELAND SECURITY

(D .C .N o . 04-cv-04443)

D a v id Johnson,

Appellant

0 5 -4 5 6 9

D A V ID JOHNSON,

Appellant

v. A T T O R N E Y GENERAL OF THE UNITED STATES;

D E P A R T M E N T OF HOMELAND SECURITY

C o n s o lid a te d Appeal from The United States District Court for the Eastern District of Pennsylvania, (D.C. Case Nos. 04-cv-02523, 04-cv-04433 ) D istric t Judge: Legrome D. Davis and T h e Immigration & Naturalization Service (IN S Case No. A-76-019-731) A rg u e d : May 19, 2006 Before: McKEE and STAPLETON, Circuit Judges and McCLURE, District Judge * J o e l M. Sweet O f f ic e of United States Attorney 6 1 5 Chestnut Street Suite 1250 P h ila d e lp h ia , PA 19106 A tto rn e ys for Respondent/Appellee J o s e p h C. Hohenstein (Argued) O rlo w & Orlow 6 2 0 Chestnut Street S u ite 656 P h ila d e lp h ia , PA 19106 A tto rn e y for Petitioner/Appellant O P IN IO N M c K E E , Circuit Judge D a v id Johnson 1 petitions for review of the final order of the Board of Immigration A p p e a ls dismissing his appeal from a decision of an Immigration Judge ordering his re m o v a l (04-1575). That appeal is consolidated with his appeal of a final Order of the U n ite d States District Court for the Eastern District of Pennsylvania entering judgment a g a in s t him in a declaratory action Johnson filed pursuant to 28U.S.C. § 2201 (05-4569) in an attempt to have that court declare that he is a citizen of the United States.2 1 Appellant's identity and parentage are vigorously contested. As we discuss below, A p p ellan t claims he is actually "Troy Jenkins," and that his parentage and citizenship are b o th unknown. The government claims he is "David Johnson," and that he is the J a m aic a n born child of a Jamaican citizen. For the sake of clarity and consistency, we w ill refer to Appellant as "David Johnson" except where the context lends itself to re f e rr in g to him otherwise.

2 Johnson also appealed the denial of his petition for habeas relief (05-3579).

H o w e v e r, his brief does not address that claim. Accordingly, it is waived and need not be F o r the reasons that follow, we will grant the petition for review and remand that m a tte r to the BIA with instructions to vacate the order opening the removal proceedings, a n d reinstating its order affirming the decision of Immigration Judge Van Wyke.

However, we will affirm the order of the District Court entering judgment against J o h n s o n on his declaratory judgment action.3 I. BACKGROUND W e will elaborate upon the details of this dispute when we discuss the findings of th e Immigration Judges. However, some preliminary background, though redundant, is h e lp f u l at the outset.

T h e government claims that Appellant is "David Johnson," that he was born in J a m a ic a in October of 1982, and that since his mother, "Hazel Francis," was Jamaican, he is also a citizen of Jamaica. Johnson claims that his real name is "Troy Jenkins" and that h is citizenship, date of birth, place of birth, and the identity of his mother remain u n k n o w n and unproven.

It all began in Brooklyn when Johnson's brother, "Robert Cross" (a/k/a/ "Lizard"), le f t Johnson in the care of a neighbor, Ethel White in the spring of 1987.4 White knew Jo h n so n as "Troy." That is what Cross called him, and that is how Johnson referred to h im s e lf . Not long after Cross left Johnson with White, she learned that Cross had been m u rd e re d . A month after Cross was killed, police gave White a birth certificate that they f o u n d in the home of Robert Cross during the investigation. The birth certificate was for " D a v id Lloyd Johnson," who was born to Hazel Francis on October 8, 1982 in Kingston, Ja m a ic a .

W h ite made inquiries in an attempt to find someone else to care for Johnson, but h e r efforts were fruitless. Accordingly, Johnson continued to live with White who acted as his guardian as he grew up. Since White had no official records to establish Johnson's a g e or identity, she used the birth certificate police found to enroll him in school. Thus, a ll of his school records bore the name, "David Johnson," and that was how he was k n o w n throughout his years in school.

Although Johnson stayed with White for several years, he was a troubled teen and le f t home when he was about 15. Thereafter, he began having scrapes with the law and w ith juvenile authorities. In 1998, he was charged with selling cocaine, and in 1999, he w a s accused of criminal possession of a weapon. Both offenses were handled through the ju v e n ile and youthful offender systems of New York. His juvenile records listed his date o f birth as October 8, 1983 and listed his name as "David T. Johnson." Johnson's juvenile arrests brought him to the attention of the immigration a u th o rities . In June 1999, while in custody, Johnson was interviewed by Agent Doughty o f the Immigration and Naturalization Service.5 Thereafter, the INS initiated removal p ro c e ed in g s against Johnson, claiming that he was removable as an alien convicted of a c rim e involving moral turpitude. The first immigration hearing followed.

A . THE FIRST REMOVAL HEARING At Johnson's initial hearing, Immigration Judge Van Wyke allowed Ethel White to testify via telephone because poor health made it difficult for her to appear in person.

She testified that she first met Johnson in 1987 and thought he was four years old. She e x p la in e d that he was known in the neighborhood as "Troy." Troy thought that his real n a m e was "David," but he wasn't really sure, and he once told a school psychologist that h is last name was "Jenkins." Johnson had a Jamaican accent when White first met him.

Johnson's brother, whom White knew only as "Lizard," occasionally dropped J o h n s o n off at White's house to play with her grandchildren or to stay for the night. One n ig h t Lizard dropped the boy off and never returned. White later learned that Lizard, w h o se real name was "Robert Cross," had been killed. Even though Johnson told White th a t his mother and sister were both dead, White nonetheless continued to hope someone w o u ld come for Johnson because Cross was married to a woman named "Diane Murphy," an d Cross and Murphy had a child together.

W h e n noone came for Johnson, he continued living with White. After the death of R o b e rt Cross, police gave White a birth certificate they found in Cross's apartment during th e ir investigation. The birth certificate contained the name, "David Lloyd Johnson," and h a d a birth date of "10/08/82." This surprised White because it meant that Johnson was f iv e , a year older than she had always thought. Since that birth certificate was the only o f f ic ia l document she had for Johnson, she used it to enroll him in school. Johnson c o n tin u e d living with White until he was about 15 when he ran away.

A s noted earlier, Johnson came to the attention of immigration authorities in 1998, a f te r being arrested for selling cocaine. Agent Doughty interviewed Johnson following th a t arrest.

Doughty testified and explained that he filled out an I-213 Form for Johnson after s p e a k in g with White and Johnson.6 Doughty completed the I-213 using information o b tain e d from White and Johnson as well as information obtained from the birth c e rtific a te. According to Doughty, Johnson told him that he was born in Jamaica and his b irth d a y was October 9, 1982. However, Doughty's notes also reflected the name "Troy J e n k in s ." Johnson's criminal records contained the name, "David T. Johnson," and listed h is date of birth as October 8, 1983.

Johnson also testified before IJ Van Wyke. He explained that he did not know w h e re he was born, and that he never saw the birth certificate when he was growing up.

According to Johnson, prior to moving in with White, he only knew that his name was " T ro y" He celebrated his birthday on October 8, and believed that he had been born in 1 9 8 3 . Johnson explained that, prior to living with White, he lived with his brother in the a building with several other relatives including four children who were believed to be his c o u s in s . Johnson did not see the cousins very often after the death of his brother because h is brother was shot by an older cousin. Johnson testified that he remembered going to J a m a ic a for his sister's funeral when he was around four.

The INS relied upon Agent Doughty's testimony, the I-213, and the contested birth c e rtif ic a te to argue that it had satisfied its burden of proving alienage and asking for an o rd e r removing Johnson to Jamaica based upon Johnson's criminal conviction.

On March 12, 2001, IJ Van Wyke ruled that the INS had not met its burden of p rov ing that Johnson was an alien by clear and convincing evidence. Accordingly, the IJ h e ld that Johnson was not removable, and he entered an order terminating removal p ro c e ed in g s . The IJ reasoned that there was not "clear and convincing" evidence that the b irth certificate belonged to Johnson. He rejected the purportedly definitive evidence of Jo h n so n 's identity, because it could all be traced back to the birth certificate. The IJ did n o t think the birth certificate sufficiently probative of alienage for several reasons. The last name on that certificate was not the same as Johnson's brother's last name ("Cross"), a n d the name of the mother recorded on the birth certificate did not correlate with either J o h n s o n or his brother.7 The certificate "had a different name . . . than [Johnson] was k n o w n by and was . . . simply part of the possessions in the apartment that he lived in w ith his brother before his brother was killed." A.R. 434-35.

IJ Van Wyke also dismissed the significance of Johnson's Jamaican accent b e c au s e , although consistent with the government's contention that Johnson had been b o rn in Jamaica, he could have acquired the accent "growing up in an environment with m a n y Jamaican people in New York." A.R. 435. IJ Van Wyke also gave little weight to Johnson's 13-year old recollection of when h e celebrated his birthday as a child. However, he thought White's testimony that she th o u g h t Johnson was older than the birth certificate suggested was significant and p ro b a tiv e because White had raised children and grandchildren and would be able to d e ter m in e age. The rest of the government's evidence was all derived from the birth c e r t i f i c a te : T h e respondent's statements . . . to the Immigration Service w h ic h the Immigration Service put down on the I-213, the s ta te m e n ts by Mrs. White, all go back to that one piece of p a p e r, which had a different name on it other than what he w a s known by and was not given to [White] by any a u th o ritativ e source as necessarily relating to the respondent, b u t was simply part of the possessions in the apartment that he liv e d in with his brother . . ..

A .R . 435.

IJ Van Wyke summarized his assessment of the government's proof as follows: " [ i]f the Court were to place a bet based on this information . . . the Court would not be su re how to place it, but would lean toward saying that the respondent was born in J a m a ic a ." A.R. 435.8 The IJ then explained why that was not good enough: In the end, the Immigration Service must show deportability b y clear and convincing evidence. The Court finds that the e v id e n c e here is not clear and convincing that the respondent is a foreigner, i.e. that he was born in Jamaica. . . . [It] is not c le a r and convincing that the birth certificate that ended up b e in g used for him to go to school by a person who did not k n o w either his mother or his father and barely knew his p u rp o rte d brother, and knew him by a different name than is o n that certificate, is the only link that we have between the re sp o n d e n t's possible birth in Jamaica and the person who is b e f o re me today. . . . [T]hat may not even come to a p re p o n d e ra n c e of the evidence and if it does, it certainly does n o t rise to the level of being clear and convincing.

A.R. 436-37. Accordingly, he concluded that the INS had not tied the birth certificate to J o h n s o n by "clear and convincing" evidence. On March 12, 2001, IJ Van Wyke ordered th e removal proceedings terminated, and Johnson was released.

Despite the IJ's ruling, on March 13, 2001, the day after Johnson was released, the g o v e rn m e n t issued an I-94 "Arrival Record" to Johnson that stated that his "Country of C itizen sh ip" was Jamaica.9 The form was valid until "6/13/01." A second I-94 Departure R e c o rd was issued on April 4, 2001. That form also listed Johnson's "Country of C itiz e n sh ip " as Jamaica and was also valid until "6/13/01." It contained the following n o tation : "New I-94 issued[.]" 10 M ea n w h ile, the government petitioned the BIA for review of IJ Van Wyke's order discharging Johnson and terminating the removal proceedings.

B. The BIA's Decision on the Merits O n appeal to the BIA, the government argued that "documents in evidence, . . .

F o r m I-213 and the Jamaican birth certificate in the name of David Lloyd Johnson, e sta b lis h that the respondent was born in Jamaica." A.R. 367. The BIA disagreed.

T h e Board agreed with IJ Van Wyke that the government's proof suffered a "fatal d e f e c t" because it did not "establish[] by clear and convincing evidence [that] the birth ce rtifica te reflects the true facts of the respondent's birth." A.R. 367. The Board e x p la in e d : "In particular, it has not demonstrated that such birth certificate relates to the re sp o n d e n t. . . . [H]e has used first and last names and birth dates in the birth certificate as h is own. Neither the testimony of respondent nor his guardian however establishes to the re q u is ite level of proof that the birth certificate relates to him." Id. The Board noted that J o h n s o n had not been informed of the details or circumstances of his birth and that, "as 10 Johnson explains the issuance of two I-94 Forms nearly a month apart with the same e x p ir a tio n date. He claims that when he received the first I-94 stating that he was a c itiz e n of Jamaica, he requested a new I-94 stating that his country of citizenship was " u n k n o w n " as the IJ had found. The INS then issued the second I-94. However, again c o n tra ry to IJ Van Wyke's decision, that form also stated that Johnson was a citizen of Ja m a ic a . lo n g as he could remember he was known as Troy, not David Johnson and . . . he only b e g a n to use the name David Johnson when he started school, presumably because his guardian then used the birth certificate to enroll him." Id. The Board agreed that that was n o t sufficient to prove that the birth certificate referred to Johnson. Id.

T h e Board also agreed that White's testimony did not establish Johnson's alienage.

" [ S ]h e first met respondent when he was . . . approximately 4 [years old]. . .. [S]he did n o t know who respondent's parents were or where he was born." Id. The Board also n o te d that, according to White's testimony, "others including children had access to the a p a rtm e n t [where Johnson lived with Cross] and it was possible the [birth certificate] b e lo n g e d to another." Id.

F inally, the BIA rejected the government's attempt to rely on the I-213. The Board e x p lain e d : "[a]s the Form I-213 is based on the birth record, we find that it also is in s u f f ic ie n t to establish the Service's case." Id.

Accordingly, the BIA dismissed the petition for review.

C. The Motion to Reopen In order to obtain employment, Johnson had to obtain a Social Security card. The ap p lica tio n required identification and verification of certain information including one's c itiz e n sh ip . Johnson would later testify that he tried to leave questions pertaining to c itiz e n sh ip , place of birth, and date of birth blank when filling out the application, but S o c ia l Security personnel informed him that nothing could be left blank and that the in f o rm a tio n had to be consistent with his I-94.

S in c e the only official documentation Johnson had consisted of the I-94 Forms and th e disputed birth certificate, he answered the questions on the Social Security application in a manner that would be consistent with those forms and fully filled in the application.

Sometime after Johnson completed that application, it came to the attention of INS o f f ic ia ls , and the INS relied upon it to file a Motion to Reopen immigration proceedings.

The INS argued that the application constituted "newly discovered," and previously u n a v a ila b le evidence of Johnson's alienage. The Board granted the motion and the e n s u in g hearing occurred before Immigration Judge Sease.

B. THE SECOND REMOVAL HEARING A t the second hearing, the INS introduced several pieces of evidence in addition to J o h n s o n 's Social Security application. The additional evidence could have offered at the o rig in a l hearing but was not. Special Agent Dane Eppley, testified about the birth c e rtif ic a te s of Robert Cross and Hazel May Francis. He also provided a copy of an o ff icial copy of David Lloyd Johnson's birth certificate and the death certificate of Robert C ro s s . The latter was dated, June 21, 1989, and stated that Cross's mother's name was " F ra n c is ." E p p le y had contacted Diane Murphy, Cross's widow. She did not know how Jo h n so n entered the United States, but knew that Johnson came from Jamaica after his m o th e r and sister died. Murphy also confirmed that Cross was Johnson's brother and th a t Cross cared for Johnson because Johnson had no one else to take care of him.

However, Eppley never took a statement from Murphy, and she did not testify at the h e a rin g .1 1 U n lik e the first hearing when IJ Van Wyke allowed White to testify via the te le p h o n e because her health made it difficult for her to appear in person, Immigration J u d g e Sease did not permit White to testify telephonically. She (IJ Sease) did not believe th a t health problems should prevent White from traveling to Lancaster, Pennsylvania from Brooklyn because it was "not a difficult trip." Instead, White's testimony was o f f ere d in an affidavit that contained information that was substantially identical to her te s tim o n y at the first hearing.

Johnson testified once again at the second hearing, and he explained the c irc u m s ta n c es surrounding his Social Security application. He stated that he went to the S o c ia l Security office with someone who worked in his attorney's office, but he filled out th e application himself. He was told to fill out each space on the application and th e re f o re wrote "Hazel Francis" in the space provided for the mother's name. Johnson a ls o testified that he was told he had to "have everything exact from the identification that yo u got." A.R. 141-42. Johnson was asked why he wrote "Kingston, Jamaica" on the a p p lic a tio n , rather than merely entering "Jamaica," as the I-94 stated. He explained that h e listed Kingston as his place of birth because, during the first hearing "they was trying to say I was from Kingston." A.R. 143. Johnson explained further that he did not submit h is birth certificate with his Social Security card application. He also explained that the sta f f member who accompanied him may have submitted the birth certificate with his S o c ia l Security application.

IJ Sease found that the INS had met its burden of proving alienage. She rejected Jo h n so n 's disavowal of the Social Security application because Johnson had been party to an extended hearing on the issue of alienage. Thus, the IJ reasoned, Johnson's use of th e birth certificate could only be taken as an admission that it was his. IJ Sease also r e je c te d White's recollection that Johnson was four when he came into her care because th e IJ was troubled by White's "imprecise recollection of dates." 1 2 Instead, the IJ noted th a t Johnson testified that he remembered attending his sister's funeral at age four, and there af ter celebrating two birthdays before going to stay with White. Thus, the IJ c o n c lu d e d that Johnson was actually six when he began living with White. The IJ then w e ig h e d the evidence from the first hearing and the newly presented evidence, and c o n c lu d e d the INS had proven its case by "clear and convincing evidence." Accordingly, th e IJ ordered that Johnson be removed to Jamaica.

T h e BIA summarily affirmed that ruling, and Johnson filed this petition for review to challenge the order granting the government's Motion to Reopen. In petitioning for re v ie w , Johnson added a claim that he was actually a U.S. citizen. We transferred that n a tio n a lity claim to the District Court so that Johnson could properly assert it in an action f o r a declaratory judgement.

As we noted at the outset, the District Court eventually entered judgement against J o h n s o n pursuant to a stipulation he entered into with the government. Johnson then a p p e ale d that ruling to this court, and we consolidated that nationality claim with the p e titio n for review of the BIA's order granting the Motion to Reopen.1 3 I I I . DISCUSSION A . Adequacy of Service of the Motion to Reopen. Jo h n so n first contends that the government failed to properly serve the Motion to R eo p e n and that, as a result, the BIA could not have properly considered that motion. He c la im s that "[t]he [g]overnment never provided evidence that it properly served the P e titio n e r or counsel with the Motion to Reopen." Appellant's Br. at 27. The argument is m e r it l e s s .

T h e government filed the Motion to Reopen on March 6, 2002, along with a C e rtific a te of Service certifying that the motion had been sent via first-class mail to Jo h n so n 's counsel of record. Johnson's counsel denied receiving the motion. However, w h e n he learned it had been filed, he requested that a copy be faxed to him, and the g o v e rn m e n t complied with that request. In Johnson's Reply, he argued, inter alia, that th e motion should be dismissed for failure of service. The BIA concluded that the C e rtific a te of Service was sufficient proof of service, and rejected Johnson's argument.

8 CFR § 1003.2(g) governs service of process for motions to reopen. It provides in p e rtin e n t part: "[i]n all cases, the motion [to reopen] shall include proof of service on the o p p o s in g party of the motion and all attachments." The regulations do not specify what c o n stitu te s adequate proof of service. The BIA concluded that proof of mailing satisfied th e requirements for service under that regulation. We agree.

" A n agency's interpretation of its own regulation is controlling unless it is plainly e rro n e o u s or inconsistent with the regulation." Moi Chong v. Dist. Dir. INS, 264 F.3d 3 7 8 , 389 (3d Cir. 2001) (internal citation omitted). Here, it is uncontested that a copy of th e Motion to Reopen was properly mailed to Johnson's counsel at the address stated on h is entry of appearance.

Johnson does not allege a constitutional violation resulted from inadequate notice o r opportunity to respond to the government's motion, nor could he. In Johnson's Reply to that motion, counsel confirms that he received the motion in advance of the Board's ru lin g . Counsel states: "Counsel for Respondent finally received a faxed copy of the M o tio n on April 23, 2002 after he telephoned indicating he had not received a copy. INS C o u n s e l faxed the Motion and indicated that Respondent's counsel could obtain a copy of the exhibit, a Social Security card application, from the INS office in Philadelphia where th e main file is." Reply at ¶ 2. There is no suggestion that counsel could not properly re sp o n d to the government's motion because of the delay, and nothing suggests that any d e la y that may have resulted was anything other than inadvertent and harmless.

Moreover, Johnson does not allege that he was prejudiced in any way because he had to a w a it receipt of a copy that was faxed to him.

B. Materiality of the Evidence Presented by the Motion to Reopen.

Johnson also argues that the BIA erred in reopening the removal hearing because th e evidence that was to be presented was not "material," as required by the applicable re g u la tio n .1 4 The government relies on § 242 (a)(2)(C) of the Immigration and N a tio n a litie s Act to argue that we have no jurisdiction to review this argument.

We clearly have jurisdiction to determine our own jurisdiction under 8U.S.C. § 1 2 5 2 (a )( 2 )( C ). See, e.g. Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). Prior to the R e a l ID Act, § 1252(a)(2)(C) limited our jurisdiction to review orders of removal. That s e c tio n provided: "no court shall have jurisdiction to review any final order of removal a g a i n s t an alien who is removable by reason of having committed a criminal offense co v ere d in section 212(a)(2)." 1 5 However, in enacting the REAL ID Act, Congress e x p a n d ed our jurisdiction to include constitutional claims and questions of law even when th o s e issues arise in the context of hearings to remove an alien based on a controlled s u b s ta n c e conviction. See Real ID Act § 106(a)(1)(A)(iii), codified at 8U.S.C. § 1 2 5 2 (a )( 2 )( D ).

Motions to reopen are governed by 8 CFR § 1003.2(c)(1), which provides that "[a] m o t io n to reopen proceedings shall not be granted unless it appears to the Board that e v id e n c e sought to be offered is material and was not available and could not have been d isco v ere d or presented at the former hearing." (Emphasis added). Accordingly, the BIA is required to deny a motion to reopen in the absence of material new evidence.

The government argues, however, that the materiality of evidence presented with a m o tio n to reopen is a factual determination and therefore outside the scope of our ju ris d ic tio n . That position ignores the nature of materiality and misconstrues the order u n d e r review. Materiality is a mixed question of law and fact. See. e.g., United States v. G a u d in , 515 U.S. 506, 512 (1995); FL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 213 (3 d Cir. 2001). We ordinarily review mixed questions of law and fact "under a mixed stan d ard , affording a clearly erroneous standard to integral facts, but exercising plenary re v ie w of the . . . interpretation and application of those facts to legal precepts." Schlumberger Res. Mgmt. Servs. v. CellNet Data Sys., 327 F.3d 242, 244 (3d Cir. 2003).

Thus, although we lack jurisdiction to review the Board's factual determinations, we r e ta in the jurisdiction to review the Board's application of those facts to legal principles.

M o re o v e r, the government's jurisdictional argument under the REAL ID Act ig n o re s the issue framed by Johnson's Petition for Review. Johnson is not challenging "a f in a l order of removal" under 8U.S.C. § 1252(a)(2)(D). Rather, he is challenging the B o ard 's order granting the government's motion to reopen. "There re is no statutory p ro v is io n for reopening of a deportation proceeding, and the authority for such motions d e riv e s solely from regulations promulgated by the Attorney General." INS v. Doherty, 5 0 2 U.S. 314, 322. The controlling regulation, "requires that under certain circumstances a motion to reopen be denied, . . .". Doherty, 502 U.S. at 322.

The Supreme Court has never determined the applicable standard of review for re m o v a l hearings that involve disputed alienage claims. However, the Court has ruled that ru lin g s on motions to reopen cases involving asylum and withholding of removal are to b e reviewed for abuse of discretion. INS v. Abudu, 495 U.S. 94 , 107 (1985). In Abudu, the C o u rt explained: The Agency's regulation that provides for reopening of deportation proceedings, 8 CFR § 3.2 (1987),1 6 applies to all m o tio n s to reopen, regardless of the underlying substantive b a sis of the alien's claim. Further, the separate Agency re g u la tio n relied on by the BIA in denying respondent's m o tio n to reopen, 8 CFR § 208.11 (1987), addresses not th e underlying substantive standard for an asylum claim, b u t rather the additional threshold an alien must overcome o n a motion to reopen to make such a claim. As we are s im p l y defining the standard a Court of Appeals must 16 8 CFR § 3(2) is now 8 CFR § 1003(2) a p p ly in reviewing the BIA's denial of reopening on §§ 3.2 a n d 208.11 grounds . . ..

A lth o u g h the underlying claim here turns on alienage rather than persecution, we think it clear that we still review for an abuse of discretion. "The agency's regulation applies to all motions to reopen, regardless of the underlying substantive basis for the alien's c la im ." Id..

We have explained that, when reviewing for an abuse of discretion, we reverse th e BIA's decision only "if it is arbitrary, irrational, or contrary to law." Sevoian v. A sh c ro ft, 290 F.3d 166, 174 (3d Cir. 2002). Pursuant to 8 CFR § 1003(2), the Board's a u th o rity to reopen is limited to situations where it is necessary to reopen removal p ro c e e d in g s to consider newly discovered, material evidence that was "not available a n d could not have been discovered or presented at the former hearing." Doherty, 502 U .S . at 323, (quotations omitted); see also 8 CFR § 1003.2 (2003).

Given this record, we believe that the Board abused its discretion in granting the g o v e rn m e n t's Motion to Reopen. As we noted earlier, IJ Van Wyke terminated removal h e a rin g s because all of the government's proof could be traced to a very suspect birth c e rtif ic a te . That IJ painstakingly analyzed the evidence admitted at the first removal h e a rin g and concluded that, although the government's proof was not limited to that b irth certificate, the government's evidence was nevertheless only as strong as the re lia b ility of that document. Given the circumstances surrounding White's possession o f that document, the discrepancies between the document and Johnson's probable age a n d name, as well as other circumstances that undermined the reliability of the birth c e rtif ic a te , IJ Van Wyke concluded that any claim of Johnson's alienage that rested u p o n that document was not established by the clear and convincing proof the law re q u ire d for removal. Indeed, as noted above, the IJ was skeptical that the proof even s a tis f ie d the preponderance standard. Accordingly, the IJ terminated the removal p ro c e e d in g s .

Despite that ruling, the very next day, the government issued an I-94 stating that J o h n s o n was a citizen of Jamaica; an error that it repeated weeks later when Johnson trie d to correct it by requesting a new I-94 listing his citizenship as "unknown," as d e te rm in e d by IJ Van Wyke.

The BIA affirmed IJ Van Wyke's ruling in a thoughtful opinion in which the e v id e n c e of Johnson's alienage was again considered and once again found wanting b e c au s e it rested on the questionable birth certificate: [ w ]e find that the Service has not established by clear and c o n v in c in g evidence that the birth certificate relates to the resp o n d en t and reflects the facts of his birth. As the Form I-2 1 3 is based on the birth record, we find that it also is in s u f f ic ie n t to establish the Service's case.

A .R . 368. Even though the government had twice been told that the birth certificate a n d evidence derived from it did not establish Johnson's alienage, it subsequently filed a Motion to Reopen with the Board based solely on newly discovered evidence that was ev en more tightly tethered to the discredited birth record than the I-213 that the Board h a d already rejected.

In its Motion to Reopen, the government averred: "a copy of the respondent's a p p lic a tio n for a Social Security card, dated April 15, 2001. . . lists his place of birth as K in g s to n , Jamaica." A.R. 337. That Social Security application thus became the f u lc ru m that was used to pry open the closed removal proceedings so that the g o v e rn m e n t could once again attempt to leverage the birth certificate into a removal o rd e r.

Although the government introduced evidence at the ensuing removal hearing that w a s not introduced at the first hearing, the Board's decision to reopen rested solely u p o n the purported "admission" contained in the application for a Social Security card.

In granting the motion, the Board held that the purported admission of application was " m a te ria l to . . . whether the respondent is an alien." Id. Given all that had gone b e f o re , that "admission" was no more material than the I-94, the I-213 or the birth c e rtific a te itself. Accordingly, the Board abused its discretion in granting the Motion to R e o p e n based upon materiality of the newly discovered evidence.

T h e government argues that materiality is "a very low threshold" and that e v id e n c e need only have some connection to consequential facts to be material.

Appellee's Br. at 31. However, there is no universally applicable standard of m a te ria lity. United States v. Puerta, 982 F.2d 1297, 1305 (9 th Cir. 1992). Puerta, in v o lv e d a denaturalization proceeding. In that context, the court observed: " [ w ]h a te v e r attractions a unitary approach to materiality may have, its application to the im m ig ra tio n laws has failed to win an endorsement from a majority of the Supreme C o u r t." Given the circumstances here, materiality must have a higher threshold than the g o v e rn m e n t claims. Section 1003.2(c)(1) "is framed negatively." See Immigration & N a tu r a liz a tio n Service v. Jong Ha Wang, 450 U.S. 139, 143 (1981). Accordingly, the B IA does not have the authority to grant a motion to reopen unless the evidence that is p u t forward as newly discovered is material. See 8 CFR § 1003.2(c)(1).

T h e Supreme Court has likened motions to reopen deportation proceedings to p e t itio n s for rehearing or motions for new trials, which are only granted "in the most e x tra o rd in a ry circumstances" and "are viewed with great caution." Abudu, 485 U.S. at 1 0 7 -1 0 9 . While Abudu concerned an alien who sought to reopen, and the Court was c o n c ern e d that granting motions to reopen too freely would "permit endless delay of d e p o rta tio n by aliens creative and fertile enough to continuously produce new and m a te ria l facts," the Court was also troubled that it would "waste the time and efforts of im m ig ra tio n judges called upon to preside at hearings." Id at 107 - 08.1 7 This is true 17 Such concerns are typically expressed in relation to motions to reopen filed by a lie n s . Abudu and Doherty are examples of this, and we are not prepared to conclude that id e n tic a l concerns attach to motions to reopen filed by aliens, However, concerns of fin ality, fairness, and the public's confidence in the objectivity in an agency's irre s p e c tiv e of which party moves to reopen.

Motions to reopen are "plainly disfavor[ed]," because "[t]here is a strong public in ter e st in bringing litigation to a close as promptly as is consistent with the interest in g iv in g the adversaries a fair opportunity to develop and present their respective cases." Id. at 108.

The party seeking to reopen proceedings usually carries a "heavy burden." Id. at 1 1 0 . The evidence presented on a motion to reopen must be sufficiently material to e s ta b l is h "that if proceedings before the [IJ] were reopened, with all attendant delays, th e new evidence offered would likely change the result in the case." In re Coelho, 20 I. & N. Dec. 464, 73 (BIA 1992). Thus, materiality must not be evaluated in a vacuum.

Instead, it must be assessed in the context of the proceeding that is to be reopened, and th e claim that is to be proven. Here, the newly discovered evidence was merely another m a n if e sta tio n of the previously scrutinized birth certificate. It did not materially differ f ro m the I-213, the I-94 or Johnson's school records. The only difference was that J o h n s o n added that he was born in Kingston on the Social Security application.

H o w e v e r, that is a difference without a distinction. Johnson explained that he added the c ity of his birth because that was the city that was repeatedly mentioned as his place of b irth during immigration proceedings, and he was told that all the information on the S o c ia l Security application had to be filled in and consistent with his official d o c u m e n ts . Given all that had gone before and the findings of IJ Van Wyke, the a d d itio n of Kingston was understandable and immaterial.

When testifying before IJ Van Wyke, Johnson repeatedly explained his use of the in f o rm a tio n on the disputed birth certificate. He uses the name "David Johnson," b e c au s e that was the name Ethel White registered him under when she first enrolled h im in school. Until then, he had been known as "Troy Jenkins," and that is what p e o p le called him. IJ Van Wyke accorded Johnson's consistent adoption of the in f o rm a tio n from the repudiated birth certificate little weight. See A.R. 436. As noted a b o v e , IJ Van Wyke concluded that the evidence linking Johnson to the certificate "may n o t even come to a preponderance." Id. Accordingly, an additional instance of Johnson u sin g information from the birth certificate and the erroneously issued I-94 could h ard ly transform the quality or reliability of the information on the birth certificate. It b e a rs repeating that the I-94 was based solely on the birth certificate, and it is not at all c le a r how or why the I-94 issued listing Johnson's citizenship as "Jamaica" rather than " u n k n o w n ." M a te ria lity of the Social Security card application must encompass the c irc u m sta n c e s in which it was filled out. Form I-9, the federal Employer Eligibility V e rif ic a tio n form, provides that "[a]ll employees, citizens and noncitizens, hired after N o v e m b e r 6, 1986, must complete Section 1 of this form at the time of hire." Form I-9, p .2 (Rev. 05/31/05). It further provides that employers "must complete Section 2 by e x a m in in g evidence of identity and employment eligibility." Id. Identity and e m p lo ym e n t eligibility must be proven by presenting one or more documents listed on th e form. An examination of the "list of acceptable documents" makes it clear that J o h n s o n could not have applied for work without a Social Security card.1 8 Obtaining a S o c ial Security card, in turn, required Johnson to present both his I-94 and his birth c e rtif ic a te . See Form SS-5, p.1 ("To apply for an original card, you will need at least tw o documents to prove age, identity, and U.S. citizenship or current, lawful, work a u th o riz e d immigration status") (emphasis in original). Thus, in order to obtain e m p lo ym e n t, it was necessary for Johnson to use the only documents he had - the birth c e rtif ic a te and the I-94. Clearly, the information on the Social Security card application h a d to match those documents. That meant that Johnson had no choice but to list J a m a ic a as his place of birth or remain unemployed.

Moreover, there is a rather perplexing and troubling irony here. The continuation o f this saga is due in no small measure to the fact that the government issued an I-94 to 18 Johnson had no legal right to receive any of the other documents on the acceptable d o c u m e n ts list based on the paperwork available to him. The only document, other than a S o c ia l Security card, listed on the I-9 that Johnson may have been eligible for at the time, a n I-688, also requires an admission of alienage. Alternatively, Johnson could have w a ite d for the outcome of his declaratory proceeding where he sought to be declared a U .S . citizen. Johnson did not prevail in that proceeding. Thus, he would have ended up in the same situation years later.

J o h n s o n declaring him to be a citizen of Jamaica even though IJ Van Wyke had just ru le d that the government had failed to prove that Johnson was Jamaican. When Jo h n so n attempted to correct that error, the INS issued a second I-94 that once again d e c la re d him to be a citizen of Jamaica. Although Johnson claims this was an in te n tio n a l act to circumvent the Immigration Judge's ruling, the record surrounding the is s u a n c e of the I-94 is less than sparse.

In the brief it filed in this court, the government takes umbrage at Johnson's su g g estio n that the I-94s were issued as part of a deliberate effort to declare Johnson's a lie n a g e despite the IJ's ruling. The government responds: "The suggestion that the e v id e n c e was `manufactured' is not well-taken. While Johnson would argue that INS issue d the I-94 in `contravention' of the immigration judge's decision, it bears m e n tio n in g that once INS took an appeal of the immigration judge's decision, the d e c is io n became non-final and not binding on INS. See 8 CFR § 1003.39." Appellee's Br. at 31 n.4.

Although this record does not support Johnson's suggestion of an improper m o tiv e or the government's response, we note that the rejoinder in the government's b rie f is less than convincing. The INS claims that the IJ's ruling was not binding once it to o k an appeal and suggests that it could therefore issue an I-94 stating Johnson was J a m a ic a n even though that had not been established. However, as noted above, the first I-9 4 was issued on March 13, 2001, the day after the IJ ruled and either the day Johnson w a s released from custody, or the day after. The second I-94 was issued on April 4, 2 0 0 1 , approximately three weeks later. According to the BIA, the INS did not file its a p p e al of the IJ's ruling until "[o]n or about September 1, 2001[.]" See A.R. 358.

Moreover, it is difficult to understand why the INS would agree to issue a second I-94 b e f o re the expiration date of the first. That difficulty is compounded by the fact that the s e c o n d I-94 bears the same expiration date as the first one and was therefore not in ten d e d as an extension of Johnson's status. Rather, the I-94s are consistent with Jo h n so n 's claim that he requested the second form to correct the erroneous citizenship in f o rm a tio n on the first one.

Whatever the reason for the inaccurate citizenship information on the two I-94s, it w a s not because the IJ's ruling had become a nullity as the INS now claims. After those f o rm s were issued, they took on a life of their own and played no small role in the u ltim a te fate of the young man now known as "David Johnson." N o th in g in the above discussion should be construed as condoning or excusing J o h n s o n 's use of potentially false information to obtain employment documents.

However, our task is not to examine the propriety of his actions. Rather, we must d e te rm in e whether, "if proceedings before the [IJ] were reopened, with all attendant d e la ys , the new evidence offered would likely change the result in the case." Given the C a tc h 22 Johnson was caught in, and the questions surrounding the birth certificate, n o thing indicates that the Social Security application would have altered IJ Van Wyke's d e c is i o n .

T h u s, we conclude that the Board abused its discretion in granting the INS's M o tio n to Reopen.

I V . NATIONALITY CLAIM A s we noted above, in petitioning for review of the Board's affirmance of the ru lin g of the second IJ, Johnson also asked this court to conclude that he was actually a U n ite d States Citizen and therefore not subject to removal, and we transferred that m atter to the Eastern District of Pennsylvania pursuant to 8U.S.C. § 1252(b)(5)(B).19 In the District Court, Johnson based his declaratory judgement action on 8U.S.C. § 1 4 0 1 (f ), the "foundling" statute. Section 1401(f) provides that "a person of unknown p a re n ta g e found in the United States while under the age of five years, until shown, p rio r to his attaining the age of twenty-one years, not to have been born in the United S ta te s," shall be a "national[] and citizen[] of the United States at birth." In the District Court, Johnson conceded that he bore the burden of proving the f irst two requirements under the statute - (i) that he is of "unknown parentage;" and (ii) th a t he was discovered before the age of five in the United States. Johnson contends, h o w e v e r, that § 1401(f) creates a presumption in favor of the foundling, and thus the in itia l burden of proving alienage is shifted to the United States.

Johnson's approach to the burden of proof is somewhat puzzling. Although c o n c ed in g he has the burden of proving the first two elements, he appears to rely on a p re su m p tio n that would establish those facts unless the government produced sufficient e v id e n c e to rebut the presumption. He argues that a foundling could not be required to p ro v e unknown parentage or age because he/she does not have first-hand knowledge of th is information. Although we agree that it is exceedingly difficult for an alien to prove h is /h e r citizenship under the foundling statute, Johnson nevertheless stipulated that he h a d the burden that he now tries to shift to the government.

The District Court acknowledged the potential evidentiary problems created for a fo u n d lin g who is required to prove the elements of § 1401(f). However, the court d e ter m in e d that Johnson nonetheless bore the initial burden of establishing his n a tio n a lity claim by preponderance of the evidence. The court based its reasoning on th e clear language of 8U.S.C. §§ 1401(f) and 1252(b)(5)(B) and 28U.S.C. §2201. The latte r places the burden of proof on the party seeking declaratory relief of citizenship s ta tu s , see, e.g., Delmore v. Brownwell, 236 F.2d 598, 600 (3d Cir. 1956).

Following the court's ruling on the burden of proof, the parties entered into a s tip u la tio n that judgement would be entered against Johnson, but he reserved his right to appeal the court's allocation of the burden of proof. He now claims that "[t]he G o v e rn m e n t cannot show with clear and convincing evidence that [he] is not a citizen a c c o rd in g to 8U.S.C. § 1401(f)." Appellant's Br. at 53.

Johnson's argument is belied by the stipulation he entered into. It appears that his c la im that he is entitled to a presumption to establish the first two elements is based u p o n his reading of Delmore. There, however, the plaintiff introduced a letter his c o u n s e l had obtained from the Commissioner of Immigration in response to a request th a t Delmore's citizenship be clarified. The Commissioner's letter stated in part: "it a p p e are d that Delmore was born in San Francisco as he claimed `and that . . . it is the v ie w of this Service . . ., that Mr. Delmore may properly be regarded a national and c itiz e n of the United States.'" 236 F.2d at 600 (first ellipsis in original). In affirming th e District Court's grant of declaratory relief to Delmore, we merely concluded that: " O n c e the United States has determined that an individual is a citizen, it should be re q u ire d to disprove its own determination by clear, unequivocal, and convincing e v id e n c e . . .." Id. In effect, the Commissioner's letter created an estoppel and became d e ter m in a tiv e unless the government could rebut it. As the District Court properly n o te d , we stated: "[p]laintiff had the burden of proving his citizenship by a p re p o n d e ra n c e of the evidence. The letter established his prima facie case. . . . when p lain tiff seeking a declaration of citizenship, . . . has made out a prima facie case, it is n e c es s a ry for the government, in order to rebut it, to do so by clear, unequivocal, and c o n v in c in g evidence." Id. (citations omitted).

H e re , the District Court noted that Johnson conceded that he had the burden of e sta b lish in g the first two elements by a preponderance of the evidence, and that this c re a te d a presumption of citizenship that would control unless rebutted by the g o v e rn m e n t by clear and unequivocal evidence. Johnson now objects to the District C o u rt's application of that evidentiary framework. However, the District Court's d e c is io n was perfectly consistent with our decision in Delmore as well as Johnson's s tip u la tio n . We have reviewed the District Court's resolution of Johnson's § 1401(f) c la im and the court's reliance on Delmore, and we will affirm the order of that court s u b s ta n tia lly for the reasons set forth in District Court's June 2, 2005 opinion.

(O p in io n filed: May 17, 2007) D a v id V. Bernal E rn e sto H. Molina, Jr. (Argued) L in d a S. Wernery William C. Peachey U.S. Department of Justice O f f ic e of Immigration Litigation P.O. Box 878 B e n Franklin Station W a sh in g to n , D.C. 20044

* The Honorable James F. McClure is sitting by designation from the Middle District o f Pennsylvania. discussed.

3 We understand that this ruling leaves Johnson in legal limbo. He can not prove that h e is a citizen of the United States, and the government can not establish that he is not a c itiz e n of the United States. However, Johnson's counsel indicated at oral argument that h e has identified applicable procedures for Johnson to obtain lawful residence and e m p lo ym e n t in the United States in the event that the appeals resulted in the legal limbo th a t now confronts Johnson.

4 There is some conflicting testimony about when Cross brought Johnson to stay with W h ite . Her recollection was that Johnson came to stay with her sometime during the sp rin g of 1987. However, it appears that she was mistaken about the year.

5 On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an in d e p e n d e n t agency within the Department of Justice and its functions were transferred to th e newly formed Department of Homeland Security and placed under the Bureau of Im m ig ra tio n and Customs Enforcement. See Homeland Security Act, 116 Stat. 2135, P u b .L . 107-296 (2002). For the sake of simplicity, because relevant events occurred both b e f o re and after that change, we will refer to the Bureau of Immigrations and Customs E n f o rc e m e n t as well as the Immigration and Naturalization Service as the "INS," or the " g o v e rn m e n t."

6 An I-213 is a Record of Deportable Alien that is filed when an alien is arrested. The IN S may prove alienage with an authenticated I-213 Form. Lopez-Chavez v. INS, 259 F .3 d 1176, 1181 (9th Cir. 2001).

7 The IJ carefully considered possible explanations for this discrepancy. He concluded "[ t]h ere can be explanations for that; his brother's last name may be . . . his brother's f a th e r's name; the respondent's last name of Johnson, if that indeed is his last name, w o u ld then be a mystery because his mother [according to the birth certificate] did not h a v e the last name Johnson. Her name was Hazel Francis, if indeed the birth certificate b e lo n g s to the respondent. No father's name is given. " In addition, the respondent continued using the name Troy throughout much of h is youth and ended up stating that his name was David Troy Johnson as opposed to D a v id Lloyd Johnson [as on the birth certificate]. It turns out that the rap sheet, . . . p re se n te d here have David T. Johnson, rather than David L. Johnson. One of the rap s h e e ts also has place of birth information unknown." A.R. 435-36.

8 As we will explain, the tenuous nature of the evidence of alienage is further illu s tra te d by the fact that later in the same opinion, IJ Van Wyke expressed doubt about w h e th e r the evidence satisfied even the preponderance standard because the foundation f o r the government's case teetered upon a single document; the disputed birth certificate.

9 "An I-94 Form is an alien-arrival-departure record that serves as proof of the b e a re r's current immigration status and the time period during which his stay in this c o u n try is authorized. See 8 CFR § 229.1(1997) (prescribing the forms used by the INS). Mariscal-Sandavol v. Ashcroft, 370 F.3d 851, 853 n.4 (9th Cir. 2004). An I-94 Form lists arrival/departure date, date of birth, country of citizenship and the status of nonim m ig ra n t aliens.

11 "Hearsay evidence is . . . admissible in removal proceedings. Though the hearsay n a tu re of evidence certainly affects the weight it is accorded, it does not prevent its a d m is s ib ility in immigration cases." Kirelddeen v. Ashcroft, 273 F.3d 542, 548 (citing, C u n a n a n v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988); Martin-Mendoza v. INS, 499 F.2d

91 8, 921 (9th Cir. 1974); and Matter of Grijalva, 19 I. & N. 713, 721-722 (BIA 1988). The IJ was referring to White's assertion that Johnson came into her care in 1987. In

12 f a ct, Johnson actually came into White's care sometime in 1989, as that was the year R o b e rt Cross's death certificate established for Cross's death.

13 The court ruled that Johnson had the burden of proving that he is a U.S. citizen, and th a t the INS did not have to prove that he was a citizen of Jamaica. Johnson then stip u lated that he could not establish his citizenship. He acknowledged that the court w o u ld therefore enter judgment against him, and that his appeal from the denial of the n a tio n a lity claim should be transferred back to this court for consolidation with his p e titio n for review of the second IJ's ruling in the removal proceedings. However, in e n te rin g that stipulation, he reserved his right to appeal the District Court's allotment of th e burden of proof.

14 Johnson also argues that the evidence used to reopen proceedings against him was "m an u fa ctu re d " by the government. He contends that he was entitled to an I-94 Form lis tin g his place of birth as "unknown," after IJ Van Wyke terminated the removal p ro c e e d in g s and ruled that the government had not established Johnson's alienage. Johnson claims that the government therefore obtained the new evidence (the Social S e c u rity application) as a direct result of its own wrongful actions. The argument is not w ith o u t some force, however, we need not address it because we find the newly d is c o v e re d evidence was not material as required by 8 CFR § 1003.2. Johnson also contends that the Social Security application was not "previously u n a v a ila b le " because it was created on April 5, 2001, and was thus available when the g o v e rn m e n t filed its petition for review of IJ Van Wyke's order in October of 2001. J o h n s o n is wrong. New evidence can not be presented to the Board during an appeal. 8 C F R § 1003.1(d)(3)(iv). Thus, the Social Security application was "newly discovered" w ith in the meaning of § 1003.2 because it was "not available and could not have been d is c o v e re d or presented at the former hearing." "[F]ormer hearing" plainly refers to the p ro c e e d in g s before the Immigration Judge, not the BIA.

15 Johnson was convicted of a Conspiracy to Commit Possession of a Controlled S u b sta n c e (cocaine) in violation of 8U.S.C. § 1182(a)(2)(A)(i)(II), an offense covered in § 212(a)(2). adjudication can not be ignored merely because the motion is filed by the alien rather than th e government.

19 8U.S.C. 1252(b)(5)(B) provides that "[i]f the petitioner claims to be a national of th e United States and the court of appeals finds that a genuine issue of material fact about th e petitioner's nationality is presented, the court shall transfer the proceeding to the d is tric t court of the United States for the judicial district in which the petitioner resides f o r a new hearing on the nationality claim and a decision on that claim as if an action had b e e n brought in the district court under section 2201 of title 28, United States Code.