Opinion
Civil Action No. 1:19-CV-120
2021-06-04
Ovidio GARCIA, Plaintiff, v. Norma LIMON, et al., Defendants.
Jaime M. Diez, Jones Crane, Brownsville, TX, for Plaintiff. Neil Joseph Unruh, United States Attorney's Office, McAllen, TX, for Defendants.
Jaime M. Diez, Jones Crane, Brownsville, TX, for Plaintiff.
Neil Joseph Unruh, United States Attorney's Office, McAllen, TX, for Defendants.
ORDER AND OPINION
Fernando Rodriguez, Jr., United States District Judge
Plaintiff Ovidio Garcia seeks a declaration that he is a United States citizen under 8 U.S.C. § 1503. This matter arose after Defendants denied Ovidio's passport renewal application, based on a finding that he was not born in the United States. If true, that fact would preclude Ovidio from being a United States citizen.
On March 3, 2021, the Court held a half-day bench trial during which three witnesses testified and the Court admitted numerous exhibits. Having considered the record and the applicable law, the Court finds that Ovidio Garcia has demonstrated by a preponderance of the evidence that he was born in the United States, satisfying the requirements to be a United States citizen.
I. Findings of Fact
At trial, the Court heard testimony from Gerardo Garcia, Jr. (Ovidio's brother), Estela Tijerina de Garcia (Ovidio's mother), and Catalina Garcia (Ovidio's aunt). Based on their testimony and the admitted exhibits, the Court reaches the following findings of fact regarding Ovidio's birth.
As the family members share the same surname, the Court will use their first names to avoid confusion.
In 1974, Gerardo Garcia, Sr. and Estela Tijerina, both Mexican citizens, were married in Rio Bravo, Tamaulipas, Mexico. (Gerardo, Jr. Trans., 8:10–20; JPO, Doc. 20, ¶ 6.A.) Estela soon became pregnant. While the couple resided in Rio Bravo, they agreed to have their first child in the United States. (Gerardo, Jr. Trans., 8:12–20, 11:3–5, 41:6–14; Estela Trans., 84:17–19, 118:20–22) In 1975, as the due date approached, Estela traveled to McAllen, Texas and gave birth there to Gerardo, Jr. (Gerardo, Jr. Trans., 41:6–8) The couple returned to Rio Bravo soon after Gerardo was born, but the family frequently crossed into the United States to visit extended family and to shop. (Id. at 42:13–43:8)
The witnesses agreed that Gerardo, Sr. and Estela did not enjoy a happy marriage. (Catalina Garcia Trans., 61:9–16, 91:4–16; Estela Trans., 91:4–16) Gerardo, Sr. was an alcoholic and verbally and physically abused Estela and Gerardo, Jr. (Gerardo, Jr. Trans., 17:4–10; Catalina Garcia Trans., 57:24–58:5, 61:17–24; Estela Trans., 89:19–93:4, 90:16–91:16, 94:20–25, 118:17–19) In the years leading up to 1981, Estela threatened to leave Gerardo, Sr. (Estela Trans., 91:4–10)
In late 1980, Estela became pregnant again. She never obtained an ultrasound or learned the sex of the baby before the birth. (Id. at 97:18–24) Gerardo, Sr. wished for a boy and, during Estela's pregnancy, he visited a curandera (folk doctor) whom he trusted and who told him that the child would be male. (Id. at 100:17–101:21; Gerardo, Jr. Trans., 27:5–28:6) Gerardo, Sr. and Estela agreed in advance that if the child was a boy, they would name him Ovidio. (Estela Trans., 98:4–16)
By summer 1981, Gerardo, Jr. was five years old and scheduled to start school in Mexico. (Id. at 111:2–25) To do so, he needed a Mexican birth certificate. (Id. at 111:2–25) On June 26 of that year, while Estela was near-term with Ovidio, Gerardo, Sr. went to the civil registry in Rio Bravo and fraudulently obtained a birth certificate for Gerardo, Jr., incorrectly listing Gerardo, Jr.’s place of birth as Rio Bravo, rather than McAllen, Texas. (Gerardo, Jr. Trans., 44:3–9; Gerardo, Jr. Mex. Birth Cert., Pltf. Exh. 3H, Doc. 32-1, 11) Ovidio's birth certificate records June 3, 1981, as the birthdate, although the witnesses testified that they never celebrated Ovidio's birthday on that date. (Gerardo, Jr. Trans., 25:1–3, 28:7–9; Catalina Trans., 66:19–22; Estela Trans., 112:17–21)
The registration records for both sons’ birth certificates contain irregularities. In Gerardo, Jr.’s registration entry, Estela's name and signature incorrectly add an "h"—i.e., "Esthela". (Gerardo, Jr. Registration Rec., Pltf. Exh. 3H, Doc. 32-1, 11 (sealed)) In the entry for Ovidio, the name recorded as the mother also incorrectly includes an "h", but her purported signature at the bottom of the document does not. (Ovidio Registration Rec., Pltf. Exh. 3E, Doc. 32-1, 8 (sealed)) Estela testified that she has never used an "h" in her name. (Estela Trans., 89:2–3) On both sons’ registrations, four signatures appear as purported witnesses, including a signature for Estela. (Ovidio Registration Rec., Pltf. Exh. 3E, Doc. 32-1, 8 (sealed); Gerardo, Jr. Registration Rec., Pltf. Exh. 3H, Doc. 32-1, 11 (sealed)) But the handwriting for all signatures appears the same, suggesting that only one person performed the writing. (Ovidio Registration Rec., Pltf. Exh. 3E, Doc. 32-1, 8 (sealed); Gerardo, Jr. Registration Rec., Pltf. Exh. 3H, Doc. 32-1, 11 (sealed)) In addition, the entries identify Houston, rather than Brownsville, as the residence of Estela's parents. (Gerardo, Jr. Trans., 29:23–30:2) In 2017, Ovidio had the Mexican birth certificate canceled. (Id. at 37:16–38:2, 46:15–47:9)
On the same day, while at the civil registry, Gerardo, Sr. also obtained a birth certificate for his yet-unborn child, registering a male child named Ovidio with a birthdate of June 3, 1981, and a birthplace of Rio Bravo. (Gerardo, Jr. Trans., 26:6–18; Ovidio Mex. Birth Cert., Pltf. Exh. 3E, Doc. 32-1, 8) He did not tell Estela of these Mexican birth certificates, which is possibly explained by his controlling nature and practice of keeping important documents away from Estela. (Estela Trans., 92:21–93:24) As a result, neither Estela nor Gerardo, Jr. learned of these documents until 2015 or 2016, though Estela had a suspicion some other documentation existed due to a threat that her husband had made to take the boys away from her. (Gerardo, Jr. Trans., 28:10–17; 456–13; Estela Trans., 110:22–111:6, 126:3–18)
As Estela neared term in July 1981, Gerardo, Sr. did not provide her with the money necessary to cross the border and give birth in an American hospital, as he had done with their first son. (Estela Trans., 96:22–97:9) Estela still desired to give birth in the United States. (Id. at 96:22–97:9) She had her parents pick her and Gerardo, Jr. up in Rio Bravo to bring them to their home in Brownsville, Texas. (Id. at 96:22–97:9, 98:17–99:1) Lacking money for a hospital birth, she opted to use a midwife, and chose one who provided services a block away from her parents’ home. (Id. at 103:22–25, 119:11–25) On July 16, 1981, at about 1:30 p.m., she gave birth to Ovidio at the midwife's house. (Id. at 105:21–25; Gerardo, Jr. Trans., 21:21–22:14)
Gerardo, Jr. recalled walking with his grandfather the short distance from his grandparents’ home to the midwife's house on the day of his brother's birth. (Gerardo, Jr. Trans., 20:17–21:8) He remembered that his grandfather carried him because he feared the dogs. (Id. ) When they arrived at the midwife's house, Gerardo, Jr. waited outside on the porch. As a result, he did not personally see his baby brother at the midwife's house, but did see the newborn that night at his grandparents’ home. (Id. at 22:9–25)
On the day of the birth, Ovidio's aunt and uncle—Jose Garcia and his wife, Catalina Garcia—traveled from Weslaco, Texas to Brownsville to see their nephew. (Catalina Trans., 63:20–64:8) Catalina herself had borne children and testified that, when she saw Ovidio the afternoon of July 16, he appeared as a newborn and could not have been several weeks old. (Id. at 66:19–67:8)
On July 17, the midwife registered Ovidio's Texas birth certificate in Cameron County. (Ovidio U.S. Birth Cert., Pltf. Exh. 2A, Doc. 32-1, 2 (sealed))
Gerardo, Sr. had remained in Rio Bravo and was not present at the birth. (Estela Test., 106:10–21) As there was no way to reach him by phone, Jose and Catalina drove to Rio Bravo on July 17 to tell him the news and to bring him back to Brownsville. (Estela Trans., 106:1–21) Gerardo, Sr. arrived in Brownsville on July 17, and that same evening, he and his family returned to Rio Bravo. (Id. at 107:2–13) The next day, Ovidio received a vaccination from a doctor in Rio Bravo. (Id. at 122:13–123:7; Ovidio Vaccination Card, Def. Exh. 5, Doc. 31-1, 22 (sealed))
In November 1981, Estela and Gerardo, Sr. baptized Ovidio in Mexico. (Baptismal Rec., Pltf. Exh. 4B, Doc. 32-1, 15 (sealed); JPO, Doc. 20, ¶ 6.E.) The baptismal record states that Ovidio was born in Brownsville on July 16 of that year. (Baptismal Rec., Pltf. Exh. 4B, Doc. 32-1, 15 (sealed); JPO, Doc. 20, ¶ 6.E.)
Ovidio has vaccination records from both Mexico and Texas. The Mexican vaccination record indicates that he received his first vaccine, for "BCG", on July 18, 1981, and then received the polio and the diphtheria, pertussis, and tetanus (DTP) vaccines on August 4, October 4, and December 4, 1981. (Ovidio Mex. Vaccine Rec., Pltf. Exh. 14A, Doc. 32-2, 11 (sealed)) The Texas vaccination record is from the Hidalgo County Health Department, and this document records his birthdate as July 16, 1981. (Ovidio U.S. Vaccine Rec., Pltf. Exh. 14B, Doc. 23-2, 12 (sealed)) The Texas vaccination record contains a "Suggested Immunization Schedule", recommending that a child should receive the polio and DTP vaccines at two, four, six, and fifteen months, and then at four, five, and six years of age. (Id. ) The dates on which Ovidio received his first three DTP and polio vaccines in Rio Bravo correspond well with the suggested schedule, if he was born on June 3.
Ovidio initially attended elementary school in Mexico. (Estela Trans., 126:25–127:1; Ovidio Mex. School Rec., Def. Exh. 4, Doc. 31-1, 8–12 (sealed)) At some point in his childhood, he began attending school in Weslaco, Texas, with July 1991 as the earliest recorded date. (Ovidio Mex. School Rec., Def. Exh. 4, Doc. 31-1, 15 (sealed)) His American school records indicate he was born in Brownsville on July 16, 1981. (Id. at 13, 14, 16)
In October 2007, the United States issued a passport to Ovidio. (JPO, Doc. 20, ¶ 6.F.) The passport states that Ovidio was born in Texas. (Id. )
In October 2017, Ovidio's United States passport expired. (JPO, Doc. 20, ¶ 6.F.)
II. Conclusions of Law
A. Applicable Standards
Ovidio brings this declaratory judgment action under 8 U.S.C. § 1503(a), which provides the vehicle for an individual within the United States to challenge the denial of a right or privilege based on the determination of his citizenship. Under Section 1503(a), "[t]he Court must make a de novo determination of whether a plaintiff is a United States citizen." Garcia v. Clinton , 915 F. Supp. 2d 831, 833 (S.D. Tex. 2012), aff'd sub nom. Garcia v. Kerry , 557 F. App'x 304 (5th Cir. 2014).
"There are two sources of citizenship, and two only: birth and naturalization." Bustamante-Barrera v. Gonzales , 447 F.3d 388, 394 (5th Cir. 2006) (quoting Miller v. Albright , 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) ). In the current matter, Ovidio claims citizenship by birth in the United States.
In a Section 1503(a) case, the district court holds a bench trial and weighs the evidence, determines the credibility of witnesses, and resolves conflicting testimony. FED. R. CIV. P. 52(a)(1), (6) ; United States v. Jennings , 726 F.2d 189, 190 (5th Cir. 1984). A plaintiff must prove, "by a preponderance of the evidence, that he is an American citizen by birth." Garcia v. Kerry , 557 F. App'x 304, 308 (5th Cir. 2014) (citing De Vargas v. Brownell , 251 F.2d 869, 871 (5th Cir. 1958) ); see also 22 C.F.R. § 51.40 ("The applicant has the burden of proving that he or she is a U.S. citizen ...."). Proving a fact by a preponderance of the evidence means showing that the existence of that fact "is more likely than not." Matter of Briscoe Enterprises, Ltd. II , 994 F.2d 1160, 1164 (5th Cir. 1993). In essence, if the evidence demonstrates only that it is equally likely that the plaintiff was born in a foreign country as in the United States, the plaintiff has not carried his burden.
The parties contest whether the Court must resolve all doubts in favor of the United States and against those seeking citizenship. (Petitioner's Brief, Doc. 33; Defendant's Brief, Doc. 34) Ovidio argues that the principle applies only when an individual seeks citizenship through naturalization, and not in cases where an individual seeks recognition of citizenship through birth in the United States. The Court need not reach this issue, as the Court would reach the same conclusion even if it resolved all doubts in favor of the United States and against Ovidio.
Section 1503(a) lawsuits typically involve specific types of documentary evidence for which certain legal principles apply. For example, a "contemporaneously filed foreign birth record creates a presumption of alienage and is almost conclusive evidence of birth in that country." Sanchez v. Kerry , 4:11-CV-02084, 2014 WL 2932275, at *4 (S.D. Tex. June 27, 2014), aff'd , 648 F. App'x 386 (5th Cir. 2015). Courts weigh whether a filing is "contemporaneous" on a sliding scale, and have found that filing within three, eight and eleven days after birth satisfied the standard. See Candela-Rios v. Lynch , No. SA-16-MC-00220-JWP, 2017 WL 11046200, at *14 (W.D. Tex. Jan. 9, 2017), aff'd sub nom. Candela-Rios v. Sessions , 737 F. App'x 187 (5th Cir. 2018) (three days after birth); Cobos v. Kerry , No. CIV.A. H-13-02897, 2015 WL 3965660, at *1, *7 (S.D. Tex. June 30, 2015) (eight days after birth); Beltran v. Rivera , No. 2:10-CV-24288-KMM, 2012 WL 2675477, at *3 (S.D. Fla. July 6, 2012) (eleven days after birth). A foreign birth certificate that contains accurate corroborating details, such as names and addresses, holds greater credibility. See Sanchez , 2014 WL 2932275, at *1.
In similar fashion, a Texas birth certificate "registered under this title that is certified by the state registrar is prima facie evidence of the facts stated in the record." TEX. HEALTH & SAFETY CODE ANN. § 191.052. But this evidence is rebuttable, "because prima facie evidence only refers to a minimum quantity, and constitutes enough evidence that raises either a presumption of fact, or that, which is sufficient, when unrebutted, to establish the fact." See Sanchez , 2014 WL 2932275, at *4 (quoting Pinto-Vidal v. Att'y Gen. of U.S. , 680 F. Supp. 861, 862 (S.D. Tex. 1987) ). The Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution does not require federal courts to give preclusive effect to a determination by the Texas Department of Health and Human Services that a plaintiff was born in Texas. See Sanchez v. Clinton , No. CIV.A. H-11-2084, 2012 WL 208565 (S.D. Tex. Jan. 24, 2012), aff'd sub nom. Sanchez v. Kerry , 648 F. App'x 386 (5th Cir. 2015).
Baptismal certificates, medical records, and school records constitute evidence of an individual's birthplace, but courts consider such documents as "secondary evidence". De La Cruz v. Clinton , No. A-11-CV-675-AWA, 2012 WL 1941373, at *2 (W.D. Tex. May 29, 2012) ; Nelson v. Clinton , 2012 WL 13035405, at *2 (S.D. Tex. Feb. 7, 2012).
As for testimony, courts weigh the credibility of witnesses, but receive a plaintiff's self-serving statements and those of interested witnesses "with a grain of salt." De Vargas , 251 F.2d at 872 ; see also Garcia , 915 F. Supp. 2d at 835 ; Patel v. Rice , 403 F. Supp. 2d 560, 565 (N.D. Tex. 2005), aff'd , 224 F. App'x 414 (5th Cir. 2007).
B. Application
Applying the applicable standard and legal principles to the evidence admitted at trial, the Court concludes that Ovidio Garcia has established by a preponderance of the evidence that he was born in the United States.
The trial testimony represents the critical evidence in this matter. Each witness testified that Ovidio was born on July 16, 1981 at a midwife's house in Brownsville, Texas. They recalled events surrounding Ovidio's birth, and declared that they had no doubts about Ovidio's date and place of birth. Although these witnesses are interested in that they testified in favor of their relative, Ovidio, the Court finds their testimony credible. Each witness's testimony was internally consistent and also corroborated the testimony of the other witnesses. Gerardo, Jr. provided great detail regarding the day he walked from his grandparents’ home in Brownsville to the midwife's house a block away, waiting outside on the porch while Ovidio was born and meeting his brother for the first time that evening. Ovidio's aunt, Catalina, testified that she and her husband arrived in Brownsville on July 16 and that she saw Estela in bed at the midwife's house with a newborn, not a child that was over a month old.
The Government cross-examined each witness, but did not call any witnesses of its own. For the Government's theory of the facts to prevail, the Court would have to conclude that Estela fabricated her story about Ovidio's birthplace and birthdate, and that Catalina and Gerardo, Jr. also committed perjury or were grossly mistaken or deceived as to where and when Ovidio was born. The Court observed the witnesses testify, and, based on its own judgment regarding the witnesses’ credibility, the Court concludes that no such family-wide scheme of deception or delusion exists.
The documentary evidence largely supports these witnesses’ testimony. Ovidio's Texas birth certificate was filed on July 17, 1981, the day after he claims to have been born. In addition, Ovidio's baptismal certificate, vaccination card from Hidalgo County, school records, and a United States passport all corroborate a birth in Texas, and some confirm the July 16 birthdate.
The Government challenges the reliance on the Texas Birth Certificate because it was registered by a midwife who in the 1980's was twice convicted of birth certificate fraud. (JPO, Doc. 20, ¶ 6.G.) But the Government has presented no evidence that the midwife committed fraud with respect to every birth certificate she registered, or with respect to Ovidio's birth certificate in particular.
The Government also places great weight on Ovidio's Mexican birth certificate, which unquestionably raises a fact issue as to Ovidio's birthplace and birthdate. But Ovidio's Mexican birth records contain irregularities that call into question the birth certificate's legitimacy and that supports the conclusion that Gerardo, Sr. fraudulently registered Ovidio when he obtained a birth certificate for Gerardo, Jr. The Mexican birth certificates for Gerardo, Jr. and Ovidio were registered on June 26, 1981. While the registration documents purport to have been witnessed by several individuals—including Estela—the handwriting appears to be the same for all signatures, strongly suggesting that one person forged each signature. In addition, Estela's name is inconsistently spelled, even adding an "h" (i.e., "Esthela") to her purported signature on Gerardo, Jr.’s birth certificate. In addition, Ovidio's Mexican birth registration record claims that his maternal grandparents resided in Houston, when no party disputes the witnesses’ testimony that these grandparents lived in Brownsville.
In this case, both the Mexican and Texas birth certificates are, in a sense, "contemporaneous." The Mexican birth certificate was purportedly registered three weeks after Ovidio's birthdate noted on that record, and the Texas birth certificate purports to be registered the day after Ovidio's birthdate on that document. As a result, neither document receives any additional weight typically provided to contemporaneously-registered birth certificates.
Not only do Ovidio's Mexican birth records contain irregularities, but the circumstances surrounding them provide a plausible explanation for their registration apparently weeks before Ovidio's birth. Gerardo, Jr. was scheduled to enter a Mexican public school in fall 1981, and no party disputes the testimony that his parents required a Mexican birth certificate for him to begin school. As a result, it is reasonable to accept that Gerardo, Sr. obtained his first son's birth certificate in late June 1981, a month or two before school began. Given that his wife was about to give birth to their second child, and his willingness to register Gerardo, Jr.’s birth using a false birthplace—i.e., Rio Bravo—it is also reasonable to conclude that he took advantage of the opportunity to fraudulently obtain a birth certificate for the son that he expected would be born soon enough, in Rio Bravo. Overall, the testimony wholly supports the finding that Ovidio was born in Brownsville, Texas, on July 16, 1981. The Court finds these witnesses credible. In addition, the documentary evidence is largely consistent with these family members’ testimony, with the exception of a Mexican birth certificate that contains irregularities and was obtained under circumstances that reasonably call its legitimacy into question. As a result, the Court finds that Ovidio Garcia has proved by a preponderance of the evidence that he was born in the United States.
As Gerardo, Sr. did not provide money to Estela to travel to the United States for Ovidio's birth, it is reasonable to conclude that in June 1981 he fully expected his second son to be born in Rio Bravo.
The Government also notes that Ovidio's actual vaccinations in Mexico correspond to the suggested vaccination schedule on his Texas vaccination record, assuming a June 3 birthdate. The Court finds this evidence to be of little weight. The parties did not present evidence of the typical vaccination schedule in Mexico, which is where Ovidio received his shots.
III. Conclusion
Based on the Court's findings of fact and the applicable law, it is:
ORDERED that Plaintiff Ovidio Garcia's request for a declaratory judgment is GRANTED ; and
ORDERED that, pursuant to 8 U.S.C. § 1503(a), Plaintiff Ovidio Garcia is a citizen of the United States of America.
Ovidio Garcia has requested recovery of attorneys’ fees (Am. Compl., Doc. 2, 8), but the parties have not briefed the issue. To facilitate the Court's consideration of this request, it is also:
ORDERED that by no later than June 25, 2021, Ovidio Garcia file a request for attorneys’ fees and a brief in support of those fees, including any evidence supporting the reasonableness of the fees requested. Ovidio Garcia's failure to file the request by June 25 shall indicate to the Court that he no longer requests recovery of attorneys’ fees. The United States shall file any response in opposition to any requested fees by no later than July 16, 2021.