Ulises Hernandez Rosales v. Loretta Lynch
2016 U.S. App. LEXIS 8047
| 5th Cir. | 2016Background
- Ulises Hernandez Rosales, born in Nuevo Leon, Mexico on Aug. 21, 1986, was placed in removal proceedings after overstaying a visa and a 2009 Texas drug conviction.
- Hernandez claimed he acquired U.S. citizenship at birth through his mother, Edna, a U.S. citizen, under 8 U.S.C. § 1409(c) (children born abroad and out of wedlock to U.S.-citizen mothers who were physically present in the U.S. for at least one continuous year before the child’s birth).
- The dispositive factual question was whether Hernandez was born "out of wedlock"; if not, § 1401(g) would apply and Hernandez would not qualify because his mother lacked the ten years’ U.S. physical presence required by that provision.
- The Government introduced a 1985 Nuevo Leon marriage certificate for Edna and Marcelino Hernandez Garcia (married ~13 months before Ulises’s birth), Hernandez’s birth certificate using the surname "Hernandez," and other documents suggesting paternity and marriage.
- Hernandez submitted: (a) sworn statements from acquaintances claiming they never knew Edna to be married until 2001; and (b) an affidavit from Edna stating she was "single" when Ulises was born. The IJ and BIA found the marriage evidence reliable; the Fifth Circuit found Edna’s affidavit creates a genuine factual dispute.
- Because a genuine issue of material fact exists about whether Edna and Marcelino were married at Ulises’s birth (which determines application of § 1409(c) v. § 1401(g)), the Fifth Circuit transferred the case to the U.S. District Court for the Eastern District of Texas for a full hearing and final judgment on the nationality claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a genuine issue of material fact on nationality warranting transfer to district court | Hernandez: Edna was single at his birth (Mexican law treats him as born out of wedlock because father’s name absent from birth certificate) | Gov’t: Marriage certificate and other evidence show parents married before his birth; no disputed fact | Transfer required; Edna’s affidavit creates a genuine issue of material fact, so case transferred to district court |
| Proper meaning of "born out of wedlock" under INA § 1409(c) | Hernandez: If INA silent, courts should consult foreign law (law of child’s birth place) | Gov’t: Plain meaning controls — parents not legally married at birth = born out of wedlock | Court did not decide definitively; proceeded assuming either definition could apply but found Mexican law (as proffered) did not defeat the presumption of legitimacy based on the birth certificate |
| Effect of absence of father’s name on Nuevo Leon birth certificate | Hernandez: Civil Code provisions render child illegitimate if father’s name omitted | Gov’t: Nuevo Leon law (Articles 324, 340, 341) allows proof of parentage via marriage and birth certificates; absence of father’s name does not automatically rebut legitimacy | Court: Hernandez’s proffered reading of Nuevo Leon law unsupported; birth certificate and marital records consistent with legitimacy; but factual dispute on marriage remains |
| Sufficiency of evidence of paternity/marriage | Hernandez: No proof Marcelino is biological father; witnesses say Edna appeared unmarried | Gov’t: Marriage certificate, birth name placement, marginal notation, and Hernandez’s own testimony support paternity/marriage | Court: Government produced probative evidence of marriage/paternity; but must resolve conflicting evidence (Edna’s affidavit) in district court factfinding |
Key Cases Cited
- Agosto v. INS, 436 U.S. 748 (statutory standard for transfer when nationality in issue)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment / genuine dispute standard)
- Iracheta v. Holder, 730 F.3d 419 (applying citizenship-transmission statute in effect at birth)
- Ayton v. Holder, 686 F.3d 331 (burden of proof on naturalization; procedural context)
- Marquez–Marquez v. Gonzales, 455 F.3d 548 (choice of law and citizenship transmission principles)
- Alwan v. Ashcroft, 388 F.3d 507 (nationality is a legal question reviewed de novo)
- Bustamante-Barrera v. Gonzales, 447 F.3d 388 (procedural precedent on transfer and factual issues)