Immigration Judge vs. Passport Agency – the Battle Over Mario’s Citizenship is Finally Over
Mario was born in Brownsville, Texas, in February 1968 after his parents had traveled several days by bus from their ranch in Apozol, Zacatecas, Mexico. The birth was attended by a midwife who completed and filed his birth certificate with the Texas authorities. He was issued a Certificate of Birth and Certification of Birth by the Texas Department of Health.
Unfortunately, a non-relative who had heard the news of Mario’s birth through a mutual friend filed a purported birth certificate in Mexico. However, this person not only got the place and date of birth wrong, he also got the first name wrong. Neither Mario nor his parents knew that this person had filed a birth certificate for him.
Once the newborn child and his mother had recovered sufficiently to make the long bus trip back to Apozol, Zacatecas, the parents and their new baby returned to their small ranch where Mario was raised, attended school, and lived until the age of 16. Mario registered for school in Apozol, Zacatecas, using his Texas birth certificate. Due to his birth in Texas, he was not allowed to continue schooling past the 6th grade.
In 1985, years after his birth, without the knowledge of Mario or his parents, the State of Texas attached an “Addendum” to Mario’s birth certificate stating that there was conflicting Information because the midwife who attended his birth and filed his birth certificate had stated under oath that she did not attend the birth of many children she had registered. Mrs. Hernandez presented to the Texas authorities many notebooks with names and dates of birth: some births which she attended and some which she did not. She pled guilty to a single misdemeanor count and paid a fine of $50.00. She never stated under oath that Mario was one of those children whose birth she had not attended.
By 1985, Mario had moved to Houston, Texas and while living in Houston, Mario applied for a U.S. passport at age 17. The Department of State (DOS) referred the case to legacy Immigration and Naturalization Services (INS), apparently believing that the birth certificate was phony.
On January 23, 1987, deportation proceedings were initiated against Mario. Fortunately, Mario was provided free legal counsel who asserted on his behalf that he was not deportable because he is a United States Citizen.
Mario’s mother obtained a visa to enter the United States and testified at Mario’s deportation hearing. At the conclusion of the hearing, the Immigration Judge issued a decision in Mario’s favor. She found that Mario had presented “clear, convincing and unequivocal evidence” that he was born in the United States and was indeed a United States citizen. the government did not appeal. Accordingly, the Immigration Judge’s decision became a final order in early 1988 and a copy of the decision was sent to DOS 8 months later. That should be the end to the matter, right?
Things looked promising. DOS issued Mario a United States passport on July 21, 1995. DOS renewed his passport on April 13, 2005. On or around April 7, 2015, Mario applied for his second renewal of his U.S. passport and that’s where problems arose again.
On May 7, 2015, DOS sent Mario a letter stating that it needed evidence of Mario’s U.S. citizenship and demanded that he provide DOS with a certified birth certificate. As his attorneys, we requested a certified copy of his birth certificate from Texas, but Texas refused to provide it claiming an “addendum” had been placed on it. Our law firm responded to DOS’s letter by submitting a copy of the Immigration Judge’s Decision from 1988.
DOS sent another letter to Mario asking for additional documentation, completely ignoring the Immigration Judge’s decision.
DOS then denied Mario’s application for a U.S. passport, saying that he had failed to prove that he was born in the United States. In its denial letter, DOS stated it had evidence indicating that Mario’s birth attendant fraudulently filed Mario’s birth certificate and that a foreign birth record existed indicating Mario’s birth occurred in Mexico. DOS also based its refusal to renew Mario’s U.S. passport on the “Addendum” which Texas had placed on Mario’s birth certificate before the Immigration Judge issued her decision. In 2015 we filed an action in the federal court of Las Vegas seeking a Declaration of Citizenship of the United States pursuant to 8 U.S.C. 1503
In the Spring of 2016, an Investigator with the Internal Affairs Division of the Office of Inspector General of the State of Texas wrote a “Final Report” indicating that he conducted an investigation into whether Mario had been born in Brownsville, Texas, and concluded that “the allegation that the Midwife filed an alleged fraudulent Texas Certificate of Birth is unsubstantiated.” In spite of the investigator’s conclusion, Texas would not remove the Addendum. Therefore, we asked for a hearing to contest the Addendum. I spoke to the Deputy Attorney General who would be litigating the case and fortunately, she was able to obtain consent from her client to remove the “Addendum” from Mario’s birth certificate. Texas then issued Mario new copies of his birth certificate without any restrictions, addendums, or red flags.
Four years after we filed the complaint, the case got to trial. DOS did not present any witnesses and relied only on the Mexican birth certificate with the wrong first name, wrong date of birth, and wrong place of birth. DOS also relied on a baptismal certificate which also had the same incorrect information; they ignored the fact that Mario had subsequently corrected it.
During the litigation with DOS, I filed a Freedom of Information Act (FOIA) request seeking copies of the audio tapes of the deportation hearing from 1987. Fortunately, the Immigration Court had three of the four tape recordings. I had these tape recordings transcribed and both the recordings and the transcripts were admitted. We also presented at trial various school records all containing pictures of Mario and listing his place of birth as Brownsville, Texas.
Two of Mario’s brothers testified that Mario had never been known by any other name. His brothers also explained that while his parents were in Brownsville, Texas, getting ready to give birth and while recovering after Mario’s birth, their aunts and uncles in Mexico told them that they had a new baby brother who was a “gringo”, meaning he was born in the United States.
On May 23, 2019, the Federal District Court of Nevada ruled in favor of Mario and declared him to be a United States Citizen. Within a couple of weeks, DOS advised that they would not appeal and issued Mario his U.S. Passport. Mario was able to go to Mexico to see his ailing mother.
Mario has had to fight the U.S. government twice, and twice he has won. In spite of my assurances that he now has a binding court decision declaring him to be a United States citizen, Mario is still fearful that the government will fight him again on this very same issue.
Immigration lawyers know that our work changes peoples’ lives. In this case, we stood up for a client in the face of the government trying to take away something he was entitled to from the day he was born. I hope that eventually Mario will trust in the security for which he has had to fight so fiercely.