Arutyun Demirchyan v. Alberto R. Gonzales

Filing 88

SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Stephen V. Wilson. (See attached document for further details). (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARUTYUN DEMIRCHYAN,
Petitioner,

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v.

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ALBERTO R. GONZALES, Attorney
General,

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Respondent.

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CV 08-3452 SVW (MANx)
SUPPLEMENTAL FINDINGS OF FACT
AND CONCLUSIONS OF LAW

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I.

INTRODUCTION AND BACKGROUND
On May 5, 2008, the Ninth Circuit transferred this action to this

Court pursuant to 8 U.S.C. § 1252(b)(5) in light of genuine issues of
material fact regarding Petitioner’s claim to citizenship.

See

Demirchyan v. Mukasey, 278 Fed. Appx. 778, 779 (9th Cir. 2008).

The

Court was charged with conducting a de novo hearing to evaluate
Petitioner Arutyun Demirchyan’s claim that he is a United States
citizen.

Id.

This determination turns on whether Petitioner was born

in 1976 or 1977.

If, as Petitioner claims, he was born in 1977, then

he is entitled to derivative U.S. citizenship because he was under the
age of 18 when his mother became a U.S. citizen.

However, if

Respondent is correct that Petitioner was born in 1976, then he is

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ineligible for derivative citizenship because he was over the age of

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majority when his mother naturalized.

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1994), repealed by Child Citizenship Act of 2000, § 103, Pub. L. No.

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106-395, 114 Stat. 1631.1

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Petitioner is subject to the removal order issued against him in 2000.

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See 8 U.S.C. § 1432(a) (West

Absent such derivative citizenship,

To resolve Petitioner’s status, the Court held evidentiary

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hearings on August 25, 2009 and June 16, 2010.

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September 8, 2010, the Court issued its Findings of Fact and

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Conclusions of Law, holding that Petitioner was not a U.S. citizen

(Dkt. 25, 41).

On

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because he failed to prove by a preponderance of the evidence that he

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was born in 1977.

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(MANx), 2010 WL 3521784 (C.D. Cal. Sept. 8, 2010).

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the Court principally relied on two documents indicating that

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Petitioner was born in 1976: (1) his Registration for Classification as

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Refugee; and (2) a copy of Petitioner’s birth certificate issued in

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July 1988, which he submitted to the United States embassy in Moscow to

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emigrate to this country (“1988 Birth Certificate”).

See Demirchyan v. Gonzales, No. CV 08-3452 SVW
In so concluding,

Id. at *13.

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At the relevant time period, the operative statute provided:
A child born outside of the United States of alien parents, or
of an alien parent and a citizen parent who has subsequently
lost citizenship of the United States, becomes a citizen of the
United States upon fulfillment of the following conditions:
. . .
(3) The naturalization of the parent having legal custody of the
child when there has been a legal separation of the parents . .
. ; and if
(4) Such naturalization takes place while such child is under
the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a
lawful admission for permanent residence at the time of the
naturalization of . . . the parent naturalized under clause (2)
or (3) of this subsection, or thereafter begins to reside
permanently in the United States while under the age of eighteen
years.
8 U.S.C. § 1432(a) (West 1994) (emphasis added).
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Conversely, the Court rejected other items of evidence that

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purported to show that Petitioner was born in 1977.

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Court rejected a copy of another birth certificate issued by Armenia in

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2000 (“2000 Birth Certificate”) on the ground that it was inadmissible

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hearsay, since it failed to satisfy the public records exception.

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at *18.

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of (1) Petitioner’s mother, who averred that the 1988 Birth Certificate

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was inaccurate; and (2) Petitioner’s brother, who suggested that the

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1988 Birth Certificate was the product of a clerical error.

Most notably, the

Id.

Additionally, the Court rejected as incredible the testimony

Id. at

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*15.

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citizen pursuant to 8 U.S.C. § 1432(a), and returned the matter to the

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Ninth Circuit for further proceedings.

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In short, the Court concluded that Petitioner was not a U.S.

Id. at *18-19.

Upon return to the Ninth Circuit, Petitioner filed a motion to

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supplement the record with “new” evidence.

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Instead of granting the motion, the Ninth Circuit concluded that “there

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continues to be an unresolved ‘genuine issue of material fact about the

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petitioner’s nationality.’”

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returned the case to this Court “in order to permit the parties to move

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. . . for admission of documents not previously presented there, and to

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permit the district court to reconsider its findings of fact and

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conclusions of law in light of any such evidence it deems admissible.”

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(Id.).

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(Dkt. 61).

Fed. R. App. P. 10(e)(2).

Accordingly, the panel

On July 19, 2011, pursuant to the Ninth Circuit's order,

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Petitioner lodged with this Court twelve “new” Exhibits A through L.

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(Dkt. 65).

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of Petitioner’s birth certificate issued by Armenia in 1997, which

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indicates a birthdate of July 27, 1977 (“1997 Birth Certificate”).

The most prominent of these documents appears to be a copy

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(Dkt. 65, Ex. A).

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of 1977, including copies of two U.S. passports issued to Petitioner

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(Exs. B, C); a copy of an Armenian passport (Ex. D); a copy of Form I-

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90 application to replace Permanent Resident Card filled out by

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Petitioner in December 2001 (Ex. E); various pages from the Immigration

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and Naturalization Service (“INS”) database (Exs. F-K); and a copy of

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an Application for Certificate of Citizenship submitted by Petitioner

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in October 2000 (Ex. L).

The remaining eleven exhibits also show a birth year

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On July 25, 2011, the Court explained that it read the Ninth

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Circuit’s transfer order to mean that the Court must “determine whether

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the new documents attached on Appeal are admissible and then make

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changes to its findings, if necessary.”

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Court ordered the Petitioner “to file a memorandum with attached

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declarations that allow the Court to determine whether the documents

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are admissible,” and “if [they] are found admissible, why they should

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change the Court’s earlier findings.”

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(Dkt. 69), and Respondent filed a response (Dkt. 71).

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(Dkt. 68).

(Id.).

To this end, the

Petitioner complied

On October 24, 2012, the Court conducted further evidentiary

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hearing to elicit testimony from witnesses who could speak to these

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“new” exhibits, in particular the purported 1997 Birth Certificate.

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(Dkt. 79, 82).

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Demirchyan; (2) Petitioner’s mother, Susanna Demirchyan; (3) Asatur

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Guyumjyan; and (4) Zara Hovanisyan.

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The Court heard testimony from (1) Petitioner Arutyun

(Dkt. 86).2

Having reviewed the parties’ briefing, documentary evidence, and
live testimony with respect to these “new” exhibits, and taking into

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The Court will detail below the testimony of these persons as
necessary in the course of its findings of fact.
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account the Court’s previous findings and conclusions, the Court now

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re-examines the merits of Petitioner’s claim.

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II.

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FINDINGS OF FACT
The Court set forth several findings of fact in its previous Order

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dated September 10, 2008, which need not be repeated here.

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2010 WL 3521784 at *13-18.

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Petitioner’s submission of twelve “new” exhibits as well as affidavits

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and oral testimony from witnesses in support of these documents.

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sole inquiry is whether such evidence leads the Court to alter its

Demirchyan,

Since then, the Court has received

The

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original findings.

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related pleadings, the Court makes the following additional factual

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findings.

Having reviewed these evidentiary submissions and

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A.

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Petitioner has submitted a copy of a birth certificate that, based

1997 Birth Certificate (Exhibit A)

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on the English translation, appears to have been issued by Armenia on

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April 29, 1997, and which states that Petitioner was born on July 27,

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1977.

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(Dkt. 65, Ex. A).
Before it can discern the evidentiary value of the 1997 Birth

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Certificate, the Court must determine if it is admissible.

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and authentication are separate and independent requirements for

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evidentiary admissibility.”

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Court addresses the document’s authenticity first.

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1.

“Hearsay

Demirchyan, 2010 WL 3521784, at *3.

The

Authentication

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A document may be authenticated by virtue of its own contents,

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Fed. R. Evid. 902, or on the basis of extrinsic evidence “sufficient to

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support a finding that the matter in question is what its proponent

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claims.”

Fed. R. Evid. 901(a).

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a.

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Self-Authentication

The 1997 Birth Certificate is not self-authenticating.

Title 28

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U.S.C. § 1741 provides that “[a]n official record or document of a

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foreign country may be evidenced by a copy, summary, or excerpt as

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authenticated as provided in the Federal Rules of Civil Procedure.”

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U.S.C. § 1741.

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(A)

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The Federal Rules of Civil Procedure provide:

In General. Each of the following evidences a foreign
official record--or an entry in it--that is otherwise
admissible:
(i) an official publication of the record; or
(ii) the record--or a copy--that is attested by an
authorized person and is accompanied either by a
final certification of genuineness or by a
certification under a treaty or convention to which
the United States and the country where the record
is located are parties.

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(B)

Final Certification of Genuineness. A final
certification must certify the genuineness of the
signature and official position of the attester or of
any foreign official whose certificate of genuineness relates to the
attestation or is in a chain of certificates of genuineness relating to
the attestation. A final certification may be made by a secretary of a
United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular
official of the foreign country assigned or accredited to the United
States.
(C)

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Other Means of Proof. If all parties have had a
reasonable opportunity to investigate a foreign record's
authenticity and accuracy, the court may, for good
cause, either:

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(i)

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admit an attested copy without final certification;
or
(ii) permit the record to be evidenced by an attested
summary with or without a final certification.

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Fed. R. Civ. P. 44(a)(2).3

Under the Hague Convention, a model

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Federal Rule of Evidence 902(3) also governs the authenticity of
evidence consisting of foreign public documents. Rule 902(3) is
substantively identical to Fed. R. Civ. P. 44, except that it does
not mention the alternative method of certification pursuant to a
treaty or convention.
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apostille may be used in place of the final certification demanded

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under Rule 44(a)(2)(A)(ii).

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10cr522 JM(CAB), 2010 WL 2985490, at *4 (S.D. Cal. July 26, 2010).

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See United States v. Nunez-Beltran, No.

None of the foregoing conditions are met here.

Petitioner has

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submitted an unofficial photocopy of the 1997 Birth Certificate.

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65, Ex. A).

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what the notary is attesting to.

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Certificate is not accompanied by any “final certification of

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genuineness” or model apostille under the Hague Convention indicating

(Dkt.

Though the English translation is notarized, it is unclear
In any event, the 1997 Birth

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that the notary was authorized to attest to the document’s

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authenticity.

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explained further below, the Court does not find that good cause exists

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to relax the certification requirement.

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Therefore, the document’s authenticity is not self-evident.

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Fed. R. Civ. P. 44(a)(2)(A)(ii).

b.

Moreover, for reasons

Fed. R. Civ. P. 44(a)(2)(C).

Extrinsic Evidence

Even where self-authentication is unavailable, however, a document

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may still be authenticated through extrinsic evidence “sufficient to

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support a finding that the item is what the proponent claims it is.”

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Fed. R. Evid. 901(a); see Vatyan v. Mukasey, 508 F.3d 1179, 1183-84

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(9th Cir. 2007).

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immigration judge erred in refusing to consider the petitioner’s own

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testimony that his Armenian documents bore certain indicia of

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authenticity.

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consider such testimony “does not mean that the [judge] must accept the

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documents into evidence or deem their contents to be true.”

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decision ultimately will depend on the strength of the evidentiary

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showing of authenticity.

For example, in Vatyan, the Court held that the

Id. at 1184-85.

However, just because a judge may

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Id.

That

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Petitioner’s Allegations

The Court begins with the alleged provenance of the 1997 Birth

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Certificate.

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Certificate, Petitioner relies on the written and oral testimony of

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(1) himself; (2) his mother, Susanna Demirchyan; (3) his former

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neighbor in Armenia, Asatur Guyumjyan; and (4) his girlfriend’s mother,

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Zara Hovanisyan.

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To support the authenticity of the 1997 Birth

Their collective testimony is summarized below.

In or about 1992, Petitioner’s mother, Susanna Demirchyan
(“Susanna”) sent a power of attorney to her former neighbor in Armenia,

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Lusine Jambaryan, to obtain a “corrected” birth certificate for

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Petitioner from Armenian authorities.

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¶ 19).

This attempt failed because Jambaryan committed suicide.

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¶ 20).

In or about 1996, Susanna asked and authorized another former

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neighbor in Armenia, Asatur Guyumjyan (“Guyumjyan”), to obtain a birth

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certificate for Petitioner.

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Asatur arranged for someone to bring the corrected birth certificate to

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me.”

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(Dkt. 69, Ex. B (“Susanna Aff.”)

(Id. ¶ 20).

(Id.

Susanna avers that “in 1997

(Id.).
According to Guyumjyan’s affidavit, he personally went to the City

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Hall in Yerevan, Armenia, to fill out the request for a birth

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certificate.

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two weeks later, Guyumjyan returned to City Hall to retrieve the

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certificate.

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“[s]oon after receiving the birth certificate, [he] found out about a

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person who was travelling from Armenia to the United States . . . met

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this person at the airport and gave them [Petitioner’s] certified birth

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certificate for delivery in the United States.”

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(Dkt. 69, Ex. M (“Guyumjyan Aff.”) ¶ 8).

(Id. ¶ 10).

Approximately

Guyumjyan states in his affidavit that

(Id. ¶ 11).

In the fall of 1997, Susanna claims that she and Petitioner

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visited the INS office in Los Angeles to present a copy of the 1997

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Birth Certificate.

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arrival, an INS agent instructed them to mail the original, along with

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a translation, to the INS.

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affidavit that she complied.

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time she saw the 1997 Birth Certificate was at Petitioner’s removal

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proceedings in 2000, when the INS attorney handed the certificate to

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the immigration judge.

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not in the best of shape” at the time, and “the immigration judge

(Susanna Aff. ¶ 21).

(Id. ¶ 21).

She avers that upon their

Susanna states in her

(Id. ¶ 22).

According to her, the next

In Susanna’s words, the birth certificate “was

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commented that it was ‘well worn.’”

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asked Susanna to have the original 1997 Birth Certificate authenticated

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in Armenia.

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Yerevan to authenticate the 1997 Birth Certificate.

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authenticating it, however, the Armenian official kept the 1997

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document and issued a new birth certificate dated 2000, which also

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reflected a birthdate of July 27, 1977.

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(Id.).

(Id. ¶ 25).

The immigration judge

Thus, in November 2000, Susanna returned to
Instead of

(Id. ¶ 25).

Petitioner also relies on the affidavit of Zara Hovanisyan to

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corroborate the authenticity of the 1997 Birth Certificate.

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to Petitioner, Hovanisyan has “extensive knowledge about Armenian

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Archives and the official practices of the Archives.”

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In her affidavit, Hovanisyan avers that she “clearly recognize[s]” the

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1997 Birth Certificate as “consistent with one issued by the Armenian

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government.”

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she attests that the shape of the seal is “exactly the type” used by

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the Armenian government and located in the place where an archivist

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would put the seal.

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language, and layout of the document are “exactly those used by the

(Dkt. 69 at 11).

(Dkt. 69, Ex. N (“Hovanisyan Aff.”) ¶ 5).

(Id.).

According

In particular,

She further testifies that the symbols,

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Armenian government on birth certificates.”

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concludes that the 1997 Birth Certificate “is a valid document done

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according to law.”

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Accordingly, she

(Id.).
ii.

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(Id.).

Analysis

Although courts must consider extrinsic evidence relating to the

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authenticity of a proffered document, this “does not mean that the

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[Court] must accept the document[] into evidence or deem [its] contents

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to be true.”

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discretion to accept a document as authentic or not based on the

Vatyan, 508 F.3d at 1185.

Courts “retain broad

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particular factual showing presented.”

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Court must consider the foregoing testimony “as evidence that is

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relevant to the issue of the [certificate’s] authenticity,” the Court

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“can assess the credibility of that testimony and determine whether the

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balance of the evidence is sufficiently compelling to satisfy him that

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the documents are what [its proponent] claims them to be.”

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the reasons below, the Court concludes that the balance of evidence

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presented by Petitioner is insufficient to persuade the Court that the

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1997 Birth Certificate is genuine.

Id.

In this case, although the

Id.4

For

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As a preliminary observation, the basic premise that Susanna

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entrusted a tourist from Armenia to deliver her son’s birth certificate

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to the United States, when she could have used a mail delivery service,

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In Vatyan, the Ninth Circuit elaborated that a court “need not
accept all documents as authentic nor credit documentary submissions
without careful scrutiny so long as the rejection is premised on more
than a guess or surmise.” Id. at 1185 n.4 (internal quotation marks
omitted). Moreover, even if a court “concludes that the petitioner
has presented sufficient prima facie evidence of a document's
authenticity to admit it into evidence, the [court] as the trier of
fact retains discretion to weigh the evidence's credibility and
probative force.” Id. (internal citation and quotation marks
omitted).
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strikes the Court as fanciful.

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peculiarity, however, the Court cannot accept the alleged provenance of

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the 1997 Birth Certificate because it is marred, from start to finish,

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by material gaps and troubling inconsistencies in the record.

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(a)

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Even forgetting this facial

Who Obtained the Certificate

First, Guyumjyan testified that he obtained the 1997 Birth

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Certificate from the city hall in Yerevan, Armenia in 1997.

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during Petitioner’s deposition in May 2009, which was admitted into

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evidence in the prior evidentiary hearing, Petitioner affirmatively

However,

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stated that it was his cousin, Hovhannes Kachanyan (“Hovhannes”), who

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obtained the 1997 Birth Certificate from Armenian government.5

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at 8-10).

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instant proceeding.

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(Tr. II

Petitioner never mentioned Guyumjyan’s role until the

Guyumjyan testified that the copy of the 1997 Birth Certificate

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entered into evidence is the “exact certificate” which he received from

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the Armenian archives.

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however, failed to supply any evidence that would tend to corroborate

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that he obtained the certificate, such as a copy of the alleged power

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of attorney provided to him, copies of paperwork filled out at the

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Armenian City Hall, or receipts of payment for the birth certificate.

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The absence of such documentary proof, along with the circumstantial

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evidence discussed below, militates against the trustworthiness of

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Guyumjyan’s account.

(Dkt. 86 (“Tr. II”) at 93:9-25).

He has,

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This is corroborated by Susanna’s 2009 deposition testimony, in
which she likewise testified that her relative, not the neighbor,
obtained the 1997 Birth Certificate. (Tr. II at 46:10-14). However,
because her deposition has not been admitted into evidence, and
because Susanna did not confirm in court that she made this
statement, the Court refrains from relying on her inconsistent
deposition testimony.
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(b)

Who Found the Tourist

The witnesses have also made contradictory statements about how

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Guyumjyan located the mystery tourist.

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during the last evidentiary hearing that Guyumjyan identified and

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contacted the tourist through Hovhannes, who knew the tourist was

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coming to the United States, nowhere in the witnesses’ previously filed

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affidavits do they even mention Hovhannes’s key role.

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at 101:5-14 with Guyumjyan Aff. ¶ 12); (Compare Susanna Aff. ¶ 20 with

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Tr. II at 59:25-62:16); (Compare Tr. II at 39:5-7 with Dkt. 69-1 (“Pet.

Although the witnesses stated

(Compare Tr. II

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Aff.”) ¶ 16).

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declaration that he delivered the certificate to the tourist at the

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airport, Guyumjyan averred in court that he and Hovhannes delivered the

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1997 Birth Certificate to the tourist at his or her home.

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II at 102-103, 112 with Guyumjyan Aff. ¶ 12).

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highly suspect not only that these witnesses have equivocated on the

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most basic facts of this story, but that their memories have changed in

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lockstep.

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of reliability, but of orchestration.

Additionally, although Guyumjyan stated in his

The Court finds it

This sort of parallel evolution in testimony is not a sign

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(Compare Tr.

(c)

Who Was the Tourist

The most troubling aspect of the proffered account is the shroud

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of mystery that surrounds the purported tourist.

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neither Guyumjyan nor Susanna remember the name or any traits of the

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tourist, whom they both met in person.

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difficult to comprehend given the gravity of the courier’s task.

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II at 62-63, 102-103).

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the more incredible when contrasted against his vivid memory that when

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he allegedly retrieved the 1997 Birth Certificate, he asked the

It is incredible that

Such ignorance is especially
(Tr.

This glaring void in Guyumjyan’s memory is all

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Armenian official why the stamp was incomplete, and the official

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responded that they did not have ink.

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likewise hard to accept that Susanna could not recall the circumstances

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of receiving the birth certificate from the tourist, such as whether

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they met at home or in public.

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implausible, though, is Susanna’s in-court assertion that she was not

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told the name of the tourist.

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sense to believe that a person awaiting an important document to be

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delivered overseas by a stranger would not have been told, at a

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(d)

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Perhaps most

(Tr. II at 62:22-23).

It defies common

What Happened to the 1997 Birth
Certificate

There is also inconsistent testimony regarding the events that

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(Tr. II at 62-63).

It is

minimum, the name of the courier.

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(Tr. II at 94:15-18).

followed the alleged delivery of the 1997 Birth Certificate to Susanna
in the United States.

Although Susanna stated in the 2009 evidentiary

hearing that after receiving the 1997 Birth Certificate, she gave it to
her son and did nothing more with it, she contradicted herself in the
recent hearing by testifying that she accompanied her son to the INS
office to try to update his records with the 1997 Birth Certificate.
(Compare Dkt. 26 (“Tr. I”) at 24:1-13, Tr. II at 52:2-5 with Tr. II at
64:18; Susanna Aff. ¶ 21).6

Tellingly, the 1997 Birth Certificate was

not at issue at the time of the 2009 hearing, which focused on the
authenticity of the 2000 Birth Certificate.

Thus, it was only when the

1997 Birth Certificate became the crux of Petitioner's case that
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The Court notes that the foregoing documents are not being relied
upon for the truth of their contents but rather were introduced as
impeachment evidence. Accordingly, the hearsay rules do not apply to
these documents. See Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement
. . . offered in evidence to prove the truth of the matter
asserted.”).
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Susanna suddenly remembered additional details to flesh out the chain

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of events concerning the 1997 Birth Certificate.

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conveniently timed flip-flop substantially weakens the reliability of

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her account.

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Here again, Susanna’s

Susanna has also given contradictory versions of the chain of

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custody of the 1997 Birth Certificate after her visit to the INS.

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her affidavit, Susanna stated that after visiting the INS, she and

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Petitioner mailed the original birth certificate along with its English

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translation to the INS, and that she did not get the original back

In

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until the 2000 removal proceedings.

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however, Susanna and Petitioner testified that they only mailed the

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translation to the INS, and that they kept the original in a box in her

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home.

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observed that the 1997 Birth Certificate was "well worn."

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Aff. ¶ 24); (Dkt. 69, Ex. O at 363).

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birth certificate obtained in 1997 and kept in a box would become "well

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worn" in three years.

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consistently these fundamental facts, combined with the general

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implausibility of her current story, seriously undermines the Court’s

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confidence in the veracity of this account.

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(Tr. II at 34-35, 69-70).

(Susanna Aff. ¶ 22).

In court,

Yet the immigration judge in 2000
(Susanna

The Court cannot fathom how a

Susanna’s apparent inability to set forth

(e)

Hovanisyan

Finally, although Zara Hovanisyan attested in her affidavit that

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the 1997 Birth Certificate is authentic, even if she was found

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truthful, there are gaps in the foundation for her testimony.

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though Hovanisyan worked in the Armenian Archives between 1978 and

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1983, her job as an “archival fund preserver” simply entailed recording

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documents before transferring them to the archives.

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Even

(Tr. II at 127).

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She admitted in court that birth certificates were dealt with in a

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different division than hers, that her job description never included

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authenticating birth certificates, and that she never received training

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in that respect.

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birth certificates is premised solely on the vague proposition that she

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has “had contact” with these documents.

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7).

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infer that the birth certificates Hovanisyan encountered in 1983,

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including their stamps and symbols, even remotely resembled the birth

(Tr. II at 123:9-17).

As such, her experience with

(Tr. II at 123:11-12, 137:4-

Even crediting that statement, the Court has found no basis to

10

certificates being issued fourteen years later in 1997.

11

words, there is a lack of foundation to believe that Hovanisyan

12

acquired the knowledge needed to recognize the style and symbols on the

13

1997 Birth Certificate to be genuine.

14

foundation, the Court accords Hovanisyan’s opinion minimal weight.7

15

(f)

16

In other

In view of this threadbare

Potential Biases

In viewing the pervasive inconsistencies and gaps in the alleged

17

provenance of the 1997 Birth Certificate, the Court’s skepticism is

18

only heightened by these key witnesses’ obvious motivation to protect

19

Petitioner.

20

years and her daughter currently is dating Petitioner.

21

Petitioner grew up together, as their families were next door neighbors

22

in Armenia for twelve years.

As already noted, Hovanisyan has known Petitioner for two

(Guyumjyan Aff. ¶¶ 2-3).

Guyumjyan and

Susanna has a

23
24
25
26
27
28

7

Hovanisyan’s testimony is unreliable for the additional reason that
her daughter, Angie Markosian, is currently dating Petitioner. (Tr.
at 124-25). Hovanisyan further admitted on re-direct that Petitioner
is her former son-in-law’s friend, and that she has known Petitioner
for close to two years. (Tr. at 125). Hovanisyan’s lack of
experience with authenticating birth certificates, coupled with her
obvious motivation to protect her daughter’s friend, renders her
testimony incredible.
15

1

natural incentive to protect her child.

2

505, 511 (9th Cir. 2010) (probative value of sister's report was

3

“limited given the sister's likely bias,” along with other factors).

4

Even absent these potential biases, however, the Court would still

5

reject the proffered explanation of the 1997 Birth Certificate’s

6

origin, for the reasons already discussed.

7

(g)

8
9

See Cuellar v. Joyce, 596 F.3d

General Observations

Two additional observations cause the Court to look askance at the
foregoing testimony.

First, the form of Guyumjyan and Susanna’s

10

affidavits is nearly as troubling as their content.

11

neither Guyumjyan nor Susanna’s signed affidavits bear any date of

12

execution.

13

(Tr. II at 88:11-12), he signed his affidavit (written in English) only

14

after reviewing it with a translator, who explained its contents to him

15

in Armenian.

16

Susanna’s original, signed affidavit was typed in Armenian, and

17

subsequently translated into English by the same person who translated

18

for Guyumjyan.

19

Angie Markosyan, who is not only the daughter of another witness, Zara

20

Hovanisyan, but who is currently in a dating relationship with

21

Petitioner.

22

involvement alone casts an even darker shadow over the alleged

Preliminarily,

Moreover, because Guyumjyan has trouble reading English,

(Tr. II at 89:11-14, 97:16-23, 105:11-15).

(Dkt. 69-2 at 6).

Meanwhile,

Disturbingly, this translator was

(Tr. II at 97, 105-106, 124-25).8

The fact of Markosyan’s

23
8

24
25
26
27
28

The Court observed that Guyumjyan was evasive when questioned about
the translator on cross-examination. When Respondent asked him who
translated his affidavit to him, Guyumjyan did not provide a name,
but only stated, “Not a relative.” (Tr. II at 97:23). This response
is puzzling since Respondent never suggested that it was a relative.
Rather, it appears to be a transparent attempt to deflect attention
from the fact that the translator was Petitioner’s girlfriend. The
Court finds that Guyumjyan’s defensive demeanor bolsters the
conclusion that his testimony is unreliable.
16

1
2

provenance of the 1997 Birth Certificate.
Second, viewing the record generally, the fact that the 1997 Birth

3

Certificate was formally brought to this Court’s attention for the

4

first time in the instant proceeding is itself cause to view the

5

document’s authenticity with suspicion.

6

former counsel, James Rosenberg, was ineffective in failing to present

7

the 1997 Birth Certificate during the first iteration before this

8

Court.

9

stating that he did not offer the 1997 Birth Certificate because he did

Petitioner contends that his

For his part, Attorney Rosenberg has submitted an affidavit

10

not have an original version, and because he believed it was more

11

appropriate to submit the 2000 Birth Certificate, which bears a model

12

apostille.

13

(Dkt. 69, Ex. F (“Rosenberg Aff.”) ¶ 4).

The Court finds this explanation unsatisfactory.

By the close of

14

the August 25, 2009 evidentiary hearing, it was already clear that the

15

2000 Birth Certificate’s authenticity would be contested by Respondent.

16

Specifically, during that hearing, Respondent sought to introduce

17

testimony from the consular official in Yerevan, Armenia, stating that

18

the 2000 Birth Certificate was fraudulent.

19

Moreover, the Court continued the evidentiary hearing until June 15,

20

2010, and invited the parties to file supplemental briefs concerning

21

the consular official’s diplomatic note concerning the authenticity of

22

the 2000 Birth Certificate.

23

strains credulity to claim that Attorney Rosenberg continued to

24

withhold the 1997 Birth Certificate because he believed the 2000 Birth

25

Certificate was stronger evidence.

26

introducing the 1997 Birth Certificate during this intervening period

27

could have, at a minimum, helped to corroborate the origin of the 2000

(Dkt. 30, 34).

(Tr. I. at 63-66).

In view of foregoing, it

Rather, common sense dictates that

28
17

1

Birth Certificate.

2

Nor can Petitioner hide behind the alleged ineptitude of Attorney

3

Rosenberg, since Rosenberg was replaced by Attorney Platt on January

4

26, 2010, more than five months before the Court’s second evidentiary

5

hearing on June 16, 2010.

6

Attorney Platt also misunderstood the importance of the 1997 Birth

7

Certificate, but this is naked speculation.9

8

that the 2000 Birth Certificate’s authenticity was drawn into doubt as

9

early as August 2009, the logical response was to submit the 1997 Birth

(Dkt. 33, 41).

Petitioner posits that

(Dkt. 69 at 6).

10

Certificate as supportive evidence.

11

declined to do so.

12

Given

faith in the 1997 Birth Certificate’s admissibility.

It is plausible to infer that neither attorney had

13

*

14

Yet both Petitioner’s attorneys

*

*

In sum, the Court concludes that Petitioner has failed to produce

15

credible extrinsic evidence “sufficient to support a finding that the

16

item is what the proponent claims it is.”

17

witnesses’ collective account is fraught with gaps, inconsistencies,

18

and biases, and the testimony of Hovanisyan is simply not probative.

19

Taken together, this evidence is insufficiently compelling to persuade

20

the Court that the 1997 Birth Certificate is what Petitioner claims.

21

Vatyan, 508 F.3d at 1185.

22

the qualities to meet the criteria for self-authentication.

23

the foregoing reasons, the Court concludes that the 1997 Birth

24

Certificate is inadmissible and shall be excluded from evidence.10

Fed. R. Evid. 901(a).

The

Moreover, the 1997 Birth Certificate lacks
For all

25
9

26
27
28

Attorney Platt did not submit an affidavit, much less state what
Petitioner claims.
10

Furthermore, even if the 1997 Birth Certificate were admissible,
the Court would refrain from crediting the facts stated in the
18

1

B.

2

Upon transfer from the Ninth Circuit, Petitioner also submitted

Passports (Exhibits B, C, D)

3

for the Court's consideration copies of: (1) a United States passport

4

issued in 2002; (2) a United States passport issued in 2009; and (3) an

5

Armenian passport issued in 2007, all indicating Petitioner’s birth

6

year as 1977.

7

(Dkt. 65, Exs. B, C, D).

Even assuming these passports are admissible, they carry minimal

8

weight.

9

reported by Petitioner in his applications.

The contents of these passports reflect the birth date
However, the Court notes

10

that the United States initiated removal proceedings against Petitioner

11

in August 2000.

12

passports are inherently unreliable because they were applied for after

13

Petitioner had a motive to prove that his birth year was 1977.

14

such, they are insufficient to overcome the substantial contrary

15

evidence, highlighted in the Court’s previous order, indicating that

16

Petitioner’s birth year is in fact 1976.11

Demirchyan, 2010 WL 3521784, at *13.

Therefore, these

As

17
18

23

document. Not only is the alleged provenance of the document
implausible on its face, it is founded upon the inconsistent and
biased testimony of Petitioner’s mother, childhood friend, and
girlfriend’s mother. The fact that the 1997 Birth Certificate was
first introduced to this Court at this late stage adds yet another
layer of suspicion. This weak evidentiary basis, mired in doubt, is
insufficient to overcome the evidence from the Court’s previous
findings, which firmly showed that Petitioner was born in 1976.
Accordingly, even if it were admissible, the 1997 Birth Certificate
would not alter the Court’s prior order.

24

11

19
20
21
22

25
26
27
28

Petitioner contends that his post-removal self-reporting of the 1977
birth date reflected his effort to "correct the record." (Dkt. 69 at
19). This assertion begs the question of Petitioner’s true
birthdate. For the same reasons discussed in its previous order, the
Court finds Petitioner’s naked assertion to be both incredible (due
to Petitioner's clear bias and to his former perjury convictions,
Fed. R. Evid. 609(a)(2)) and lacking in personal knowledge, see Fed.
R. Evid. 602.
19

1

C.

2

Petitioner also attached (1) Exhibit E, a Form I-90 application to

Form I-90 & Form N-600 Applications (Exhibits E, L)

3

replace a permanent resident card; and (2) Exhibit L, a Form N-600

4

application for certificate of citizenship, both of which indicate a

5

birthdate of July 27, 1977.

6

forms were filled out by Petitioner after the United States commenced

7

removal proceedings against him.

8

birthdate is unreliable because he had an incentive to represent that

9

his birth year was 1977.

(Dkt. 65, Exs. E, L).

However, these

As such, Petitioner's self-reported

Accordingly, even assuming these exhibits are

10

admissible, the Courts finds that they are eclipsed by the

11

uncontroverted evidence arising prior to the removal proceedings

12

indicating a 1976 birth year.

13

D.

14

Exhibits F through J purport to be documents from INS records

INS Database Documents (Exhibits F-J)

15

reflecting Petitioner's birth year as 1977.

16

received these documents from the United states in response to a FOIA

17

request.

18

birth dates in these exhibits are based on Petitioner's self-reporting,

19

and these database documents were generated after the government

20

initiated removal proceedings against Petitioner.

21

records are insufficient to controvert the evidence of Petitioner's

22

1976 birth year.12

(Dkt. 69 at 18).

Petitioner claims he

Similar to the passports, however, the

Therefore, these

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24
25
26
27
28

12

Alternatively, these exhibits are inadmissible because Petitioner
has failed to establish their authenticity. The documents are not
self-authenticating, as they do not bear any official seals of the
INS or official therein. Fed. R. Evid. 902. Nor did Petitioner
proffer extrinsic evidence of their authenticity in his pleadings or
at the hearing.
20

1

E.

2

Exhibit K provides Form I-213, prepared in conjunction with

Record of Deportable/Inadmissible Alien (Exhibit K)

3

Petitioner's criminal conviction, by the Department of Justice in 1998.

4

(Dkt. 65, Ex. K).

5

Petitioner's birthdate as "7/27/76;" however, "7/27/77 (?)" is hand

6

written in the space adjacent.

7

The typewritten portion of the form indicates

(Id.).

Even if the Form I-213 were admissible, the Court is not persuaded

8

that the handwritten notation, "7/27/77 (?)" implies that Petitioner

9

was born in 1977.

Petitioner has provided no evidence indicating who

10

made the notation, or the circumstances under which it was made.

11

Rather, the handwritten notation suggests only what the Court already

12

knows, namely that there exists arguably conflicting evidence regarding

13

Petitioner’s birthdate.

14

does not aid the Court in resolving it.

15

unhelpful and does not alter the Court’s previous decision.

Merely pointing to this conflict, however,
Therefore, this evidence is

16

F.

17

In its July 25, 2011 order, the Court invited Petitioner to submit

Affidavits of Family and Friends

18

“a memorandum with attached declarations that allow the Court to

19

determine whether the [exhibits A through L] are admissible,” and “if

20

[they] are found admissible, why they should change the Court’s earlier

21

findings.”

22

(Dkt. 68).

In response, Petitioner filed fifteen (15) affidavits from

23

himself, family, and friends.

24

affidavits complied with the Court’s order by attempting to lay

25

foundations with respect to Exhibits A through L, and these are

26

incorporated in the Court's foregoing discussion.

(Dkt. 69, Ex. A-O).

27
28
21

Certain of these

(Dkt. 69, Ex. A, B,

1

F, M, N).13

2

However, the remaining affidavits comprise the testimony of

3

Petitioner’s relatives and friends attempting to show that Petitioner

4

was born in 1977.

5

affidavits are beyond the scope of this Court's limited remand because

6

they do not shed any light on the admissibility or weight to be

7

accorded to the “new” exhibits submitted by Petitioner.

8

in reviewing the affidavits, the Court concludes that even if they were

9

considered, the affidavits have little persuasive value as they are

(Dkt. 69, Ex. C, D, E, G, H, I, J, K, L).

These

Nonetheless,

10

biased and, at any rate, do not controvert the substantial documentary

11

evidence pointing to Petitioner's 1976 birthdate.

12

shift the preponderance of the evidence in Petitioner’s favor.

13

III. CONCLUSIONS OF LAW

14

“Evidence of foreign birth . .

As such, they do not

. gives rise to a rebuttable

15

presumption of alienage, and the burden then shifts to the petitioner

16

to prove citizenship.”

17

(9th Cir. 2009) (quoting Scales v. I.N.S., 232 F.3d 1159, 1163 (9th

18

Cir. 2000)).

19

Petitioner therefore bears the burden of proving that he is an American

20

citizen.

21

Carrillo-Lozano v. Holder, No. CV-09-1948-PHX-NVW, 2010 WL 2292981, at

22

*1 (D. Ariz. June 8, 2010) (same); Anderson v. Holder, No. CIV. 2:09-

23

2519 WBS JFM, 2010 WL 1734979, at *3 (E.D. Cal. Apr. 27, 2010) (same).

Martinez-Madera v. Holder, 559 F.3d 937, 940

It is undisputed that Petitioner was born in Armenia.

Lim v. Mitchell, 431 F.2d 197, 199 (9th Cir. 1970); see also

24
25
26
27
28

13

The Court recognizes that in determining Petitioner’s true birth
date, the Court could rely solely on the testimony of Susanna if it
found her to be credible. However, in view of the Court’s findings
regarding the contrived origin of the 1997 Birth Certificate, these
observations only serve to reinforce the Court’s conclusion in its
previous order that the mother’s testimony is unreliable.
22

1

The parties, in their initial Joint Statement re: New Case Status

2

Conference, agreed that Petitioner bears the burden of proving his

3

citizenship. (Dkt. 8 at 2-3 (“The parties agree that Demirchyan must

4

prove four essential facts in order to be eligible for derivative

5

citizenship. . . . To date, the administrative and judicial proceedings

6

have focused on the . . . requirement [that his mother was naturalized

7

before he turned eighteen].”)).

8
9

Based on the Court’s findings of fact, the Court concludes as a
matter of law that Petitioner has failed to meet his burden of proving

10

by a preponderance of evidence that he is a United States citizen.

11

Petitioner has failed to prove that he was born in 1977, and therefore

12

that he was under the age of 18 at the time that his mother was

13

naturalized in December 1994.

14

entirety of the admissible and credible evidence supports a finding

15

that Petitioner was born in 1976.

16

was either inadmissible as a matter of law or unreliable.

17

The Court has concluded that the

The only evidence to the contrary

Accordingly, Petitioner is not entitled to citizenship under 8

18

U.S.C. § 1432(a) (West 1994).

19

IV.

20

CONCLUSION
For the foregoing reasons, the Court refrains from modifying its

21

original conclusion: the Petition is DENIED.

22

recognizes the severity of this result, Petitioner has failed to carry

23

his burden to prove by a preponderance of the evidence that he was in

24

fact born in 1977.

25

surrounding the proffered exhibits for such evidence to outweigh the

26

contrary evidence of a 1976 birth year.

27

proposed final judgment within five days, at which time the parties

While the Court

There were simply too many questions and doubts

28
23

The Government shall file a

1

shall have fourteen days to notify the Ninth Circuit per its Order

2

dated June 14, 2011.

3
4

IT IS SO ORDERED.

5
6

DATED: March 28, 2013

7

STEPHEN V. WILSON

8

UNITED STATES DISTRICT JUDGE

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