Doe v. Pompeo et al
Filing
61
ORDER Granting 46 Motion for Summary Judgment. Closing Case. Signed by Judge Robert N. Scola, Jr on 1/27/2021. See attached document for full details. (cds)
Case 1:19-cv-24829-RNS Document 61 Entered on FLSD Docket 01/27/2021 Page 1 of 8
United States District Court
for the
Southern District of Florida
Ivan Aguilera, Plaintiff,
v.
Michael R. Pompeo and others,
Defendants.
)
)
)
) Civil Action No. 19-24829-Civ-Scola
)
)
Order On Motion for Summary Judgment
This matter is before the Court upon the Plaintiff Ivan Aguilera’s motion
for summary judgment. For the reasons set forth below, the Court grants the
Plaintiff’s motion (ECF No. 46.)
1. Background
In this declaratory judgment action, the Plaintiff, Ivan Aguilera, seeks a
declaration from the Court establishing that he is a United States Citizen,
pursuant to 8 U.S.C. § 1503 and 28 U.S.C. § 2201. This dispute spins out of
the Plaintiff’s 2017 application to the United States Department of State (“DoS”)
to renew his passport, which had previously been issued by DoS in 1989,
1996, 2002, and 2007 based on a Texas birth certificate allegedly showing the
Plaintiff was born in El Paso County, Texas. Upon review of his application,
DoS Special Agents informed Mr. Aguilera that they had come into possession
of a Mexican birth certificate relating to the Plaintiff, and on the basis that the
Mexican birth certificate apparently showed that Mr. Aguilera was born in
Mexico rather than Texas, DoS declined to issue Mr. Aguilera a new passport.
Ivan Aguilera is the son of Alberto Aguilera Valdez, a renowned singer
and songwriter of Latin American music. Alberto performed under the stage
name Juan Gabriel and sold over 100 million albums during his forty-year plus
career. Alberto passed away in 2016. The Plaintiff stated in an affidavit that he
lived his entire life believing he was born in Texas and never received
information from his father; his biological mother, Marisela Roman; or his
adoptive mother, Laura Elena Salas Campa, indicating otherwise. Accordingly,
the Plaintiff claims his Texas birth certificate, which indicates he was born in
El Paso County, Texas is legitimate, and the competing Mexican birth
certificate relied upon by the government is a forgery.
Mr. Aguilera’s Texas birth certificate states that he was born at 7315
Highway 28, Canutillo, El Paso County, Texas on January 1, 1988 at 11:30
Case 1:19-cv-24829-RNS Document 61 Entered on FLSD Docket 01/27/2021 Page 2 of 8
a.m. (ECF No. 43-2; ECF No. 45 at ¶ 10.) The Texas birth certificate further
indicates that his father is Alberto Aguilera and that his mother is Marisela
Roman. (ECF No. 45, 49 at ¶ 11-12.) The birth certificate was witnessed by
Socorro Vasquez and was registered with the local registrar on June 22, 1988.
(ECF No. 43-2.) Like the Texas birth certificate, the competing Mexican birth
certificate also indicates that Mr. Aguilera was born at January 1, 1988 at
11:30 a.m. While this birth certificate indicates that Alberto Aguilera is the
Plaintiff’s father, the birth certificate instead lists Laura Elena Salas Campa as
the Plaintiff’s mother. A second difference between the birth certificates
pertains to the witnessing of the documents. While the Texas birth certificate
was witnessed by Socorro Vasquez, the Mexican birth certificate was witnessed
by Raul Iragorri Rivero and Osvaldo Manuel Quintanar Sanchez. The Plaintiff
argues, however, that these witnesses could not have witnessed the Mexican
birth certificate because they did not meet his father until almost a year after
his birth in 1989. (Rivero Interview, ECF No. 57-1, at 6 (Q: “You know Alberto
in ’88?” A: “No. No, impossible. My daughter was less than one year old . . . My
daughter was born on February 17, of ’89, and a few days after I met Juan
Gabriel”); see also Sanchez Interview, ECF No. 57-2 at 2 (Q: “But you tell me
that in the year ’88 you didn’t know Juan Gabriel, right?” A: “No, no. No.,
because I started [in] ’89, or late ’89 with them. So, it is not possible that, that
it had been in ’88.”).) The Mexican birth certificate was registered with the local
registrar on January 7, 1988, six days after the Plaintiff’s birth. (See generally,
ECF No. 43-2; ECF No. 60-1 (English translation).) Mr. Aguilera claims because
of his father’s notoriety, he has been subjected to numerous lawsuits by
individuals claiming to be heirs, states he has been extorted, and argues that
at least one individual has relied upon the disputed Mexican birth certificate in
one such lawsuit. (ECF Nos. 45, 49 at ¶¶ 40-42, 47.)
The Plaintiff points to several facts in support of his claim that the Texas
birth certificate is legitimate, and the Mexican birth certificate is a forgery.
First, the Plaintiff notes that he has repeatedly been issued passports by DoS.
On November 16, 1988 his father applied for a United States passport on his
behalf. The passport application provided a United States address for the
Plaintiff and listed Alberto as his father and Marisela Roman as his mother.
After initial processing, DoS requested additional information to process the
Plaintiff’s passport application, including medical records for the Plaintiff’s
mother as well as records from the physician who attended to the Plaintiff and
his mother after his birth. In response to DoS’s request, the Plaintiff provided
his mother’s medical records, as well as a March 10, 1989 letter from Raul
Rivera, M.D., an El Paso, Texas physician which stated “this is certification
that I was summoned to examine the mother and the child on January 2,
Case 1:19-cv-24829-RNS Document 61 Entered on FLSD Docket 01/27/2021 Page 3 of 8
1988. Her address was 7315 Hi[gh]way 28 in Canutillo, Texas. . . . I found the
mother on a post-partum state with no complications. Examination of the
infant also revealed no significant abnormality.” (ECF No. 43-5.) Dr. Rivera died
in 2016, before the Mexican birth certificate was discovered. (ECF No. 58, at 7.)
Dr. Rivera’s letter, which was received by DoS, appears to contain a
handwritten marking added by the government stating “verified,” accompanied
by a handwritten date of April 14, 1989. DoS ultimately issued Mr. Aguilera a
passport in 1989, and reissued his passport in 1996, 2002, and 2007. In 2008,
Mr. Aguilera obtained a Mexican passport by virtue of his father’s Mexican
citizenship, which states that Mr. Aguilera was born in El Paso, Texas. (See
ECF No. 43-25, see generally ECF No. 45, 46 at ¶ 16-19, 21-22, 35-38.)
Second, in 1989, the Plaintiff’s biological parents participated in court
proceedings in Texas to terminate the parental rights of the Plaintiff’s biological
mother, Marisela Roman. The initial petition, filed in January 1989 noted that
Alberto and Marisela Roman live at 7315 Highway 28, Canutillo, El Paso
County, Texas and states that the Plaintiff was born in Canutillo, El Paso
County, Texas. (ECF No. 43-15, at 1.) In the lawsuit, Alberto
contemporaneously affirmed that the Plaintiff was “born to Marisela Roman in
Canutillo, El Paso County, Texas” and Marisela Roman confirmed the same in
various filings. (ECF No. 43-15 at 4-7.) As part of these proceedings, the court
found that the Plaintiff’s birthplace was Canutillo, El Paso County, Texas. (ECF
No. 43-15 at 8-9.) Ultimately, Marisela Roman’s parental rights over the
Plaintiff were terminated in June 1989. (ECF No. 43-15 at 14-15.) While the
government does not dispute these proceedings occurred, they do dispute the
sworn statements made by the Plaintiff’s parents to the extent they conflict
with the Mexican birth certificate. (See ECF No. 49 at ¶¶ 24-31.)
Third, in September 1990, Laura Elena Salas Campa, the individual
listed as the Plaintiff’s mother on his Mexican birth certificate adopted Mr.
Aguilera. The parties agree that, consistent with Texas law, a new birth
certificate for the Plaintiff was issued, removing Marisela Roman as his mother
and listing Laura Elena Salas Campa in her place. (ECF Nos. 45, 49 at ¶¶ 3234.) In 2017, in connection with the Plaintiff’s battle to prove the legitimacy of
his Texas birth certificate and renew his passport, the Plaintiff and his adoptive
mother underwent DNA testing, which conclusively established that Ms. Salas
Campa is not Mr. Aguilera’s biological mother. (ECF No. 43-14 at 5
(“Probability of Maternity: 0%).) The government does not dispute that Ms.
Laura Salas is not Mr. Aguilera’s biological mother but does dispute any
insinuation that this scientific finding proves the legitimacy of the Texas birth
certificate.
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Fourth, after DoS received the Plaintiff’s Mexican birth certificate, DoS
contacted the Texas Department of State Health Services so his Texas birth
records could be “flagged.” Around the same time, Ivan requested a certified
copy of his Texas birth certificate to provide to DoS in order to prove he was
born in Texas. The Texas Department of State Health Services informed Mr.
Aguilera that because “the Department of State reported that Ivan Gabriel
Aguilera has a Mexican Birth Record” that the state would “refuse to issue the
requested copy of the birth record.” (ECF No. 43-19 at 1.) Mr. Aguilera
appealed the Texas agency’s decision and on February 1, 2018 an
administrative law judge, after considering the conflicting birth certificates, Mr.
Aguilera’s Mexican passport, the above-mentioned DNA test, and the parental
rights proceedings, found that based mainly on the parental rights proceedings
“the Texas Certificate of Birth is the true record” such that a “certified copy of
the Texas Certificate of Birth should be issued to Ivan Aguilera.” (ECF No. 4320 at 5-10.) Accordingly, Mr. Aguilera was issued a certified copy of his birth
certificate on February 9, 2018. (See ECF No. 45, 49 at ¶ 43-45, 48-49.)
Despite the findings of the Texas administrative law judge that Mr. Aguilera’s
Texas birth certificate is the legitimate birth certificate, DoS has nonetheless
refused to issue Mr. Aguilera a new passport, arguing that Mr. Aguilera’s
Mexican birth certificate proves he is not a United States citizen.
Finally, the Plaintiff adds that he has lived his entire life in the United
States. He was baptized here, received schooling here, pays taxes here, married
his wife who is a United States citizen here, and has two children who are
United States citizens. Indeed, it appears from 1989 through the instant
dispute that the government, like Mr. Aguilera, never questioned that Mr.
Aguilera was a United States citizen. (ECF No. 45 at ¶¶ 58-74.)
2. Legal Standard
A. Summary Judgment
Under Federal Rule of Civil Procedure 56, “summary judgment is
appropriate where there ‘is no genuine issue as to any material fact’ and the
moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North
Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). “The
moving party bears the initial burden to show the district court, by reference to
materials on file, that there are no genuine issues of material fact that should be
decided at trial . . . [o]nly when that burden has been met does the burden shift
to the non-moving party to demonstrate that there is indeed a material issue of
fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991). Rule 56(c) “requires the nonmoving party to go beyond
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the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (internal quotation marks omitted). Thus, the non-moving party “may not
rest upon the mere allegations or denials of his pleadings, but . . . must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted); see
also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1984) (stating “[w]hen the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts”).
The Court must view the evidence in the light most favorable to the
nonmoving party, and summary judgment is inappropriate where a genuine
issue of material fact remains. Adickes v. S.H. Kress & Co., 398 U.S. 144, 15859 (1970). “An issue of fact is ‘material’ if, under the applicable substantive
law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co.,
357 F.3d 1256, 1259-60 (11th Cir.2004). “An issue of fact is ‘genuine’ if the
record taken as a whole could lead a rational trier of fact to find for the
nonmoving party.” Id. at 1260. A court may not weigh conflicting evidence to
resolve disputed factual issues; if a genuine dispute is found, summary
judgment must be denied. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140
(11th Cir. 2007).
At the summary judgment stage, “the district court shall consider all
evidence in the record when reviewing a motion for summary judgmentpleadings, depositions, interrogatories, affidavits, etc.-and can only grant
summary judgment if everything in the record demonstrates no genuine issues
of material fact exists.” Tippens v. Celotex Corp., 805 F.2d 949, 952 (11th Cir.
1986) (emphasis in original) (internal citations omitted). However, “[t]he general
rule is that inadmissible hearsay cannot be considered” unless it can “be
reduced to admissible evidence at trial or reduced to admissible form.” Macuba
v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999) (internal citations omitted).
B. 8 U.S.C. § 1503
Pursuant to 8 U.S.C. § 1503, when any person in the United States
claims a right or privilege as a United States citizen, and is denied such right,
that person “may institute an action under the provisions of section 2201 of
title 28” seeking a declaratory judgment as to their citizenship. 8 U.S.C.
§ 1503(a). Lawsuits brought under 8 U.S.C. § 1503(a) are not “for judicial
review” of an agency’s action, but rather are for de novo “judicial determination
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of the status of the Plaintiff as a United States national.” Richards v. Sec’y of
State, 752 F.2d 1413, 1417 (9th Cir. 1985); see also Vance v. Terrazas, 444
U.S. 252, 256 (1980). Accordingly, while DoS regulations relating to proof of
citizenship are instructive, they are not controlling upon the Court. Ramirez v.
Clinton, Civil No. 08-5770(DSD/JSM), 2011 WL 2838173, at *4 (D. Minn. July
18, 2011). A plaintiff bears the burden of proving their citizenship by a
preponderance of the evidence. Beltran v. Rivera, No. 10-cv-24288, 2012 WL
2675477, at *3 n.1 (S.D. Fla. July 6, 2012) (Moore, J.). Put another way, the
Plaintiff must show the trier of fact that “the existence of a fact is more
probable than its nonexistence.” United States v. Trainor, 277 F. Supp. 2d
1278, 1286 (S.D. Fla. 2003) (Jordan, J.) (quoting Metro. Stevedore Co. v.
Rambo, 521 U.S. 121, 137 n.9 (1997)).
3. Analysis
In their opposition to the Plaintiff’s motion for summary judgment, the
Defendant argues that summary judgment is inappropriate due to the
existence of allegedly genuine disputes around several facts the government
claims are material. Specifically, the Defendant argues the following facts
preclude summary judgment: (1) the existence of the dueling Mexican and
Texas birth certificates; (2) inconsistent information as to Marisela Roman’s age
at the time of the Plaintiff’s birth on the Texas birth certificate; (3) that the
Mexican birth certificate was registered earlier in time than the Texas birth
certificate; (4) the authenticity of Marisela Roman’s medical records; and (5) the
reliability of the letter written by Dr. Raul Rivera.
Taking the facts in the light most favorable to the Defendant, the Court
finds that there is no genuine issue of material fact precluding summary
judgment. The record is replete with a mountain of compelling evidence
compiled by the Plaintiff suggesting his Texas birth certificate is legitimate and
the Mexican birth certificate is a forgery. In the view of the Court, the
government has failed to meaningfully address this mountain of evidence,
instead pointing continually to the existence of the Mexican birth certificate as
if that is conclusive proof of the Plaintiff’s place of birth.
First, the Court notes that the Mexican government itself, when issuing
Mr. Aguilera a passport, stated in an official government document that Mr.
Aguilera was born in El Paso, Texas. The Defendant fails to explain why the
Mexican government would state in an official government document that Mr.
Aguilera’s place of birth was El Paso, Texas if the Mexican government also had
records showing that the Plaintiff was born in Mexico.
Second, the government fails to meaningfully engage with the Texas
administrative law judge’s February 2018 decision, considering much of the
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same evidence presently before the Court, where the court found the Texas
birth certificate is “the true record” pertaining to the Plaintiff’s birth. While the
government argues to the Court that the Court need not give that ruling
“preclusive effect” the government has given the Court no compelling reason
not to credit the findings of the Texas administrative law judge. Regardless of
the government’s position, the Court’s decision does not rest on the Texas
administrative law judge’s decision.
Third, the government fails to counter the argument that this Court
should find persuasive to the district court of El Paso, Texas’s findings during
the 1989 parental rights proceedings. In its decree of legitimation, the Court
clearly stated “[t]he Court finds that the following child is subject of this suit:
NAME: Ivan Gabriel Aguilera . . . BIRTHPLACE: Canutillo, El Paso County,
Texas.” (ECF No. 43-15, at 8.) The Defendant argues this Court should not
credit the Texas court’s findings because the proceedings “did not require a
specific finding of the Plaintiff’s place of birth.” (ECF No. 50, at 11 n.13.)
Whether or not this finding was operative to the parental rights proceedings,
the court made this finding nonetheless and the Texas administrative law judge
explained in her order why this finding was persuasive. Indeed, the parental
rights proceedings were key to the administrative law judge’s February 2018
ruling as the administrative law judge stated that Marisela Roman’s statements
concerning the Plaintiff’s place of birth “meet the evidentiary burden of clear
and convincing,” were never amended, were given freely and voluntarily, and
were based on Marisela Roman’s personal knowledge.
Next, the government fails to contend with the DNA test submitted by the
Plaintiff confirming that there is 0% probability that Laura Elena Salas Campa
is his birth mother. This test further undermines the legitimacy of the Mexican
birth certificate. It is notable that a birth certificate filed six days after the
Plaintiff’s birth states that Ms. Salas Campa is his mother, when that could not
have been the case. The government has not introduced any evidence to
suggest the Mexican birth certificate was amended as the Texas birth certificate
was to reflect Ms. Salas Campa’s status as the Plaintiff’s adoptive mother. The
government similarly fails to engage with the baptismal records, immunization
records, education history, and the like which contribute to the significant
evidence provided by the Plaintiff that he is a United States Citizen.
Whether summary judgment was appropriate in this matter was a close
call, however, the Court finds that, upon review of the entire record and
making all inferences in favor the government, that a rational trier of fact could
not find the Mexican birth certificate is legitimate and the Texas birth
certificate is a forgery. Therefore, there is no genuine issue of material fact
preventing the Court from granting summary judgment in this matter. The
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Court finds the prior court proceedings, the Plaintiff’s Mexican passport, the
DNA testing, and other ancillary documents provided by the Plaintiff, taken
together, prevent a rational trier of fact from finding in favor of the government.
As a final matter, while the Court finds the statements of Raul Iragorri
Rivero and Osvaldo Manuel Quintanar Sanchez, the purported witnesses to the
Mexican birth certificate, to be persuasive, it is inappropriate for the Court to
consider these statements on summary judgment. Courts may consider
hearsay at summary judgment, only if that statement would be admissible at
trial for some purpose. Macuba, 193 F.3d at 1322-23. The Plaintiff provided
Mr. Rivero and Mr. Sanchez’s statements to the Court not as sworn affidavits
or as part of a deposition transcript, but instead provided what appear to be
unofficial translated transcripts of YouTube clips as Exhibits to its statement of
facts, together with a link to each YouTube video. (See ECF No. 57, at ¶ 76.)
The government objected to the Court considering these statements on the
grounds that they constitute impermissible hearsay as they are being
introduced for the truth of the matter asserted. (ECF No. 49, at ¶ 47.) The
Plaintiff failed to articulate a response to the Plaintiff’s objection that these
statements are hearsay and therefore the Court finds it cannot properly
consider these statements at this stage of the litigation. Nonetheless, as stated
above, the Court finds summary judgment in favor of the Plaintiff is
appropriate even without consideration of these statements.
4. Conclusion
For the reasons stated above the Court grants the Plaintiff Ivan
Aguilera’s motion for summary judgment (ECF No. 46). The Clerk is directed to
close this case. Any pending motions, if any, are denied as moot.
Done and ordered in chambers in Miami, Florida on January 27, 2021.
Robert N. Scola, Jr.
United States District Judge
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