Sanchez-Trujillo v. INS, C-C-84-0593-P.
| Citation | 632 F. Supp. 1546 |
| Decision Date | 21 April 1986 |
| Docket Number | No. C-C-84-0593-P.,C-C-84-0593-P. |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Clara SANCHEZ-TRUJILLO, Plaintiff, v. The IMMIGRATION AND NATURALIZATION SERVICE OF the UNITED STATES DEPARTMENT OF JUSTICE, and Louis M. Richard, in his Official Capacity as District Director, Defendants. |
COPYRIGHT MATERIAL OMITTED
Robert Alan Donat, Charlotte, N.C., for plaintiff.
Charles R. Brewer, U.S. Atty., Charles R. Jonas, Charlotte, N.C., for defendants.
THIS MATTER was heard before the undersigned on March 19, 1986 at Charlotte, North Carolina. The Plaintiff was represented by Robert Alan Donat, Attorney at Law. Terry C. Bird, District Counsel for the Immigration and Naturalization Service, and Charles E. Lyons, Assistant United States Attorney, appeared on behalf of the Defendants.
In its Order filed March 17, 1986, this Court directed the Clerk to enter the default of the Defendants for their failure to file an Answer to the Plaintiff's Amended Complaint within the time allowed by the Court. Since the Defendants in this case are agents of the United States, however, the Court declined to enter judgment by default without having heard the Plaintiff's evidence on the merits of her claim. A claimant may not obtain a default judgment against the United States unless he establishes his claim or right to relief by evidence satisfactory to the Court. Fed.R. Civ.P. 55(e). The Plaintiff, therefore, presented her case to the Court at the hearing on March 19, 1986.
After carefully considering the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law:
(1) The Plaintiff, Clara Sanchez-Trujillo, is a citizen of Colombia currently residing in the United States.
(2) The Defendant, the Immigration and Naturalization Service ("INS"), is an agency of the United States Department of Justice responsible for the administration of United States immigration laws.
(3) The Defendant, Louis M. Richard, is the District Director of District # 26 of the INS.
(4) The Plaintiff was born on December 3, 1960 in Medellin, Colombia.
(5) The Plaintiff's mother, Lucidia Trujillo Cartagena, and her father, Fernando Antonio Sanchez-Ceballos ("Sanchez"), were never married.
(6) On June 17, 1963, Sanchez was admitted to the United States as a lawful permanent resident. He established his residence in California.
(7) Sanchez returned to Colombia to visit the Plaintiff in 1966, 1969, and 1972. The Plaintiff lived with her father at his request and with the consent of her mother at her paternal grandparents' home during his visit from November 1972 to August 1973.
(8) The Plaintiff testified that her mother and father went to a public notary during his 1972 visit and signed a statement acknowledging that they were her legitimate parents. She further testified that her father's name had been placed on her civil birth certificate by the time he left Colombia in 1973.
(9) During each of his visits, Sanchez expressed a desire to take the Plaintiff back to the United States with him. The Plaintiff's mother, however, felt that she was too young to leave Colombia. She finally consented to allowing the Plaintiff to join her father in the United States when she reached the age of sixteen.
(10) In 1976, Sanchez telephoned the Plaintiff in Colombia and expressed his intention to bring her to the United States. Following that conversation, the Plaintiff obtained certified copies of her civil birth certificate, her church birth certificate, and an affidavit from her mother. She sent all three documents to her father at his request at the end of 1976. The contents of the documents were, of course, written in Spanish.
(11) The civil birth certificate recites the Plaintiff's date and place of birth, her gender, and her name, Sanchez Trujillo Clara Maria. See Plaintiff's Exhibit 12. Both of her parents' surnames appear in her name on the certificate. The Plaintiff explained that the custom in Colombia is for the father's surname to appearance first and the mother's surname to appear second in a child's name. If a child does not legally have her father's name, however, only her mother's surname will appear in her name. Therefore, the fact that the Plaintiff's father's surname appears on her birth certificate shows that her father indeed did acknowledge her as his child. The significance of the appearance of her father's name on her birth certificate is clarified by the addition of the notation, "The registered person is the daughter acknowledged by Mr. Fernando Antonio Sanchez and of Mrs. Lucidia Trujillo," to her birth certificate in 1983. The notation that the inscription was done in December 1972 bolsters the Plaintiff's testimony that her parents formally acknowledged her during Sanchez' 1972 visit. See Plaintiff's Exhibit 4.
(12) The church birth certificate, Plaintiff's Exhibit 11, recites the date that the Plaintiff was baptized in the church, her Christian name (i.e., Clara Maria), and that she is the daughter of Fernando Sanchez and Lucidia Trujillo. It also identifies her paternal and maternal grandparents.
(13) The affidavit submitted by the Plaintiff's mother declares that she is the mother of the Plaintiff and that the Plaintiff had always been under the guardianship of her father. The Plaintiff testified that her father paid for her school, that he had sent her money, and that he had held her out as his daughter whenever he came to Colombia.
(14) On November 30, 1976, Sanchez filed an Application for Verification of Lawful Permanent Residence of an Alien (Form I-550) with the INS. See Plaintiff's Exhibit 1. Sanchez stated on that form that the Plaintiff was his "daughter," "illegitimated child," and that she was "recognized by father."
(15) On January 3, 1977, Sanchez filed a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa (Form I-130) with the INS on behalf of the Plaintiff. See Plaintiff's Exhibit 2. On the face of that form, Sanchez directed the INS to the Form I-550 that he had filed earlier. The Defendants' attorney stated at the hearing that the Plaintiff's civil birth certificate and two other documents (presumably the other two documents mentioned above that the Plaintiff had sent to her father) accompanied the petition. No English translations of those documents were submitted, however.
(16) On March 23, 1977, the INS returned the petition and its supporting documents to the Plaintiff's father attached to INS Form I-72. See Plaintiff's Exhibit 3. On that form, the INS explained to Sanchez that if he had never been married to the Plaintiff's mother, he would not be eligible to file a petition in her behalf. It further stated that "an illegitimate child does not recieve sic any benefits from its father under Immigration Law." The INS marked the box on the form directing the Plaintiff's father to "furnish the marriage certificate of Fernando and Lucidia Trujillo." It did not mark the box next to the instruction that "all foreign language documents must be accompanied by English translations thereof ...."
(17) Sanchez attempted again to file the Form I-130 with its supporting documents with the INS.
(18) On April 29, 1977, the INS sent another Form I-72 to Sanchez' last known address, in which the INS stated:
Section 101(b)(1)(D) defines an "illegitimate child" in regard to eligibility to receive immigration benefits as a child "by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother." 8 C.F.R. 204.2(c)(5) also requires that a petition by a father for a child be accompanied by a marriage certificate of the father or stepfather to the natural mother of the child. Since you have not established that the beneficiary is the legitimate child and no benefits can be bestowed on an illegitimate child by a father, the visa petition is hereby rejected. Plaintiff's Exhibit 3A. This second notice was returned to the INS by the Post Office.
(19) The INS did not ever notify Sanchez of any appeal rights he might have.
(20) The Plaintiff testified that in June or July of 1977 she received a letter from the INS which stated that her father's petition had been denied because he never married her mother and she was an illegitimate child. She stated that she did not consider pursuing the matter any further in 1977 since her parents had never married.
(21) In August 1982, the Plaintiff arrived in the United States on a tourist visa with her boyfriend. An attorney advised her that her father was indeed eligible to file a visa petition in her behalf if she was his legitimated daughter, notwithstanding the fact that he had never married her mother. She went to visit her father in California in 1982, and she asked him to go back to the INS to pursue the visa petition for her once again.
(22) Sanchez had been suffering from acute schizophrenia for a number of years, however, and was quite ill at the time the Plaintiff went to see him in California. He did not return to the INS as a result of his severe depression, and eventually committed suicide in 1983.
(23) The Plaintiff requested an extension of her visa from the INS so that she could help administer her father's estate and consult with an attorney regarding her immigration status. The INS denied her request on January 6, 1984. See Plaintiff's Affidavit.
(24) The Plaintiff voluntarily submitted herself to the INS for processing for deportation since she was not granted a visa extension. On April 17, 1984, the Plaintiff was found deportable and was granted voluntary departure in lieu of deportation until August 1, 1984.
(25) On July 27, 1984, the Plaintiff filed with the INS a Motion to reconsider the I-130 petition previously filed by her father and denied. In addition, the Plaintiff requested an extension of her voluntary departure date until the...
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Zheng v. INS, 95 Civ. 8321 (PKL).
...or even that they be the best interpretation possible." De Los Santos v. INS, 690 F.2d 56, 60 (2d Cir.1982). Neither Sanchez-Trujillo v. INS, 632 F.Supp. 1546 (W.D.N.C.1986), nor Pierno v. INS, 397 F.2d 949 (2d Cir.1968), cited by plaintiff in his memorandum of law in opposition to defendan......