Salgado v. Blinken

• Decision Date: 24 November 2021
• Docket Number: Civil Action No. 4:18–cv–03066
• Citation: 573 F.Supp.3d 1144
• Parties: Jessie Christian SALGADO, Plaintiff, v. Antony J. BLINKEN, Defendant.
• Court: U.S. District Court — Southern District of Texas

573 F.Supp.3d 1144

Jessie Christian SALGADO, Plaintiff,

v.Antony J. BLINKEN, Defendant.

Civil Action No. 4:18–cv–03066

United States District Court, S.D. Texas, Houston Division.

Signed November 24, 2021

Roberto M. Hinojosa, Attorney at Law, Houston, TX, for Plaintiff.

Annalisa L. Cravens, Richard A. Kincheloe, United States Attorney's Office, Houston, TX, for Defendant.

MEMORANDUM AND OPINION ENTERING FINDINGS OF FACT AND CONCLUSIONS OF LAW

Charles Eskridge, United States District Judge

The Department of State revoked the passport of Plaintiff Jessie Christian Salgado in 2013 and refused to reissue it upon application in 2017. Pending here is his petition for a declaratory judgment under 8 USC § 1503(a) and 28 USC § 2201 that he is a national of the United States and entitled to have the Department of State issue him a passport. Dkt 1.

There's no dispute that Jessie Salgado has resided continuously in the United States at least since April of 1985, when he was one month old. The only question is whether he has met his burden under 8 USC § 1503(a) to prove by a preponderance of the evidence that he was also born here. In short, he has.

The petition is granted, and the requested declaratory judgment will enter in Plaintiff's favor.

1. Findings of fact

An evidentiary hearing was conducted in this matter on June 29th and July 7th of 2021. Testimony was heard from the following witnesses in this order:

• Virginia Salgado, the mother of Jessie Salgado, Dkt 62 at 28–88;

• Maricella Dunn, who assisted with Jessie Salgado's birth and signed his Texas birth certificate, id. at 92–105;

• Prodigios Salgado, the father of Jessie Salgado, id. at 106–44.

• Ana Novoa Cipriani, the ex-wife of Jessie Salgado, id. at 145–82;

• Modesta Carlos de Martinez, a friend of the Salgados who owned the home where Virginia stayed at various times, id. at 183–89; and

• Jessie Salgado, the Plaintiff in this action, id. at 190–202.

The following narrative is found to be accurate based upon the weight of credible evidence and testimony received.

Plaintiff Jessie Christian Salgado was born to the marriage of Prodigios and Virginia Salgado. The two met and began living together in Conroe, Texas in early 1984 shortly after they had each illegally entered the United States. They traveled to Durango, Mexico in August 1984 to seek the blessing of Virginia's father to their union. Blessing received, they married there in September 1984. Virginia also learned at that time that she was pregnant with Jessie. See Dkt 33 at 5 (stipulation); Dkt 62 at 31–33 (Virginia testimony), 107–09 (Prodigios testimony).

Virginia and Prodigios attempted to illegally reenter the United States in September 1984, but they were apprehended by immigration authorities. Virginia was returned to Mexico, and Prodigios was taken into federal custody. See id. at 33–34 (Virginia testimony), 109–11 (Prodigios testimony).

Two days after returning to Mexico, Virginia once again illegally reentered the United States. This time, she wasn't apprehended, and she traveled back to Conroe, Texas to stay with her friends Modesta and Samuel Martinez. Virginia then moved in December 1984 to the home of Isabel and Fredo Garza located at 505 Hildred Avenue in Conroe, Texas. See id. at 34–36 (Virginia testimony), 185–86 (Martinez testimony).

She gave birth to Jessie at that residence on March 8, 1985. Isabel Garza was by her side. See id. at 37 (Virginia testimony), 183–87 (Martinez testimony). Sister Isidra Hernandez and Maricella Dunn were also present. Dunn testified that Sister Isidra was a Catholic nun who engaged in social work, and Dunn often accompanied her to serve as her interpreter. The pair were expecting to take Virginia to the hospital, but when they arrived at the Garza residence, Virginia's labor was at its conclusion. And so they assisted Virginia at the Garza home. Dunn testified that Sister Isidra cut the umbilical cord with her assistance. Dunn also testified that neither she nor Sister Isidra were midwives, and Dunn never participated in anything like that before or after. See id. at 93–98 (Dunn testimony).

Virginia left the Garza residence four days after giving birth and returned with Jessie to Durango. She reunited there with her family and Prodigios, who had also traveled there upon release from federal custody a few days earlier on March 5th. See id. at 39 (Virginia testimony), 111–12, 120 (Prodigios testimony). Virginia and Prodigios then registered Jessie on March 14, 1985, listing his birthplace as Durango, Mexico but without a specific address. See Dkt 33 at 5 (stipulation); see also Dkt 51-2 (original Mexican birth certificate). Virginia testified that she lied about Jessie's birthplace at the time because she expected to remain in Mexico and wanted him to have the benefits of Mexican citizenship. But Prodigios was unable to find work. See Dkt 62 at 38–41 (Virginia testimony), 110–13 (Prodigios testimony); 66-1 at 6 (Texas DHHS proceeding).

The Salgados again illegally returned to Conroe in April 1985—this time with one-month-old Jessie. See id. at 41 (Virginia testimony), 113 (Prodigios testimony). Virginia then registered Jessie's birth a second time on March 28, 1986. See Dkt 33 at 6 (stipulation). Dunn, Sister Isidra, and Isabel Garza accompanied her. See Dkt 62 at 42–43 (Virginia testimony), 95 (Dunn testimony), 114 (Prodigios testimony). Dunn testified that she wrote and signed a letter at the requirement of a court employee describing Jessie's birth in a manner consistent with her testimony, and that she swore an oath that the letter described the events accurately. See id. at 96–98. Texas then issued a delayed birth certificate identifying 505 Hildred Avenue as Jessie's place of birth, with attestation by Virginia and Dunn. See Dkt 51-1 (Texas birth certificate); see also Dkt 62 at 44 (Virginia testimony), 97 (Dunn testimony).

Testimony and evidence established that Virginia later became a US citizen in 1998, and that Prodigios is a legal resident whose application for citizenship is still pending. See id. at 63 (Virginia testimony), 140–41 (Prodigios testimony); see also Dkt 61-1 at 3 (Virginia certificate of naturalization); Dkt 63-1 (Prodigios immigration file). It also established that Jessie was an exceptional student, has an Associates degree in Applied Science in computer maintenance, currently works for Houston State University as a systems administrator, has voted multiple times, and has no criminal record. See Dkt 62 at 59–62 (Virginia testimony), 196–98 (Jessie testimony); see also Dkts 51-12–51-14, 51-17 (academic records). He also has four children who are US citizens by birth. Dkt 62 at 191.

The Department of State issued Jessie a US passport in February 2010. See Dkt 1-1 at 4; see also Dkt 62 at 193 (Jessie testimony). It then revoked that passport in 2013 and refused to reissue it upon application in 2017. The stated reason was the existence of the original Mexican birth certificate noted above that predated Jessie's Texas birth certificate. See Dkt 1-1 at 4–7; see also Dkt 1 at 3.

The Mexican birth certificate had been brought to the attention of federal authorities by Jessie's former wife, Ana Novoa Cipriani, who the Secretary presented as his only witness. She testified to having overheard a drunken conversation among Jessie and his relatives in which someone stated that Jessie was actually born in Mexico. See Dkt 62 at 156–59, 163. She couldn't remember details or the exact date of that conversation, but speculated that it was perhaps around 2009 or 2010. See id. at 157–58, 171–72. It wasn't until the midst of a bitter, prolonged divorce commencing in 2012 that she pursued inquiry on this point, acquired Jessie's original Mexican birth certificate, and submitted it to the Houston Passport Office. See id. at 155–56, 163–64, 172–76, 178. It was established that she'd never confronted Jessie about the conversation, and that she in fact had previously relied upon Jessie's citizenship to pursue her own citizenship. See id. at 159, 164, 168–69, 173–74. While true that Cipriani did locate the original Mexican birth certificate, her recollection of the alleged statement—the Secretary's only evidence explaining the existence of that birth certificate—is appropriately discounted, considering both the context within which the statement was originally heard and the motivation for its intended use. Instead, the testimony of Virginia as to her motives for obtaining the original Mexican birth certificate is credited as the accurate account of its inception.

Both Mexico and Texas agree that Jessie was born in the United States, not Mexico. On petition by Virginia and Prodigios in 2015, the Mexican government annulled the Mexican birth certificate and issued a new one stating Jessie's place of birth as Conroe, Texas. See Dkt 62 at 46–49 (Virginia testimony), 115 (Prodigios testimony); see also Dkts 51-2, 51-3, & 51-4. And in a 2018 proceeding, an administrative law judge with the Texas Department of Health and Human Services found that "a certified copy of the Texas birth certificate of Jessie Christian Salgado" should be issued. See Dkt 66-1 (Texas DHHS order); see also Dkt 62 at 53, 80 (Virginia testimony), 115–16 (Prodigious testimony), 195 (Jessie testimony).

Jessie brought this action in 2018 under 8 USC § 1503(a) and 28 USC § 2201 for a declaratory judgment that he is a national of the United States and entitled to have the Department of State issue him a passport. Dkt 1. He originally brought action seeking similar relief under the Administrative Procedure Act, 5 USC § 701 et seq ; the Passport Act, 22 USC § 211a et seq ; the Mandamus Act, 28 USC § 1361 ; and the All Writs Act, 28 USC § 1651. Those claims were previously dismissed by separate order. See Dkt 14.

2. Conclusions of law

Section 1503(a) of Title 8 to the United States Code 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

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