V'
J- Lt
J_ \-.' eJ v
No.
OFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
DAVID ISRAEL SANCHEZ, Petitioner, V"
JOHN F" KERRY, IJnited States Secretary of State; BENITA JONES-BURNETT, Respondents, On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI Hinojosa & Salinas, PLLC ROBERTO M. HINOJOSA Texas State Bar Number: 24043730 2020 Southwest Fwy. (U.S. ¡9) Ste. zzO Houston, Texas 77098 Telephone: (zrB) 665-5060 Fax: (213) szo-asoa E-mail: attorne]'rmh@vahoo. com GEOFFREY A. HOFFMAN Clinical Associate Professor and Director, University of Houston Law Center Immigration Clinic 4604 Calhoun Rd", TU-II, Room 56 Houston, Texas 77 204-6060
E'Mail: ehoffman@,central. uh. edu Counsel for Petitioner
QUESTION PRESENTED
the Fourteenth Amendment was violated the Court of Appeals affrrmed the trial court's ent, which unconstitutionally revoked Mr. Citizenship States United S Whether the Tenth Amendment was infringed the Court of Appeals affrrmed the trial court's that the federal government had authority to whether Mr. Sanchez was born in the United States after the State of Texas had decided the issue.
III. Whether the FuIl Faith and Credit Clause
was
violated where the Court of Appeals affirmed the trial eourt's failure to give preclusive effect to the State of Texas' recognition of Mr. Sanchez's birth in Texas.
IV. Whether the Court of Appeals erred in failing to reverse the trial court's errors which \ñ/ere not harmless because those errors affected Mr. Sanchez's substantial Constitutional rights, and included failing to shift the burden to the Government to prove by clear and convincing evidence Petitioner is not a United States cítízen"
11
TABLE OF CONTENTS
Page
B.
QUESTIONS PRESENTED.
II
TABLE OF AUTHORITIES
vi
OPINIONS BELOW
1
The Fifth Circuit failed to hold the government to its burden of showing, by clear, unequivocal, and convincing evidence that Mr. Sanchez was not born in the United States.
JURISDICTION
2
C.
Page
CONSTITUTIONAL AND STATUTORY PROVISIONIS
INVOLVED.....
2
STATEMENT THE CASE
Ð
o
4
I.-
The Fourteenth Amendment was violated when the Court of Appeals affirmed the trial court's
judgment, which unconstitutionally revoked Mr. Sanchez's lJnited States Citizenship.....
5
A.
Improper finding of Mexican nationality.....
III
18
D.
REASONS FOR GRANTING THE
PETITION.....
The Fifth Circuit, by affirming the trial court's reasoning, failed to shift the burden to government to prove by clear and convincing evidence that Mr. Sanchez was not born in the United States.
16
11
The Fifth Circuit wrongfullY upheld the District Court frnding that Petitioner's mother was not a United States Cítizen" Such finding by the District Court was gratuitous and on an issue not before the Court. The Court Iacked Jurisdiction under Article III to make such a determination.........
20
II.-
The Tenth Amendment was infringed when the Court of Appeals affi.rmed the trial court's decision that the federal government had authority to decide whether Mr" Sanchez was born in the United States after the State of Texas had decided the issue. lV
2I
TABLE OF AUTHORITIES
Page
III.
The FuIl Faith and Credit Clause was violated where the Court of Appeals affirmed the trial court's failure to give preclusive effect to the State of Texas' recognition of Mr. Sanchez's birth in Texas.. 28
W. The Court of Appeals erred in failing to reverse the trial court's errors which were not harmless because those errors affected Mr. Sanchez's substantial Constitutional rights, and included failing to shift the burden to the Government to prove bY clear and convincing evidence Petitioner is not a United States citizen.
Marbury v. Madison,
S
Page(s)
U.S. 137 (1303)
22-23, 28
Scott v. Sandford,60 U.S. 393 (1857)........... 4 United States v. Wong.Kim Ark, 169 u.s. 64e (1S98).......
12-13,
19,25, 39
Kwock Jan Fat v. White, 253
u.s.
454
í920).......
17
Schneiderman v. United States, 320 .f r)
A.
Citizenship is a "substantial Right" Under the 14th Amendment. B. Citizenship is Protected Under the Full Faith and Credit Clause. C. The Lower Court Committed a Reversible "Miscarriage ofJustice"......... D. It Was Not "Harmless Error" to Fail to Hold the Government To Their Burden of Proof lJnder the Law.
Supreme Court Cases:
34
u.s.
118 (1943).............
16
Bolling v. Sharpe,347 U.S. 497 í954)......... 34 Chaunt v" United States, 364 u.s. 350 (1e60)......
16
Schneider v. Rusk,377 U.S. 163 (1964)........ 8, 16, 19,
22,39
36
Afroyt-
v. Rusk,3S7 U.S.
2æ 0967)
6,9,
II,
19,22, 26,27,
37
39 38
ßogers v. BeIIei,401 U.S. 815 (1971)".
5,7,19, 22,39
CONCLUSION
40
Allen v. McCurry,449 U.S. 90 (1980)
30
APPENDICES
I
Fedorenko v" United States, 44e u.s. 490 (1e81).......
16
v
VI
Page(s)
Page(s)
Migra v. Warren City Schoo| Dist.
Kona Tech. Corp. v. Southern Pac. Transp. Co.,
Bd. of Education, 465 U.S. 75, 80 (rge¿).
225F.3d 595 (5rh cir.2000).... 31
[Iniversity of Tennessee v. E]Iiott, 23,29, 3r,32
478 U.S. 78S (1986)..".
31
Bustamante -Barrera v. Gonzal es, 447
F.3d 3SS (5rh
cir. 2006)......
8,9,L2
Garcia v. Keruy, 557 Fed. Appx. 304 (5th Ctr.2014).......
Kungys v. [Jnited States, 485 U.S. 759 (1eS8)..."......
18
8,9
David Sanchez v. John Kerry, et al,
2015).......
San Remo Hotel, L.P. v. City & CountY
No. 14-20774 (ft]n Cir.
of San Francisco,545 U.S. 323 (2005)..".."..." 28-31
SEC v. DiBeIIa,587 F.3d 553 (2d Cir. 2009).. ss
8.9
American Bd. of Psychiatry & Neurology, Federal Circuit Court Cases: North Am. Med. Corp.
v.
Inc. v. Johnson'Powell, 129 F.3d
Axiom
(r[h cir.
18,19,
Constitutional and Statutory Provisions:
38
U.S. COI{ST. art. I, $ 8 cl. 4
Beaudry v. Corrections Corp. ofAm., 331 F.3d 1164 (10rh
cir.
2003).
...... 17-18
33
T7,I9
200s)
1997).......
Federal District Court Cases: Ex parte Hing 22 F.2d 554 35 W.l. Wash" 7927) Pate[ v. Rice. 403 F. Supp. 2d. 560 (N.O. Tex. 2005)...........15
Worldwide, fnc., 522F.3d, L2rL
1(1.t Cir.
Mondaca'Vega v. Lynch, 808 F.3d 413 (grh
cir" 2015).......
6,12,
Ayala -Villanueva v. Ho|der 522 F.Bd Z86 (gth Cir.2009).".....
73,24,
......."..
Taisho Marine & Fire fns. Co. v. M/V Sea-Land Endurance, 875 F.2d l27O (gth Cir. 1937). ""." 17,19 v1t
25
19
U.S. CONST. art.
III
S
2 cI.
1
2, r0,20,
2l VIII
Page(s)
U.S. CO}IST. art. IV
PETITION FOR A WRIT OF CERTIORARI
2,28,29,
$1
35, 36
U.S. CONST. art. IV $ 2 cl. 1...."".
2, 10, 35
U.S" CONST. amend. X.
2, 4,21, 23-25, 27, 30,
OPINIONS BELOW
t'l
ùJ-
U.S. CONST" amend. XIV,
S1
2,4-r0, 12,22, 23,24, 26,27, 34
s
u.s.c. s 1451.
12
28 U.S.C. S
1254.
2
2s U.S.C.
2101 (c).......
2
S
2,28-
28 U.S.C" S 1738.
31
23 U.S"C. S
1739.
." 28,29
51.a2(Ð
Memorandum and Opinion dated January 24,2012
(App. C, infra, XI). The District Court for the Southern District of Texas, Houston Division, Final D, infra, XL). Southern District of
Judgement dated June 27, 2014
2, 25
U.S. Supreme Court Rules: RuIe 13....
2
tx
(,A.pp.
The District Court for the Texas, Houston Division, Findings of Fact and Conclusion of Law dated June 27, 2014 (App. E, infra, XLL). The District Court for the Southern District of Texas, Houston Division, Memorandum and Order dated November 26, 20L4 Gpp. F, infra, LVI ).
Code of Federal Regulations:
22 c.F.R" $
The Order of the United States Court of Appeals for the Fifth Circuit On Petition For Rehearing dated February 12, 2016,(App. A, infra, il). The Opinion of the United States Court of Appeals for the Fifth Circuit dated December 14, 2015, (App. B, infra, IV). The District Court for the Southern District of Texas, Houston Division,
-1
JURISDICTION
STATEMENT OF THE CASE
The Order of the l]nited States Court of Appeals for the Fifth Circuit was entered on February 12, 2016. The jurisdiction of this Court is
David Israel Sanchez was born in Brownsville, Texas on March 14, 1988. (nOA. 31-38, 164-77Ð. The State of Texas received notice from legacy INS that there was another birth certificate from Mexico showing that allegedly there was an earlier birth for David Sanchez. (nOA. 186)" On March 2I, 2006 pursuant to Texas law a hearing officer determined by preponderance of the evidence that the delayed birth certificate of David Sanchez issued by the State of Texas was accurate. (ROA. 184-189)" David Israel Sanchez filed for a United States Passport on February 26, 20L0. (ROA. 21). On JuIy 26, 2010 the United States Department of State issued a letter requesting more information to which a response was sent on a packaged date October 21, 2010. (nOA. 2L, 39-91.) On March 4, 2011, the Department issued a letter denying Appellant's application for a United States passport. (nOA. 21). On June 3, 2011 Appellant filed petition for writ of mandamus in declaratory judgement with the Southern District of Texas Houston Division. (nOA. 18). On January 24, 2012 the District Court dismisses Appellant's Constitutional Claims for failure to state a claim and denied jurisdiction under 28 U.S.C" S 1651 and 28
invoked under 23 U.S.C. S 1254, as well as 28 U.S.C. (c), and Supreme Court RuIe 13. S 2101
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The relevant provisions of the U.S. CONST. articles I $ 8 cI. 4,III$ 2 ct. 1, IV S 1, IV $ 2, amends. V, X, XIV, are reproduced at App" G, infra, LXIILXIII. The relevant provision of 28 U.S.C. $ 1738 rs reproduced at App. G, infra, LXIV.
The relevant provision of 28 U.S.C. (cXd), is reproduced at App. G, infra,
LKII"
52101
The relevant provision of 28 U.S.C" $1254, is reproduced at App. G, infra, LKII. The relevant provision of Supreme Court Rule 13 is reproduced at App. G, infra, LXV" The relevant provision of 22 C.F.R" $ 51.42(a), is reproduced at App. G, infra, LKV-LXV.
the district court issued "Findings of Fact
and Conclusions of Law" and a "Final Judgment." (ROA.
|I22-LI32). Appetlant filed a Motion for New Trial -2-
o
.f
after discovering new evidence on July 25, 20L4. GOA 1168). On November 26, 2014 the District Court issued a memorandum and order denying the Motion for New Trial. (nOA. 1509-1506). The case was appealed to the Fifth Circuit which in essence sustained and adopted the reasoning of the District Court. (See Fifth Circuit Opinion at App. B). The present Petition for a Writ of Certiorari followed. This case is about who can determine the fact of birth in any given state.
born in Texas, and the Constitution says who is a citizen at birth. The question of citizenship and who determines the birth of any person within the geographical limits of any given State is one of utmost significance throughout the United States'
I.
The Fourteenth Amendment $¡as
violated
when the Court of Appeals affirmed the trial court's judgment, which unconstitutionally
revoked Mr. Sanchez's United
States
Citizenship. REASONS FOR GRANTING THE PETITION
From the foundation of this country, it has been the States, and not the federal government, who determine which individuals are born within their boundaries. The Constitution does not allow the State Department or a federal court to ignore decisions made by the State of Texas, or any other State, pursuant to their legitimate power exercised under the 10th Amendment. A civil war between the North and the South led to the 14th Amendment, which overruled the rule of law announced in Scott v. Sandford, 60 U.S. 393 (1852) that an individual could be born in a State and not be a United States Citízen. The rule of law now is that a person born in any given State of the United States and subject to its jurisdiction is by that mere fact a citizen of the United States. The State of Texas determines who is
The 14th Amendment protects every citizen of this Nation against a congressional forcible d.estruction of his citizenship, whatever his creed, color, or race. ßogers v- BeIIei, 401 U.S. 815, 836 (rgZrX,lustice Black in dissent). Congress has no power, express or implied, to take away an American Citizen's citizenship without his assent. Rogers v' BeIIei,401 U.S. 815, 835 (fgzfxJustice Blackmun in majority opinion). A person born in the United states and subject to its jurisdiction is a citizen of the United, States. U.S" CONST. amend. XIV, S 1" This Constitutional truth has become excruciatingly difficult to apply in the Fifth Circuit because the Court of Appeals has determined that it is up to the Federal Government and not the States-and in particular the State of Texas-to determine who is born within the geographical limits of the State' The
4-
5
Fifth Circuit has done so by applying the concepts of Naturalization and Derivative Citizenship-both concepts within the power of Congress under U.S. CONST. art. I, $ 8 cI. 4-to Citizenship pursuant to the 14th amendment. The precedents of this Court do not support such conceptualization and are actually contrary to the Fifth Circuit's decision in this case.
All
persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. U.S. CONST. amend. XIV, S 1. Congress shall have the power to establish an uniform rule of naturalization. U.S" CONST. art" I, S 8 cI. 4. The U.S. Supreme Court has stated that:
In our country the people are sovereign
and the Government cannot sever its relationship to the people by taking away their citizenship. See Afroyim v. Rusk, 387 U.S. 253, 257-26r(1967). Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifi.cally granted or those that are necessary and proper to carry out the specifically granted ones. Id" at 257 " T}le Constitution, of course, grants Congress no express po\Mer to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. fd.
The federal government
is one of limited
powers and one of the enumerated powers granted to the federal government is not the power to decide -6-
who is a native born citizen pursuant to the 14th amend,ment. The power granted to the federal government-specifically Congress-under article I section 8 is regarding naturalization and does not include citizenship by birth. In this case David Sanchez acquired l4t]" amendment citizenship by birth not naturalization" L4rh amendment was enacted in definition of citizenship emerged restricted
After the 1g68, a
to the combination of three factors, each and all
the United
significant: birth in
States,
naturaltzation in the lJnited states, and subjection to the jurisdiction of the United States' Rogers v" Bellei,401 U.S. 815, 830 (U.S. l97r)- The Supreme Court has recognized that:
"While the rights of citizenship of the native born derive from $ 1 of the Fourteenth Amendment and the rights of
the naturalized citízen derive from satisfYing, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, "becomes a member of the society, possessing all
the rights of a native cítizen, and standing, in the view of the constitution, on the footing of a native' The constitution does not authorize Congress to enlarge or abridge those rights' The simple power of the national Legislature, is to Prescribe a uniform rule of 7
naturalization, and the exercise of this power exhausts it, so far as respects the individual."l The basic fundamental premise that controls this case is that citizenship of the native born derives from $ 1 of the Fourteenth Amendment. This issue alone defines the question presented to this Court. If Citizenship of the native born derives from $ 1 of the Fourteenth Amendment as stated by the U.S. Supreme Court, then Garcia v. Kercy,557 Fed. Appx. 304 (5th Cir.2014) and Dauid Sanchez v. John Kerry, et â1, No. 14-20774 (Stfr Cir. 201Ð are contrary to the precedent established by the U.S. Supreme Court. The District Court made a legal conclusion-supported and adopted by the Fifth Circuit in Dauid Sanchez v. John I{erry, et al, No. L4-20774 (¡th Cir. 2015)-that "a decision by the Texas Department of Health regarding a person's place of birth does not have preclusive effect on the State Department or in federal court in passport proceedings." Such legal conclusion rv\¡as based on Garcia v. Keruy which is not supported by the l{tt' amendment, or Schneider v. Eusk, 377 U.S. 163 íSA+).2 The Court further supported its analysis on the basis of Bustamante-Barrera v. Gonzales, 447
F.3d 388, 391 (stfr Cir. 2006). This conclusion ignores that article 1 $ 8 does not give Congress or any other governmental agency the power to destroy 14th amendment citizenship. Afroyim v" ßusk, 387
U.S. 25g (rgOZ). Petitioner \Mas seeking to
be
declared a united states cttizenbecause the state of Texas had. already decid.ed that he had been born in Brownsville, Texas" The crucial fact of birth was not subject to re-Iitigation at the Federal District Court" Petitioner had acquired 14th amendment citizenship by the fact of birth that had been established by the State of Texas on March 2I, 2006' BustamanteBarrera dealt with derivative citizenship which is not 14rh amendment citizenship and therefore did not grant support to the Fifth circuit decision in this case. The Garcia v- Keruyand David Sanchez v' John
IkrryCourtaswellastheDistrictCourtaresimply wïong because citizenship of the native born derives from S 1 of the Fourteenth Amendment" The precedent of the IJ.S. Supreme court clearly shows that citizenship of the native born derives from S 1 of the Fourteenth Amend.ment and the decision of the
FifthCircuitbeingcontrarytosuchprecedentshould be overruled"
of the Fifth Circuit and the District Court in this case is supported by the precedent of that circuit. See Bustamante-Barrera v. Gonzales, 447 F.3d 388, 391 (¡ttr Cir. 2006).
The argument that the State of Texas cannot control immigration policy per article 1 S 8 is not just applicable in this context. Such argument is utterly irrelevant. The argument that only the state Department can grant passports is not significant in this context and. misplaced. The Constitution takes birth within any given State--l4tt' amendment
8
9-
r Schneider v. Rusk,377 U.S. 163, 166 (f g0¿) (quoting Osborborn v. Bank of the United States, 9 Wheat. 738, 827
ÍezÐ). It is even questionable whether the decision
2
citizenship-from the power or reach of Congress. In this case it was decided that no passport can be issued by the State Department because the Petitioner did not establish he was born in the United States. The argument that this case is only about a passport is wrong. This case is about 14th amendment citizenship, and who decides the fact of birth.
The Fifth Circuit should have vacated the trial court's finding that Mr. Sanchez was born in Mexico and that Mr. Sanchez' Mother was not a United States Citizen. By ruling that Mr. Sanchez was not a United States citízen, the court committed two errors: (1) it abused its discretion by deciding an issue it had no Constitutional authority to decide, and (2), assuming arguendo it had the authority to rule on Mr. Sanchez's birthright citizenship, it failed
to hold the government to its
necessarily high burden required to strip Mr. Sanchez's of his United States citizenship. By ruling that Mr. Sanchez' Mother was not a United States Citizen the Court in essence ruled on a matter that was simply not before the Court and outside the scope of the Federal Courts article III S 2 cl. l jurisdiction.
A.
Improper nationality
frnding of
Mexican
The Fifth Circuit, by affirming the trial court, unconstitutionally revoked Mr. Sanchez's United States citizenship. The court was only asked to decide whether Mr. Sanchez was entitled to a United States passport. l't Memo op at 1 (Appendix C). The court, however, went further. It applied the passport review standard to hold that Mr. Sanchez was not a United States cítizen, a decision the court does not have constitutional authority to decide" ,9ee Findings at 9 (Mr. Sanchez "is not a cítízen by birth); id at 2 ("The Mexican birth certificate issued on October 21, 1987 recording the birth of a male child named
Israel Sanchez Reyes is the plaintiff s birth
certificate.... This court finds and concludes that the United States birth certificate is not a valid birth certifrcate for the plaintiff, The invalid American birth certificate provides no support for the
plaintiffs assertion that he was a United States cítízen by virtue of having been born in 1988 in Brownsville, Texas....")(Appendix E)"
The federal government is one of few enumerated powers, containing only the po\Mers specifically granted and those necessary and proper to carry out these enumerated powers" Afroyim v' ßusk, 387 U"S" 253, 257 (rg0Z). The Constitution does not give federal government discretion to determine who is and is not a cltizen by birth but
-10-
-11-
instead that is a matter for the states. Through the Fourteenth Amendment, "all persons born... in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." U.S. Const. amend. XIV, S1, cI.1. Unlike naturalization, citizenship by birth is established by the act of being born in the United States. United States v. Wong Kim Ark, 169 U.S. 649, 7o2 (r8ge). Thus, ,,[eìvery person born in the United States... becomes at once a cítizen of the United States." 1d.
The federal government,
in accordance with
the Constitution, does have power to create uniform rules for naturalization. U.S. Const. Aït. I, S 8, cI- 4. Congress can confer citizenship in certain classes of persons, such as foreign born children of United States citizens, or by creating procedures where foreign citizens can apply to become United States citizens. United States v. Wong I{ím Ark, 169 U.S. 649, 693 (rAgS).
Consistent
with its power to create rules for
naturalization, the federal government has created rules for revocation of a grant of naturalization. g U.S.C. S 1451 (INfA S 840). Bur as rhe rirle of the section suggests-"Revocation of Naturalization,'_ these rules only apply to the revocation of naturalized citizenship, not of birthright citizenship. rd. The court below, citing Bustamante-Barrera v. Gonzales, 447 F.Bd BSS (5th Cir. 2006), concluded that the federal government has the power to decide
-t2-
whether Mr. Sanchez was born in Texas because it has the power to regulate immigration. 1st Memo op l2'I4 (Appendix C). Here, the court ignored the difference between birthright citizenship, which
vests upon birth, and naturalization, which is granted at the discretion of the federal government' Because the former is an automatic grant of citizenship by the fact of birth, the federal government is prevented from regulating it. U.S' Const. amend.. XIV, S1, cl.1; U.S. Const" Art. I, $ 8, cI' 4; Wong Kim Ark, 169 U.S" at 702" The latter, in contrast, is an area where the federal government may regulate in accordance with its constitutional mandate to create uniform rules of naturalization' Wong Kim Ark,169 U.S. at 693i see also U.S. Const' Art" I, $ 8, cl. 4. Bustamante-Barrera Sanchez's case because
is not relevant to Mr'
it deals with naturalization,
not birthright citizenship. 447 F.3d 388 (5th Cir' 2006). As has previously been explained, the government may, in the exercise of its constitutional powers, regulate naturalization. That is what it does in Bustamante-Baruera" The differences between Mr" Sanchez's
case
Bustamante-Barrera are apparent from a review of the facts of that case. In Bustamante-Barrera, ít was undisputed that the petitioner was born in Mexico to Mexican parents " Id" at 390. His claim was not that he was born in the U.S. and thus entitled to birthright citizenship. Instead, he claimed derivative and.
-13-
a naturalizing act authorized
by Congress. Id. at 394. The court, after recognizing the
citizenship,
difference between birthright and naturalized citizenship, concluded the question was one of federal statutory construction because the grant of derivative citizenship fell within the scope of 8 U.S.C. $ 1a32(aXÐ. rd. at 395.
Unlike Mr. Bustamante-Barrera, who never claimed or presented evidence he was born in the United States, Mr. Sanchez does both. He was born in the IJ.S. and has a valid Texas birth certificate. Sanchez v. Kerry, No. 14-20774, slíp op. at 3, 5 (5th Cir. 2015XAppendix B). The court incorrectly relied ín Bustamante- Baruera when it concluded that the burden was on Mr. Sanchez (and not the federal government) to prove as an ultimate matter his birth in the United States by a preponderance of the evid.ence. Id. at 6l Findings at 6 (Appendix E)-
Bustamante- Barcera does not hold that a person born in the United States must prove he or
she was born in the United States by a preponderance of the evidence. Rather, it holds,
A proper exercise of a trial court's authority rs exemplified in Pate| v. Eice. 403 F. Supp. 2d. 560 (N.O. Tex. 2005)" In Patel, the court was asked to decide whether a person claiming to be born in the United States met his burden to show he was entitled to a United States passport. Id- at 561. When it concluded that he had not, it held "that the plaintiff has failed to meet his overall burden of proving, by a preponderance of the evidence that he was born in the United States." Id. at 567. The court correctly withholds any judgment on whether Mr. Patel's failure to meet his burden means he is not a United States Citizen. See id.
The Constitution does not grant the trial Court or the Court of Appeals, the authority to reach Mr. Sanchez's birthright citizenship. By doing so, the trial Court abused its discretion by deciding a question that was not before the Court and that it had no authority to decide. The trial Court should have followed Pate|'s example and withheld judgment on Mr. Sanchez's birthright citizenship.
"There are two sources of citizenship, and only two: birth and naturalization. As Petitioner [in Bustamente'Baruera] was not born in the United States, naturalization is his sole source for a claim of citizenship.... Petitioner has the burden of proving that he qualifies for naturalization...." BustamanteBarrera, 447 F.3d at 394.
Even assuming arguendo that the Court had the authority to reach the citizenship question in this case, the Fifth Circuit should have reversed the decision of the trial court' and should have mand.ated that it do one of two things: (f) it should have place the burden on the federal government to show that Mr" Sanchez was not born in the United States by "cIeat, unequivocal, and convincing" evidence, or (2) it should have shifted the burden
-r4-
-15-
from Mr. Sanchez to the government once
Mr. Sanchez produced substantial credible evidence-the
Texas birth certificate-to prove that Mr. Sanchez was not a United States cjtízen by ,,clear
and
convincing evidence."
B.
The Fifth Circuit failed to hold
the government to its burden of showing, by clear, unequivocal, and convincing evidence that Mr. Sanchez was not born in the United States.
Assuming arguendo that the court had the authority to reach the citizenship question in this case, the Fifth Circuit should have reversed the trial
trial court failed to hold the government to its burden to show, by .,clear, unequivocal, and convincing" evidence that Mr. Sanchez was not born in the United States. See court because the
Schneiderman v. United States, 820 U.S. 118, 125 (fg¿S). It cannot, and must not, be left to a bare preponderance of the evidence standard. Id. The court must not leave the issue in doubt. fù, see also Chaunt v. United States, BG4 U.S. 850, B5B (fgOO) ("[T]he evidence must indeed be 'clear, unequivocal, and convincing' and not leave 'the issue in doubt.,,,); Fedorenko v. United States,44g U.S. 490, 505 (f gAf) ("The evidence justifying revocation of citizenship -16-
be'clear, unequivocal, and convincing' and not 'the issue in doubt."')
It is better for one immigrant to be improperly
tted into the llnited States than for "one born citizen of the United States [to] be
v.
tly excluded from his country." .Kwock Jan White, 253 U.S. 454, 464 (rgzo). The
tion of an improper legal standard "is never a district court's discretion." American Bd. of try & Neurology, fnc. v. Johnson-Powell, I29 1, 3 (1.t Cir. 1997); see also North Am. Med. v. Axiom Worldwide, fnc., 522 F.3d 1211, 1216 lth Cir. 2008)" The imposition of the correct burden proof is a question of law, which is reviewed de . Taisho Marine & Fire fns. Co. v. ilI/V Sea-Land 815 F.2d L270, L274 (grt'cir. 1987)
At no point, in its opinion or in its findings of and conclusions of law, does the court place the
on the federal government. Instead, it tedly refers to the Plaintiffs burden. See of fact at 1 ("The court finds and concludes David Israel Sanchez has not met his burden of by a preponderance of the evidence that he
born in the United States"); id at
4
entary evidence the plaintiff submitted is t to meet the plaintiffs burden")) id at I vid Israel Sanchez has not met his burden of
-r7-
The court's failure to hold the government to its burden is reversible error because it contradicts
Supreme Court precedent, which requires the federal government to have the burden of proof and to produce evidence to show that it has met its burden. Kungys v. United States,485 U.S" 759, 78I (tggg) ("[F]actual matters necessary to support denaturalization must be proved by 'clear, unequivocal, and convincing' evidence which does not leave'the issue in doubt."')
C.
The Fifth Circuit, by affirming the trial court's reasoning, failed to shift the burden to government to prove by clear and convincing evidence that Mr. Sanchez was not born in the United States.
Assuming, arguendo, that the court had the authority to reach the citizenship question in this case, the Fifth Circuit should have reversed the trial court, because the trial court failed to shift the
burden
to the
government once
Mr" Sanchez
provided substantial credible evidence to support his claim of citizenship. See Mondaca-Vega v" Lynch, 808 F.3d 4t3, 419-420 (grt' cir. 2015)" The application of an improper legal standard "is never within a district court's discretion." American Bd. of Psychiatry & Neurology, fnc. v. Johnson-Powell, L29 -18-
3d 1, g v.
(t" Cir. 1997); see also North Am. Med.
Axiom Worldwide, fnc., 522 F.3d 1211, I2L6
Cir" 2008). The imposition of the correct burden proof is a question of law, which is reviewed de novo. Taisho Marine & Fire fns. Co. v. IWV Sea-Land Endurance 815 F.2d7270,I274 (9't'Cir. 1987). 1th
Mr. Sanchez provided
substantial credible evidence" He provided his Texas birth certificatei his vaccination records from a doctor in Brownsvillei his mother's prenatal lab work done in Brownsvillei and his mother, father, and other individuals also testified that he was born in Texas. Sanchez, No. 1420774, slip op. at 3l Findings at 3-4. The court's failure to shift the burden to the government is reversible error because it contradicts precedent, which requires the federal government to have the burden of proof and to produce evidence to show that it has met it's burden. Mondaca-Vega v. Lynch,808 F"3d 413, 419-420 (}tr. Cir. 2015). (citing Ayala'ViLlanueva v. Holder, 572 F.3ð,736 (gth Cir. 200e))"
However, the precedent established by the U.S. Supreme Court ín United States v" Wong Kim Ark, 169 U"S. 649 (1898), Schneider v" Eusk, 377 U.S. 163 OgAÐ, A-froyim v. ßusk,387 U.S" 253 (tgoz) and Rogers v. BeIIei, 401 U.S" 815 (1971), leave no room for doubt. The decision of the Fifth Circuit in this case is contrary to the United States Constitution and U.S" Supreme Court precedent. For -19-
these reasons the Writ
of Certiorari
should
be
granted.
The Fifth Circuit wrongfully upheld the District Court frnding that Petitioner's mother was not a United States
D
Cltizen. Such frnding by the District Court was gratuitous and on an issue not before the Court. The Court lacked Jurisdiction under article III to make such a determination.
It is a fundamental error to decide a case that is not before a District Court. The District Court
to defend herself"3 The Constitution requires a case or controversy "in law and equity" before the Federal Court, so that it can be vested with Jurisdiction to hear a case.4 The Case before the District Court and the Fifth Circuit involved the issue of cítizenship by birth of Mr. Sanchez and who has the power to decide the fact of birth within the territorial limits of any State, not the citizenship of Mr. Sanchez' Mother. Neither the person of Mrs. Sanchez, nor the issue of Mrs. Sanchez' citizenship was before the court. For this additional reason, the Fifth Circuit has acted outside the U"S. Constitution and the Writ of Certiorari should be granted"
II.
that this
case \Mas a claim of citizenship ,See findings of fact at 1, footnote 1. The
recognized
by birth. Court states in a footnote that although plaintiff withdrew any claim of derivative cítizenship, the court also finds that Mrs. Elizabeth Sanchez, the Plaintiff-Appellant's mother, was not born in the United States. Id. Petitioner's argument is clear that he is seeking a United States passport because he was born in Texas. The derivative argument was not made and therefore could not be withdrawn. The
District Court had no jurisdiction to make
a
gratuitous fi.nding on an issue not before the Court" Such finding is highly prejudicial and it is made in violation of the Due Process Clause of the 5th amendment since Mrs. Sanchez had no opportunity 20-
The Tenth Amendment was infringed when the Court of Appeals affirmed the trial court's decision that the federal government had authority to decide whether Mr. Sanchez was born in the United States afber the State of Texas had decided the issue.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectívely, or to the people"" U"S. CONST. amend. X" The powers of the Federal legislature are defined, and limitedl and that those limits may not be mistaken or 3 4
U.S. CONST. amend. V. U.S. CONST. art. III, $ 2.
-2r-
forgotten, the Constitution is written. Marbury v. Madison, S U.S. 137 (1803). ttre power to issue birth certificates and determine who is born within any given State is not a power delegated to the federal government by the Constitution or prohibited by it to the States and therefore it is retained by the States. The issue of whether a person is born within any
given State
is not an issue of immigration or
naturalization because a person's birth within the United States subjects the person to 14th amendment citizenship. A-froyim v" Rusk, 387 U.S. 253, 257 (rgoz), Schneider v. Rusk,377 U.S. 163 (1964) and ßogers v. BeIIei, 40I U.S. 815, 830 (rgzr). The determination by a State that a person was born within its geographical limits is an exercise of its power which was never delegated to the federal government. It is an unpersuasive, circular argument that Congress can define citizenship by reason of birth and that it has been defined in the Immigration and Nationality Act. The U.S. Supreme Court tn Rogers v. Bellei does not stand for such proposition. On the contrary, it recognizes that the definition of citizenship by birth is established by the 14th amendment. Rogers v. BeIIei,401 U.S. 815, 835 (r971)(Justice Blackmun in majority opinion). Petitioner is not arguing that the State Department must defer to the State agency's administrative findings regarding citizenship. The argument is that the State Department and the District Court must defer to the State agency's administrative findings regarding Petitioner's place of birth. Citizenship in -22-
this case is defined by the 14th amendment. The State of Texas is the only one authorized by the Constitution to decide who is born in Texas. The Constitution states that if born in Texas, and subject to the Jurisdiction of the United States, then the person is a native citizen" U.S. CONST- amend. XIV, $ 1. The fact of birth had already been determined pursuant to the power of the State of Texas recognized in the 10th amendment. Having federal courts give preclusive effect to the fact-finding of state administrative tribunals also serves the value of federaltsm. [Jniversity of Tennessee v. E]liott, 478 U.S. 788, 798 (1986). No regulation by the State Department or Act of Congress can be contrary to the United States Constitution. Matbury v. Madison, 5 U.S. 137 (1303)" It does not make sense thatpursuant to the 10th amendment-a State may issue a birth certificate, and pursuant to the States administrative rules have a hearing on the validity of that birth certifrcate, only to have the State Department declare per federal regulation that it is the fed,eral government that decides the place of birth. Pursuant to the 10th amendment the State of Texas has retained the power to decide who is born in Texas. The State of Texas exercised its power by determining that Petitioner \¡/as born in Texas. Citizenship of the native born derives from $ 1 of the Fourteenth Amendment.
-oo.Lt)
The Court erred in failing to reverse the trial court's dismissal of Mr. Sanchez's Tenth Amendment argument because the Constitution clearly delegates the power to determine citizenship by birth to the States and not the federal government. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states." U.S. Const. amend. X. Article I $ 8 of the U.S. Constitution specifically delegates to
the federal
government the power to decide citizenship by naturalization. U.S. Const. art. I, $ 8 cI. 4. If the founding fathers meant to delegate the power to decide citizenship by birth to the federal government, they certainly knew how to do so. In similitude they knew how to prohibit such power to the States but they passed on the opportunity to do so.
In fact, they acknowledge the two different paths to cítizenship and reaffirmed their intent not to leave this power to the federal government when they defined citizenship in the Fourteenth amendment, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cítizens of the United States and of the State wherein they reside." IJ.S. CONST. amend. XIV, S1, cl.1 (emphasize added).
The lower court contends that while the language of the Tenth Amendment confrrms that the power of the federal government is subject to limits that may reserve power to the States, no such limitation on federal authority applies here because Congress has plenary authority over immigration' Sanchez v. CLinton, No. H-11-2084, 20L2 U.S" Dist' LEXIS 8074, at 24-25 (S-O" Tex. 20L2)- This assertion, however, is incorrect because the issue here is neither one of immigration nor citizenship by
naturalization.
The lower court is right in arguing that Congress has plenary authority over immigration' The Constitutional powers vested in Congress by the Naturalization Clause. U.S. CONST' Art. I, $ 8, cI' 4, provides to Congress, the power to confer citizenship in certain classes of persons, such as foreign born children of ljnited States citizens, or create proced.ures where foreign cj-tizens can apply to
become
United States citizens. United States
v'
Kim Ark,169 U.S. 649, 693 (rege). However, that is not the case here. Neither the naturalization clause, the supremacy clause nor the federal government's inherent power over foreign affairs, gives Congress discretion to determine who is a cttízen bY birth. Wong
Through history, birth certificates issued by the states continue to be the proper documentation for natural born citizens. See 22 C'F"R' $ 51'a2(a) (indicating that birth certifi.cates are the primary 24
-25-
evidence of birth in the llnited States). These certificates have continuously been issued by the States" The federal government has not inserted itself in this process at any point until now. While the government has constantly argued it has power over immigration and passports, not once has it actually argued it has the power to issue birth certificates" The issue in Sanchez' case is not one of
immigration or
granting citizenship
by
naturalization" It is about the power to issue a birth certificate to a citizen born within the jurisdictions of the States. In this case, the federal government is really arguing its right to strip Mr. Sanchez of his citizenship, a violation of the 14th Amendment. The sole purpose of inserting a constitutional definition and grant of citizenship in the Fourteenth Amendment was to ensure that citízenship could not easily be taken away by a subsequent congress, and to provide an insuperable obstacle against every governmental effort to strip citizenship. See Afroyim v. Rusk, 387 U.S. 253, 257 (tg6Z) (quoting the sponsor's explanation of the purpose of this clause in the amendment from Cong. Globe, 39th Cong., 1st Sess., 2890, 2896 (f 900), "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States" We desired to put this question of citizenship and the rights of citizens . under the civil rights bill beyond the legislative power . ."). The purpose was to further limit the federal government's power over the citizenship of those -26-
who already possessed it-such as citizen's by birth. Id. Th.e Tenth Amendment and Article 1 S 8 clearly
show
that the right to
determine
birth
right
citizenship was delegated to the State because it was neither delegated to the United States in section 8 of Article 1 nor prohibited to the States. The Fourteenth Amendment reaffirmed and prohibited the federal government from tampering with an individual's citizenship once received. The State of Texas by virtue of this power conferred birthright citizenship on Mr. Sanchez. The federal government should not be able to strip Mr. Sanchez of his Citizenship. This Court ín Afroyim v. Rusk stated that the constitution "grants Congress no express power to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. A-froyim v. Rusk,3S7 U.S" 253,257 (f g0Z). Because
the Fifth Circuit and the District
Court, in the present case, acted outside the U.S. Constitution and the established precedents of the U.S. Supreme Court this Writ of Certiorari should be
granted. The issue of who has the power to determine the fact of birth within any given State of the United States and who defines Citizenship by birth is one of National signifrcance. For all the reasons mentioned above the should be granted.
-27-
Writ of Certiorari
III.
The FulI Faith and Credit Clause was violated where the Court of Appeals affirmed the trial court's failure to give preclusive effect to the State of Texas' recognition of Mr. Sanchez's bfuth in Texas.
Full Faith and Credit shall be given in each State to the public acts, records, and judicial proceedings of every other State...and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof" U.S. CONST. art. IV g 1. It is a misunderstanding by the Fifth Circuit that article IV of the Constitution does not bind the Federal Judiciary to respect State Court Judgments. This is not true because Congress enacted 28 U.S.C. SS 1738-1739 as an extension of its power under art. IV $ 1. The basis of the statutory Full Faith and Credit Act is the Constitution. San Remo Hote| L.P. v. City & County of San Francisco,545 U.S. B2B, BBG (ZOOS). Congress cannot act outside its constitutional limits. Marbury v. Madison, 5 U.S. 1BZ (1308). Congress enacted 28 U"S"C" SS 1738-1739 pursuant to its art. IV 5$ 1 power. There is no question that 28 U.S.C. SS 1738-1739 is an extension of Congress' Constitutional powers pursuant to art. IV $ 1. The argument that Federal Courts are not bound to respect the judgments of State Courts pursuant to art. fV S 1, is contrary to U.S. Supreme Court precedent. This Court has stated that "the Full Faith and Credit Clause is of course not binding on federal courts, but we can certainly look to the policies 28
underlying the Clause in fashioning federal commonlaw rules of preclusion." University of Tennessee v. EIIiott,478 U.S. 788, 799 (rge6). This Court further stated that "Perhaps the major purpose of the Full Faith and Credit Clause is to act as a nationally unifying force... and this purpose is served by giving preclusive effect to state administrative fact-finding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results." 1d. In University of Tennessee the Court concluded that "when a state agency acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,..., federal courts must give the agency's fact-finding the same preclusive effect to which it would be entitled in the State's courts." fd. That
there is a distinction between an article IV constitutional argument and the statutory "full faith and credit" of 28 U.S.C. SS 1738-1739 does not suggest that the Federal Courts should not be bound by article IV S 1 with respect to State administrative agencies. In University of Tennessee the U.S. Supreme actually held that federal courts are bound by the State agency's fact finding. San Remo Hotel, L.P., expressed that Congress enacted 28 U.S.C. SS 1738-1739 as an invitation to the Constitutional FuII Faith and Credit Clause in art. IV S 1. 28 U.S.C. S 1738 has long been understood to encompass the doctrines of res judicata, or "claim preclusion," and collateral estoppel, or "issue preclusion." San Remo Hote| L.P" v. City & County of San .Francisco, 545 -29-
U.S. 323, 336(2005), citing to Alhen v. McCuruy, 44g U.S. 90 (1980). ttre District Court stated that "a
decision by the Texas Department of Health regarding a person's place of birth does not have preclusive effect on the State Department or in federal court in passport proceedings." ,See findings
of fact at 7. The District Court
discussed
Bustamante-Barrera in the context of the FuIl Faith and Credit Act and then held that "as in Bustamante-Barrera. the federal refusal to credit the Texas Department of Health decision that Sanchez was born in Texas does not implicate the FuII Faith and Credit Clause...The FuII Faith and Credit Clause does not require the decision of the Texas Department of Health to be given preclusive effect in United States passport proceedings." See Memo op at 14. The issue is whether the judicial ruling by the State of Texas pursuant to the Tenth Amendment should be given FuIl Faith and Credit by the government. The District Court addressed the argument by discussing Bustamante-Barrera ín the context of the FuII Faith and Credit Act, 2g U.S.C. S 1738, observing that the Fifth Circuit rejected the FuIl Faith and Credit Act argument and basing its refusal of the FuII Faith and Credit Clause on Bustamante-Baruera. See Memo op at L2-I4. The basis of the statutory FulI Faith and Credit Act is the Constitution" San Eemo Hote| L.p. v. City & County of San Francisco,545 U.S. g2g, 8g6(2005).
The Fifth Circuit should have reversed the trial court d.ue to its failure to give preclusive effect to Texas' determination that Mr- Sanchez was born in Texas. See Sanchez, No. 14-20774, slip op- at 7 . By failing to do so, it violated the FulI Faith and Credit Clause. Appellate courts review conclusions of law de novo. Kona Tech. Corp. v. Southern Pac. Transp. Co', 225 F.3d,595 (5th cir. 2000).
The Futl Faith and Credit Clause of
the Constitution, as implemented by the Full Faith and Credit Statute, 28 U.S.C. S 1738, governs the
preclusive effect of a state court judgment in a subsequent federal action. Migra v' Warren City (rg8+)' Schoo\ Dist. Bd. of Education,465 U.S' 75, 80 The statute mandates that state judicial judgments must have the "same full faith and credit in every court within the United' States... as they have by law or usage in the courts of such State"' from which they are taken." 28 U.S.C. S 1738. This statutory language has been recognized as incorporating the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion)' San ßemo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323, 336 (2005)- When a state agency acts in judicial capacity to resolve d.isputed issues of fact and the parties have an adequate opportunity to
litigate the disputed issues, the state
frnd'ingsaregivenpreclusiveeffectinfederalcourt. [lniversity of Tennessee v. E]Iiot, 478 U'S' 788' 799 (rgao).
30
agency's
-31-
In order to comply with the Full Faith
and
Credit Clause and with the Supreme Court's ruling in University of Tennessee, the Fifth Circuit should have reversed the trial court's holding that the Full Faith and Credit Clause did not bar the federal government from re-litigating Mr. Sanchez's Texas birth. See Sanchez, No. l4-2O774, slip op at 4, 7i Memo op at 14 (Appendix B). The federal government should give the Texas agency's decision preclusive effect because it acted in a judicial capacity, it gave both parties and adequate opportunity to litigate the disputed issues, and it decided the issue the federal government sought to challenge in the federal court-Mr. Sanchez's Texas birth. Here, Mr" Sanchezlitígated his case before the Texas Department of State Health Services. See Sanchez, No. 14-20774, slip op at 1. His claim was challenged by the State of Texas. Id at 3. During a hearing conducted by agency, Mr. Sanchez presented evidence, which the State of Texas had a chance to challenge, supporting his Texas birth. Id. Tlne agency then recognízed Mr" Sanchez' State of Texas birth" Id. For these additional reasons the Writ of Certiorari should be granted"
'32
N. The Court of Appeals erred in failing to
reverse the trial court's errors which were not harmless because those errors affected Mr' Sanchez's substantial Constitutional rights, and. included. failing to shift the burden to the Government to prove by clear and convincing evidence Petitioner is not a United States citizen.
The trial court's revocation of Mr' Sanchez's citizenship was not "harmless error -" See Memo op at 17 " When the error is so fundamental as to amount to a miscarriage of justice or if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings, a reversal is (2d appropriate. SEC v. DiBelIa, 587 F.3d 553, 569 Cir. 2009), Beaudry v. Corrections Corp. of Am',337 F.3d 1164, 1168 (rOttr Cir. 2003). These errors affect the parties' "substantial rights." ,9ee Fed. R' Civ' P' 61. In the present case, citizenship has long been held to be a substantial righti the violation of which goes beyond harmless error- ,See U-S. Const' amend' XIV, S 1, cI. 1. Additionally, the court committed fund,amental error, which amounts to a miscarriage of justice, when it abused its discretion by deciding an issue it had no constitutional authority to decide. Memo op at 17.
-33-
A.
Citizenship is a "Substantial Righf,' Under the 14th Amendment.
The issue of citizenship is a "substantial
right," established and protected by the 14th amend.ment. U.S. Const" amend. XIV, S 1, cl' 1' The citizenship clause clearly declares that "a11 persons born or naturalized in the United States, and subject to the jurisdiction thereof, are 14th Amendment's
citizens
of the United States and of the
State
wherein they reside." fd- There are only two sources of citizenship, "birth and naturalizatíon'" Memo op at 16. Additionally, the citizenship right is protected
by the equal protection clause of the
14th
Amend.ment, which declares that, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united States." U.S. Const. amend. XIV, S 1, cì.' 1'
Moreover, in the landmark Supreme Court decision of BoIIing v. Sharpe, the Court held that the equal protection requirements applied to the federal government through the Due Process Clause of the Fifth Amendment. BoIIing v" Sharpe,347 U"S' 497, 498-99 (fgS¿). Citizenship is the fundamental basis of aII constitutional rights. See U.S. Const' amend' XIV, S 1. As such it cannot be reasonably argued that citizenship is not a "substantial right'"
34'
Federal Courts have long citizenship to be a "substantial right."
considered Indeed, the
Western District of Washington has held that "lU]nited States citizenship is a very substantial right. It is the highest political privilege which an individual may enjoy. United States citizenship means more than citizenship in any other country, and a native-born citizen should not be deprived of this high privilege without substantial testimony to sustain the fact." Ex parte Hing 22 F.2d 554, 554 W.n. Wash. 1927). Additionally, the court continued
by stating that "[U]nder the
Fourteenth Amendment, all persons born in the United States arc citízens thereof. The Congress is without power to restrict the effect of birth"" Id. at 556.
The Fifth Circuit's determination was not harmless error because by denying Mr. Sanchez's citizenship Mr. Sanchez was deprived of a substantial right. ,9ee Findings at 9. Citizenship has been fully protected as a right under numerous constitutional clauses. See, e.g., U.S. Const. amend. XIV, S 1, cl. 1.; U.S. Const. art. IV S U U.S. Const. art IV $ 2 cI. 1. As such, it is not plausible to argue that cítízenship is not a substantial right.
35-
B.
Citizenship is Protected Under the FulI Faith and Credit Clause.
each state has its own department for determining and recording citizenship signifies that cítizenship is
a "public act[s], [and] record" that each state must respect for FuIl Faith and Credit purposes. The 5th
Additionally,
the issue of citizenship
is
protected under the FulI Faith and Credit Clause of article IV S 1. U.S. CONST" art. IV $ 1. Article IV declares that "FulI Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State." Id. Birth citizenship is a legal status provided through the states birth registry. ¡ These registries exist independently in every state.6
In the present case, The Texas Department of Health had the authority to issue Mr. Sanchez's birth certificate. l.t Memo op at 2-3 (Appendix C). Had Mr. Sanchez been born in Georgia, the Georgian Department of Public Health would have issued him a birth certificate.z If he had been born in New York, the New York State Department of Health would have issued the certificate - and so on.8 The fact that 5
See, e.g., Georgia Department of Public HeaLth, Vital Records (Aprit 20,2016) available at https://dph. georgia. govA/italRecordsl,9ee Ne w York S ta te Department of State, Vital Records (April 20,2016) available at http s://www.health. ny. gov/vital_records/birth.htm. 6 Supra note 1. 7 See Georgia Department of Public Health, Vital Records CApril 20, 2016) available at
http s ://dph. georgia. gov/VitalRecords 8 See New York State Department of State, Vital Records (April
20,2016) available at https ://www.health. ny. gov/vital_records/birth.htm.
-36-
Circuit's dismissal of the full faith and credit argument goes against the sovereign power delegated to the states. 1't Memo op at 17 (Appendix c)"
c"
The Lower Court Committed
a
Reversible'Miscarriage of Justice".
The Fifth Circuit, by affirming the trial court,
committed fundamental reversible
error
amounted to a miscarriage of justice when
that
it
abused was not
its discretion by deciding an issue that it constitutionally empowered to decide. See Memo op at I7i Finding at 1 and 9 (Appendix E). Article 1 S S has long been the basis of the federal governments enumerated powers" U.S. CONST. art.l, $ 8. While the 10th amendment Iimits those powers by declaring that "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states." IJ.S. Const. amend. X. Citizenship by naturalization is indeed a power delegated to the federal government however, under no constitutional provision or amendment was birth right citizenship granted to the federal government.
Id. As such, under both section 8 and the -37-
10th
amendment
the right to determine birth
right
citizenship has been delegated to the states.
The State of Texas made its determination when it decided that Mr. Sanchez was a birthright citizen. Memo op at 3. Indeed, as previously mentioned, the state of Texas was the only constitutionally empowered body to make a citizenship by birth determination. ,See U.S. CONST. art.1, S 8; U.S. Const. art.1, S 8. As previously mentioned, the lower court abused its discretion when it decided that it had the constitutional authority to determine birthright citizenship. 1't Memo op at 17 (Appendix C).
D
never done.
It
Was Not "Harmless Enor' to Fail to Hold the Government To Their Burden of Proof Under the Law"
The determination below that Mr.
Sanchez
was not a United States citizen could not have been mere harmless error for a further reason, to wit: that
the District Court failed to shift the burden to the Government to show by "cIear and convincing" evidence that Mr. Sanchez was not a U. S. citizen. See Mondaca'Vega v. Lynch,808 F.3d 4I3, 419'420 (gttr cir. 2orÐ.
38
As discussed, supra, even assuming arguendo the court below had the authority to reach the citizenship issue, the trial court failed to shift the burden to the Government once Mr. Sanchez had provided substantial credible evidence to support his claim of citizenship. This substantial credible evidence clearly was provided as evidenced by the State of Texas' determination that he actually was born in that state. (ROA. 134'189)" Once shifted, the burden should have been placed squarely on the Government to show by clear and convincing evidence that Mr. Sanchez was not a U. S. citizen. Id. at 420" The shifting of this burden, however, \Mas
For all of the reasons hereby mentioned, the Fifth Circuit acted outside the United States Constitution in asserting that it was the Federal Government and not the States who determine who is born within the State's Jurisdictional boundaries. The Fifth Circuit also acted contrary to the established precedent of the U.S" Supreme Court. See United States v. Wong Kim Ark, 169 U.S. 649 (tgg8), Schneider v. Eusk, 377 U.S" 163 (rg0¿), Afroyim v. Rusk,387 U.S" 2æ í967) and Rogers v.
Bellei, 4O1 U.S. 815
(f
gZr).
Furthermore, Citizenship is a substantial constitutionally derived right" See U.S. CONST" amend. XIV, S 1. As Citizenship is a substantial constitutionally derived right, the issue of who determines the fact of birth within the geographical limits of any given State of the United States is one of National importance and -39-
for such additional reason this Court should grant the Writ of Certiorari.
CONCLUSION The Petition for Writ of Certiorari should be granted.
Respectfully submitted,
lsl Roberto M. Hinoiosa ROBERTO M. HINOJOSA Texas State Bar Number: 24043730 2020 Southwest Fwy. (U.S. 59) Ste" ZZO Houston, Texas 77098 Telephone: (zr3) 665-5060 Fax: (713) sza-oozo e-mail: attorneyrmh@yahoo. com Lead Counsel, for David Israel Sanchez /s/
Geoffrev A. Hoffman GEOFFREY A. HOFFMAN Clinical Associate Professor and Director,
IJniversity of Houston Law Center Immigration Clinic 4604 Calhoun Road Houston, Texas 77204-6060 Telephone: (zr3) 7 43-2094 Fax: (713) z+g-ztss mail : shoffm an @centr al.uh. edu Co-counsel, for David Israel Sanchez
e
-
May 1I, 20L6 40-
