               Case: 15-10666       Date Filed: 06/08/2016      Page: 1 of 16


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-10666
                              ________________________

                       D.C. Docket No. 4:13-cv-00534-RH-CAS



MARIO MARTINEZ,

                                                                        Plaintiff-Appellant,

                                           versus

SECRETARY OF STATE OF THE UNITED STATES OF AMERICA,

                                                                       Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                       (June 8, 2016)

Before TJOFLAT, MARCUS, and ROGERS, * Circuit Judges.

PER CURIAM:




       *
         Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      After the Department of State revoked his U.S. passport, Mario Martinez

brought a declaratory judgment action against the Secretary of State, pursuant to

8 U.S.C. § 1503(a) and 28 U.S.C. § 2201(a), seeking a judicial declaration that he

was born in the United States and is, therefore, a U.S. citizen. After a bench trial,

the district court specifically found that Martinez was born in Mexico and is,

therefore, not a U.S. citizen. On appeal, Martinez contends that the district court

clearly erred in finding that he was born in Mexico, rather than in the United

States. He also argues, for the first time on appeal, that, when a § 1503(a) plaintiff

presents a U.S. birth certificate that was filed contemporaneously with his birth,

that birth certificate should presumptively establish that the plaintiff is a U.S.

citizen. After careful review, and with the benefit of oral argument, we affirm.

                                          I.

      The essential facts adduced at trial are these.        Martinez was born on

October 12, 1974, to Maria del Socorro Reyes (“Reyes”) and Sebastian Martinez --

both Mexican citizens. The birth was registered in Brownsville, Texas, by a

woman named Guadalupe Gonzalez, and the Texas Department of Health, Bureau

of Vital Statistics issued a birth certificate showing that Martinez had been born in

Brownsville and that Gonzalez, as midwife, was present for the birth.

Nevertheless, Martinez grew up and attended elementary school in Cerritos, San




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Luis Potosi, Mexico. At some point he obtained a U.S. passport, and, at the age of

15, he moved to the United States to live with an uncle in Florida.

      Martinez later married a Mexican woman, whom he met in Mexico.

Martinez filed a visa petition on behalf of his wife, and, while processing the

petition, the Department of State began to suspect that Martinez had not been born

in the United States. On October 3, 2007, Martinez, his mother, and his wife went

to the U.S. Consulate in Ciudad Juarez, Mexico, where a fraud investigator in the

Consulate’s Fraud Prevention Unit questioned Martinez’s mother. During the

questioning, the fraud investigator presented Reyes with a Mexican birth

certificate, issued on November 18, 1986, which showed that Martinez had been

born on October 12, 1974, in Cerritos, San Luis Potosi, Mexico. At the end of the

interview, the fraud investigator typed up a “sworn statement,” which Reyes

signed, and which stated that Reyes had given birth to Martinez in Cerritos, San

Luis Potosi, Mexico, and her husband’s aunt had paid a midwife to obtain a U.S.

birth certificate.   The statement referred to Martinez as “Martin,” rather than

“Mario.”    Reyes, who had obtained U.S. permanent resident status through

Martinez, also signed a Form I-407, Abandonment of Lawful Permanent Resident

Status form, which stated, among other things, “My son was born in Mexico, and

not in the U.S., as stated in [his] fraudulently obtained Texas birth certificate.”




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      Martinez’s subsequent request for an official copy of his birth certificate

from the Texas Registrar was denied, based on information the Registrar had

received from the U.S. Department of State.                But, after a hearing in

September 2009, at which Reyes testified by phone, the Texas Department of State

Health Services (“Texas DSHS”) declared Martinez’s Texas birth certificate valid

and ordered the Registrar to give him an official copy. Martinez also instituted

proceedings in Mexican court to invalidate his Mexican birth certificate.

      However, on June 14, 2011, the Department of State sent Martinez a letter,

informing him that it had revoked his U.S. passport, pursuant to 22 C.F.R.

§ 51.62(b), based on his mother’s sworn statement at the U.S. Consulate that he

was born in Mexico and the Mexican birth certificate. Martinez subsequently filed

this declaratory judgment action, seeking a judicial declaration that he was born in

the United States, is a U.S. citizen, and is entitled to possess a U.S. passport.

      At trial, Martinez presented his Texas birth certificate; a baptismal certificate

from the Roman Catholic Diocese of San Luis Potosi, Mexico, issued on

January 30, 1975, which stated that he had been born in Texas on

October 12, 1974; a confirmation certificate from the same Diocese, reporting the

same information; the Texas DSHS decision; and an April 2012 Mexican court

judgment invalidating his Mexican birth certificate. In addition, Martinez and his

father testified, and Martinez introduced deposition testimony that Reyes had given


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on two prior occasions. In her deposition testimony, Reyes testified that, when she

felt labor was imminent, she crossed the U.S.-Mexico border so she could give

birth to Martinez in Brownsville; the statement she gave at the U.S. Consulate on

October 3, 2007, was false and had been coerced; and she did not willingly

abandon her U.S. resident status. Reyes and Martinez’s father both testified that

they obtained the Mexican birth certificate when Martinez was 12 years old, solely

to allow him to continue studying in Mexican schools.

      The Department of State introduced Martinez’s Mexican birth certificate,

Reyes’s October 3, 2007 sworn statement, and the abandonment of lawful resident

status form Reyes signed that day. The Department of State also introduced

deposition testimony from Elizabeth Lerma-Shaffer, who was the deputy or acting

chief of the Fraud Prevention Unit at the U.S. Consulate in Ciudad Juarez in

October 2007. Lerma-Shaffer did not specifically recall Martinez’s case, but she

recognized her signature on Reyes’s sworn statement. Lerma-Shaffer testified that,

as a general practice, she ensured that all sworn statements she signed off on were

voluntarily given. Finally, the Department of State introduced live testimony from

Peter Ojeda, who was an immigrant visa specialist at the Consulate in Ciudad

Juarez in October 2007. Ojeda did not specifically recall Martinez’s case, either,

but he recognized his handwriting and signature on Reyes’s abandonment of lawful




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permanent resident status form. He testified that, as a general practice, he did not

coerce individuals into signing the form.

      The district court found that Martinez was born in Mexico and he was,

therefore, not a U.S. citizen. The court specifically discredited the testimony and

other evidence showing that Reyes had crossed the U.S.-Mexico border to give

birth to Martinez in Brownsville, Texas, and found that Martinez’s parents had

fraudulently obtained the Texas birth certificate.           The court credited Lerma-

Shaffer’s and Ojeda’s testimony and found that Reyes’s statement at the Consulate

that she had given birth to Martinez in San Luis Potosi, Mexico was true and not

the product of coercion or duress. The court noted the contrary findings of the

Texas DSHS and Mexican court, which were not binding on the district court or on

the Department of State. Finally, the court noted that the burden of proof was on

Martinez, but said “the result would be the same even if the burden was on the

defendant; the evidence is not in equipoise.”

      Martinez filed this timely appeal.

                                            II.

      In a § 1503(a) declaratory judgment action, 1 the plaintiff has the burden of

proving that he is a U.S. citizen by a preponderance of the evidence.

      1
          Section 1503(a) 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 such right or privilege by any
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See De Vargas v. Brownell, 251 F.2d 869, 871 (5th Cir. 1958); Mathin v. Kerry,

782 F.3d 804, 807 (7th Cir. 2015) (citing 22 C.F.R. § 51.40). We review the

district court’s conclusions of law following a bench trial de novo and its factual

findings for clear error. Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d

1253, 1257 (11th Cir. 2015). “If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, [we] may not reverse it even

though convinced that had [we] been sitting as the trier of fact, [we] would have

weighed the evidence differently.” Anderson v. City of Bessemer, 470 U.S. 564,

573-74 (1985). That is, “[w]here there are two permissible views of the evidence,

the [district court’s] choice between them cannot be clearly erroneous.” Id. at 574.

       We review questions of law, including issues related to the applicable

burden of proof, de novo. First Vagabonds Church of God v. City of Orlando,

638 F.3d 756, 760 (11th Cir. 2011); see Columbus Mills, Inc. v. Freeland, 918 F.2d


       department or independent agency, or official thereof, upon the ground that he is
       not a national of the United States, such person may institute an action under the
       provisions of section 2201 of Title 28 against the head of such department or
       independent agency for a judgment declaring him to be a national of the United
       States, except that no such action may be instituted in any case if the issue of such
       person’s status as a national of the United States (1) arose by reason of, or in
       connection with any removal proceeding under the provisions of this chapter or
       any other act, or (2) is in issue in any such removal proceeding. An action under
       this subsection may be instituted only within five years after the final
       administrative denial of such right or privilege and shall be filed in the district
       court of the United States for the district in which such person resides or claims a
       residence, and jurisdiction over such officials in such cases is conferred upon
       those courts.

8 U.S.C. § 1503(a).
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1575, 1580 (11th Cir. 1990). However, we generally will not consider an issue

that was not raised in the district court and is raised for the first time on appeal.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

                                         A.

      First, we can discern no clear error in the district court’s finding that

Martinez was born in Mexico.        Martinez asserts that the trial court erred in

discrediting Reyes’s deposition testimony because the court erroneously stated that

Reyes did not say she was threatened or under duress, when she, in fact, said this

numerous times. We need not address the district court’s reasoning on this issue,

however, because, in any event, ample record evidence supported the district

court’s factual finding that Martinez was born in Mexico. Reyes’s sworn statement

and I-407 form strongly suggested that Martinez was born in Mexico. Those

documents were corroborated by the testimony of Lerma-Shaffer and Ojeda, who

indicated that they never coerced an interviewee into signing documents. The

district court thus did not clearly err by crediting the testimony of the two State

Department employees instead of Reyes’s contrary deposition testimony. Nor has

Martinez shown that the district court clearly erred in crediting Reyes’s sworn

statement over her contradictory deposition testimony because the sworn statement

was typed by the fraud investigator and used the name Martin, rather than Mario.




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      Martinez claims that the district court erred by crediting Lerma-Shaffer,

since she testified in her first deposition that she had supervised a staff of four

fraud investigators, whereas, in her second deposition, she testified that she had

supervised a staff of six. However, Martinez fails to show how this inconsistency

was particularly significant, let alone so important that it thoroughly undermined

the district court’s credibility choices. Lerma-Shaffer consistently testified in both

of her depositions about the process she and the fraud investigators used for

investigating cases and taking statements, that the fraud investigators did not have

a practice of coercing false statements, that she went over the statements with

declarants before signing them, and that she would not have signed off on a

statement if the declarant had indicated it was false. Martinez also says that

Lerma-Shaffer’s testimony was incredible because she was ambiguous as to

whether she was present during the fraud investigators’ interviews. But Lerma-

Shaffer was clear on this point: she testified that she supervised the interviews --

which took place in cubicles -- from her office, which was about 5-10 feet away

from the cubicles. Thus, her testimony makes clear that she was present, and

observing, while the interviews were going on, but she did not literally participate

in the interviews.

      Finally, Martinez contends that Lerma-Shaffer’s testimony was incredible

because she maintained that she could not remember her interactions with Reyes,


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while her “recollection of other cases seems very clear.” Martinez cites to the

November 2014 deposition, where Lerma-Shaffer, when asked, recalled a

“circumstance[] where someone who was being interviewed was in distress.”

Lerma-Shaffer testified about a “senior lady,” who was diabetic and hadn’t eaten

all day, and who said she was feeling faint. Lerma-Shaffer recalled that she and

her staff brought the woman “a soda and some probably crackers or something to

. . . keep her stable,” and “asked her if she wanted to continue or to terminate the

interview, and she said she just wanted to continue.” We are unconvinced that

Lerma-Shaffer’s ability to recall this unrelated episode means she must necessarily

have recalled her interview with Reyes and had been lying about not remembering

it. Again, the district court was free to make the credibility determinations it

plainly made against Martinez.

      In short, Martinez has not shown that the district court clearly erred in

crediting Reyes’s sworn statement and the consular employees over Reyes’s

deposition testimony and the documentary evidence showing that Martinez was

born in Brownsville. While Martinez’s contrary view of the evidence has some

record support, the district court did not clearly err in taking an alternative view.

See Anderson, 470 U.S. at 573-74.

                                          B.




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      Next, Martinez urges us, for the first time, to establish a new rule that, when

a § 1503(a) plaintiff presents a U.S. birth certificate that was filed

contemporaneously with his birth, that birth certificate presumptively establishes

the plaintiff’s U.S. citizenship, particularly where the plaintiff can show that he has

lived in the United States for an extended period of time. Martinez acknowledges

that he did not present this argument in district court. However, citing to United

States v. Olano, 507 U.S. 725, 731-32 (1993), he contends that we should review

the argument for plain error. He maintains that reversal is warranted under the

plain-error standard because his trial counsel clearly erred by not raising the

presumption issue in district court. He also asserts that his substantial rights were

affected by the Department of State’s revocation of his U.S. passport, which, he

says, denied him of citizenship rights that were conferred upon him at birth.

Martinez further argues, for the first time on appeal, that the government’s

revocation of his U.S. passport without first holding a hearing strains due process,

and that the presumption he seeks is necessary to avoid a due process violation in

his § 1503(a) case.

      In civil cases, like this one, we generally decline to consider an issue raised

for the first time on appeal. Access Now, 385 F.3d at 1331. In Access Now, we

explained that we may make an exception to this general rule in five

circumstances, namely, if: (1) the issue involves a pure question of law and our


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refusal to consider it would result in a miscarriage of justice; (2) the party had no

opportunity to raise the issue in the district court; (3) the interest of substantial

justice is at stake; (4) the proper resolution is beyond any doubt; or (5) the issue

presents significant questions of general impact or of great public concern.

Id. at 1332.    However, we have also applied the plain-error standard (which

notably originates from Rule 52(b) of the Federal Rules of Criminal Procedure) in

some civil cases. See, e.g. Holmes v. W. Palm Beach Hous. Auth., 309 F.3d 752,

757 n.2 (11th Cir. 2002); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329

(11th Cir. 1999); see also S.E.C. v. Diversified Corp. Consulting Group, 378 F.3d

1219, 1227 n.14 (11th Cir. 2004) (“[A]lthough the Civil Rules, unlike the Criminal

Rules, do not contain a formal provision allowing the appellate courts to notice

plain error, the appellate courts have held in a few cases that despite the absence of

an objection they may consider an error so fundamental that it may have resulted in

a miscarriage of justice.” (quotation omitted)). Under the plain-error standard, the

appellant has the burden to establish four things: (1) an error occurred; (2) the

error was plain; (3) the error affected his substantial rights; and (4) not correcting

the error would seriously affect the fairness, integrity, or public reputation of the

judicial proceeding. Farley, 197 F.3d at 1329 (citing United States v. Humphrey,

164 F.3d 585, 588 n.3 (11th Cir. 1999) (citing Olano, 507 U.S. at 732)); see United




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States v. Rodriguez, 398 F.3d 1291, 1298-1300 (11th Cir. 2005); United States v.

Sosa, 782 F.3d 630, 636 (11th Cir. 2015).

      Martinez does not argue that any of the five exceptions set forth in Access

Now are present here. Even if we were to apply the plain-error standard in this

case, which we have said “rarely applies in civil cases,” Ledford v. Peeples, 657

F.3d 1222, 1258 (11th Cir. 2011), Martinez has not satisfied his burden on any of

the four requirements, although he would be obliged to satisfy all four

requirements by a preponderance of the evidence.        See Rodriguez, 398 F.3d

at 1299-1301. For starters, it’s not at all clear to us that any error occurred, let

alone that the error was plain or obvious. As for the second requirement, our case

law makes clear that “where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

       Martinez has offered no argument as to how the district court’s alleged

error in failing to apply a presumption of U.S. citizenship based on his Texas birth

certificate was plain. In fact, he has pointed to no basis for the presumption he

requests in the applicable statutes or regulations.     Rather, as he appears to

recognize, the regulations, if anything, cut the other way. Under 22 U.S.C. § 211a

and 8 U.S.C. § 1504(a), the Secretary of State has the authority to “grant and issue


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passports,” and “to cancel any United States passport . . . if it appears that such

document was illegally, fraudulently, or erroneously obtained from, or was created

through illegality or fraud practiced upon, the Secretary.” 22 U.S.C. § 211a;

8 U.S.C. § 1504(a). The regulations specifically provide that an applicant for a

U.S. passport “has the burden of proving that he or she is a U.S. citizen or non-

citizen national,” 22 C.F.R. § 51.40, and “[t]he applicant must provide

documentary evidence” to satisfy that burden, id., § 51.41. And, while section

51.42(a) provides that a U.S. birth certificate is “[p]rimary evidence of birth in the

United States,” id., § 51.42(a), section 51.45 provides that “[t]he Department [of

State] may require an applicant to provide any evidence that it deems necessary to

establish that he or she is a U.S. citizen or non-citizen national, including evidence

in addition to the evidence specified in 22 CFR 51.42,” id., § 51.45 (emphasis

added).

      Nor has Martinez identified a Supreme Court or Eleventh Circuit case

applying the presumption he requests. See Lejarde-Rada, 319 F.3d at 1291. He

cites to an unpublished Fifth Circuit decision, Garcia v. Kerry, 557 F. App’x 304

(5th Cir. 2014), but in that case the Fifth Circuit merely upheld the district court’s

finding that the plaintiff was born in Mexico. The district court made that finding

upon being presented with a Mexican birth certificate recording the plaintiff’s birth

on a certain date and a U.S. birth certificate recording his birth approximately ten


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months later. Garcia, 557 F. App’x at 306-07, 310. Under these circumstances,

the district court found it was more likely the plaintiff was born in Mexico and the

U.S. birth certificate was created later. Id. at 310. Notably, in Garcia, the Fifth

Circuit did not establish a presumption of any kind, and it certainly did not

establish a presumption of U.S. birth for a § 1503(a) plaintiff who presents a

U.S. birth certificate filed contemporaneously with his birth. See id. Nor indeed

can we find any federal case that has ever created the presumption Martinez urges

us to adopt.

      Martinez’s substantial-rights argument also falls short. As we’ve already

explained at some length, this is not a case where no evidence or only scant

evidence supported the district court’s factual finding. Finally, Martinez has made

no showing that the district court’s determination seriously affected the fairness,

integrity, or public reputation of the judicial proceeding.

      We also can find no merit to Martinez’s claim that the government’s

revocation of his U.S. passport without first holding a hearing denied him due

process.   Section 1503(a) affords individuals like Martinez robust means for

challenging administrative denials of their U.S. citizenship in federal court.

See 8 U.S.C. § 1503(a). In fact, in this case, Martinez had a full opportunity,

during the district court bench trial, to challenge the Department of State’s

revocation of his U.S. passport, present evidence of his own, and confront and


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cross-examine the government’s evidential presentation. Again, we can discern no

error, let alone plain error.

       Accordingly, we affirm the judgment of the district court declaring that

Martinez was born in Mexico and is not a U.S. citizen.

       AFFIRMED.




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