Gonzalez-Segura v. Holder

Filing 67

ORDER re 60 Motion for Summary Judgment; 63 Motion for Leave to redesignate expert witness.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
ERNESTO GONZALEZ-SEGURA,
Petitioner,
VS.
Loretta E. Lynch,
Respondent.

October 07, 2016
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 7:15-CV-84
§
§
§
§

OPINION & ORDER
The Court now considers the motion for summary judgment,1 filed by Loretta E. Lynch
(“Respondent”), and the motion for leave to redesignate expert witness,2 filed by Ernesto
Gonzalez-Segura (“Petitioner”). After considering the motions, responsive filings, record, and
relevant authorities, the Court GRANTS the motion for summary judgment and DENIES the
motion for leave to redesignate expert witness as moot.
I.

Background

This is a citizenship case involving a dispute under the Immigration and Nationality Act
(“INA”) § 309(a). In 1990, Petitioner obtained legal permanent residency in the United States
pursuant to INA § 245(a).3 In 1995, Petitioner was excluded and deported from the United States
pursuant to INA §§ 212(a)(2)(C), 212(a)(6)(B)(i), and 212(a)(7)(A)(i)(I).4 On September 27,
2004, Petitioner was again removed from the United States following a conviction for the
Manufacture/Delivery of Controlled Substances.5 On October 17, 2013, Petitioner filed an N600, Application for Certificate of Citizenship with the Department of Homeland Security and
1

Dkt. No. 60.
Dkt. No. 63.
3
Dkt. No. 19, at p. 3.
4
Id. at Ex. 4, pp. 14–15.
5
Id. at Ex. 1.
2

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U.S. Citizenship and Immigration Services (“USCIS”) in Harlingen, Texas, claiming U.S.
Citizenship based on his alleged father’s birth in Mercedes, Texas.6
On October 20, 2014, Petitioner was in the custody of the Cameron County Sheriff’s
Office in Texas when he was picked up and detained by Immigration and Customs Enforcement
(“ICE”).7 Petitioner told ICE that he was a U.S. citizen because his alleged father was a naturalborn-citizen.8 That day, Petitioner was charged in U.S. District Court with criminal reentry in
violation of 8 U.S.C. § 1326.9 On October 21, 2014, Petitioner was indicted on this charge,10 and
soon thereafter USCIS denied Petitioner’s N-600 application.11 On December 16, 2014, the
indictment was dismissed without prejudice upon a motion by the federal government. 12
On November 17, 2014, Petitioner filed a petition for review of his citizenship claim in
the United States Court of Appeals for the Fifth Circuit.13 On December 15, 2014, Petitioner
filed a motion to transfer the petition for review to the United States District Court for the
Southern District of Texas, McAllen Division, pursuant to 8 U.S.C. § 1252(b)(5), and filed a
motion for stay of removal.14 On January 26, 2015, the Fifth Circuit transferred Petitioner’s
claim to this Court pursuant to 8 U.S.C. § 1252(b)(5)(B) and granted Petitioner’s motion for stay
of removal.15 This case was filed with this Court on February 19, 2015.16

6

Id. at p. 3, citing Ex. 5–6.
Id. at 2.
8
Id.
9
Id. at 2–3, citing Ex. 1–2.
10
Id. at 3.
11
Id. at Ex. 6.
12
Id. at Ex. 3.
13
Ernesto Sandoval-Segura v. Jeh Johnson, Secretary, DHS, Case No. 14-60817, Dkt. No. 1.
14
Id. at Dkt. No. 6.
15
Id. at Dkt. No. 11.
16
Dkt. No. 1.
7

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Petitioner was born on June 13, 1969 in Rancho Vera Cruz, Rio Bravo, Tamaulipas,
Mexico.17 Petitioner alleges that his biological father was Nicolas Gonzalez, a U.S. citizen.
Petitioner’s mother, Natalia Segura, never married Gonzalez.18 Nevertheless, Petitioner alleges
that Segura and Gonzalez had three children together, including Petitioner.19 Petitioner contends
that on August 8, 1970, Gonzalez handwrote a paragraph on the backside of a document from
1963 that the parties refer to as the “land conveyance document” (“1963 document”), which
states, “yo Nicolas Gonzalez dejo/deje esta propiedad para la señora Natalia Segura y mis hijos
Ernesto, Ruben, Ernesto Gonzalez pagada en su totalidad el mes de Agosto 8 de 1970,” signed
by Nicolas Gonzalez.20 As more fully discussed below, the 1963 document clearly transferred
property to Segura, but it is uncertain whether the property was also transferred to Gonzalez. In
1972, Segura married Lorenzo Sandoval, and they registered Petitioner as Sandoval’s son with
the Civil Registry of Rio Bravo, in Mexico.21 In 1975, Gonzalez died.22 In 1984, Lic. Francisco
Barrera Garza notarized the 1963 document.23
In 2007, at age thirty-eight, Petitioner brought a lawsuit against the Civil Registry of Rio
Bravo, Segura, and Sandoval to amend his birth certificate to reflect that Gonzalez was his
biological father.24 That year, a Tamaulipas court amended the birth certificate and listed
Gonzalez as Petitioner’s biological father.25 Ultimately, Petitioner argues he was legitimated (1)
by this amended birth certificate, and (2) pursuant to the handwritten paragraph on the backside
of the 1963 document.

17

Dkt. No. 19, at p. 1.
Id. at 1–2.
19
Id.
20
Dkt No. 60-1, at p. 2 (emphasis added).
21
Dkt. No. 19, at p. 2.
22
Id.
23
Dkt. No. 60-1, at p. 3.
24
Dkt. No. 19, at p. 2.
25
Dkt. No. 19, at p. 25.
18

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There have been multiple court appearances, briefs submitted, and motions filed in this
case. At the May 12, 2015 initial pretrial conference, the Court ordered the parties to file briefs
on the issue of the amended birth certificate. Petitioner and Respondent filed briefs on July 16,
201526 and August 10, 2015,27 respectively. At the August 18, 2015 status conference, the Court
noted its inclination to agree with Respondent on the legitimation briefing, but abstained from
ruling on the matter. The Court additionally ordered the parties to file briefs on the issue of
acknowledgement under Tamaulipas law and all dispositive issues that warranted attention
before discovery. Petitioner and Respondent filed briefs on September 17, 201528 and October
15, 2015,29 respectively. At the October 29, 2015 status conference, the Court ordered the parties
to submit copies of the Mexican laws cited in their briefs, along with translations.
Petitioner and Respondent filed motions for leave to designate experts on November 5,
201530 and November 12, 2015,31 respectively. On November 24, 2015, Respondent submitted
copies of the translated Mexican laws. On December 18, 2015, Respondent filed a motion for
leave to file a motion for summary judgment, accompanied by a proposed motion for summary
judgment.32 In that motion, Respondent included a declaration by expert witness David Lopez
explaining that the 1963 document was not a public document.33 Additionally, on December 18,
2015, Respondent filed a motion to postpone the trial so the Court could rule on the motion for
leave to file summary judgment.34 On January 15, 2016, the Court granted the parties’ motions
for leave to designate experts, granted Respondent’s motion for leave to file a motion for

26

Dkt. No. 11.
Dkt. No. 16.
28
Dkt. No. 19.
29
Dkt. No. 22.
30
Dkt. No. 29.
31
Dkt. No. 31.
32
Dkt. No. 32.
33
Dkt. No. 35.
34
Dkt. No. 38.
27

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summary judgment, and granted Respondent’s motion to postpone the trial.35 On February 2,
2016, Petitioner filed a motion for leave to amend the pleadings,36 and then on February 3, 2016,
filed a response to Respondent’s motion for leave to file summary judgment.37 On February 22,
2016, Respondent filed a response to Petitioner’s motion to amend its pleadings.38
On April 1, 2016, the Court issued an order denying Petitioner’s motion to amend as
unnecessary, and ordered the parties to file briefs on the issue of whether the 1963 document is a
holographic will under Tamaulipas law and all dispositive issues that warranted attention.39
Petitioner filed a brief and amended brief on May 2, 2016,40 and Respondent filed a brief on May
20, 2016.41
On June 24, 2016, Respondent filed a motion for leave to file a second motion for
summary judgment,42 which the Court granted on June 28, 2016.43 Thereafter, Respondent filed
the instant motion for summary judgment on June 28, 2016.44 Petitioner filed a response on July
17, 2016,45 and Respondent filed a reply on July 26, 2016.46 Petitioner filed a motion for leave to
redesignate expert witness on July 28, 2016,47 to which Respondent responded on August 5,
2016.48 The Court now considers the instant motions.

35

Dkt. No. 48.
Dkt. No. 49.
37
Dkt. No. 50.
38
Dkt. No. 51.
39
Dkt. No. 54.
40
Dkt. No. 55, 56.
41
Dkt. No. 57.
42
Dkt. No. 58.
43
Dkt. No. 59.
44
Dkt. No. 60.
45
Dkt. No. 61.
46
Dkt. No. 62.
47
Dkt. No. 63.
48
Dkt. No. 64.
36

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II.

Summary Judgment Legal Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”49 A fact is “material” if its resolution could affect the outcome of the action,50 while a
“genuine” dispute is present “only if a reasonable jury could return a verdict for the nonmovant.”51 As a result, “[o]nly disputes over facts that might affect the outcome of the suit under
the governing laws will properly preclude the entry of summary judgment.”52
In a motion for summary judgment, the movant bears the initial burden of showing the
absence of a genuine issue of material fact.53 In this showing, “bald assertions of ultimate fact”
are insufficient.54 Absent a sufficient showing, summary judgment is not warranted, the analysis
is ended, and the non-movant need not defend the motion.55 On the other hand, the movant is
freed from this initial burden on matters for which the non-movant would bear the burden of
proof at trial; in that event, the movant’s burden is reduced to merely pointing to the absence of
evidence.56 If the movant meets its initial burden, the non-movant must then demonstrate the
existence of a genuine issue of material fact.57 This demonstration must specifically indicate
facts and their significance,58 and cannot consist solely of “conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.”59

49

FED. R. CIV. P. 56(a).
Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007) (internal quotation marks
and citation omitted).
51
Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006) (citation omitted).
52
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
53
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
54
Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978) (citation omitted).
55
See Celotex Corp., 477 U.S. at 323.
56
See id. at 323-25; see also Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir. 1995).
57
See id.
58
See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
59
U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (citing TIG Ins. Co. v. Sedgwick James
of Wash., 276 F.3d 754, 759 (5th Cir. 2002)).
50

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In conducting its analysis, the Court considers evidence from the entire record and views
that evidence in the light most favorable to the non-movant.60 Thus, although the Court refrains
from determinations of credibility and evidentiary weight, the Court nonetheless gives credence
to all evidence favoring the non-movant; on the other hand, regarding evidence that favors the
movant, the Court gives credence to evidence that is uncontradicted and unimpeachable, but
disregards evidence the jury is not required to believe.61 Rather than combing through the record
on its own, the Court looks to the motion for summary judgment and response to present the
evidence for consideration.62 Parties may cite to any part of the record, or bring evidence in the
motion and response.63 By either method, parties need not proffer evidence in a form admissible
at trial,64 but must proffer evidence substantively admissible at trial.65
III.

Discussion

Petitioner, although born in Mexico, claims that he is a U.S. citizen because his alleged
father was a natural-born-citizen. “The applicable law for transmitting citizenship to a child born
abroad when one parent is a citizen is the statue in effect at the time of the child’s birth.”66 Thus,
to acquire U.S. citizenship, Petitioner must satisfy the applicable INA statutes from 1969, by
showing: (1) he was legitimated before the age of twenty-one under the laws of the Mexican
state where he resided or was domiciled as a child,67 and (2) before his birth, his father had ten
years of physical presence in the United States, at least five of which were after the age of

60

See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citations omitted).
See id.
62
See FED. R. CIV. P. 56(e). The Court ordered the parties to file briefs, and the Court considers the briefs to fully
analyze each of the arguments presented in the context of this motion for summary judgment.
63
See FED. R. CIV. P. 56(c).
64
See Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a form
that would be admissible at trial in order to avoid summary judgment.”).
65
See Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (“the evidence proffered by the plaintiff to satisfy his
burden of proof must be competent and admissible at trial.”).
66
Iracheta v. Holder, 730 F.3d 419, 423 (5th Cir. 2013).
67
8 U.S.C § 1409(a) (1964).
61

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fourteen.68 Petitioner was born and resided in the Mexican state of Tamaulipas, and thus its laws
govern this claim of legitimation.69
From October 24, 1961 until January 31, 1987, legitimation laws in Tamaulipas were
governed by the 1961 Civil Code of Tamaulipas (“CCT”).70 The parties agree that the CCT is the
applicable law for this case. The parties also agree that under Article 370 of the CCT, a child
born out of wedlock is legitimated either by the father’s voluntary acknowledgment or a
judgment declaring paternity.71
The dispute in this case centers around Article 379. Each of the parties has provided their
translated version of that article. The Court, however, begins with the Spanish version. Article
379 provides that the recognition of a child born out of wedlock can be accomplished in the
following ways:
I. En la partida de nacimiento ante el oficial del Registro Civil;
II. Por acta especial ante el mismo oficial;
III. Por escritura pública;
IV. Por testamento;
V. Por confesión judicial directa y expresa.72
The parties offer very similar translations for sections I, II, IV, and V, but dispute the
interpretation of “escritura pública.” Petitioner’s expert translates “escritura pública” to mean
public document.73 Respondent’s expert translates “escritura pública” to mean notarial

68

8 U.S.C. § 1401(a)(7) (1964).
Although the Court uses the term “legitimation,” the Tamaulipas Code uses the term “acknowledgement.”
However, the Fifth Circuit has held that “there is no legal or logical basis for holding that a mere textual distinction
between acknowledgment and legitimation in the foreign law should be controlling.” Iracheta, 730 F.3d, at 426.
70
Dkt. No. 16-1, at p. 2.
71
Dkt. No. 60, at ¶ 39; Dkt. No. 61, at ¶ 11.
72
Dkt. No. 55-1, at p. 8.
73
Id. at p. 15 (emphasis added).
69

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instrument.74 Respondent also provides the Law Library of Congress’ translation of “public
instrument (notarized document).”75
While the parties dispute the translation of “escritura pública,” Fifth Circuit law is clear
that “differences of opinion on the content, applicability, or interpretation of the foreign
provision may not be characterized as a ‘genuine issue as to any material fact.’”76 Thus, the
issues in this case are purely legal ones for the Court’s determination. That determination is
made in accordance with Rule 44.1 of the Federal Rules of Civil Procedure which provides in
pertinent part, that “[i]n determining foreign law, the court may consider any relevant material or
source, including testimony, whether or not submitted by a party or admissible under the Federal
Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.” 77
The Court, here, disagrees with Respondent’s assertion that “escritura pública” translates
to a notarial instrument. After analyzing the original, the translations, the parties’ briefs, and their
motions, the Court finds that “escritura pública” translates to a public instrument, specifically
one that is executed before a Mexican Notary Public.
Ultimately, the Court finds that a child born out of wedlock can be recognized in the
following ways under Article 379:
I. In a birth certificate before the Civil Registry Official;
II. In a special document before the Civil Registry Official;
III. Via a public instrument, specifically one that is executed before a Mexican Notary
Public;
IV. Via a will;
V. Via a direct and express judicial confession.
74

Dkt. No. 60-1, at p. 36 (emphasis added).
Dkt. No. 16-1, at p. 6 (emphasis added).
76
Banco de Credito Indus., S.A. v. Tesoreria General, 990 F.2d 827, 838 (5th Cir. 1993).
77
FED. R. CIV. P. 44.1 (emphasis added).
75

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Petitioner argues that he satisfies the legitimation requirement of INA § 309(a) because
he was legitimated under Article 379 (1) by his amended birth certificate, and (2) pursuant to a
public instrument or will - the handwritten paragraph on the backside of the 1963 document.78
a.

Amended Birth Certificate

Petitioner’s first argument is that he was legitimated by his amended birth certificate
because it is (1) registered before the Civil Registry Official and (2) a public instrument.79
i.

Birth Certificate Before the Civil Registry Official

Petitioner’s amended birth certificate was registered before the Rio Bravo Civil Registry
in 2007.80 Since the birth certificate was registered before the Civil Registry Official, there is no
dispute that Petitioner now satisfies the legitimation requirement under section I of Article 379.
Nevertheless, the issue is whether the change in the birth certificate may be given retroactive
effect here because former INA § 309(a) requires legitimation before the age of twenty-one.81
The Court finds that retroactive effect is incompatible with former INA § 309(a). The statute is
clear in requiring Petitioner to show that he was legitimated before age twenty-one.82 There is no
contemplation of retroactivity in the statute, and the Court agrees with Respondent that the
congressional intent behind the twenty-one years of age requirement was to allow a U.S. citizen
father and his non-citizen child to establish strong connections during the age of minority.83
Moreover, the Fifth Circuit, in considering the effect of a state’s nunc pro tunc order to a similar
claim has twice rejected the argument that such order should be given retroactive effect to

78

Dkt. No. 61, at pp. 5-14.
Dkt. No. 61, at pp. 5–7.
80
Dkt. No. 61-2.
81
8 U.S.C. § 1409(a) (1964).
82
See Id.
83
Dkt. No. 60, at ¶ 15.
79

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establish citizenship.84 In both of these cases, the Fifth Circuit cited to Fierro v. Reno, a First
Circuit case in which that court found that “recognizing the nunc pro tunc order [] would in
substance allow the state court to create loopholes in the immigration laws . . . .”85 So too here.
As a result, even though registration of the amended birth certificate before the Rio Bravo Civil
Registry may satisfy Article 379, such registration does not satisfy INA § 309(a) because it
occurred after Petitioner turned twenty-one.
ii.

Public Instrument

Petitioner additionally argues that the amended birth certificate satisfies Article 379
because it is a public instrument.86 Petitioner provides the Tamaulipas Court order labeling the
birth certificate as a “documentation publica,” which translates to “public document.”87 Even if
the birth certificate qualifies as a public instrument sufficient to satisfy Article 379, the nonapplicability of retroactive effect prevents the birth certificate from satisfying INA § 309(a)
because it was not amended until after Petitioner turned twenty-one.
b.

1963 Document

Petitioner’s second argument is that the handwritten paragraph on the backside of the
1963 document (“1970 handwritten paragraph”) is a form of legitimation because it is a (1)
public document and (2) holographic will.
i.

Public Instrument

Petitioner contends that the 1970 handwritten paragraph is a public document, thus
legitimating him under Article 379. The Court finds for the purpose of analyzing this claim under
Article 379, that a public document is a public instrument. In earlier briefing, Petitioner argues
84

United States v. Esparza, 678 F.3d 389 (5th Cir. 2012); Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir.
2006).
85
217 F.3d 1, 7 (1st Cir. 2000).
86
Dkt. No. 61, at ¶ 17.
87
Dkt. No. 61-1, at p. 2.

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that the 1970 handwritten paragraph is a deed, and under Article 325, a deed is a public
document.88 Article 325 in its original form, provides in relevant part:
Entre otros, tienen categoría de documentos públicos:
I. Los testimonies de las escrituras públicas otorgadas con arreglo a derecho
y las escrituras originales mismas[.]89
The parties provide nearly identical translations of this Article, except for their
translations of “esritura públicas.” The Court considers first Petitioner’s interpretation of Article
325:
Among others, the following are categorized as public documents:
I. The statement in property deed granted by agreement in accordance
with a right in the same original writings. (Public deeds granted in
accordance with the law and the original deed that was notarized.)[.]90
As previously discussed, the Court finds that “escritura pública” translates to a public
instrument, specifically one that is executed before a Mexican Notary Public. Thus, the Court
does not agree with Petitioner’s translation here. Nevertheless, even if the Court found that a
deed would come within the definition of a public document under Article 325, Petitioner has not
presented sufficient evidence to raise a fact issue that the 1970 handwritten paragraph is a deed.
Absent such evidence, Petitioner has not demonstrated that the 1970 handwritten paragraph
would qualify as a public document that would satisfy Article 379’s requirement of establishing
paternity through a public instrument.
ii.

Holographic Will

Petitioner’s final argument is that the 1970 handwritten paragraph satisfies Article 379
because it is a holographic will. The parties agree that holographic wills were valid at the time

88

Dkt. No. 19, at pp. 6–8.
Dkt. No. 26, at p. 18.
90
Dkt. No. 26, at p. 16 (emphasis added).
89

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the handwritten paragraph was drafted, pursuant to Articles 1393 and 1394.91 However, the
parties dispute the number of requirements to form such a will. Petitioner argues that only
Articles 1444 and 1445 provide the requirements to form a valid holographic will,

92

while

Respondent argues that Articles 1447, 1448, 1449, and 1451 also apply.93 The Court agrees with
Respondent because each of these Articles from 1444 through 1451 are found within Chapter IV
of the CCT, entitled “De testament ológrafo,” which translates to holographic will, and the
additional Articles referenced by Respondent clearly provide formation requirements.
The Court thus agrees with Respondent that there are eleven requirements to create a
valid holographic will, which are translated by Respondent as follows:
(I) The testator had to be an adult;
(II) The holographic will had to be fully written by the testator in his or her own hand and
signed by the testator;
(III) The holographic will had to state the day, month and year in which it was granted;
(IV) The testator had to imprint his or her thumbprint on the original and duplicate copy
of the holographic will;
(VI) The original and duplicate copy of the holographic will had to be placed inside
closed and sealed envelopes which then had to be taken by the testator personally to
the offices of the Public Property Registry;
(VII) If the registrar in charge of the Public Property Registry did not know the testator,
the testator had to present two witnesses who had to identify him;
(VIII) The original of the holographic will had to be deposited by the testator at the
Public Property Registry;
(IX) On the envelope containing the original, the testator, by his own hand, had to write
“My Will is contained in this envelope” and write the place and date on which the deposit
was made and then he, the registrar and the two witnesses had to sign the envelope;

91

Dkt. No. 55-1, at p. 16; Dkt. No. 60-1, at p. 23.
Dkt. No. 61, at ¶ 24.
93
Dkt. No. 60, at ¶ 43.
92

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(X) The registrar was to write the following statement on the envelope containing the
duplicate copy of the holographic will: “I received the sealed envelope that [the testator]
is claiming to contain the original of his holographic Will, of which, according to claims
made by said man, there is a duplicate copy in this envelope[]”; the registrar was then to
write the place and date on the envelope and the registrar, testator and two witnesses were
to sign the envelope;
(XI) After the deposit was made, the registrar was to retain possession of the original
holographic will and make an appropriate notation thereof in the records of the Public
Property Registry.94
In Respondent’s motion for summary judgment, Respondent argues that Petitioner fails to
show that the 1970 handwritten paragraph was “fully written” by Gonzalez in his own hand, that
there is an original and duplicate copy of the document, that Gonzalez’s thumbprint was on the
original and duplicate copy, that the document was placed in a closed and sealed envelope that
Gonzalez presented to the Public Property Registry or a local judge, or that any of the
registration and deposit requirements were satisfied.95 In response, Petitioner merely argues that
the holographic will satisfies Articles 1444 and 1445 because “[f]irst, the will was executed
when Nicolas Gonzalez was 61 years old. Second, the will was handwritten by Nicolas
Gonzalez. Third, the will is signed by Nicolas Gonzalez. Finally, the will includes the day,
month, and year of its execution.”96 Petitioner does not dispute the lack of any evidence
supporting that the other requirements under the CCT have been satisfied, holding steadfast to
his belief that only Articles 1444 and 1445 apply. As a result, the Court finds that the 1970
handwritten paragraph is not a valid holographic will under the CCT.
iii.

Additional Concerns

The Court now addresses additional concerns surrounding the 1963 document and the
1970 handwritten paragraph. While the Court examines each of these concerns, ultimately, none

94

Dkt. No. 60, at ¶ 43.
Dkt. No. 60, at ¶ 44.
96
Dkt. No. 61, at ¶ 25.
95

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of them raise a genuine issue of material fact. As previously discussed, the lack of evidence to
support that the handwritten paragraph is a deed, and the failure to satisfy the CCT’s
requirements for forming a valid holographic will renders each of these concerns factually
immaterial. Nevertheless, the Court recognizes numerous uncertainties surrounding this 1963
document and the handwritten paragraph.
The first concern regards what was actually conveyed by the 1963 document. While
Petitioner has translated this document to reflect a conveyance of property, the document
actually references the sale of a house on such property although it provides that Natalia Segura,
with her house, may remain on the property as long as she wishes. Thus, there is serious doubt
that this is a land conveyance deed, as claimed by Petitioner. The second concern is whether the
property referenced in the 1963 document was actually transferred to Gonzalez. This would have
been significant if Petitioner demonstrated that the 1970 handwritten paragraph satisfied Article
379, because the Court would have needed to address whether Gonzalez had rights in the
property pursuant to the 1963 document. Absent rights in the property, Gonzalez could not
devise the property to Petitioner. The 1963 document states “Manuel Gonzalez to Natalia
Segura,” with no mention of the alleged father, Gonzalez, in the main text.97 Even though it does
not appear that the property was conveyed to anyone besides Segura, Gonzalez nevertheless
allegedly signed the document.98 His signature is unusual considering the document only
provides for one “comprador” (buyer),99 instead of multiple “compradores” (buyers).
Petitioner addresses these issues by explaining that “comprador” is the male version of
the noun, which “followed by his signature disposes of any doubt that Nicolas Gonzalez partook

97

Dkt. 60-1, Ex. A; Dkt. 61-3.
Id.
99
Id.
98

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in the transaction.”100 This does not, however, explain the references within the body of the
document to “ella,” translated “she.” Petitioner further submitted a Consular Certification that
certified Gonzalez’s involvement in the property transaction, and Petitioner explains that both
Segura’s testimony and a payment receipt with Gonzalez’s name as the property purchaser
further support that Gonzalez was involved in the transaction.101 The Consular Certificate adds
nothing to this case as it only reflects Segura’s assertion – “she [Segura] stated . . . Manuel
Gonzalez sold me a property . . . Nicolas Gonzalez paid for this property.”102
As a last ditch effort, Petitioner advances a possible motive for not including Gonzalez’s
name in the body of the contract, which is that under Article 27 of the Mexican Constitution, “a
foreigner cannot own land in Mexico within 100 kilometers of the border.”103 This argument is
perplexing because even though Gonzalez’s name was not in the body of the conveyance, he
nevertheless signed the document. If Gonzalez was one of the actual purchasers, then signing the
document would put him in direct violation of the Mexican Constitution by virtue of becoming a
landowner. Even with this concern, no genuine issue of material fact is raised, because as
previously discussed, the 1970 handwritten paragraph does not satisfy Article 379.
The last concern involves the testamentary intent in the 1970 handwritten paragraph,
which states, “yo Nicolas Gonzalez dejo/deje esta propiedad para la señora Natalia Segura y mis
hijos Ernesto, Ruben, Ernesto Gonzalez pagada en su totalidad el mes de Agosto 8 de 1970.”104
The parties dispute whether the word following Gonzalez reads dejo or deje. The interpretation
of this word would be important for purposes of establishing whether Gonzalez had testamentary
intent, or instead intended to gift the property to Petitioner. Petitioner argues that this
100

Dkt. 61, at ¶ 20.
Id. at ¶ 21, Ex. 4.
102
Id. Ex. 4.
103
Id. at ¶ 22.
104
Dkt. No. 60-1, at p. 2 (emphasis added).
101

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interpretation is material because a finding that the word is dejo, which is the present tense of the
verb dejar, meaning “to leave,” signifies testamentary intent, while Respondent’s position that
the word is deje, which is the past tense of the verb dejar, meaning “I left,” signifies intent to gift
the property. However, the Court does not find that this difference in interpretation is material
because Petitioner has not otherwise satisfied the requirements for showing that the 1970
handwritten paragraph was a valid holographic will. Thus, no genuine issue of material fact
arises under this last concern.
IV.

Holding

Petitioner has failed to satisfy his burden of raising a genuine issue of material fact. For
the foregoing reasons, the Court GRANTS Respondent’s motion for summary judgment and
DENIES the motion for leave to redesignate expert witness as moot. Petitioner’s claim is hereby
DISMISSED WITH PREJUDICE. A separate final judgment shall be entered.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 7th day of October, 2016.
___________________________________
Micaela Alvarez
United States District Judge

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