Lopez v. United States Department of State

Filing 40

FINDINGS OF FACT and CONCLUSIONS OF LAW - The court having found that plaintiff Angel Alcantar Lopez has established that he was born in the United States and is a United States citizen entitled to a United States passport, the court HEREBY ORDERS th at the Departement of State shall issue to Lopez a United States passport as soon as practicable but not later than ninety (90) days of the date of entry of this Order. IT IS SO ORDERED. DATED this 9th day of January, 2013, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ANGEL ALCANTAR LOPEZ, an Oregon
resident and United States citizen,

3: 11-CV-I 069-AC
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
AND ORDER

Plaintiff,

v.
UNITED STATES DEPARTMENT
OF STATE, by and through HILLARY
ROD HAM CLINTON,
Defendant.
ACOSTA, Magistrate Judge:

Introduction
Angel Alcantar Lopez applied for a United States passport and the United States
Department of State (the "Department") denied his application because it deemed insufficient his
proffered evidence of birth in the United States. Lopez claims he was born on April 28, 1978, in
Bingen, Washington, a town located on the Washington bank of the Columbia River, just north
and several miles east of the City of Hood River, which is located on the Oregon bank of the
river. Lopez alleges his parents, Mexican citizens, were living in Bingen at the time while his
father worked as a migrant farm laborer in the area. Lopez explains his parents could not afford
I FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

medical care or a hospital, and thus his birth occurred in the worker's cabin where his parents
lived. His delivery was facilitated by a local midwife, known only as "Esperanza," and Kathern
Frahs, a family friend and resident of Underwood, Washington, an unincorporated community
located several miles west of Bingen. Other than the midwife, Frahs, and his mother, no other
persons witnessed Lopez's birth, but Lopez asserts his father saw him later on the day he was
born. At that time, Lopez's parents did not obtain a birth certificate documenting Lopez's birth
in Washington.
Lopez grew up with his family in Northwest Pmtland and attended public school through
graduation from Cleveland High School in June 1999. On March 11, 1984, Lopez was baptized
at St. Patrick's Church in Portland, Oregon, and his baptismal certificate lists his date and place
of birth as April28, 1978, Bingen, Washington. On January 3, 1985, Lopez obtained a "Delayed
Cettificate of Birth" from the Washington Department of Social and Health Services. The 1985
certificate shows it was supported in part by an October 23, 1984 affidavit from Frahs. On April
29, 2009, Lopez filed a Petition to Establish Birth Record in the Superior Court for the State of
Washington, Klickitat County. Lopez supported his petition in part with Frahs's October 16,
2008, signed affidavit attesting under oath to Lopez's birth in Bingen, Washington, on April 28,
1978.

The state court granted Lopez's petition on June 17, 2009, and entered an order

establishing that Lopez "was born on April28, 1978, in Bingen, Klickitat County, Washington."
The next month, on July 15, 2009, the State of Washington issued Lopez a second delayed birth
certificate listing his place of birth as Bingen, Washington. Lopez asserts that prior to the events
giving rise to his lawsuit, he and his family members believed him to be a U.S. citizen.
The Department alleges Lopez has failed to support his passport applications with
evidence sufficient to show by a preponderance that he was born in the United States. The
2 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Department observes that Lopez filed five separate applications for a U.S. passport: December
30, I 996, January I 7, 2007, October 26, 2007, July 22, 2009, and December 3, 2009. Other than
the 1996 application, the Depattment denied Lopez's applications because it concluded that
Lopez lacked sufficient documentation to show he was born in the United States. 1

The

Department cited several deficiencies in Lopez's evidence, primary of which was Lopez's
Mexican registration of birth. On June 13, 1978, Lopez's mother had registered his birth in
Silao, Guanajuato, Mexico, the registration document reflecting that Lopez was born in Silao on
April 28, 1978.

The Depattment also found inadequate Lopez's baptismal certificate and

delayed birth certificates. In its December 9, 2009, letter denying Lopez's final application, the
Department explained that a delayed birth certificate, even if court -ordered, does not constitute
primary evidence of birth in the United States.

In addition, the Department observes that

Lopez's baptismal certificate had been obtained more than five years after the date Lopez alleges
he was born in the United States, thus diminishing its probative value under State Department
regulations.
Lopez filed this lawsuit on September 2, 2011, seeking a declaration from this coutt that
he "is a United States Citizen and is entitled to proof of his citizenship in the form of a United
States Passport[.]" On July 31, 2012, Lopez's case was tried to the court, the parties agreeing
that the only issue for the court to decide was whether Lopez was born in Bingen, Washington,
on April 28, 1978. (Pis.' Trial Br. 5; Dfs.' Trial Br. 2.) Both sides submitted exhibits and called
witnesses to testifY during trial. A court-ce1tified Spanish-language interpreter translated the

1

The 1996 passport application was in Lopez's name but was accompanied by a
photograph of Leonardo, one of Lopez's older brothers. In an April 14, 1998, sworn written
statement given to a State Depattment security agent, Lopez admitted to allowing the older
brother, a Mexican citizen, to use Lopez's name to obtain a U.S. passport.
3 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

questions and answers for Lopez's mother and father. Following the trial, the parties submitted
to the court their respective proposed Findings of Fact and Conclusions of Law, and the
Department submitted supplemental briefing and affidavits. Upon review and consideration of
the pleadings, briefs, sworn testimony of witnesses, exhibits, and final arguments, the court
makes the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a)(!) of the
Federal Rules of Civil Procedure?
FINDINGS OF FACT

1. Plaintiff Angel Alcantar Lopez is a resident of Portland, Oregon.
2. The parties have stipulated that Lopez was born on April28, 1978. (Tr. 15.)
3. Lopez's parents are Antonio Alcantar and Maria de los Angeles Lopez Bonilla.
4. Lopez's parents lived in the United States for a period of time before Lopez was born,
first in California and then in Washington, and both were present the day he was born in Bingen,
Washington. (Tr. 114-115, 240.) The testimony of Lopez's parents was consistent with their
prior sworn affidavits attesting to these same facts. (Ex. 17, pp. 30-36.) Both parents described
similar details about the worker's cabin in Bingen, Washington, in which they lived at the time
Lopez was born. (Tr. 116-17, 120-31, 240-41.)
5.

Lopez's father, Antonio Alcantar, testified about events at issue that generally

consistent with the testimony of other witnesses whose mental competency to testifY the
Department did not challenge. The quality of his recollection appeared normal for a person his
age recalling events that occurred almost 35 years earlier. (Tr. 248-50.)

2

The parties have consented to jurisdiction by magistrate judge pursuant to 28 U.S.C. §
63l(c)(l).
4 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

6. Lopez's parents have always told him he was born in Bingen, Washington. (Tr. 1820.) No evidence was introduced during trial that Lopez's parents had ever told Lopez he was
born someplace other than Bingen, Washington, including Mexico.
7. Lopez's parents have always told other family members, including Lopez's siblings
Leonardo Alcantar Lopez, Rosalinda Alcantar Lopez, and Juan Alcantar Lopez, that Lopez was
born in Bingen, Washington. (Tr. 179,206, 214.)
8. The common understanding, or reputation, among Lopez's family members, including
family members in Mexico, is that Lopez was born in the United States. (Tr. 33.)
9. Lopez has tln·ee older brothers, Leonardo or "Leo," Reuben, and Liborio, who were
born in Mexico. (Tr. 32.) Lopez has a younger brother, Juan, and a younger sister, Rosalinda,
who were both born in the United States. (Tr. 114.)
10. Lopez's oldest brother Leonardo remembers meeting his mother and his brother
Lopez, for the first time, when he was about five years old and his mother and Lopez came to
visit the family in Mexico where Leonardo was living with his grandparents. (Tr. 177• 179.)
Leonardo had been told by his grandmother, prior to that visit, that his parents were living in "EI
Norte," meaning the United States of America. (Tr. 178.) When Leonardo's mother and Lopez
first visited him, Lopez was already a small baby rather than a newborn. (Tr. 179-80.)
11. Near the time Lopez was born, Lopez's mother received word that her father in
Mexico was sick and that she should come home to visit him. (Tr. 115)
12. Lopez was taken by his mother from the United States to Mexico in about May of
1978. (Tr.l17, 177.)
13. Lopez's mother's father, Bonifacio Lopez Rodriguez, died in Mexico on August 8,
1978. (Ex. 3; Tr. 48-49.)
5 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

14. On January 3, 1985, the State of Washington issued a Delayed Cetiificate of Birth
stating that Lopez was born in Bingen, Washington on April 28, 1978, to parents Antonio
Alcantar and Maria Los Angeles-Lopez. (Ex. 1.) Antonio Alcantar, Lopez's father, signed the
1985 Washington birth certificate swearing under penalty of petjury the facts stated therein were
tme and correct. (!d.) Kathern Frahs also submitted an affidavit dated October 23, 1984, in
suppmi of Lopez's 1985 birth certificate. (!d.) The comi finds the 1985 birth certificate and the
Frahs' affidavit credible and highly probative. Both documents were executed close in time to
Lopez's date of birth, when both witnesses' recollections still would have been relatively clear
and specific. Furthermore, Alcantar signed the birth certificate under penalty of petjury and
Frahs signed her affidavit under oath, indicating that each witness was aware of the solemnity of
the statement they were making as well as the significant consequences to each of them if they
were untruthful in their statement. There is no evidence in the record undermining these swom
statements. The court also finds the State of Washington's Delayed Certificate of Birth highly
probative. The State of Washington issued the document pursuant to its formal procedures,
which included a review to determine the validity of the birth certificate and affidavit. (See Ex.
1: "I hereby certifY ... that documentmy evidence has been reviewed which substantiates the
facts as set forth in the foregoing abstract.")
15. Lopez received a certificate of baptism from St. Patrick's Church in Portland,
Oregon, indicating that he was born in Bingen, Washington, on April 28, 1978, and indicating
that he was baptized on March 10, 1984. (Ex. 4; Tr. 28-29.) Kathern Frahs attended Angel's
baptism and is designated on his baptismal certificate as his godmother. (Ex. 4; Tr. 120.) The
court finds Lopez's baptismal certificate reliable and probative. Its content is consistent with
other documentation of Lopez's birth issued or created during the same time period.
6 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

16. Lopez's first communion was on April 16, 1988, also at St. Patrick's Church in
Pmiland, Oregon. (Ex. 4.) He received childhood immunizations in Vancouver, Washington,
between 1984 and 1987. (Ex. 8; Tr 31.) Lopez attended public schools in Portland, Oregon,
starting in 1984 until he graduated from Cleveland High School in June of 1999. (Ex. 9 pp. 1213.)

The court finds these records fmiher corroborate witness testimony which described

Lopez's childhood in the Portland, Oregon, metropolitan area.
17. Lopez has lived in the NW Thurman neighborhood of Portland, Oregon, most of his
life. Lopez and his family have rented apartments there since at least the early 1980s, and for the
last twenty years have rented a house, from Homer Medica. (Ex. 16; Tr 21-26, 222.) ·The court
finds the longstanding and continuous residence of Lopez and his family in one neighborhood
probative evidence in support of Lopez's assertion that he was born in the region. (Tr. 26.)
18. Homer Medica owns a groce1y store in the NW Thurman neighborhood and has had
regular, and often daily, contact with Lopez and his family for approximately 30 years. (Tr. 21,
220-24.)

Medica testified that he met Lopez as a toddler.

(Tr. 232.)

Medica testified

concerning the understanding and reputation of the Alcantar family in the neighborhood, as well
as his own understanding, that Lopez and his younger brother Juan and sister Rosalinda all were
born in the United States. (Ex. 26; Tr. 230-32.) No evidence at trial refuted Medica's testimony
or suggested that Medica had heard from any source that Lopez was not born in the United
States.
19. Kathe1;n Frahs provided credible affidavit testimony that Lopez was born in Bingen,
Washington.

Frahs, a long-time family friend and long-time resident of Underwood,

Washington, had close and sustained relationship with Lopez and his family, and she was
Lopez's godmother. (Ex. 18; Tr. 73-79, 117, 120, 129-30, 160, 165-66, 168, 181-82.) She died
7 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

sometime after giving her October 2008 affidavit but before the Lopez filed this lawsuit (Tr.
259), and was not available to testify. Frahs signed two affidavits that were consistent with the

story that she had always told Lopez about her role in his birth in Bingen. (Tr. 79-80.). Her first
affidavit, signed in 1984, supported Lopez's 1985 Delayed Ce1iificate of Birth issued by the
State of Washington. (See Ex. 1, indicating "Supporting Affidavit" provided by Kathern C.
Frahs on 10-23-84.) The court finds this affidavit credible evidence of Lopez's place of birth
because it was accepted by the Washington State court system as sufficient evidence to support
the issuance of a delayed birth certificate. Her second affidavit, signed in 2008, was filed in
supp01i of Lopez's Petition for Order to Establish Record of Birth, filed in Klickitat County
Superior Court for the State of Washington. (Exs. 1, 18.) The court finds Frahs's 2008 affidavit
credible evidence of Lopez's place of birth. Frahs gave the 2008 affidavit under oath for the
express purpose of being filed in cou1i to support Lopez's petition. Angela Winter, the paralegal
who obtained Frahs' s 2008 affidavit, credibly testified that Frahs understood the purpose for
which her affidavit would be used, that she had to be truthful and accurate in her statements, and
that she was "very clear" in her recollection of the facts. (Tr. 165-66.) Frahs's affidavit also is
consistent with her October 23, 1984, affidavit submitted in support of Lopez's Delayed
Certificate of Birth and her March 10, 1984, attestation on Lopez's baptismal certificate that she
was present when Lopez was born in Bingen, Washington on April 28, 1978. The Department
called no witness and introduced no evidence that called into question Winters's or Frahs's
testimony or credibility, or that established that Frahs intentionally and repeatedly gave false
testimony about the circumstances of Lopez's birth. (Tr. 265-266.) Accordingly, the court
accepts as true Frahs's affidavit testimony that Lopez was born in Bingen, Washington.

8 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

20. On June 17, 2009, the Klickitat County Superior Court for the State of Washington
issued an order which declared Lopez's place of birth as Bingen, Washington. (Exs. 17, 22; Tr.
257-59.) That order resulted in the State of Washington reissuing Lopez's Delayed Certificate of
Birth on July 15,2009. (Ex. 2; Tr. 37.)
21. Lopez is registered to vote in Multnomah County and has consistently held a United
States Social Security card, an Oregon drivers license, and other indicia of U.S. citizenship.
(Exs. 5, 6, 7; Tr. 37-38.) Lopez traveled to Mexico in 2011 to be married, and on his Mexican
Marriage License he listed his birthplace as Bingen, Washington and his citizenship as United
States. (Ex. 10; Tr. 39-43.)
22. Leonardo testified at trial that in 1996 he used his own photograph but Lopez's birth
certificate and biographical data to apply for a U.S. passport, without Lopez's permission. (Ex.
105; Tr. 186-187.) Leonardo acknowledged when deposed and when testifying at trial that as a
naturalized citizen his admission of this conduct potentially exposed him to legal consequences.
(Tr. 187-188, 190.) The court finds credible Leonardo's testimony on this and other topics,
especially considering that he knew his admission regarding his 1996 passport application would
put him at risk of legal consequences.
23. Lopez testified that he was not, at the time it was submitted, aware that his brother
made a 1996 passport application in his name. Lopez eventually become aware of the 1996
passport application and wrote to the Department in an attempt to address the potential
consequences to him of Leonardo's actions. (Tr. 67-69; Exs. 107, 108.) Lopez testified credibly
on this and related subjects.
24. Lopez's mother, Maria de los Angeles Lopez Bonilla, is illiterate. (Tr. 118, 150.)

9 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

25. While Bonilla was visiting her father in Mexico in 1978, she went to the authorities
in Silao and registered Lopez's birth, which registration resulted in the generation of a Mexican
birth certificate ("Acta de Nacimiento"), dated June 13, 1978, that lists Lopez's date of birth as
April28, 1978, and birthplace as Silao, Mexico. (Ex. 101; Tr. 118.) Bonilla testified at trial she
informed authorities at the time of registering Lopez that he was born in the United States and
that she registered Lopez's birth with Mexican authorities because she wanted him to have dual
citizenship. (Tr. 118, 152.) Bonilla testified she did not fill out any forms or papers and did not
receive a copy of the Mexican birth certificate at the time she registered Lopez's birth. (Tr. 15354.)
26. While Bonilla was visiting Mexico in 1988, she went to the authorities in Silao and
registered the birth of Lopez's younger brother Juan, which registration resulted in the
generation of a Mexican birth certificate that lists Juan's bhihplace as Silao, Mexico. (Ex. 12, p.
3.) In fact, Juan was born in Portland, Oregon, and he possesses a U.S. passport. (Tr. 214-15;
Ex.12,pp.1,2.)
27. While Bonilla was visiting Mexico in 1996, she went to the authorities in Silao and
registered the birth of Lopez's younger sister Rosalinda, which registration resulted in the
generation of a Mexican birth certificate that lists Rosalinda's bhihplace as Silao, Mexico and
date of birth as January 14, 1993.

(Ex. 13, p. 3.)

Rosalinda's Mexican bhih certificate

incorrectly states the date of her birth and place of her birth, as she was born on January 14,
1994, in Portland, Oregon. (Tr. 207, 210; Ex. 13, p. 1.) In fact, Rosalinda possesses a U.S.
passport. (Tr. 21 0; Ex. 13, p. 2.)
28. The evidence at trial conclusively established that both Juan and Rosalinda were
born in Portland, Oregon. The court finds that the Mexican bhih cetiificates issued to them by
10 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

the authorities in Silao, Mexico, incorrectly state the bhihplaces ofboth Juan and Rosalinda, and
incorrectly state Rosalinda's date of birth. The court also finds that the Mexican birth cetiificate
issued to Lopez by the authorities in Silao, Mexico, incorrectly state his birthplace as Silao,
Mexico.
29. The comt finds credible Bonilla's testimony that she registered the births of Lopez,
Juan, and Rosalinda in Mexico after each child was born in the United States.

She acted

consistently with respect to each of her U.S.-born children by also registering each of their births
in Mexico. Because she is illiterate Bonilla would not have recognized the errors contained in
each child's Mexican birth certificates.
30. On May 13, 2011, Lopez filed an I-130 petition requesting that his wife, Alma
Alcantar, a Mexican citizen, be classified for immigration as the wife of a United States citizen
and approved for issuance of a visa for entry to the United States. (Ex. 27; Tr. 54-55.) Lopez
filed the petition as a U.S. citizen and USCIS issued an I-797 Notice of Action approving
Lopez's petition. (Ex. 27; Tr. 55.)
31.

In filing the petition sponsoring his wife for permanent resident status, Lopez

reasonably believed he was a United States citizen because he possessed a Washington State
birth certificate, which had been reissued pursuant to the June 17, 2009, order of the Klickitat
County Superior Court, State of Washington; because throughout his life his parents, family
members, and family friends consistently described his birth as having occurred in the United
States; and because he acted consistently with this belief by obtaining driver's licenses and a
Social Security card, and registering as a voter.
32. Lynn Nguyen Ho, USCIS Assistant Center Director at USCIS's California Service
Center, reviewed USCIS's computerized records of Lopez's I-130 petition file. (Declaration of
11 FINDINGS OFFACT, CONCLUSIONS OF LAW, AND ORDER

Lytm Nguyen Ho (Dkt. No. 38-1)

~

3.) Petitioners claiming U.S. citizenship "must show a birth

or naturalization certificate, a citizenship certificate, or a passport." (Ho

Dec!.~

7.) On May 13,

2011, Lopez submitted a petition requesting that his wife, Alma Alcantar, be classified for
immigration as the wife of a U.S. citizen and be approved for issuance of a visa for entry to the
United States. (Ex. 27; Tr. 54-55.) To support his petition, Lopez submitted a Washington State
delayed birth certificate and affidavit of correction, issued July 15, 2009, to USCrS, and USCrS
approved Lopez's. petition on August 16, 2011 and forwarded the approved petition to the
Department of State National Visa Center. (Ho Dec!.

~~

14, 19.) On May 8, 2012, Alma

Alcantar received an immigrant visa from the Depmiment through its consular office in Mexico,
based on Lopez's U.S. citizenship, and she is now residing in the United States. (Tr. 88-89, 104,
136.) Lopez's Mexican bitih registration was not among the file materials submitted in support
of his Form I-130 petition. (Ho

Dec!.~

18; Declaration of Catherine E. Holt (Dkt. No. 38-2)

~

12.)
33. USCIS is an agency within the U.S. Department of Homeland Security. The Ho
Declaration and the Holt Declaration show that USCrS and the Department coordinate and
cooperate in matters of immigration and lawful residency of foreign citizens in the United States.
This working relationship is further evidenced by each agency's respective websites:
http :1/www. travel.state.gov/visa/immigrants/immigrants_1340 .html;
http:llwwW.travel.state.gov/visa/immigrants/types/types_1309 .html; and,
http:l/www.uscis.gov. 3

3

All websites last visited January 2, 2013.

12 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

34. There is no witness testimony and, except for the Mexican birth. certificate, no
documentary evidence that Lopez was born in Mexico.
35. The court finds credible each of the witnesses who testified at trial.
36. The preponderance of the evidence indicates that Petitioner Angel Alcantar Lopez
was born in the United States, in Bingen, Washington, onApril28, 1978.
CONCLUSIONS OF LAW

I. The court has subject-matter jurisdiction over this case pursuant to 28 U.S.C. § 1331
and 28 U.S.C. § 2201.
2. All persons born in the United States and subject to the jurisdiction thereof are
citizens of the United States. U.S. Const. amend. XIV,§ 1; 8 U.S. C.§ 1401(a).
3. Any person who claims to be a United States citizen and is denied a "right or privilege
... upon the grounds that he is not a national of the United States" may sue "for a judgment
declaring him to be a national of the United States." 8 U.S.C. § 1503(a).
4.

In a claim under 8 U.S.C. § 1503, the court makes a de novo determination of

citizenship. Vance v. Terrazas, 444 U.S. 252,256 (1980); Richards v. Secretmy of State, Dept.
ofState, 752 F.2d 1413, 1417 (9th Cir. 1985).
5. An applicant for a passport has the burden to establish that he or she is entitled to a
passport by presenting proof of identity and citizenship. See 22 C.F.R. §§ 51.23, 51.40. Lopez,
as the petitioner, bears the initial and the ultimate burden of proving his citizenship by a
preponderance of the evidence. Reyes v. Neelly, 264 F.2d 673, 674 (5th Cir. 1959); Beltran v.
Rivera, No. 2:10-CV-24288, 2012 WL 2675477, at *3 n.1 (S.D. Fla. July 6, 2012); Ramirez v.
Clinton, No. 08-5770,2011 WL 2838173, at *4 (D. Minn. July 18, 2011); Liacakos v. Kennedy,
195 F. Supp. 630,631 (D.D.C. 1961).
13 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

6. To meet his burden, Lopez must provide documentary evidence that he is a United
States national. 22 C.P.R. § 51.41. Primary evidence of nationality for a person born in the
United States is an official birth certificate filed within one year of the date of birth. See 22
C.P.R. § 51.42(a). Alternatively, if an applicant's bhih certificate is insufficient to quality as
primary evidence, secondary evidence "includes but is not limited to hospital birth certificates,
baptismal certificates, medical and school records, certificates of circumcision, other
documentary evidence created shortly after birth but generally not more than 5 years after birth,
and/or affidavits of persons having personal knowledge of the facts of the birth." 22 C.P.R. §
51.42(b). The Depatiment's regulations are instructive but do not bind the comi, and there is no
list of specific documents that must be used.

A petitioner must simply demonstrate by a

preponderance of the evidence that he was born in the United States. Ramirez v. Clinton, No.
08-5770, 2011 WL 2838173, at *4 (D. Minn. July 18, 2011); Rivera v. Albright, No. 99 C 328,
2000 WL 1514075, at* 1 (N.D. Ill. Oct.l1, 2000)).
7. The Department's regulations permit petitioners to submit various forms of evidence
to prove their U.S. citizenship. While a contemporaneous birth certificate is the preferred form
of evidence to establish citizenship, it is not the exclusive form of evidence the Department is
willing to consider and accept regarding a petitioner's claim of U.S. citizenship, as the
regulations make clear by specifying examples of various acceptable alternative forms of
evidence.

From this the court concludes that the Department intends its regulations be

considered in the context of the specific case, that each piece of evidence be evaluated for its
authenticity and reliability, and that the determination whether a petitioner has met the
preponderance burden be made on the totality of all the evidence submitted.

14 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

8. Lopez's evidence at trial was of a type contemplated in the Department's regulations
as sufficient to establish citizenship. He produced his baptismal records, school records, and
immunization records, as well as rental receipts confirming his parents' long-time residency in
Portland. The authenticity and reliability of these documents were not challenged at trial. Of
particular probative value is Lopez's baptismal record. (Ex. 4.) The record shows that in March
1984 both of Lopez's parents and Frahs, as Lopez's godmother, stated Lopez's place of birth as
Bingen, Washington. Lopez's parents and Frahs made these representations long before any
question had been raised whether Lopez was born in the United States. Put another way, in this
case the baptismal record, one type of evidence the Depatiment recognizes as acceptable proof
of citizenship, is an especially reliable form of evidence because it was made at a time when no
challenge to Lopez's citizenship had been asserted and it could not have been made for the
purpose of resisting such a challenge. The court finds Lopez's baptismal record reliable and
highly probative evidence of his citizenship.
9. Lopez also produced Frahs's October 16, 2008, sworn affidavit (Ex. 18) attesting to
her presence at Lopez's birth in Bingen, Washington. Frahs's testimony concerning Lopez's
birth in Washington, as set forth in her sworn affidavit and as told orally to Lopez and others, is
admissible under FED. R. EVID. 804(b)(4)(B). First, Frahs is deceased and thus was unavailable
for trial. Second, the evidence was sufficient to establish that at the relevant time (the time
period including Lopez's birth), Frahs was so intimately associated with Lopez and his family
that her testimony is likely to be accurate.
10. Frahs's affidavit also is reliable and probative. Under the Department's regulations,
witness affidavits are an acceptable form of evidence of citizenship. The Depmiment does not
challenge the authenticity of Frahs's affidavit but only its reliability, but it failed to support this
15 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

challenge. First, it presented no evidence to impeach the affidavit. Instead, the Department
merely questioned whether Frahs's affidavit was the product of an altruistic "good deed" on her
part, which resulted in its contents being "fabricated" in whole or in part. (Tr. 263-64.) This
argument could be made against any affidavit submitted to support a petitioner's claim of U.S.
citizenship, yet the Department's regulations expressly state witness affidavits are proper
evidence of citizenship.

The court concludes that witness affidavits are reliable sources of

evidence regarding a petitioner's citizenship and cannot be discounted or disregarded on mere
speculation about the affiant's motive for making the affidavit, particularly when the affidavit
otherwise appears genuine and the witness appears competent to testifY to the matters therein.
See Kouanchao v. U.S. Citizenship and Immigration Services, 358 F. Supp. 2d 840, 842 (D.
Minn. 2005) (finding reliable delayed birth certificate in part because the supporting witnesses'
certifications were "unimpeached" by the government). Second, the Department did not object
to or refute the testimony of Angela Winter, a paralegal who met with Frahs at least twice for the
purpose of preparing Frahs's 2008 affidavit.

Winters observed that Frahs understood her

affidavit would be used in court, that she had to be truthful and accurate in her statements, and
that Frahs was "very clear" in her recollection of the facts. (Tr. 165-66.) Winters's testimony
further supports the reliability ofFrahs's 2008 affidavit.
11. Frahs's 2008 affidavit also is reliable evidence under the regulations because it is
supported by Frahs's two prior consistent statements that Lopez was born in Bingen,
Washington. As discussed above, Frahs stated in Lopez's 1984 baptismal certificate that Lopez
was born in Bingen, Washington. But Frahs also submitted an affidavit in October 1984 in
support of Lopez's parents' first request for a Washington State delayed birth certificate for
Lopez. (Ex. 1, p. 1.) Effectively, the Depatiment's cha11enge to Frahs's 2008 affidavit is a
16 FINDINGS OFF ACT, CONCLUSIONS OF LAW, AND ORDER

charge of recent fabrication, and Frahs's statement in Lopez's 1984 baptismal certificate and her
1984 affidavit thus are admissible and probative on this point as prior consistent statements
offered to rebut a claim of recent fabrication. See FED. R. EVID. 801(d)(1)(B)(prior consistent
statement admissible to "rebut an express or implied charge that the declarant recently fabricated
[testimony] or acted from a recent improper influence or motive in so testifying[.]"). For this
additional reason, the court concludes that Ft·ahs's affidavit is reliable and probative evidence of
Lopez's citizenship under the regulations.
12. A Mexican birth certificate creates a presumption that the person is an alien. Rivera
v. Albright, No. 99 C 328, 2000 WL 1514075, at *1 (N.D. Ill. Oct.11, 2000), citing United
States ex ref. Rongetti v. Neelly, 207 F.2d 281, 284 (7th Cir. 1953). This presumption continues
until plaintiff proves the contrary.

See Corona-Palomera v. INS, 661 F.2d 814, 818 (9th

Cir.l981 ). A delayed birth certificate is given "far less weight" than a contemporaneous birth
certificate, which is almost conclusive. Liacakos v. Kennedy, 195 F. Supp. 630, 632 (D.D.C.
1961 ).
13. Lopez produced evidence at trial sufficient to overcome the presumption of alienage
created by the Mexican birth ce1iificate. At trial Lopez's mother, Bonilla, provided a credible
explanation for the existence of the Mexican birth certificate and credible testimony regarding
the circumstances giving rise to its creation. Her explanation is consistent with registering
Lopez's younger brother, Juan, and his younger sister, Rosalinda, with Mexican authorities in
the same town in Mexico where she had registered Lopez. Evidence conclusively established
that both of Lopez's younger siblings were born in the United States and that after they were
born Bonilla registered each birth with Mexican authorities.

This consistent pattern of

registering in Mexico, at the same location, the births of her U.S.-born children corroborates
17 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Bonilla's explanation for the existence of Lopez's Mexican birth certificate. Futihermore, the
evidence at trial established that the Mexican birth certificates of Juan and Rosalinda each
contained errors, most important of which were the misstatements that each was hom in Mexico,
just as Lopez's Mexican birth certificate also states; the evidence at trial conclusively established
that both Juan and Rosalinda were born in the United States. This evidence further undermines
the reliability of Lopez's Mexican birth cetiificate and rebuts its presumption of alienage.
14. Lopez produced evidence at trial sufficient to give his delayed bitih certificates
probative evidentiary value. Lopez obtained two delayed birth certificates, the first in January
1985 and the second in June 2009. At the time Lopez's parents obtained his 1985 delayed birth
certificate there was no legal challenge to Lopez's status as a U.S. citizen. The Department did
not assert and no evidence at trial suggested that Lopez's parents obtained the 1985 certificate in
response to a claim that Lopez was born in Mexico or in anticipation of a legal challenge to
Lopez's U.S. citizenship.

Bonilla credibly explained the reason no birth certificate issued

contemporaneous with Lopez's birth: the family could not afford a doctor, could not afford to
give birth in a hospital, and thus Lopez was born in the workers shack in Bingen, Washington,
where the family lived at the time. Based on her demeanor at trial and her manner of testifying,
the comi finds Bonilla's testimony on this and the other topics on which she testified highly
credible.
15. The Court factors into its analysis that a petitioner's parents have always told him he
was born in the United States. See Ramirez v. Clinton, No. Civ. 08-8770-DSD/JSM, 2011 WL
2838173, at *4 (D. Minn. July 18, 2011) (finding similar statements were admissible and
probative of a plaintiffs place of birth); Beltran v. Rivera, No. 2:10-CV-24288, 2012 WL
2675477, at *3 n.2 (S.D. Fla. July 6, 2012) (citing Ramirez for same). See also FED. R. EVID.
18 FINDINGS OFFACT, CONCLUSIONS OF LAW, AND ORDER

804(b)(4)(B) (when a declarant is unavailable, her statement concerning the birth of "another
person . . . if the declarant was related to the person by blood, adoption or marriage" is not
hearsay). Additionally, the court considers reputation among the petitioner's family and in the
community that he or she was born in the United States. United States v. Jean-Baptiste, 166
F.3d 102, 110 (2d Cir. 1999) ("[T]here is a special need for this type of evidence," because, as
here, "[o]ther evidence of family matters is frequently unavailable, and it is likely that these
matters have been sufficiently inquired about and discussed with persons who have personal
knowledge so that a trustworthy consensus has been reached."). Statements of family members
about matters of family history are "generally presumed to be truthful." U.S. v. PalomaresMunoz, No. 00-50216, 2001 WL 219951, at **1 (9th Cir. 2001), citing FED. R. EVID. 803(19)

("a reputation among a person's family ... or among a person's associates in the community ...
concerning the person's birth ... "is not hearsay).
16. At trial the evidence was uniform that Lopez's parents, his siblings, his godmother,
and the family's friends consistently told Lopez and acknowledged among themselves he was
born in the United States. Each witness who so testified was credible on this point and each
identified the source of their information - either personal knowledge or long familiarity with
the family- about Lopez's place of birth. There was no evidence at trial that Lopez had been
told by anyone he was born in Mexico and no evidence to reasonably suggest that any of the
witnesses were untruthful on this point. The court rejects the Department's contention that it
should find the testimony of Lopez's family members not credible because they are "interested
witnesses" and "potentially biased."

Nothing in the witnesses' demeanor or testimony

reasonably suggested that any of them were being untruthful in their testimony. The single fact
of a familial relationship cannot by itself be enough to undermine the credibility of these
19 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

witnesses' testimony, as that would effectively nullity Federal Rule of Evidence 803(19), which
recognizes as admissible evidence to establish a person's place of birth the testimony of the
person's family. Thus, Lopez's testimony that his parents, relatives, and family friends have
always told him that he was born in the United States, as well as the corroborating testimony of
his siblings and friends, further supports his and his parents' statements that he was born in the
United States, and is credible and probative on this point.
17.

Lopez's father is legally competent to give admissible testimony.

The court

concludes that his trial testimony is admissible and probative, and was credible, on the subjects
to which he testified.
18.

The comt finds reliable and probative Lopez's 1985 and 2009 delayed birth

cettificates but does not find them conclusive proof that Lopez was born in the United States.
Lopez cites REV. CODE WASH. 70.58.130 for the proposition that under Washington law, a copy
of the birth certificate that is cettified by the state registrar is "prima facie evidence of the facts
stated therein," and he argues his delayed birth certificate thus should be accorded Full Faith and
Credit under 28 U.S.C. § 1739. The Western District of Texas recently addressed this same
argument and its analysis accurately reflects the proper evidentiaty treatment of delayed birth
certificates:
Petitioner also argues that she is entitled to judgment on the pleadings
because the Order by which the Texas judge entered her delayed bitth cettificate
is entitled to full faith and credit under the applicable statute. Under the Full
Faith and Credit statute, the Texas birth cettificate "shall have the same full faith
and credit in every court and office within the United States" as it would receive
in a Texas court. 28 U.S.C. § 1739; see also Mah Toi v. Brownell, 219 F.2d 642,
643 (9th Cir. 1955). Under Texas law, a copy of a birth certificate "that is
certified by the state registrar is prima facie evidence of the facts stated in the
record." Tex. Health & Safety Code Ann. § 191.052 (2010). This means that
even affording it full faith and credit, Petitioner's delayed Texas birth cettificate
may be rebutted by other evidence and is not conclusive proof of her Texas birth
20 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

or United States citizenship. See Tindle v. Celebrezze, 210 F. Supp. 912 (D. C.
Cal. 1962) (finding a delayed birth certificate issued by a Texas court was not
conclusive evidence of the Plaintiffs age). Thus, Petitioner's Full Faith and
Credit argument fails and she is not entitled to a judgment on the pleadings on
this basis.
De La Cruz v. Clinton, No. A-11-CV-675-AWA, 2012 WL 1941373, at *3-4 (W.D. Tex. May

29, 2012). See also Mah Toi v. Brownell, 219 F.2d 642, 643 (9th Cir. 1955) (rejecting delayed
birth certificate as conclusive proof of birth under the Full Faith and Credit statute). For the
reasons states above, the court finds the evidence supporting Lopez's delayed birth certificates
reliable and, thus, finds that both certificates are probative evidence that Lopez was born in the
United States.
19. The court finds that USCIS's approval of Lopez's I-130 petition for immigration on
behalf of his wife is evidence that USCIS and, thus, the Depatiment, considered Lopez's 2009
Delayed Birth Certificate probative evidence of Lopez's U.S. citizenship. First, the relationship
and cooperation in the immigration process of USCIS and the U.S. Department of State are
evidenced by the Ho Declaration and the Holt Declaration and further documented on each
agency's official websites, and that information is admissible under FED. R. EVID. 902(5).
Second, the evidence at trial established that for a USCIS I-797 Notice of Action to issue, USCIS
must first determine that the I-130 petitioner is a U.S. citizen. The Department confirmed that
on August 16, 20 II, Lopez obtained an I-797 Notice of Action allowing his wife to live in the
United States as the spouse of a U.S. citizen.

Thus, USCIS used Lopez's delayed birth

certificate to determine he was a U.S. citizen, a determination adopted by the Department when
it issued the I-797 Notice of Action.
20. The court rejects the Department's argument that approval of the Lopez's I-130
petition does not imply Lopez is a U.S. citizen. USCIS based its approval of Lopez's I-130
21 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

petition on Lopez's 2009 delayed bhih certificate, the same document the Department argues
should receive no weight in pati because "given the uncontested nature of the proceeding before
the Superior Court, its findings are entitled to little, if any, evidentiaty weight." (Dfs.' Trial Br.
at 8.) The evidence establishes that USCIS itself considered Lopez's Washington State delayed
birth certificate sufficient evidence of his U.S. citizenship to support approval of his I-130
petition seeking his wife's admission to the United States as the immigrant spouse of a U.S.
citizen; clearly, USCIS relied on that document to reconunend to the Department that Lopez's
wife be issued an I-797 Notice of Action. The court also rejects the Department's assertion that
the I-130 approval lacks evidentiary significance because Lopez's Mexican birth certificate, a
document which the Department implies would be an indicator of possible fraud, was not in
Lopez's I-130 file.

The Department does not argue and neither Ho nor Holt state in their

respective declarations that had Lopez's Mexican birth certificate also been submitted with his
2009 Washington State delayed birth certificate, USCIS would have investigated the petition
fmiher or denied Lopez's I-130 petition outright. Rather, the Department's evidence is simply
that Lopez's Mexican birth certificate was not included with his petition. Neither Ho nor Holt
state that USCIS considers a Mexican birth certificate an indicator of fraud or that it always
investigates I-130 petitions that are filed with a foreign birth certificate. The only evidence on
this topic the general statement that USCIS investigates I-130 petitioners when it finds "fraud
indicators," but those indicators are never identified or defined. (Holt Dec!.

~

9.) The court

concludes there is no reason to reject USCIS's I-130 approval and the Depat1ment's subsequent

22 FINDINGS OFFACT, CONCLUSIONS OF LAW, AND ORDER

I-797 Notice of Action as evidence that USCIS and, thus, the Department, considered Lopez's
2009 Delayed Birth Certificate probative evidence of Lopez's U.S. citizenship. 4
21. Viewing the evidence as a whole, the coutt concludes that Lopez has met his burden
to show by a preponderance of the evidence that he was born in the United States.
22. Angel Alcantar Lopez is a United States citizen.
23. Having established he was born in the United States and is a United States citizen,
Lopez is entitled to a United States passport.

ORDER
The court having found that plaintiff Angel Alcantar Lopez has established that he was
born in the United States and is a United States citizen entitled to a United States passport, the
coutt HEREBY ORDERS that the Department of State shall issue to Lopez a United States
passport as soon as practicable but not later than ninety (90) days of the date of entry of this
Order.
IT IS SO ORDERED.
DATED this

Ocf{
7

day of January, 2013.

OHNV. ACOSTA
Unit States Magistrate Jndge

d

4

The court notes that it would find Lopez has met his burden of proof here even if the
court did not consider the I-130 approval and I-797 Notice of Action.
23 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER