Ernesto Gonzalez-Segura v. Jefferson Sessions, III ( 2018 )

Case: 16-41413 Document: 00514338851 Page: 1 Date Filed: 02/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41413 United States Court of Appeals
Fifth Circuit
FILED
February 6, 2018
ERNESTO GONZALEZ-SEGURA, Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, SMITH, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Ernesto Gonzalez–Segura was born out of wedlock in Mexico in 1969. His
father was a U.S. citizen, and his mother was a Mexican national. Gonzalez–
Segura now seeks derivative U.S. citizenship. He believes two documents
substantiate his claim: his birth certificate (which a Mexican court revised in
2007) and his father’s 1970 holographic will. The district court concluded that
he could not as a matter of law prove his derivative citizenship under former
Case: 16-41413 Document: 00514338851 Page: 2 Date Filed: 02/06/2018
No. 16-41413
Immigration and Nationality Act 1 §§ 301(a)(7), 2 309(a). 3 We AFFIRM the
district court’s summary judgment against him.
I. BACKGROUND
Gonzalez–Segura was born out of wedlock on June 13, 1969, in the
Mexican state of Tamaulipas. His biological mother is Natalia Segura, a
Mexican national. His biological father is Nicolas Gonzalez, a U.S. citizen. He
has two siblings from the same parents.
In 1970, his father drafted a holographic will on the back of a 1963 land
conveyance document. Translated from Spanish, the 1970 holographic will
stated:
I Nicolas Gonzalez am[] writing this letter to state that I am
leaving this property for Natalia Segura and my sons Ernesto,
Ruben, and Ernesto Gonzalez paid in full and no debt on this
month of August 8, [1970]. 4
Nicolas’s signature followed the note.
In 1972, his mother married Lorenzo Sandoval. That same year, the
couple registered Gonzalez–Segura with the Civil Registry of Rio Bravo in
Mexico, listing him as their son. The registration did not acknowledge
Gonzalez–Segura’s biological father, Nicolas.
Three years later, Nicolas died.
In 1990, Gonzalez–Segura obtained legal permanent residency in the
United States. Five years later, he was excluded and deported under INA
1 As explained below, the 1952 Immigration and Nationality Act as amended
(hereinafter “INA”) governs Gonzalez–Segura’s claim. This opinion’s discussion of the INA
refers exclusively to the version of the Act in effect in 1969, the year of Gonzalez–Segura’s
birth. Our ruling does not govern the interpretation of subsequent versions of the INA.
Gonzalez–Segura suggests that the panel should consider how the INA as amended
in 1986 applies to his claim. As explained below, the 1986 version of the Act was not in effect
at the time of his birth, so it cannot govern his claim to derivative citizenship.
2 Codified at 8 U.S.C. § 1401(a)(7) (1966) (hereinafter “INA § 301(a)(7)”).
3 Codified at 8 U.S.C. § 1409(a) (1952) (hereinafter “INA § 309(a)”).
4 The brackets note corrections to typographical errors in the expert’s translation.
2
Case: 16-41413 Document: 00514338851 Page: 3 Date Filed: 02/06/2018
No. 16-41413
§§ 212(a)(2)(C), 212(a)(6)(B)(i), and 212(a)(7)(A)(i)(I). However, sometime later,
he returned to the United States. In 2004, he was removed again after a drug
offense conviction.
In 2007—when he was thirty-five years old—Gonzalez–Segura brought
a lawsuit against his mother, Lorenzo Sandoval, and the Civil Registry of Rio
Bravo. Gonzalez–Segura sought to have a Tamaulipas court amend his birth
certificate to list Nicolas Gonzalez as his biological father. Gonzalez–Segura
prevailed in the suit, and the court ordered that his birth certificate list Nicolas
Gonzalez as his biological father.
In October 2013, Gonzalez–Segura filed an N-600 Application for
Certificate of Citizenship with United States Citizenship and Immigration
Services. He asserted in the application that Nicolas Gonzalez was his
biological father, so he was entitled to claim derivative citizenship.
In October 2014, while in the custody of a Texas county’s sheriff’s office,
United States Immigration and Customs Enforcement agents apprehended
Gonzalez–Segura. He was subsequently indicted for criminal reentry in
violation of 8 U.S.C. § 1326. 5 Soon after, his N-600 Application for Certificate
of Citizenship was denied.
The following month, Gonzalez–Segura filed a petition before the Fifth
Circuit to review his citizenship claim. The next month, he filed a motion to
transfer the review to the U.S. District Court for the Southern District of Texas
and filed a motion for stay of removal. In January 2015, our Court transferred
his claim to the Southern District of Texas and granted his motion for stay of
removal.
In February 2015, Gonzalez–Segura filed his suit in the Southern
District of Texas. Over a year later, the district court ruled in favor of the
5 The government eventually dismissed the indictment without prejudice.
3
Case: 16-41413 Document: 00514338851 Page: 4 Date Filed: 02/06/2018
No. 16-41413
Government on its motion for summary judgment. The court subsequently
entered a final judgment dismissing Gonzalez–Segura’s claims with prejudice.
A few days later, Gonzalez–Segura timely filed a notice of appeal.
II. JURISDICTION
The district court had jurisdiction to resolve whether Gonzalez–Segura
raised “a genuine issue of material fact about [his] nationality.” 8 U.S.C.
§ 1252(b)(5)(B). We have jurisdiction to review the final judgment of the
district court under 28 U.S.C. § 1291.
III. STANDARDS OF REVIEW
A. Reviewing Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is reviewed de
novo, “applying the same standard as . . . the district court.” United States v.
Lawrence, 276 F.3d 193, 195 (5th Cir. 2001) (citations omitted). “Summary
judgment is appropriate when the movant is able to demonstrate that the
pleadings, affidavits, and other evidence available to the court establish that
there are no genuine issues of material fact, and that the moving party is
entitled to summary judgment as a matter of law.” Hightower v. Tex. Hosp.
Ass’n, 65 F.3d 443, 447 (5th Cir. 1995) (citations omitted). The panel “must
view the evidence introduced and all factual inferences from the evidence in
the light most favorable to the party opposing summary judgment.” Id.
“However, the non-movant must go beyond the pleadings and present specific
facts indicating a genuine issue for trial in order to avoid summary judgment.”
Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276
(5th Cir. 2014). The panel may affirm summary judgment on any ground the
record supports. Id. (citation omitted).
4
Case: 16-41413 Document: 00514338851 Page: 5 Date Filed: 02/06/2018
No. 16-41413
B. Reviewing Foreign Law
The district court’s determination of foreign law “must be treated as a
ruling on a question of law.” Fed. R. Civ. P. 44.1. This determination “is subject
to de novo review.” Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d
694, 713 (5th Cir. 1999) (citations omitted). “In 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.” Fed. R. Civ. P. 44.1. “[D]ifferences of opinion” regarding “the
content, applicability, or interpretation of foreign law do not create a genuine
issue as to any material fact under Rule 56.” Access Telecom, 197 F.3d at 713
(citation omitted). Thus, summary judgment is generally “appropriate to
determine the content of foreign law.” Id. (citation omitted).
IV. DISCUSSION
A. Legal Framework for Gonzalez–Segura’s Citizenship Claim
1. Overview
This case involves a complicated web of overlapping foreign and domestic
law. The statute governing Gonzalez–Segura’s claim to derivative citizenship
is the version of the INA in place at the time of his birth. Under that statute,
Gonzalez–Segura must establish his paternity by legitimation in order to claim
derivative citizenship. The INA also dictates that his claim to legitimation is
governed by the laws of Tamaulipas, Mexico—where he resided as a child.
Even if he can prove his legitimation under Tamaulipan law, the INA imposes
an additional hurdle for claiming derivative citizenship: legitimation must
have occurred before Gonzalez–Segura turned twenty-one years old. We
conclude that Gonzalez–Segura cannot as a matter of law make this showing,
so we affirm the district court’s summary judgment against him.
5
Case: 16-41413 Document: 00514338851 Page: 6 Date Filed: 02/06/2018
No. 16-41413
2. Legal Framework
Gonzalez–Segura was born in Mexico, so “naturalization is his sole
source for a claim of citizenship.” Bustamante–Barrera v. Gonzales, 447 F.3d
388, 394 (5th Cir. 2006). The immigration statute in place at the time of his
birth governs his citizenship claim. Iracheta v. Holder, 730 F.3d 419, 423 (5th
Cir. 2013). Thus, the versions of INA §§ 301(a)(7), 309(a) that were in place in
1969 govern. Gonzalez–Segura bears the burden of proving that he qualifies
for naturalization, and he must strictly comply with statutory requirements.
Bustamante–Barrera, 447 F.3d at 394. We must “resolve all doubts ‘in favor of
the United States and against’ those seeking citizenship.” Id. at 394–95
(quoting Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)).
The INA dictates that a child born out of wedlock to a non-citizen mother
and a citizen father can establish derivative citizenship “if the paternity of such
child is established while such child is under the age of twenty-one years by
legitimation.” INA § 309(a); see Iracheta, 730 F.3d at 423. Thus, there are two
related requirements: what must happen (legitimation) and when (while the
child is under twenty-one years old). Each issue bears on this appeal.
a. Legitimation requirement
“Legitimation” is not defined in the INA. However, the Board of
Immigration Appeals defines “legitimation” as “the act of putting a child born
out of wedlock in the same legal position as a child born in wedlock.” In re
Cabrera, 21 I. & N. Dec. 589, 591 (B.I.A. 1996); see also Iracheta, 730 F.3d at
425 (endorsing this definition). Legitimation requires a formal act. See Miller
v. Albright, 523 U.S. 420, 440–41 (1998). A child may be legitimated under the
laws of either the child’s or the father’s domicile—whether in the United States
6
Case: 16-41413 Document: 00514338851 Page: 7 Date Filed: 02/06/2018
No. 16-41413
or elsewhere. 6 Both Gonzalez–Segura and his father resided in Tamaulipas, so
the laws of that state govern his legitimation claim.
The 1961 Civil Code of Tamaulipas (“CCT”) 7 establishes how a father can
legitimate a child who was born out of wedlock. 8 CCT Article 370 provides that
a child may be legitimated by either (1) the father’s voluntary acknowledgment
or (2) a court judgment declaring paternity. CCT Article 379 provides five ways
that voluntary acknowledgement of a child born out of wedlock can occur:
I. In the birth certificate before the Civil Registry official;
II. By special acknowledgement proceeding before the same official;
III. By a notarial instrument; 9
IV. By a will;
V. By direct and express judicial confession.
6 This is derived from the INA’s statutory language. That is, under Title III of the INA,
“child” includes “a child legitimated under the law of the child’s residence or domicile, or
under the law of the father’s residence or domicile, whether in the United States or
elsewhere.” INA § 101(c)(1) (1952); see Iracheta, 730 F.3d at 423 (“[The petitioner] was born
and resided in the Mexican state of Tamaulipas, and it is the laws of that state which govern
his claim of legitimation.”).
7 The governing version of the CCT was in place from October 24, 1961 to January 31,
1987. The primary resource informing this discussion is a report by the Law Library of
Congress. The Law Library of Congress, Tamaulipas, Mexico: Legitimation of a Child, LL
File No. 2012-008314 (2012).
8 The CCT’s Fifth Title includes a chapter entitled “Of Legitimation” and a chapter
entitled “Of the Acknowledgement of Children Born Out of Wedlock.” Previously, our Circuit
rejected the argument that only the “Of Legitimation” chapter should govern claims to
legitimation. See Iracheta, 730 F.3d at 426 (rejecting the argument that “a mere textual
distinction between ‘acknowledgment’ and ‘legitimation’ in the foreign law should be
controlling,” because “the rights granted to the children are the same”). Instead, both
chapters provide avenues by which a child born out of wedlock may be legitimated.
9 The parties largely agree on this interpretation of CCT Article 379, with the
exception of “a notarial instrument.” CCT Article 379 lists as its third option for proof the use
of an “escritura pública.” Gonzalez–Segura’s expert translated “escritura pública” to mean
“public document.” The Government’s expert translated the word to mean “notarial
instrument.” The Government also provided a translation from a Law Library of Congress
report, which translated the phrase as “public instrument (notarized document).” The district
court concluded that “escritura pública” “translates to a public instrument, specifically one
that is executed before a Mexican notary public.” On appeal, Gonzalez–Segura again
interprets the phrase as “public document.” We endorse the Government’s interpretation.
7
Case: 16-41413 Document: 00514338851 Page: 8 Date Filed: 02/06/2018
No. 16-41413
Gonzalez–Segura believes that he satisfies the CCT legitimation
requirements in three ways. First, his amended birth certificate qualifies as a
voluntary acknowledgment of his paternal lineage. Second, the 2007 ruling by
the Tamaulipas court that ordered the rectification of his original birth
certificate qualifies as a court judgment declaring paternity. Third, his father’s
1970 holographic will qualifies as a voluntary acknowledgement of paternity.
b. Timing requirement
The INA also requires Gonzalez–Segura to prove his paternity by
legitimation before he turned twenty-one years old. A child born out of wedlock
can establish derivative citizenship “if the paternity of such child is established
while such child is under the age of twenty-one years by legitimation.” INA §
309(a) (emphasis added). The word “while,” used as a conjunction, means
“during the time that.” 10 And, as discussed, legitimation entails “the act of
putting a child born out of wedlock in the same legal position as a child born
in wedlock.” Iracheta, 730 F.3d at 425 (quoting Cabrera, 21 I. & N. Dec. at 591).
Thus, under INA § 309(a), a child born out of wedlock must prove he was
formally placed in the same legal position as a child born in wedlock during
the time that child is under twenty-one years old.
B. Evaluating Gonzalez–Segura’s Citizenship Claim
Gonzalez–Segura asserts that three pieces of evidence support his claim
to derivative citizenship: his amended birth certificate, the accompanying
judicial decree regarding his birth certificate, and the 1970 holographic will.
Only the amended birth certificate and the 2007 judicial decree are valid forms
of legitimation under Tamaulipan law. Yet, Gonzalez–Segura cannot rely on
these otherwise valid forms of legitimation for his claim to derivative
10 The Oxford English Dictionary (online ed. 2017), available at
http://www.oed.com/view/Entry/228336?rskey=VgaQH0&result=3&isAdvanced=false#eid.
8
Case: 16-41413 Document: 00514338851 Page: 9 Date Filed: 02/06/2018
No. 16-41413
citizenship because the legitimation occurred after he had turned twenty-one
years old. Thus, he cannot overcome the INA’s timing requirement. Also, his
father’s 1970 holographic will fails to meet a number of formal, legal
requirements necessary for its validity. Thus, he cannot rely on the 1970
holographic will to prove his paternity by legitimation.
1. Amended Birth Certificate
Gonzalez–Segura asserts that his birth certificate legitimates him. We
acknowledge that a valid birth certificate registered with a Civil Registry
official is a recognized legitimation method. However, only after the
Tamaulipas court’s 2007 ruling—ordering that his 1972 birth certificate be
corrected—can his birth certificate be used for legitimation. Plainly, this
violates the language of the INA; legitimation occurred after Gonzalez–Segura
had turned twenty-one years old.
To overcome this, Gonzalez–Segura argues that the 2007 decision
rectifying his birth certificate should retroactively apply. Giving the
rectification ruling retroactive effect would mean that Gonzalez–Segura was
legitimated as of 1972. In other words, we should treat Gonzalez–Segura’s
birth certificate as if it had always listed Nicolas Gonzalez as his father. Thus,
he would have been legitimated before turning twenty-one years old—
satisfying the INA’s timing requirement—so he could claim derivative
citizenship.
The Government disagrees for three reasons. First, giving retroactive
effect to the ruling contravenes the plain language of INA § 309(a). Second,
Gonzalez–Segura’s interpretation undermines Congress’s intent behind the
statute. Third, U.S. law should take precedence over Mexican law regarding
whether the court’s determination should apply retroactively.
We conclude that the rectified birth certificate should not be given
retroactive effect because the rectification occurred after Gonzalez–Segura had
9
Case: 16-41413 Document: 00514338851 Page: 10 Date Filed: 02/06/2018
No. 16-41413
turned twenty-one years old. This follows from the plain language of the
statute. INA § 309(a) requires that a child born out of wedlock to establish
derivative citizenship “if the paternity of such child is established while such
child is under the age of twenty-one years by legitimation.” (emphasis added)).
Gonzalez–Segura attempts to persuade us that the statute contains an
implied exception that permits a party to prove legitimation after age twenty-
one if a party identifies fraud or clerical errors in the original legitimation
document. He believes allowing retroactive legitimation in that circumstance
is consistent with the statute’s language, purpose, and our caselaw.
However, we do not read INA § 309(a) as contemplating such an implied
exception. The plain language of the statute does not leave room for an
exception, nor are we persuaded to imply one in this case. INA § 309(a) requires
that the legitimation of a child born out of wedlock occur before the child turns
twenty-one years old. A later act of legitimation—even one that retroactively
applies a court ruling—does not suffice. Nothing in our caselaw compels a
contrary conclusion. 11 Because the act of legitimation occurred when
Gonzalez–Segura was thirty-eight years old—seventeen years too late—he
cannot claim derivative citizenship under INA § 309(a).
11 Gonzalez–Segura relies on United States v. Esparza, 678 F.3d 389 (5th Cir. 2012),
and Bustamante–Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006), to support his position.
Those cases involved determining what effect we should give to nunc pro tunc orders—i.e.,
orders given retroactive application—in the immigration context. Both cases left open the
possibility that we could retroactively apply a judgment in order to bolster a citizenship claim.
See Esparza, 678 F.3d at 396 (“[I]t may be possible for a future criminal defendant to use a
nunc pro tunc decree to raise a reasonable doubt as to his status as an alien.”); Bustamante–
Barrera, 447 F.3d at 401 (recognizing that “there could be a situation in which such a nunc
pro tunc amended decree could enhance an alien's claim of derivative citizenship under
§ 1432(a).”). However, neither case addresses the INA provisions at issue in this case, nor do
they explain the circumstances in which a nunc pro tunc decree should be given retroactive
effect in the context of a derivative citizenship claim.
10
Case: 16-41413 Document: 00514338851 Page: 11 Date Filed: 02/06/2018
No. 16-41413
This conclusion aligns with the D.C. Circuit’s approach in Miller v.
Christopher, 96 F.3d 1467, 1473 (D.C. Cir. 1996), aff’d sub nom. Miller v.
Albright, 523 U.S. 420 (1998). Miller sought to establish derivative citizenship
on the basis of a court ruling that retroactively legitimated her parental
lineage after she had turned twenty-one years old—much like Gonzalez–
Segura. The D.C. Circuit rejected her attempt. We find the D.C. Circuit’s
opinion instructive.
Miller was born out of wedlock in the Philippines. Id. at 1468. She sought
derivative citizenship under INA § 309(a), 12 alleging that her father was a U.S.
citizen. Id. She was over twenty-one years old when she sought to register as
a U.S. citizen. Id. The State Department denied her application because she
failed to legitimate her paternity before she was twenty-one years old. Id.
Following the rejection, her father “obtained a Voluntary Paternity Decree
from a Texas state court, establishing that he was Ms. Miller’s biological
father.” Id. at 1468–69. She then sought judicial review of her claim to
citizenship. 13 Id. at 1469. On appeal, she argued that she met the INA’s
derivative citizenship requirements because the Texas state court’s paternity
decree “retroactively legitimated her as of the date of her birth.” Id.
The D.C. Circuit, focusing on the statute’s plain language, succinctly
rejected Miller’s argument that the paternity decree should apply
retroactively. Id. at 1472–73. The court noted that “Miller obtained the
paternity decree after she turned 21,” id., but INA § 309(a) required
legitimation while she was under twenty-one years old. Id. at 1472–73. The
D.C. Circuit explained that, “[t]o allow Ms. Miller to gain the retroactive
12 The D.C. Circuit’s opinion refers to 8 U.S.C. § 1409(a) (1994).
13 Miller argued that the statutory requirements she needed to follow violated the
Equal Protection Clause. Miller, 96 F.3d at 1469. After the district court dismissed her case
for lack of standing, she appealed the issue to the D.C. Circuit. Id.
11
Case: 16-41413 Document: 00514338851 Page: 12 Date Filed: 02/06/2018
No. 16-41413
benefit of a state court judgment would undercut Congress’s clearly stated
requirements and would have the effect of establishing citizenship in ways
inconsistent with federal legislation.” Id. at 1473. Thus, the court held that
Miller failed to satisfy the statutory legitimation requirement, so she could not
claim derivative citizenship. Id. While Gonzalez–Segura attempts to
distinguish Miller on the ground that the D.C. Circuit considered a different
type of decree—a judgment from a Texas state court, as opposed to a foreign
judgment—he fails to explain how such a distinction should lead us to a
different conclusion.
We conclude that Gonzalez–Segura’s rectified birth certificate cannot
satisfy INA § 309(a)’s timing requirement, and we decline to give his birth
certificate retroactive effect in order to allow him to satisfy that requirement.
2. The Tamaulipas Court’s 2007 Paternity Decree
Gonzalez–Segura asserts that the 2007 judicial decree rectifying his
birth certificate is a “judgment declaring paternity” within the meaning of CCT
Article 370, so it counts as an act of legitimation that can establish his
derivative citizenship under INA § 309(a). The Government argues that the
same reasons the rectified birth certificate should not be given retroactive
application apply to the 2007 judgment. Gonzalez–Segura does not explain
why—if we do not grant the birth certificate retroactive application—we
should nonetheless grant the 2007 judgment itself retroactive application. We
decline to give the rectified birth certificate retroactive application to
legitimate Gonzalez–Segura, so it follows that the 2007 decree should not be
given retroactive application.
3. The 1970 Holographic Will
Gonzalez–Segura also argues that the 1970 holographic will legitimates
him under the CCT. Gonzalez–Segura asserts that his expert’s report—
presented on appeal—demonstrates the 1970 holographic will’s sufficiency
12
Case: 16-41413 Document: 00514338851 Page: 13 Date Filed: 02/06/2018
No. 16-41413
under Tamaulipan law to legitimate him. Gonzalez–Segura included the
expert’s full report in his brief before the panel. The thrust of the report is that
the Government’s expert failed to consider how the Tamaulipas Code of Civil
Procedure affected the validity of the holographic will. Under that code, the
holographic will could have probative value because it is an extrajudicial
confession that is contrary to its author’s interests. Gonzalez–Segura’s expert
concluded that the holographic will was an extrajudicial confession contrary to
Nicolas Gonzalez’s interests, so it can legitimate Gonzalez–Segura. The
Government finds Gonzalez–Segura’s argument both procedurally and
substantively flawed. We conclude that the holographic will failed to comply
with the requirements of the CCT, so the document cannot be used to
legitimate Gonzalez–Segura. Before discussing the substantive flaws with the
document, we will first address the Government’s complaints about how
Gonzalez–Segura presented his expert’s report.
a. Procedural flaws
The Government contends that Gonzalez–Segura’s argument on appeal
relies on an expert report that was not in the record below. The Government
explains that Gonzalez–Segura attempted to introduce the report into evidence
as an attachment to its July 2016 Motion for Leave to Redesignate Expert
Witness. The Government filed an opposition to the motion soon after. The
district court, in its order granting the Government’s motion for summary
judgment, denied the motion as moot. According to the Government, this
means the expert report was not included in the summary judgment record.
On appeal, the Government contends that the panel’s inquiry “is limited to the
summary judgment record before the trial court: the parties cannot add
exhibits, depositions, or affidavits to support their positions on appeal, nor may
the parties advance new theories or raise new issues to secure reversal.”
Topalian v. Ehrman, 954 F.2d 1125, 1131 n.10 (5th Cir. 1992). Thus, Gonzalez–
13
Case: 16-41413 Document: 00514338851 Page: 14 Date Filed: 02/06/2018
No. 16-41413
Segura cannot add a new expert report. Gonzalez–Segura’s defense of the 1970
holographic will relies exclusively on the expert report.
Gonzalez–Segura, of course, disagrees. First, he contends that the report
was before the district court—and part of the summary judgment record—
because it was presented as an attachment to a motion. Although the district
court denied the motion as moot, the legal argument was still before the court.
Gonzalez–Segura also argues that when a court is reviewing foreign law de
novo, it may consider new material presented on appeal. He cites our decision
in Iracheta in support. 730 F.3d at 424 (“On appeal, the government presents
an August 2012 Library of Congress report clarifying the legitimation laws of
Tamaulipas, Mexico. [The Petitioner] additionally cites a 2004 report . . . . We
have reviewed these materials and have considered the arguments of the
parties regarding their meaning.” (citations omitted)). We conclude, following
Iracheta, that it is appropriate to consider Gonzalez–Segura’s presentation of
an expert report regarding the interpretation of Tamaulipan law—although he
first presented the report on appeal.
b. Substantive flaws
The Government contends that despite Gonzalez–Segura’s expert report,
the 1970 holographic will does not legitimate him. The district court
determined that CCT Title Three, Chapter IV, Articles 1444–1451 establish
the requirements for validly creating a holographic will. The district court
derived its interpretation from the Government’s expert, who outlined eleven
requirements:
[1.] the testator must be an adult, Art. 1445;
[2.] the holographic will must be fully written by the testator in his
or her own hand and signed by the testator, Arts. 1444 & 1445;
[3.] the holographic will must state the day, month and year in
which it was granted, Art. 1445;
[4.] the testator must create an original and a duplicate copy of the
holographic will, Art. 1447;
14
Case: 16-41413 Document: 00514338851 Page: 15 Date Filed: 02/06/2018
No. 16-41413
[5.] the testator must imprint his or her thumbprint on the original
and duplicate copy of the holographic will, Art. 1447;
[6.] the original and duplicate copy of the holographic will must
each be placed inside closed and sealed envelopes which then must
be taken by the testator personally to the offices of the Public
Property Registry, Arts. 1447 & 1448;
[7.] if the registrar in charge of the Public Property Registry does
not know the testator, the testator must present 2 witnesses who
shall identify him, Art. 1448;
[8.] the original of the holographic will must be deposited by the
testator at the Public Property Registry, Art. 1444;
[9.] on the envelope containing the original, the testator, by his
own hand, shall write “My Will is contained in this envelope” and
shall write the place and date on which the deposit is made and
then he, the registrar and the 2 witnesses shall sign the envelope,
Arts. 1447 & 1448;
[10.] the registrar is to write the following statement on the
envelope containing the duplicate copy of the holographic will: “I
received the sealed envelope that Mr. _____ 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 is then to write the place and date on the envelope and
the registrar, testator and 2 witnesses shall sign the envelope, Art.
1449; and
[11.] after the deposit is made, the registrar shall retain possession
of the original holographic will and make an appropriate notation
thereof in the records of the Public Property Registry, Art. 1451.
The 1970 holographic will fails to fully satisfy these requirements. At most, the
document satisfied only the first three requirements for drafting a valid
holographic will. Gonzalez–Segura apparently concedes this, arguing instead
that the holographic will is valid under the Tamaulipas Code of Civil
Procedure.
Yet, his reliance on the Code of Civil Procedure is misplaced. The Code
of Civil Procedure, as Gonzalez–Segura’s expert explains, pertains to the
probative value of written statements. That is, the Code of Civil Procedure
governs the use of the holographic will for proving certain facts in court—not
15
Case: 16-41413 Document: 00514338851 Page: 16 Date Filed: 02/06/2018
No. 16-41413
whether the 1970 document is a valid holographic will. Even if the document
may be probative of Nicolas Gonzalez’s belief in his parentage, that does not
render the document a valid holographic will. Second, the expert notes that the
document is “legally sufficient to prove statements asserted therein so long as
those statements are in opposition to the interest of the person who made the
assertion.” But the expert does not explain coherently how the statements
contained in the 1970 holographic will are contrary to Nicolas Gonzalez’s
interests. 14 Therefore, the CCT governs the 1970 holographic will’s validity as
a device for proving Gonzalez–Segura’s legitimation, and Gonzalez–Segura
failed to prove the 1970 holographic will’s validity.
V. CONCLUSION
We AFFIRM the district court’s grant of summary judgment. Under the
plain language of the former INA, Gonzalez–Segura cannot prove as a matter
of law that he was legitimated before turning twenty-one years old. Thus, he
cannot claim derivative citizenship.
14 The expert’s argument that a land conveyance was contrary to Nicolas Gonzalez’s
interests may be true if Nicolas transferred real property inter vivos. The argument does not
carry as much weight in the situation of a will that takes effect on death; upon death, Nicolas
would have no interests other than those expressed in his will.
16