Summary
finding a presumption of alienage when there is a contemporaneously filed foreign birth certificate
Summary of this case from Beltran v. RiveraOpinion
No. 99 C 328
October 10, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Guillermo Rivera (Guillermo) seeks a declaration under 8 U.S.C. § 1503 (a) that he is a United States citizen, based on his alleged birth in Laredo, Texas. The government asserts that Guillermo was born in Mexico, not Texas, and is therefore not an American citizen. The parties have filed cross motions for summary judgment. For the reasons set forth below, both motions are denied.
Because so many of those involved in this matter are related and share the same surname, we will refer to them by their first names.
BACKGROUND
Guillermo was born on June 20, 1968. He has a Mexican birth certificate, registered July 13, 1968, naming Los Reyes, Mexico, as his birthplace, and Jesus Ugalde (Jesus) and Raquel Rivera (Raquel) as his parents. Their daughter, Maria de la Luz Ugalde Rivera (Maria), now claims that she is Guillermo's mother, that she gave birth in Texas and that Jesus and Raquel are in fact Guillermo's grandparents. Guillermo has used his Mexican birth certificate to obtain a Mexican passport, which he then used to enter the United States on numerous occasions. In 1990, Maria applied for, and the State of Texas issued, a delayed birth certificate for Guillermo. Using this delayed birth certificate and various other documents as proof of citizenship, Guillermo has on three separate occasions since 1993 applied for a U.S. passport. The government has rejected all three applications, contending that Guillermo has not produced sufficient documentation to prove his citizenship.
Although the actual relationships are disputed, to prevent any confusion we will refer to Jesus and Raquel as Guillermo's grandparents and Maria as his mother.
The government moved to dismiss the complaint as untimely, which we previously denied. See Rivera v. Albright, 76 F. Supp.2d 862 (N.D.Ill. 1999).
DISCUSSION
Summary judgment may only be granted if there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The most central fact of this case, where Guillermo was born, is very much in dispute. The government repeatedly argues that plaintiff's evidence is not credible. But we do not assess credibility at the summary judgment stage. See Hardin v. Pitney-Bowes. Inc., 451 U.S. 1008 (1981). Consequently, summary judgment is inappropriate.
Both parties discuss at length State Department regulations regarding proof of citizenship. See 22 C.F.R. § 51.43. But we are not reviewing — at least in the traditional sense of appellate review — an agency decision here. We examine the facts de novo to determine whether plaintiff is a United States citizen. See Terrazas v. Haig, 653 F.2d 285, 286 (7th Cir. 1981). Obviously, the regulations are instructive. The documents required for a passport are the most logical ones for a citizen to produce and will carry considerable weight. But there is no specific list of documents Guillermo must use or may use. He must simply demonstrate by a preponderance of the evidence that he was born in the United States. See Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1970).
This distinguishes the present case from the precedents the parties have cited. In all those cases, courts were reviewing agency determinations, subject only to"substantial evidence" review. See, e.g.,DeBrown v. DOJ, 18 F.3d 774 (9th Cir. 1994); Pinto-Vidal v. Attorney General of the United States, 680 F. Supp. 861 (S.D. Tex. 1987).
Plaintiff bears the burden of proving his citizenship. See Reyes v. Neelly, 264 F.2d 673, 674 (5th Cir. 1959). His Mexican birth certificate creates a presumption that he is an alien. See United States ex rel. Rongetti v. Nelly, 207 F.2d 281, 284 (7th Cir. 1953). This presumption continues until plaintiff proves the contrary. See Corona-Palomera v.INS, 661 F.2d 814, 818 (9th Cir. 1981). But there is too much contradictory evidence for us to find that there is no genuine issue of fact regarding his birth. Notwithstanding defense counsel's rhetoric, plaintiff's explanation of the circumstances surrounding his birth is plausible.
For example, despite the government's insistence, the age disparities raise questions about who is really Guillermo's mother. Raquel had six children between 1938 and 1951, including Maria in 1943. It seems unlikely she would have another child in 1968, 30 years after her first baby, and 17 years since her last. Further, the record also includes birth certificates for Jose Jesus and Ismael, born in 1965 and 1966, respectively, also listing Jesus and Raquel as their parents. These certificates are every bit as official as Guillermo's. Yet Maria explains that these are actually her sister Herminia's children, registered by their grandparents when Herminia was going through a divorce. If these are indeed Herminia's sons — meaning their birth certificates are incorrect — then they cast doubt on Guillermo's as well. If Guillermo can prove that Maria is his mother, that would largely discredit the Mexican birth certificate.
Plaintiff has indicated reluctance to use DNA testing to prove maternity, lie still has an opportunity to do so before trial. And even without testing Raquel, samples from Guillermo, Maria and other relatives could still shed some light on whether she is his sister or mother.
Nonetheless, plaintiff is still seriously lacking in documentary proof. The preferred form is a contemporaneous official birth certificate. See 22 C.F.R. § 51.43 (a). Guillermo has no contemporaneous birth certificate stating that he was born in the United States. Rather, his contemporaneous birth certificate places his birth in Mexico. While plaintiff alleges that it incorrectly identifies his parents, there is no dispute as to its authenticity. He used it to obtain a Mexican passport, his family used it to register him in school and the Mexican authorities have certified it.
The regulations also contemplate secondary evidence, such as "baptismal certificates . . . or other documentary evidence created shortly after birth but not more than 5 years after birth, and/or affidavits of person having personal knowledge of the facts of the birth." 22 C.F.R. § 51.43 (b). Guillermo has a baptismal certificate, but it lists the Mexican version of his birth: he was born in Los Reyes and Jesus and Raquel are his parents. He also has a delayed birth certificate. While a contemporaneous birth certificate is almost conclusive, a delayed one is given far less weight. See Liacakos v. Kennedy, 195 F. Supp. 630, 632 (D.D.C. 1961). Guillermo's Texas birth certificate was Issued when he was 21 years old, far beyond the regulation's five-year limit. Guillermo concedes this, declining to rely on the delayed birth certificate.
Instead, Guillermo relies on two types of evidence, a picture book and Bible entry, both allegedly created less than five years after his birth, and three affidavits of individuals who claim to have personal knowledge of his birth: Maria, his mother; Maria Jimenez Peres (Peres), the mid-wife who allegedly helped to deliver him; and Alma Carrera (Carrera), the mid-wife's daughter.
First, we consider the affidavits. Carrera has no personal knowledge of Guillermo's birth. She saw Maria pregnant and she saw Guillermo after he was born. One problem is that we do not know the precise times here. The only time parameters we have are "once when she was pregnant" — a nine-month window — and "shortly after the birth" — an indefinite period (plf. exh. F). We may be able to infer that this was a short time, and that Maria remained in Texas for the entire duration, but Carrera can offer no direct evidence. Maria and Peres are both competent to offer direct testimony, and their stories do corroborate each other, but there are some concerns. They have been friends since Guillermo's birth, more than 30 years, and Peres would not be available to testify at trial. On their face, these two exhibits support Guillermo's claim. Although they have limited persuasive value, they alone could raise a genuine issue of fact.
The government argues that the distance between Laredo and Mexico City makes it unlikely that Maria could have traveled to her parents' home shortly after giving birth. Here, that distance actually works in plaintiff's favor. If, as Carrera's affidavit states, Maria was in Texas shortly before and after giving birth, it is unlikely she traveled round trip to Mexico City in the interim.
We next turn to the alleged contemporaneous documents. Both the picture book and Bible entry purport to be created less than five years after Guillermo's birth. We have no evidence to corroborate Maria's affidavit regarding when she created them. But, for purposes of this motion, we will accept that she created these documents as she claimed.
Unfortunately, these documents do not add much to Guillermo's case. As the government argues, the picture book is just that, pictures of young Guillermo. There are no identifying features indicating that those pictures were taken in the United States, nor does the written entry on the first page listing Laredo, Texas, as his birthplace prove anything. The Bible entry suffers the same defect. Assuming these statements somehow survive the hearsay rules (a dubious assumption), they add nothing new. They are not official state or religious records, and no independent party can corroborate the underlying facts. Maria has filed an affidavit asserting that she gave birth in Texas. The picture book and Bible merely reiterate her own testimony. They are simply earlier statements by the same interested party. Alternatively, we could consider the Bible entry as evidence and ignore the affidavit as cumulative. Either way, there is little persuasive value in allowing Maria to corroborate her own testimony.
Although Guillermo does not purport to rely on them, the record also includes school records from both Mexico and California, listing Texas as his birthplace. But they suffer the same defect as the other documents. They rely on self-reporting. The schools did not (at least there is no evidence suggesting that they did) independently verify the information provided by Guillermo's mother.
Effectively, only two pieces of evidence support Guillermo's claim. He has an affidavit from his mother's longtime friend (who will not testify), and he has his mother's word. On the other side, we have official birth and baptismal certificates. The contemporaneous foreign birth certificate has special legal significance, creating a presumption of alienage. See Liacakos, 195 F. Supp. at 632. The baptismal certificate corroborates it. In administrative deportation proceedings, two affidavits by interested persons have proven insufficient to rebut that presumption. See, e.g., DeBrown v. DOJ, 18 F.3d 774 (9th Cir. 1994) (finding mother's testimony and affidavits from two witnesses to birth did not rebut Mexican birth certificate); Pinto-Vidal v. Attorney General of the United States, 680 F. Supp. 861 (S.D. Tex. 1987) (finding father's testimony, certificate from non-testifying midwife and baptismal certificate did not rebut Mexican birth certificate).
Nonetheless, it is entirely plausible that Jesus and Raquel registered their grandson as their own child because they were afraid the authorities would take him away, or even because he was born out of wedlock. The age disparity and affidavits bolster this claim. Either way, because Maria never re-registered her son once she recovered from her illness, and did not seek an American birth certificate until 20 years later, their ruse may have worked too well — it created a paper trail that they cannot now disprove. Maria's reasons for not correcting this problem long ago are completely irrelevant. Strong-willed mother or not, she failed to secure the documentation her son needs.
Ultimately, plaintiff must offer more than just a plausible story — he must present proof. The Mexican birth certificate creates a presumption. With only affidavits from his mother and her friend, and without any independently authenticated contemporaneous documents, it seems doubtful he will be able to overcome it. But that is a matter for trial. He has presented enough to survive summary judgment. Plaintiff's evidence does raise genuine questions about the birth certificate's accuracy and a plausible set of facts under which he could prevail.
CONCLUSION
The cross motions for summary judgment are denied.