Mario Martinez v. Secretary of State of the United States of America , 652 F. App'x 758 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10666
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D.C. Docket No. 4:13-cv-00534-RH-CAS
MARIO MARTINEZ,
Plaintiff-Appellant,
versus
SECRETARY OF STATE OF THE UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 8, 2016)
Before TJOFLAT, MARCUS, and ROGERS, * Circuit Judges.
PER CURIAM:
*
Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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After the Department of State revoked his U.S. passport, Mario Martinez
brought a declaratory judgment action against the Secretary of State, pursuant to
8 U.S.C. § 1503(a) and 28 U.S.C. § 2201(a), seeking a judicial declaration that he
was born in the United States and is, therefore, a U.S. citizen. After a bench trial,
the district court specifically found that Martinez was born in Mexico and is,
therefore, not a U.S. citizen. On appeal, Martinez contends that the district court
clearly erred in finding that he was born in Mexico, rather than in the United
States. He also argues, for the first time on appeal, that, when a § 1503(a) plaintiff
presents a U.S. birth certificate that was filed contemporaneously with his birth,
that birth certificate should presumptively establish that the plaintiff is a U.S.
citizen. After careful review, and with the benefit of oral argument, we affirm.
I.
The essential facts adduced at trial are these. Martinez was born on
October 12, 1974, to Maria del Socorro Reyes (“Reyes”) and Sebastian Martinez --
both Mexican citizens. The birth was registered in Brownsville, Texas, by a
woman named Guadalupe Gonzalez, and the Texas Department of Health, Bureau
of Vital Statistics issued a birth certificate showing that Martinez had been born in
Brownsville and that Gonzalez, as midwife, was present for the birth.
Nevertheless, Martinez grew up and attended elementary school in Cerritos, San
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Luis Potosi, Mexico. At some point he obtained a U.S. passport, and, at the age of
15, he moved to the United States to live with an uncle in Florida.
Martinez later married a Mexican woman, whom he met in Mexico.
Martinez filed a visa petition on behalf of his wife, and, while processing the
petition, the Department of State began to suspect that Martinez had not been born
in the United States. On October 3, 2007, Martinez, his mother, and his wife went
to the U.S. Consulate in Ciudad Juarez, Mexico, where a fraud investigator in the
Consulate’s Fraud Prevention Unit questioned Martinez’s mother. During the
questioning, the fraud investigator presented Reyes with a Mexican birth
certificate, issued on November 18, 1986, which showed that Martinez had been
born on October 12, 1974, in Cerritos, San Luis Potosi, Mexico. At the end of the
interview, the fraud investigator typed up a “sworn statement,” which Reyes
signed, and which stated that Reyes had given birth to Martinez in Cerritos, San
Luis Potosi, Mexico, and her husband’s aunt had paid a midwife to obtain a U.S.
birth certificate. The statement referred to Martinez as “Martin,” rather than
“Mario.” Reyes, who had obtained U.S. permanent resident status through
Martinez, also signed a Form I-407, Abandonment of Lawful Permanent Resident
Status form, which stated, among other things, “My son was born in Mexico, and
not in the U.S., as stated in [his] fraudulently obtained Texas birth certificate.”
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Martinez’s subsequent request for an official copy of his birth certificate
from the Texas Registrar was denied, based on information the Registrar had
received from the U.S. Department of State. But, after a hearing in
September 2009, at which Reyes testified by phone, the Texas Department of State
Health Services (“Texas DSHS”) declared Martinez’s Texas birth certificate valid
and ordered the Registrar to give him an official copy. Martinez also instituted
proceedings in Mexican court to invalidate his Mexican birth certificate.
However, on June 14, 2011, the Department of State sent Martinez a letter,
informing him that it had revoked his U.S. passport, pursuant to 22 C.F.R.
§ 51.62(b), based on his mother’s sworn statement at the U.S. Consulate that he
was born in Mexico and the Mexican birth certificate. Martinez subsequently filed
this declaratory judgment action, seeking a judicial declaration that he was born in
the United States, is a U.S. citizen, and is entitled to possess a U.S. passport.
At trial, Martinez presented his Texas birth certificate; a baptismal certificate
from the Roman Catholic Diocese of San Luis Potosi, Mexico, issued on
January 30, 1975, which stated that he had been born in Texas on
October 12, 1974; a confirmation certificate from the same Diocese, reporting the
same information; the Texas DSHS decision; and an April 2012 Mexican court
judgment invalidating his Mexican birth certificate. In addition, Martinez and his
father testified, and Martinez introduced deposition testimony that Reyes had given
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on two prior occasions. In her deposition testimony, Reyes testified that, when she
felt labor was imminent, she crossed the U.S.-Mexico border so she could give
birth to Martinez in Brownsville; the statement she gave at the U.S. Consulate on
October 3, 2007, was false and had been coerced; and she did not willingly
abandon her U.S. resident status. Reyes and Martinez’s father both testified that
they obtained the Mexican birth certificate when Martinez was 12 years old, solely
to allow him to continue studying in Mexican schools.
The Department of State introduced Martinez’s Mexican birth certificate,
Reyes’s October 3, 2007 sworn statement, and the abandonment of lawful resident
status form Reyes signed that day. The Department of State also introduced
deposition testimony from Elizabeth Lerma-Shaffer, who was the deputy or acting
chief of the Fraud Prevention Unit at the U.S. Consulate in Ciudad Juarez in
October 2007. Lerma-Shaffer did not specifically recall Martinez’s case, but she
recognized her signature on Reyes’s sworn statement. Lerma-Shaffer testified that,
as a general practice, she ensured that all sworn statements she signed off on were
voluntarily given. Finally, the Department of State introduced live testimony from
Peter Ojeda, who was an immigrant visa specialist at the Consulate in Ciudad
Juarez in October 2007. Ojeda did not specifically recall Martinez’s case, either,
but he recognized his handwriting and signature on Reyes’s abandonment of lawful
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permanent resident status form. He testified that, as a general practice, he did not
coerce individuals into signing the form.
The district court found that Martinez was born in Mexico and he was,
therefore, not a U.S. citizen. The court specifically discredited the testimony and
other evidence showing that Reyes had crossed the U.S.-Mexico border to give
birth to Martinez in Brownsville, Texas, and found that Martinez’s parents had
fraudulently obtained the Texas birth certificate. The court credited Lerma-
Shaffer’s and Ojeda’s testimony and found that Reyes’s statement at the Consulate
that she had given birth to Martinez in San Luis Potosi, Mexico was true and not
the product of coercion or duress. The court noted the contrary findings of the
Texas DSHS and Mexican court, which were not binding on the district court or on
the Department of State. Finally, the court noted that the burden of proof was on
Martinez, but said “the result would be the same even if the burden was on the
defendant; the evidence is not in equipoise.”
Martinez filed this timely appeal.
II.
In a § 1503(a) declaratory judgment action, 1 the plaintiff has the burden of
proving that he is a U.S. citizen by a preponderance of the evidence.
1
Section 1503(a) states:
If any person who is within the United States claims a right or privilege as a
national of the United States and is denied such right or privilege by any
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See De Vargas v. Brownell, 251 F.2d 869, 871 (5th Cir. 1958); Mathin v. Kerry,
782 F.3d 804, 807 (7th Cir. 2015) (citing 22 C.F.R. § 51.40). We review the
district court’s conclusions of law following a bench trial de novo and its factual
findings for clear error. Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d
1253, 1257 (11th Cir. 2015). “If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, [we] may not reverse it even
though convinced that had [we] been sitting as the trier of fact, [we] would have
weighed the evidence differently.” Anderson v. City of Bessemer, 470 U.S. 564,
573-74 (1985). That is, “[w]here there are two permissible views of the evidence,
the [district court’s] choice between them cannot be clearly erroneous.” Id. at 574.
We review questions of law, including issues related to the applicable
burden of proof, de novo. First Vagabonds Church of God v. City of Orlando,
638 F.3d 756, 760 (11th Cir. 2011); see Columbus Mills, Inc. v. Freeland, 918 F.2d
department or independent agency, or official thereof, upon the ground that he is
not a national of the United States, such person may institute an action under the
provisions of section 2201 of Title 28 against the head of such department or
independent agency for a judgment declaring him to be a national of the United
States, except that no such action may be instituted in any case if the issue of such
person’s status as a national of the United States (1) arose by reason of, or in
connection with any removal proceeding under the provisions of this chapter or
any other act, or (2) is in issue in any such removal proceeding. An action under
this subsection may be instituted only within five years after the final
administrative denial of such right or privilege and shall be filed in the district
court of the United States for the district in which such person resides or claims a
residence, and jurisdiction over such officials in such cases is conferred upon
those courts.
8 U.S.C. § 1503(a).
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1575, 1580 (11th Cir. 1990). However, we generally will not consider an issue
that was not raised in the district court and is raised for the first time on appeal.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
A.
First, we can discern no clear error in the district court’s finding that
Martinez was born in Mexico. Martinez asserts that the trial court erred in
discrediting Reyes’s deposition testimony because the court erroneously stated that
Reyes did not say she was threatened or under duress, when she, in fact, said this
numerous times. We need not address the district court’s reasoning on this issue,
however, because, in any event, ample record evidence supported the district
court’s factual finding that Martinez was born in Mexico. Reyes’s sworn statement
and I-407 form strongly suggested that Martinez was born in Mexico. Those
documents were corroborated by the testimony of Lerma-Shaffer and Ojeda, who
indicated that they never coerced an interviewee into signing documents. The
district court thus did not clearly err by crediting the testimony of the two State
Department employees instead of Reyes’s contrary deposition testimony. Nor has
Martinez shown that the district court clearly erred in crediting Reyes’s sworn
statement over her contradictory deposition testimony because the sworn statement
was typed by the fraud investigator and used the name Martin, rather than Mario.
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Martinez claims that the district court erred by crediting Lerma-Shaffer,
since she testified in her first deposition that she had supervised a staff of four
fraud investigators, whereas, in her second deposition, she testified that she had
supervised a staff of six. However, Martinez fails to show how this inconsistency
was particularly significant, let alone so important that it thoroughly undermined
the district court’s credibility choices. Lerma-Shaffer consistently testified in both
of her depositions about the process she and the fraud investigators used for
investigating cases and taking statements, that the fraud investigators did not have
a practice of coercing false statements, that she went over the statements with
declarants before signing them, and that she would not have signed off on a
statement if the declarant had indicated it was false. Martinez also says that
Lerma-Shaffer’s testimony was incredible because she was ambiguous as to
whether she was present during the fraud investigators’ interviews. But Lerma-
Shaffer was clear on this point: she testified that she supervised the interviews --
which took place in cubicles -- from her office, which was about 5-10 feet away
from the cubicles. Thus, her testimony makes clear that she was present, and
observing, while the interviews were going on, but she did not literally participate
in the interviews.
Finally, Martinez contends that Lerma-Shaffer’s testimony was incredible
because she maintained that she could not remember her interactions with Reyes,
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while her “recollection of other cases seems very clear.” Martinez cites to the
November 2014 deposition, where Lerma-Shaffer, when asked, recalled a
“circumstance[] where someone who was being interviewed was in distress.”
Lerma-Shaffer testified about a “senior lady,” who was diabetic and hadn’t eaten
all day, and who said she was feeling faint. Lerma-Shaffer recalled that she and
her staff brought the woman “a soda and some probably crackers or something to
. . . keep her stable,” and “asked her if she wanted to continue or to terminate the
interview, and she said she just wanted to continue.” We are unconvinced that
Lerma-Shaffer’s ability to recall this unrelated episode means she must necessarily
have recalled her interview with Reyes and had been lying about not remembering
it. Again, the district court was free to make the credibility determinations it
plainly made against Martinez.
In short, Martinez has not shown that the district court clearly erred in
crediting Reyes’s sworn statement and the consular employees over Reyes’s
deposition testimony and the documentary evidence showing that Martinez was
born in Brownsville. While Martinez’s contrary view of the evidence has some
record support, the district court did not clearly err in taking an alternative view.
See Anderson, 470 U.S. at 573-74.
B.
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Next, Martinez urges us, for the first time, to establish a new rule that, when
a § 1503(a) plaintiff presents a U.S. birth certificate that was filed
contemporaneously with his birth, that birth certificate presumptively establishes
the plaintiff’s U.S. citizenship, particularly where the plaintiff can show that he has
lived in the United States for an extended period of time. Martinez acknowledges
that he did not present this argument in district court. However, citing to United
States v. Olano, 507 U.S. 725, 731-32 (1993), he contends that we should review
the argument for plain error. He maintains that reversal is warranted under the
plain-error standard because his trial counsel clearly erred by not raising the
presumption issue in district court. He also asserts that his substantial rights were
affected by the Department of State’s revocation of his U.S. passport, which, he
says, denied him of citizenship rights that were conferred upon him at birth.
Martinez further argues, for the first time on appeal, that the government’s
revocation of his U.S. passport without first holding a hearing strains due process,
and that the presumption he seeks is necessary to avoid a due process violation in
his § 1503(a) case.
In civil cases, like this one, we generally decline to consider an issue raised
for the first time on appeal. Access Now, 385 F.3d at 1331. In Access Now, we
explained that we may make an exception to this general rule in five
circumstances, namely, if: (1) the issue involves a pure question of law and our
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refusal to consider it would result in a miscarriage of justice; (2) the party had no
opportunity to raise the issue in the district court; (3) the interest of substantial
justice is at stake; (4) the proper resolution is beyond any doubt; or (5) the issue
presents significant questions of general impact or of great public concern.
Id. at 1332. However, we have also applied the plain-error standard (which
notably originates from Rule 52(b) of the Federal Rules of Criminal Procedure) in
some civil cases. See, e.g. Holmes v. W. Palm Beach Hous. Auth., 309 F.3d 752,
757 n.2 (11th Cir. 2002); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329
(11th Cir. 1999); see also S.E.C. v. Diversified Corp. Consulting Group, 378 F.3d
1219, 1227 n.14 (11th Cir. 2004) (“[A]lthough the Civil Rules, unlike the Criminal
Rules, do not contain a formal provision allowing the appellate courts to notice
plain error, the appellate courts have held in a few cases that despite the absence of
an objection they may consider an error so fundamental that it may have resulted in
a miscarriage of justice.” (quotation omitted)). Under the plain-error standard, the
appellant has the burden to establish four things: (1) an error occurred; (2) the
error was plain; (3) the error affected his substantial rights; and (4) not correcting
the error would seriously affect the fairness, integrity, or public reputation of the
judicial proceeding. Farley, 197 F.3d at 1329 (citing United States v. Humphrey,
164 F.3d 585, 588 n.3 (11th Cir. 1999) (citing Olano, 507 U.S. at 732)); see United
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States v. Rodriguez, 398 F.3d 1291, 1298-1300 (11th Cir. 2005); United States v.
Sosa, 782 F.3d 630, 636 (11th Cir. 2015).
Martinez does not argue that any of the five exceptions set forth in Access
Now are present here. Even if we were to apply the plain-error standard in this
case, which we have said “rarely applies in civil cases,” Ledford v. Peeples, 657
F.3d 1222, 1258 (11th Cir. 2011), Martinez has not satisfied his burden on any of
the four requirements, although he would be obliged to satisfy all four
requirements by a preponderance of the evidence. See Rodriguez, 398 F.3d
at 1299-1301. For starters, it’s not at all clear to us that any error occurred, let
alone that the error was plain or obvious. As for the second requirement, our case
law makes clear that “where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Martinez has offered no argument as to how the district court’s alleged
error in failing to apply a presumption of U.S. citizenship based on his Texas birth
certificate was plain. In fact, he has pointed to no basis for the presumption he
requests in the applicable statutes or regulations. Rather, as he appears to
recognize, the regulations, if anything, cut the other way. Under 22 U.S.C. § 211a
and 8 U.S.C. § 1504(a), the Secretary of State has the authority to “grant and issue
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passports,” and “to cancel any United States passport . . . if it appears that such
document was illegally, fraudulently, or erroneously obtained from, or was created
through illegality or fraud practiced upon, the Secretary.” 22 U.S.C. § 211a;
8 U.S.C. § 1504(a). The regulations specifically provide that an applicant for a
U.S. passport “has the burden of proving that he or she is a U.S. citizen or non-
citizen national,” 22 C.F.R. § 51.40, and “[t]he applicant must provide
documentary evidence” to satisfy that burden, id., § 51.41. And, while section
51.42(a) provides that a U.S. birth certificate is “[p]rimary evidence of birth in the
United States,” id., § 51.42(a), section 51.45 provides that “[t]he Department [of
State] may require an applicant to provide any evidence that it deems necessary to
establish that he or she is a U.S. citizen or non-citizen national, including evidence
in addition to the evidence specified in 22 CFR 51.42,” id., § 51.45 (emphasis
added).
Nor has Martinez identified a Supreme Court or Eleventh Circuit case
applying the presumption he requests. See Lejarde-Rada, 319 F.3d at 1291. He
cites to an unpublished Fifth Circuit decision, Garcia v. Kerry, 557 F. App’x 304
(5th Cir. 2014), but in that case the Fifth Circuit merely upheld the district court’s
finding that the plaintiff was born in Mexico. The district court made that finding
upon being presented with a Mexican birth certificate recording the plaintiff’s birth
on a certain date and a U.S. birth certificate recording his birth approximately ten
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months later. Garcia, 557 F. App’x at 306-07, 310. Under these circumstances,
the district court found it was more likely the plaintiff was born in Mexico and the
U.S. birth certificate was created later. Id. at 310. Notably, in Garcia, the Fifth
Circuit did not establish a presumption of any kind, and it certainly did not
establish a presumption of U.S. birth for a § 1503(a) plaintiff who presents a
U.S. birth certificate filed contemporaneously with his birth. See id. Nor indeed
can we find any federal case that has ever created the presumption Martinez urges
us to adopt.
Martinez’s substantial-rights argument also falls short. As we’ve already
explained at some length, this is not a case where no evidence or only scant
evidence supported the district court’s factual finding. Finally, Martinez has made
no showing that the district court’s determination seriously affected the fairness,
integrity, or public reputation of the judicial proceeding.
We also can find no merit to Martinez’s claim that the government’s
revocation of his U.S. passport without first holding a hearing denied him due
process. Section 1503(a) affords individuals like Martinez robust means for
challenging administrative denials of their U.S. citizenship in federal court.
See 8 U.S.C. § 1503(a). In fact, in this case, Martinez had a full opportunity,
during the district court bench trial, to challenge the Department of State’s
revocation of his U.S. passport, present evidence of his own, and confront and
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cross-examine the government’s evidential presentation. Again, we can discern no
error, let alone plain error.
Accordingly, we affirm the judgment of the district court declaring that
Martinez was born in Mexico and is not a U.S. citizen.
AFFIRMED.
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