PLAINTIFF S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Transcription

1 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION HUMBERTO G PLAINTIFF, v. C.A. B JOHN F. KERRY United States Secretary of State, and UNITED STATES OF AMERICA, DEFENDANTS. PLAINTIFF S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff Humberto G. ("Plaintiff" or "Mr. G."), files the instant Proposed Findings of Fact and Conclusions of Law. I. BACKGROUND Plaintiff Humberto G. seeks a declaration pursuant to 28 U.S.C with 8 U.S.C. 1503, declaring that he is a United States citizen by virtue of his birth in Lubbock, Texas. He claims that he is entitled to such a declaration, even though a new U.S. passport was recently issued to him. Defendants assert that [a] cause of action under 8 U.S.C. 1503(a) is moot where the State Department issues a passport to the section 1503(a) plaintiff, [65:2]. However, as this Court held, [64:4], the case is not moot because the Department of State has not carried its burden under the voluntary cessation exception. Specifically, DOS retains discretion to again revoke it, without prior notice and opportunity to be heard, or a post-revocation hearing. Mr. G. proposes to show, by a preponderance of the evidence, that under the Fourteenth Amendment to the U.S. Constitution, he acquired United States citizenship at birth, because he was born in Lubbock, Texas, and was subject to the

2 jurisdiction of the United States. As evidence thereof, he will present his valid United States passport; his Texas birth certificate, and his mother, to show that he is in fact the person to whom the passport was issued. II. PROPOSED FINDINGS OF FACT A. Plaintiff Humberto G. was born in Lubbock, Texas in December, 1975, at which time he was subject to the jurisdiction of the United States. His birth was attended by Antonia C., a midwife. B. Plaintiff's Texas Birth Certificate was filed in May, C. When Plaintiff was approximately three weeks old, he was baptized in the City of Reynosa, Tamaulipas, Mexico. As issued by the Church in 1995, his baptismal certificate lists his place of birth as Lubbock, Texas. D. On November 17, 1976, when Mr. G. was almost one year old, his mother registered him in Reynosa, Tamaulipas, showing that his birth was in Reynosa, Tamaulipas, Mexico. Mr. G. underwent the necessary procedures in Mexico to correct his Mexican birth certificate, to show that he was born in fact in Texas, and received a corrected Mexican birth certificate on February 25, E. On July 30, 2008 and August 14, 2008, respectively, a United States passport and United States passport card were issued to Plaintiff. F. In approximately November, 2011, Plaintiff received a certified letter from DOS informing him that his U.S. Passport and Passport Card had been revoked, and ordering him to surrender them. Said letter read, (Exh. A, Doc. 11) (emphasis added): State Department Records show that you executed an application for a U.S. Passport on June 20, In support of the application, you submitted a Texas birth certificate filed on May 7, 1982 showing that 2

3 you were born on December, In addition, you provided a January 1976 baptismal record which indicated place of birth Texas, a March 1976 immunization record and a Mexican Birth certificate filed on November 17, 1976 showing that you were born in Lubbock, Texas. The U.S. Passport were issued on the basis of these documents. A subsequent investigation uncovered that the Mexican birth registration filed in 1976 originally indicated that you were born in Reynosa, Tamaulipas, Mexico, on December, Therefore, you did not acquire U.S. Citizenship by virtue of birth in the United States. The wording of this letter indicates that the Department of State considered that the original Mexican birth certificate was conclusive of birth in Mexico, regardless of whether that birth certificate had been judicially corrected, in accordance with Mexican law. G. Sometime thereafter, the Department of State informed the State of Texas that there was conflicting evidence regarding Plaintiff's place of birth. As a result of its receipt of the conflicting information, the Texas State Registrar placed an addendum, or "flag," on Plaintiff's Texas birth record. The addendum made it impossible for him to obtain a new birth certificate. To remove the addendum, Plaintiff must request a hearing before an administrative law judge in Austin, Texas. Plaintiff requested an administrative hearing by fax on June 19, 2014, but the hearing has not been scheduled. In December, 2013, the Texas Department of Transportation cancelled his Texas Driver's License, because there were questions as to whether he was born in Texas. The cancellation of both his passport and drivers license caused Mr. G. to lose his job. H. Plaintiff now has a valid Texas driver's license and has returned to his former employment, without back pay. 3

4 I. In 2012, Plaintiff filed the instant petition. J. On May 8, 2014, the DOS issued a new U.S. passport and passport card to Mr. G.. K. By issuing a passport to Plaintiff, the State Department provided him with evidence of his United States citizenship, which he can use so long as his passport is valid, but which does not provide full relief. Defendants maintain the right to rerevoke his passport, without prior notice, opportunity to be heard, or even a post revocation hearing, and apparently without resort to the procedures of Rule 60, F.R.Civ.Pr., regardless of whether this Court issues a declaration of U.S. citizenship. They also have refused to state unequivocally that Mr. G. was born in Texas, or to agree that this Court issue a declaratory judgment to that effect. Nor is the passport sufficient to obtain a new Texas birth certificate. Rather, unless the State of Texas agrees to remove the flag that was placed on his birth record as a result of information provided by Defendants, he must undergo a hearing, and such hearings are now being delayed for over a year. L. Plaintiff has requested that the Department of State inform the State of Texas that it issued a passport to Plaintiff, and "request" that the State of Texas remove the flag from his birth record. Defendants have refused either to advise the State of Texas that they have again issued him a passport, or to request that the flag be removed. They have neither contacted the Texas Registrar to advise them that they issued him a passport, nor requested that the flag be removed from his birth record. M. In their Amended Proposed Findings of Fact and Conclusions of Law, Defendants urge the Court to conclude as follows, [65:3]: 7. Even if the Court could issue a finding of citizenship in this case, the provision at 8 U.S.C. 1504(a) provides that [t]he Secretary of State is authorized to cancel any United States passport or Consular Report of 4

5 Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary. 8 U.S.C. 1504(a). 8. Section 1504(a) does not restrict the Secretary of State s authority to revoke a passport where the passport holder has obtained a certificate of nationality. See 8 U.S.C. 1504(a). 9. Thus, the fact that a passport holder obtained a certificate of nationality does not preclude the Secretary from revoking his passport. See 8 U.S.C. 1504(a). The Secretary may still revoke the passport if it appears that the passport was issued due to fraud, error, or illegality. See, id. N. Defendants have made no attempt to show that they will not again revoke Mr. G. s passport, relying instead on their argument that they have a right to do so, regardless of whether this Court issues a declaration of U.S. citizenship to him. This argument reinforces the Court s earlier finding, [64:4], that the case is not moot because the Department of State has not carried its burden under the voluntary cessation exception. O. Further, the case is not moot because of Defendants refusal to advise the State of Texas that they have issued a passport to Mr. G., and to request that they remove the flag from his birth record that was placed there as a result of information provided by them. Consequently, there is still a live controversy over the adequacy of the relief provided, under Knox v. Service Employees Intern. Union, 132 S.Ct. 2277,2287 (2012) ("mootness argument fails because there is still a live controversy as to the adequacy of the [relief provided]"). P. The Court can, and should, take judicial notice of the deposition of Jonathan Rolbin, Director of the Office of Legal Affairs and Law Enforcement Liaison in the Passport Services Directorate of the Bureau of Consular Affairs, Department of State, 5

6 which deposition was given in connection with Plaintiffs' motion for class certificate on the count relating to passport revocation in Castro et al v. Freeman et al, CA B-09cv208 (S.D.Tx). Said deposition is found at [227-3], and concedes that the standard for the Department of State to revoke a passport is preponderance of the evidence. See, Rolbin Depo. at 27:3-4; Defendants' Motion to Dismiss Fourth Amended Complaint, at [178.5]. IV. CONCLUSIONS OF LAW A.. The instant case was initiated under 8 U.S.C. 1503(a), giving the Court jurisdiction to issue a declaratory judgment declaring Plaintiff to be a United States citizen. Rusk v. Cort, 369 U.S. 367,372 (1962)("a declaratory judgment is available as a remedy to secure a determination of citizenship"). Such a declaratory judgment is a declaration of status which is binding not only on governmental authorities but also upon the whole world. Reyes v. Neelly, 264 F.2d 673,676 (5th Cir.1959) (Judge Rives, dissenting). B. Under 1503(a), Plaintiff has the burden of proving, by a preponderance of the evidence, that he was born in the United States, and subject to the jurisdiction thereof, and therefore is a United States citizen. See 8 U.S.C. 1503(a); 28 U.S.C. 2201; Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir.2006); Reyes v. Neely, 264 F.2d 673, (5th Cir. 1959). C. Proving a fact by a preponderance of the evidence means showing that the existence of said fact is more likely than not. Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983); Matter of Briscoe Enterprises, Ltd. II, 994 F.2d 1160, 1164 (5th Cir. 1993). 6

7 D. Because Plaintiff was born in Lubbock, Texas, and was subject to the jurisdiction of the United States, he is a U.S. citizen by birth, under the Fourteenth Amendment to the Constitution of the United States. See also, Perkins v. Elg, 307 U.S. 325 (1939) (Plaintiff born in the United States of alien parents is entitled to a declaratory judgment that she is a U.S. citizen, even though her parents took her to their home country as a child). E. Federal courts are limited to hearing "cases" or "controversies." U.S. Constitution, art. III, 2. An actual case or controversy must exist at every stage in the judicial process. See Karaha Bodas v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 365 (5th Cir. 2003). Federal courts are "without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246 (1971). "[F]ederal courts may not give opinions upon moot questions or abstract propositions." Calderon v. Moore, 518 U.S. 149, 150 (1996) (internal quotations omitted). A claim becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. See Motient Corp. v. Dondero, 529 F.3d 532, 537 (5th Cir. 2008). F. Under 28 U.S.C. 2201, this Court has jurisdiction only to issue a declaratory judgment. It cannot issue injunctive or other forms of relief unless and until it has issued a declaratory judgment. See, Hizam v. Kerry, 747 F.3d 102,105 (2nd Cir. 2014) (emphasis added): Section 1503(a) allows a district court to grant just one type of relief: a declaration that a person is a U.S. national. The statute provides no authority for the remedy ordered by the district court... Any further relief can be issued only after the Court has entered a declaration that Mr. G. is a United States citizen. 28 U.S.C

8 G. Once issued, and for so long as it is valid, a passport has "the same force and effect as proof of United States citizenship as [a] certificate[] of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction." 22 U.S.C. 2705; see also Haig v. Agee, 453 U.S. 280,292 (1981). H. The instant case is not moot for two reasons: First, Defendants assert that they have unfettered discretion to revoke Mr. G. s passport, (without prior notice and opportunity to be heard, or even a post-revocation hearing), and most specifically, without resort to the procedures of Rule 60, F.R.Civ.Pr., even if this Court issues a Declaration of U.S. citizenship. This raises serious Constitutional issues, see, th Magnuson v. Baker 911 F.2d 330, 336 (9 Cir. 1990); Haig v. Agee, 453 U.S. 280,304 (1981); Reyes v. Neelly, supra. The fact that DOS makes this claim is a virtual concession that this Court correctly found that Defendant Department of State has not carried its burden under the voluntary cessation exception. [64:4]. See, e.g., City of Erie v. Pap's A.M. 529 U.S. 277,287 (2000) ("closing Kandyland is not sufficient to render this case moot... Pap's... could again decide to operate a nude dancing establishment"). Second, there exists an ongoing controversy regarding the adequacy of the relief provided, under Knox v. Service Employees, supra, ("mootness argument fails because there is still a live controversy as to the adequacy of the [relief provided]"). See also, Genesis Healthcare Corp. v. Symczyk, 133 S.Ct (2013) (case is not moot if plaintiff still has a personal stake in the outcome and the court can grant effectual relief); Chafin v. Chafin, 133 S.Ct (2013) (same); City of Erie v. Pap's A.M., supra, and Rusk v. Cort, supra ("a declaratory judgment is available as a remedy to secure a determination of citizenship"), Reyes v. Neelly, supra. 8

9 I. 8 U.S.C. 1503(a) only provides jurisdiction to institute a declaratory judgment action under 28 U.S.C See, Rios-Valenzuela v. DHS, 506 F.3d 393,397 (5 th Cir. 2007) ( we read institute in this context to mean [t]o initiate; begin ). Once instituted, mootness is determined as in any other declaratory judgment action. See, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,127 (2007). J. Here, the case is not moot both because the Government has not carried its burden under the voluntary cessation exception, and because there still exists a substantial, actual, and ripe controversy. As held in Knox v. Service Employees, supra, 132 S.Ct. at 2287 (internal citations omitted) (emphasis added): The union argues that concerns about voluntary cessation are inapplicable in this case because petitioners do not seek any prospective relief.... But even if that is so, the union's mootness argument fails because there is still a live controversy as to the adequacy of the SEIU's refund notice. K. For the reasons discussed above, a United States passport is not an "adequate" substitute for a declaration that Mr. G. is a United States citizen. His interest in having such a declaration is both concrete, and substantial. DOS has unreviewable discretion to revoke his passports, thereby forcing him to file a new declaratory judgment action to re-prove his United States citizenship, de novo -- assuming that all relevant evidence is still available. By contrast, a declaration that Plaintiff is a United States citizen could only be vacated in accordance with the substantive and procedural safeguards of Rule 60, F.R.Civ.P. And if Defendants re-revoked his passport without following these procedures, as they claim the authority to do, and even if their authority to do so were found to be constitutional, Plaintiff could still return to federal court, and interpose his declaratory judgment as proof of citizenship, without having to go through the entire process, again, de novo. 9

10 L. Effectual relief is also possible: a declaratory judgment that Plaintiff is, in fact, a United States citizen: the very relief he sought. See, Rusk v. Cort, supra. The "immediacy and reality" prong is satisfied by the fact that DOS mah arbitrarily exercise its discretion to revoke passports. They may discover a "new" seemingly adverse, fact, and revoke the passport, without giving Mr. G. notice or an opportunity to dispute its relevance. His is a perfect example of this problem. Mr. G. initially gave DOS copies of both his valid Texas birth certificate, and his judicially corrected Mexican birth certificate. Yet DOS asserts that an investigation was conducted, which revealed that his Mexican birth certificate had been judicially corrected, as it originally listed his place of birth as Mexico. Without more, and without notice, opportunity to be heard, or even a post-revocation hearing, they revoked his passport. This had disastrous consequences for Mr. G.. Moreover, agents of Customs and Border Protection, ("CBP"), sometimes confiscate valid passports from United States citizens seeking to enter the United States. This happened, inter alia, to Nancy Castro, the lead Plaintiff in Castro et al v. Freeman et al, CA B-09cv208 (S.D.Tx), and to Ricardo Martinez, who was born in a hospital in McAllen, Texas, but was forced to "admit" birth in Mexico. Martinez v. Jimenez et al, CA-M-08cv87 (S.D.Tx). M. Although necessary for jurisdiction under 8 U.S.C to institute the declaratory judgment action, the deprivation of a right or privilege claimed as a U.S. national need not continue throughout the case, so long as it has not become moot. In this sense, 1503 is similar to habeas corpus, 28 U.S.C Habeas is only appropriate if the petitioner is "in custody" when it is filed, much as a 1503 complaint can only be filed if the plaintiff "is denied" a right or privilege claimed as 10

11 a U.S. national. But jurisdiction is not lost if the habeas petitioner is released from custody, unless the case has become moot, Spencer v. Kemna, 523 U.S. 1,7 (1998). Similarly, jurisdiction in a declaratory judgment action instituted under 1503 is not destroyed, unless the action has become moot, simply because the denial of the right or privilege which provided jurisdiction to institute the action has been cured. N. Issuing a passport did not render Plaintiff's case moot. In addition to the fact that the Government has not carried its burden under the voluntary cessation exception, a passport does not "determine" United States citizenship, as Rusk allows. It is not irrevocable, as Golden State requires. It does not even guarantee entry into the United States, as the cases of Nancy Castro and Ricardo Martinez demonstrate. And, as necessary to overcome a claim of mootness, Plaintiff still has legally cognizable interests in the outcome of the litigation, namely, in obtaining a declaration that he is a United States citizen, so that, inter alia, he can obtain further relief under 28 U.S.C This is what he sought, and is the effectual relief this court can provide. O. Nor would ascertaining the necessary facts to determine that Plaintiff is a United States citizen constitute an advisory opinion. See, Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242 (1937): That the dispute turns upon questions of fact does not withdraw it, as the respondent seems to contend, from judicial cognizance. The legal consequences flow from the facts and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. Aetna also defines an advisory opinion as "an opinion advising what the law would be upon a hypothetical state of facts." Id. at 241. Ascertaining the facts and determining whether Plaintiff has the legal status of a United States citizen does not entail drawing legal conclusions from a hypothetical state of facts. To the contrary, 11

12 the self-same, now undisputed fact, to wit, that Mr. G. has met his burden of showing U.S. citizenship, which the Government claims renders the case moot, is the fact on which the declaration of U.S. citizenship would be based. Respectfully Submitted, /s/jaime Diez s/ Elisabeth (Lisa) S. Brodyaga JAIME DIEZ, Esq. Refugio del Rio Grande Jones and Crane Landrum Park Rd. P.O. Box 3070 San Benito, TX Brownsville, TX (956) (956) (956) (fax) SDTX No SDTX No CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was this day served on all counsel of record by means of the Court s ECF filing system. S/ Lisa S. Brodyaga 12