~-
THE LEGAL ADVISER
DEPAFjTMENT OF STATE
WASHINGTON
December 10, 2003
Sir:
I am writing with reference to the Case Concerning
Avena and Other Mexican Nationals (Mexico v. United States
of America). On 28 November 2003, Mexico requested leave
to submit additional documents to the court pursuant to
Article 56 of the Rules of Court 1. On 2 December, 2003, the
United States informed the Court that it did not abject to
the production of the additional documents 2 . It also
notified the Court that it intended to exercise its right
to comment upon these documents and to submit documents in
support of its comments 3. On 2 December 2003, Mexico
supplemented its submission of 28 November to include one
additional document 4 • On 5 December 2003, the United States
informed the Court that"it did not abject to the production
of the additional document, and reminded the Court of its
intention to submit comments on Mexico's additional
5
documents on 10 December 2003 •
Mr. Philippe Couvreur,
Registrar,
International Court of Justice,
The Hague.
1 Letter from Ambassador Santiago Oi'iate Laborde, Agent of Mexico, to
Philippe Couvreur, Registrar, International Court of Justice, dated 26
November 2003, which was filed with the Court on 28 November 2003
(hereinafter "26 November letter").
2
Letter from William H. Taft, IV, Agent of the United States of
America, to Philippe Couvreur, Registrar, International Court of
Justice, dated 2 December 2003.
3 Id.
4
Letter from Ambassador Santiago Oi'iate Laborde, Agent of Mexico, to
Philippe Couvreur, Registrar, International Court of Justice, da.ted 2
December 2003 (No. PBA-03070).
5 Letter from William H. Taft, IV, Agent of the United States of
America, to Philippe Couvreur, Registrar, International Court of
Justice, dated 5 December 2003. Accordingly, pursuant to Article 56, paragraph 3, of
the Rules of Court, the United States respectfully submits
the following commente on the additional documents
submitted by Mexico.
The United States fully agrees with Mexico that the
factual record for the 52 cases currently put at issue by
6
Mexico in this litigation is enormous • The United States
also concurs with Mexico's assessment that if both parties
were to submit all relevant documentation to the Court,
"[t]he magnitude of this submission would have 7 placed an
enormous burden on the Members of the Court ..." •
This is one of the primary reasons why the United
States believes that, as this Court said in LaGrand, it is
for "the United States of America, by means of its own
choosing ... [to] allow the review and reconsideration of
the conviction and sentence" in those cases where review
and reconsideration is warranted under LaGrand. 8
Nevertheless, should this Court decide to undertake
the inquiry, the magnitude and complexity of the factual
records of the 52 ~ases for which Mexico currently seeks
relief, cannot excuse Mexico from the obligation of a
petitioning party to prove its case with respect to each of
these 52 cases before the Court can consider the remedies
that Mexico seeks. This it has not done, and cannot do for
the reasons explained in the Counter-Memorial. Indeed,
Mexico's latest submission withdraws its request for relief
in two of the original 54 cases raised by Mexico in its
Application 9 •
6
26 November letter at 2.
7 Id.
8 LaGrand (Germany v. United States of America), Judgment, I.C.J.
Reports 2001 at para. 128(7).
g #28 Enrique Zambrano and #50 Pedro Hernandez Alberto. 26 November
letter at n. 11, n. 14. On 14 October 2003, approximately two weeks
before the Counter-Memorial was due, Mexico sought to amend its
submission to include two additional cases; Victor Miranda Guerrero and
Tonatihu Aguilar Saucede. Letter from Arnbassador Santiago Ofiate
Laborde, Agent of Mexico, to Philippe Couvreur, Registrar,
International Court of Justice, dated 14 October 2003 {No. PBA-02650).
On 2 November 2003, the United States objected "to M~xico's attempt to
amend its submission to include these two cases at this late dateu.
Letter from William H. Ta.ft, IV, Agent of the United States of America,
2 The additional documentation submitted by Mexico
suffers from the same problems as the supporting materials
annexed to Mexico's Memorial. Namely, it is incomplete,
misleading, and incorrect. Moreover, ·these additional
documents do not, as Mexico contends, "eliminate any
possible doubt about the basic facts of the case before
this Court" 10 . In sorne cases, the documents add further
uncertainty to the record before the Court. For example,
the birth certificates reveal at least one additional case
in which the defendant may have acquired United States
citizenship through birth abroad to a United States citizen
parent 11 .
Mexico concedes in its latest submission that the
United States is not obligated under the Vienna Convention
to provide consular information and consular notification
to United States nationale. On this basis, it has properly
withdrawn its request for relief in the case of Enrique
12
Zambrano (#28) . It has still failed, however, to provide
the key information that.would be necessary to show an
absence of United States citizenship in many of the
remaining cases, such as key information about the
to Philippe Couvreur, Registrar, International Court of Justice, dated
2 November 2003.
10
26 November let ter at 3.
11
Although we understand that an authentic Mexican birth certificate
may establish Mexican nationality at birth, many of the birth
certificates presented contain illegible entries or unexplained
omissions. In addition, the birth certificats of #41 Ruben Ramirez
Cardenas provides information that increases the possibility that he
may be a United States citizen. On his birth certificats, his mother's
nationality is listed as "Norteamerica," i.e. United States. A child
born to a United States citizen mother abroad at the time of Ramirez
Cardenas's birth, if the parents were married, automatically became a
United States citizen at birth if, by that time, the mother had been
physically present in the United States for ten years, five of which
were after the mother's fourteenth birthday. If the parents were not
married, the child acquired United States citizenship if the United
States citizen mother was physically present in the United States for a
continuons period of one year prier to the birth. Thus, to rule out
the possibility that Ramirez Cardenas is a United States citizen as a
result of his mother's apparent United States citizenship, Mexico must
prdduce information about the mother's periods of presence in the
United States and her marital status at the time of his birth. The
United States does not have this information.
12 26 November letter at n. 11.
3 individual's parents. The information needed was clearly
enumerated in the Declarations submitted with the Counter
Memorial13, and is far more readily available to Mexico than
the United States, since it is primarily in the possession
of the individuals and families to whom these cases relate.
Instead, Mexico has pre~ente other, less useful evidence 14 ,
as well as a Declaration that contains significant errors
as to the operation and administration of United States
15
citizenship law • The declaration of Edward A. Betancourt
13
Counter-Memorial, Vol. II, Annex 18, Declaration of Edward A
Betancourt Concerning United States Citizenship Law at paras. 4, 7, and
9. Mexico wrongly states in its recent submission that it is the
United States, not Mexico, that possesses the necessary information to
determine United States citizenship because it maintains "A" files for
naturalized citizens. 26 November letter at 5. This assertion ignores
severa! relevant facts set forth in the three citizenship-related
declarations appended to the Counter-Memorial. First, "A" or "Alien"
files are intended to catalog certain aliens, not United States
citizens. Because children who acquire United States citizenship
through birth abroad to a United States parent are United States
citizens (not aliens) at birth, see 8 U.S.C. 140l(g), they should not
have "A" files. Second, in the case of a child who has been
naturalized by operation of law because of the naturalization of a
parent, the child's "A" file would not necessarily contain a record of
the child's naturalization because the child became a United States
citizen automatically, by operation of law. Thus, the child's "A" file
may continue to indicate that the child is an alien, despite the fact
that the child has become a United States citizen. To resolve an
individual's citizenship status,in cases where derivative
naturalization is a possibility, it may be necessary to locate the
parents' files, which in the absence of the parents' names, dates, and
places of birth is extremely difficult and could be impossible. This
basic identifying information should be readily available to Mexico.
14
The "Addi tional Nationali ty Documents" submi tted by Mexico are
documents crea.ted by United States state or local officiais, defense
counsel, or Mexican government officiais, none of whom could be
expected to be experts in United States citizenship law, which is a
federal matter. If statements indicating Mexican nationality appearing
on such documents could be considered "proofu of nationality, severa!
of the individuals at issue in this case would be "proven" United
States citizens, since similar documents listed United States
nationality in several cases. See, e.g., Counter-Memorial at 7.10 n.
336. Although these documents may indicate what an individual bas
reported, or, alternatively, what the drafter perceived, they are not
determinative.
15 The affidavit submitted by Adjunct Professer Karen Ellington reflects
sigh1ficant misunderstandings of United States citizenship law and its
application to the individual cases presented. It also overestimates
th~ ability of the United States to adjudicate citizenship cases
wit~out the cooperation of the individual concerned. As stated in Mr.
Bet~ncourt secosnd declaration, submitted herewith, the United States
usually depends on the individual to provide the requisite information.
4 appended to this submission responds in detail to that
Declaration and explains, inter alia, that because the
nationality laws of the United States are extremely
complex, especially with regard to derivative nationality,
it is not uncommon for a persan not to know that he or she
is a United States citizen.
Mexico submits additional declarations from, or on
behalf of, forty-one of the individuals whose cases Mexico
has brought before this Court, in an effort to prove the
Article 36 breaches i t alleges. In gen·eral, these self
serving declarations add little to the conclusory
statements already made in the Declaration of Ambassador
16
Rodriquez Hernandez , and in sorne cases they are inaccurate
or misleading. For example, the Declaration of Conrad
Petermann 17, which is made on behalf of Ramon Boj6rquez
Salcido (#22), asserts that "[h]e never learned that he had
the right to request the assistance of the Consulate of
Mexico". Ambassador Hernandez' Declaration in Mexico's
Memorial states, however, that Boj6rquez Salcido requested
assistance from the Mexican consulate five months after
arriving in the United States 18 • In addition, the Petermann
Declaration makes no mention of the fact that Boj6rquez
Salcido was deported to the United States at his own
request, based upon Boj6rquez Salcido's sworn statement
before a Mexican court that he had renounced his M19ican
nationality and had become a United States citizen •
Another example of inconsistencies between Mexico's
Memorial and its recent submission is found in the
declaration of Luis Alberto Maciel Hernandez, which states
It is simply untrue that, as Mexico claims, all the necessary
information is in United States' hands, and it is clear that the
necessary information is far more readily available to Mexico.
16 All but five of these declarations were made after the United States
submitted its Counter-Memorial, and they generally consist of a rote
statement regarding nationality, a general claim that they were not
provided consular information following their arrest, and an assertion
that bad they been provided consular information they would have
im~edia tequestd consular notification and assistance.
17 1
26 November letter, Annex 70, Appendix 20.
18 jemorial, Annex 7, Exhibit A at para. 117.
19 Declara ti on of Ramon Salcido Boj 6rquez, reprinted in, Counter-
Merr!orial, Volume II, Annex 2 at Al51.
5 "I was not able, either before or after the trial, to
receive the Consulate's help because I did not know I had
20
that right" • This directly contradicts Mexico's assertion
that it has been "rendering assistance, both legal and
otherwise", including attending Hernandez' sentencing
21
hearing, since learning of his case on 28 April 1998 •
Other declarations raise similar discrepancies with regard
22
to the provision of consular assistance •
Mexico asserts that with these· additional declarations
it has proven breaches of Article 36 in these cases. It
has not. In addition, Mexico asserts that it need not
prove breaches in the remaining cases because prosecutors
have stipulated, or courts in the United States have found,
that the competent authoritie23 failed to provide consular
information without delay • The United States notes that
20
26 November let ter, Annex 70, Appendix 12 (emphasis added) .
n Memorial, Annex 7, Appendix A at para. 69.
22
The recently submitted February 1994 affidavit of Cesar Robert Fierro
states "I first learned of my right to contact the consulate from
Hernan Ruiz, who visited me a few weeks ago and told me about this
right. Before that, I bad never beard of the Vienna convention on
Consular, Relationsn. 26 November letter, Annex 70, Appendix 26 (this
affidavit was previously submitted as part of Annex 33 of the Memorial,
page A680) . This appears to be at odds with the assertion in
Ambassador Hernândez' declaration that Mexico learned of Fierro Reyna's
detention "after his sentence was imposed", (which the United States
has determined was no later than 1991), and has since been providing
him "extensive and ongoing consular assistanceu. Memorial, Annex 7,
Appendix A at para. 172. Similarly, the recently submitted affidavit
of Mario Flores UrbAn states "[m)y first contact with the Mexican
Consulate's Office was on or about September 1988 when I received a
Deportation summons from the Immigration and Naturalization Service".
26 November letter, Annex 70, Appendix 36. This contradicts the
earlier assertion in Ambassador Hernândez' declaration that Mexico
learned of Flores Urbân's case in August 1985 and "began rendering
assistance, bath legal and otherwise". Memorial, Annex 7, Appendix A,
para. 297.
23 Mexico asserts that "in ten cases, U.S. courts have found that the
United States violated Article 36(1) (b}". 26 November letter at 6.
This statement is misleading, and in one case incorrect. In three of
these cases (Sanchez Ramirez (#23), Ignacio G6mez (#33), and Ramiro
Iba'rra (#35)), the court merely found that the parties did not dispute
tha;t consular information was not provided to the defendant. In the
case of Leal Garcia (#36), the court noted that the interrogating
officer had testified that he had not provided consular information,
but found that suppression of Leal Garcia's statement was not
appropriate since he was not in custody when he provided the
6 state prosecutors may choose not to dispute such
allegations if they believe that the defendant's claim is
without merit, for example, in cases where the defendant is
unable to show that he was harmed by the failure to provide
consular information, even assuming that it occurred.
Even if this Court should find that these stipulations
and findings provide an adequate basis for finding that
Article 36(1) (b) was violated, Mexico must still prove that
the United States violated Article 36(2) and that the
remedies it seeks are available from this Court, and if so,
are appropriate, and warranted. This it has not done and
cannat do.
Mexico retains its burden of proof in establishing
that each and every individual for whom a failure of
consular information and notification is alleged, was, in
fact, subject to the VCCR's provisions, and that the United
States breached its obligations under Article 36 with
respect to each of these individuals. The latest Mexican
submission is not sufficient for Mexico to achieve that
goal.
Accept, Sir, the assurance of my highest
consideration.
d~ ~- 777c::::;;>)-
William H. Taft, IV
Agent of the United States
of America
statements. Ex Parte Leal, No. 94-CR-4696-Wl {186th Dist. Tex., Oct'.
20, 1999), at 62 {reprinted in Mexican Memorial, Aimex 51, A1133).
7 SECOND DECLARATION OF EDWARD A. BETANCOURT
CONCERNING UNITED STATES CITIZENSHIP LAW
1. 1am Edward A. Betancourt, Director of the Office ofPolicy Review and
lnteragency Liaison within the Overseas Citizens Services Directorate of the Bureau of
Consular Affairs of the United States Department of State. In connection with the Case
Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 1
have previously submitted the Declaration that is Annex 18 to the United States Counter
Memorial. 1am also familiar with the Declaration ofPeter W. Masan Conceming the
Fifty Four Cases, which is Annex 2 to the United States Counter-Memorial, and other
.relevant information within the possession of the United States regarding certain cases
discussed in that Declaration.
2. I have been employed in the United States Department of State for 29 years and
have performed functions relating to citizenship law throughout that period. During that
time, 1have assisted in citizenship adjudications ofthousands ofindividuals, including
both persons born abroad to a United States citizen parent and persans who were
naturalized automatically upon the naturalization of a parent or parents. As a lawyer
handling citizenship issues for the United States Government, 1have acquired particular
insights into the operation ofUnited States citizenship laws and the information on which
the United States Govemment relies to resolve citizenship questions. Most immigration
attorneys in private practice or acadernia would not have acquired these insights, or the
breadth of experience to understand fully the operation of the laws conceming citizenship
acquisition, especially with respect to derivative naturalization and citizenship acquisition
through a United States citizen parent. In fact, when speaking to groups of such
attorneys, I often begin by setting forth the differences between immigration law, with
which they are more familiar, and citizenship law, with which they are generally less
familiar.
3. 1have reviewed the Declaration of Karen F. Ellingson, Attorney at Law, annexed
1
to Mexico's letter ofNovember 26, 2003 • Ms. Ellingson daims to have taught,
lectured, and trained others in the area of immigration law, to be a member of certain
immigration law-related organizations, and to be a practicing immigration 1awyer. She
asserts that ber current practice is "devoted to immigration issues" and brings ber into
contact "with the procedures followed by United2States authorities in a wide variety of
naturalization and citizenship proceedings" • Based on this description of Ms.
Ellingson' s background, and the approach she has taken in her Declaration, 1consider it
highly unlikely that Ms. Ellingson has spent a significant amount oftime working on
1 Deciaration of Karen F. Ellingson, Annex 69 to Letter from Ambassador Santiago
Ofiate Laborde to Philippe Couvreur, Register, International Court of Justice, dated 26
Nov. 2003 ("Ellingson Declaration").
2 Ellingson Declaration, paras. 1 - 2. - 2 -
issues conceming the acql!isition of citizenship through birth to a United States citizen
parent abroad. I would also expect that her experience with derivative naturalization (as
opposed to naturalization on her client's own application) is limited. Ms. Ellingson's
Declaration reflects a fundamental misunderstanding ofUnited States citizenship law and
the citizenship adjudication process. Although the Declaration contains severallegal
errors, misapplications of the law, and false assumptions about the adjudication process, I
will highlight only a few.
4. First, Ms. Ellingson contends that, in the case of a child born abroad to on!y one
United States citizen parent, the child does not acquire citizenship until an application for
a certificate ofcitizenship (Form N-600) is filed on the child's beha!F with the
Department ofHomeland Security (or, previously, the Immigration and Naturalization
Service (INS)). This is untrue. Where the United States parent has satisfied the
applicable transmission requirements, the child acquires United States citizenship at the
moment ofbirth. See, e.g., 8 U.S.C. § 1401 ("The following shall be nationals and
citizensof the United States at birth: .... "). There is no requirement to seek
documentation ofthat citizenship. It is therefore fundamentally wrong to say that an N-
600 application should be readily available to immigration authorities to establish
citizenship, and consequently wrong to say that "[t]he absence of such an applica,ion
virtually exeludes any possibility of citizenship acquired by this means; that is, by a child
born abroad to one citizen parent',4. In fact, in the majority of cases, an N-600 is not filed
for children who acquire United States citizenship by birth abroad to a United States
citizen parent. Instead, a Consular Report ofBirth Abroad of a Citizen of the United
States of America or a United States passport, both Department ofState documents, may
be sought. In many cases, however, no documentation is sought at ail. Yet in every case,
the individualisa United States citizen, regardless ofwhether the United States
Govemment has any record of the child 5•Because our laws do not require that United
States citizens be documented as such, there likely are millions ofUnited States citizens
for whom the United States Govemment has no record of citizenship.
5. Moreover, it is my professional experience that it is not uncommon for persons to
be unaware ofwhether they or their children are United States citizens. This is
particularly true among persons born in Mexico and Canada. Often persons in Canada
3 Ellingson Declaration, para. 11.
5
As noted in my first declaration, there is no comprehensive register maintained by the
United States Govemment that lists the names of ali United States citizens, and United.
States citizens do not carry a national identity card. lnstead, a record is created when
proof of citizenship is sought (for example, if a passport application is filed or a
certificate of citizenship is sought). United States cîtizens commonly do not apply for
passports until they are preparing to travel outside the United States to an area where a
passport is required. United States law bas not generally required United States citizens
to carry a passport to travel between the United States and adjacent countries such as
Mexico and Canada. See 22 C.F.R. § 53.2. - 3 -
and Mexico who are unaware of theîr United States citizen status are children ofUnited
States citizens, but the United States·citizen parent has concealed that factor the
possibility that hisor her child is a United States citizen because of concems related to
prohibitions on dual nationality (I understand that Mexico prohibited dual nationality
until a constitutîonal amendment in 1998) or prohibitions on foreign ownership of
property (also historically present in Mexico). A United States citizen parent may also
choose to withhold information about possible United States citizen claîms from his or
her child for fear that the child may elect to move to the United States, thereby
abandoning the parent. It is my professional opinion that there are many United States
citizens who are unaware oftheir United States citizenship.
6. In many cases, the fact that a person is a United States citizen is not adjudicated
until the person applies for a visa on the assumption that he or she is not a United States
citizen. Because a visa may not be issued to a United States national, a consular officer,
ifpresented with a visa application from an applicant with indicators ofUnited States
nationality, is expected to investigate the individual's citizenship even if the applicant has
not claimed to be a United States citizen. In fact, with respect to immigrant visa
applications, no final action may be taken on the visa until the citizenship issue is
resolved.
Acquisition of United States Citizenship At Birth by Persons Born Outside the United
States to One United States Citizen Parent
7. Second, Ms. Ellingson incorrectly analyzes the citizenship indicators in the two
cases she discusses in depth- Carlos Avena Guillen and Hector Juan Ayala- both of
whom appear to have been born outside the United States to a United States citizen
parent, a fact that is a strong indicatorof United States citizenship 6.
Carlos Avena Guillen
8. In the Avena Guillen case, Ms. Ellingson begins by asserting that "[a]ccording to
records maintained by the United States, Mr. Avena bas never applied for citizenship.
This fact alone is powerful- perhaps conclusive- proofthat Mr. Avena is not a United
7
States citizen." This statement reflects a basic misunderstandîng of the law. IfMr.
Avena acquired United States citizenship through his United States citizen father, no
app.lication for citizenship should exist in United States records. Children who acquire
citizenship through birth abroad to a United States citizen parent would not "apply" for
United States citizenship- they are United States citizens already. As United States
6 I cannat undertake a final adjudication ofU.S. citizenship, or of the indivîdual elements
of a citizenship claim, with respect to either Mr. Avena or Mr. Ayala in this context.
Before such an adjudication could be made, I would need to review original or certified
copies of relevant documents, as well as, in sorne cases, to collect statements or other
information from the individual, family members, or others with relevant information.
7 Ellingson Declaration, para. 12. - 4 -
citizens, they may or may not apply for documentation oftheir citizenship, but, as
explained above, documentation is not necessary to their status.
9. Ms. Ellingson also misunderstands the citizenship law applicable to Mr. Avena's
case. Assuming that Mr. Avena was, as Ms. Ellingson asserts, born out ofwedlock 8,
there are three issues that would control citizenship transmission: patemity, legitimation,
and the father's periods ofphysical presence in the United States prior to Mr. Avena's
birth. With respect to the first, Ms. Ellingson notes what she characterized as the "strict
patemity requirements" that pertain to a child born abroad and out ofwedlock to a United
States citizen father. It is true that the individual must provide "clear and convincing"
evidence of patemity in such cases, but this standard is not difficult to meet in cases
where, as in the case ofMr. Avena, there does not appear to have been any question asto
patemity. It appears that Mr. Avena's parents remained together at the time of the birth
and for sorne time thereafter (four more children were apparently born to the couple) and
the United States citizen father is listed on the birth certificate (which, in fact, states that
they were "casados" or "married"l Information such as this would normally be
·sufficient to establish paternity. No blood tests are required, and the standard is not proof
beyond a reasonable doubt.
1O. Citizenship would also depend on legitimation, a subject that Ms. Ellingson fails
to address. Legitimation would not normal!y be a difficult hurdle where, as in this case,
10
the parents married when Mr. Avena was fourteen and it appears that the father held
Mr. Avena out as his own child. Thus, the information available about Mr. Avena also
suggests that the requirement of legitimation bas been met for purposes of allowing Mr.
Avena's father to transmit United States citizenship to his son.
11. The final question to be addressed is whether Mr. Avena's father met the
applicable United States physical presence requirements for transmittal of citizenship to
his son. What is needed is information detailing the periods oftime that the father was
present in the United States prior to Mr. Avena's birth. This type of information is not
normally available to the United States but instead is usually provided to the United
States by the individual in question. Nothing in Ms. Ellingson's Declaration or in the
other material submitted by Mexico on November 26, 2003, provides this information
with respect to Mr. Avena's father.
8There is sorne question asto whether the out-of-wedlock analysis that Ms. Ellingson
applies is the proper analysis. She indicates that counsel for Mexico have confirmed that
Mr. Avena was born out of wedlock through his parents' marriage certificate. However,
the Mexican birth certificate included in Mexico's submission for Mr. Avena indicates
"casados" or "married" as his parents' civil status.
9
See general/y Declaration ofSaul Achoy, attached as Exhibit 1 to Ellingson
Declaration, paras. 13-18, 22-24.
10
1have seen a copy of a California Record ofMarriage indicating that Mr. Avena's
parents were married on February 3, 1975. A prior, Mexican, marriage record could
exist, but 1am not aware of the existence of such. - 5 -
Hector Juan Ayala
12. In the case of Hector Ayala, Ms. Ellingson's analysis also raises questions. The
first question to be resolved in this case is whether Mr.Ayala's parents were married at
the time ofhis birth on June 24, 1952. IfMr. Ayala was born in wedlock, Ms. Ellingson
îs correct that his mother would need to have resided for ten years in the United States
prior to his birth in order to convey United States citizenship. However, ifMr. Ayala was
born out of wedlock, pursuant to the Section 205 of the Nationality Act of 1940, in effect
at the timeof his birth, Mr. Ayala's mother need only have resided in the United States at
sorne point prior to his birth. Information available to the United States suggests that, in
fact, Mr. Ayala should be considered to have been born out ofwedlock, but that, in any
event, his mother likely met the ten-year residence requirement for children born in
wedlock.
13. There is a significant possibility that Mr. Ayala should be considered to have been
born out ofwedlock, a possibility which Ms. Ellingson ignores. Although, as in the case
ofMr. Avena, the birth certificate lists the parents as "casados" or "married", court
transcripts from Mr. Ayala's case, attached as Exhibit 1 to this Declaration, suggest that
Mr. Ayala's mother was Jegally married to someone other than Mr. Ayala's father at the
time of Mr. Ayala's birth, although she bad separated from ber husband and had
established a new household in a different city with Mr. Ayala's father. See Exhibit 1, p.
18184 (noting that Mr. Ayala's mother was first "married" to Raul Saenz, then moved
and "entered a partnership" with Mr. Ayala's father). Under these circumstances, the
"out ofwedlock" rules would be applied, and Mr. Ayala's mother need only have resided
in the United States at sorne point prior to his birth in arder to convey United States
citizenship. Based on the information 1have reviewed, it seems evident that Mr. Ayala's
mother would have satisfied this standard. See, e.g., Exhibit l, p. 18187 (noting that Mr.
Ayala's mother "was the child of migrant fann workers, and spent a lot ofher time" in
the Oxnard, Califomia area); Ayala Birth Certificate, Exhibit 1 to Appendix 2 of
Declaration ofPeter W. Masan Conceming the Fifty Four Cases, United States Counter
Memorial, at Annex 2 (listing the domicile ofMr. Ayala's parents as Otay, California).
14. It is also my professional opinion that the ten-year residence requirement that
would pertain ifMr. Ayala were born in wedlock was, in any event, likely met in this
case. Mr. Ayala's birth certificate indicates (1) his mother was an American citizen; {2)
his mother's domicile, at the time of the birth, was in the United States; (3) her parents
(grandparents ofMr. Ayala) also resided in the United States at that time; and (4) she was
32 years old when Mr. Ayala was born. This single document- indicating her own
United States citizenship and United States domicile, that ofher parents, and a relatively
high maternai age- is strong evidence that she met the 10-year residence requirement
necessary to satisfy transmission requirements and thus that Mr. Ayala is a United States
citizen. In addition to this, Exhibit 1 to this Declaration suggests she spent significant
time in the United States. Exhibit 1, p. 18187. Also, it appears that the Saenz family (Mr.
Ayala's mother's first union, from which four children resulted) lived in Los Angeles,
Califomia. See Exhibît 1, p. 18184, 18191. Moreover, 1am aware of no evidence that
Mr. Ayala or his mother lived in Mexico for significant periods oftime. See, e.g., Exhibit
2, p. 12917 (testimony of Ayala's older brother confirming that Ayala family lived in - 6 -
Tijuana on three occasions, but for fairly short periods oftime). Thus, although 1do not
consider there to be enough information available to make a definitive determination of
United States citizenship in this case, ail available evidence that 1have reviewed points
toward Mr. Ayala being a United States citizen.
Acquisition of United States Citizenship Derivative!y Through Naturalization of a Parent
or Parents
15. Ms. Ellingson's statements on acquisition through naturalization are also
misleading.· For example, Ms. Ellingson asserts that the entire process for naturalization
would take, at minimum, five years plus the time necessary to apply for citizenship, have
the application successfully adjudicated, and complete the swearing in ceremony. In fact,
the time period required is shorter in sorne cases (for example, three years for persans
married to United States citizens). Moreover, insofar as the United States raised
particular citizenship concems about cases among the 54 originally at issue in this
litigation, many ofthese individuals arrived with their parents as infants or small
children. In these cases, the arrivai was weil more than five years and, in many cases,
1
weil more than a decade, before the person's 18 hbirthday, by which time naturalization
would have bad to occur. Moreover, in immigrant families, children will not infrequently
come to join a parent who has already been in the United States for sorne time. In these
cases, a child could arrive in the United States only shortly before the parent's
naturalization and still acquire citizenship at the time the parent naturalized.
16. Lastly, and as a general matter, Ms. Ellingson faits to appreciate the difficulties
faced in determining whether derivative naturalization bas occurred without the
participation and cooperation of the individual concemed. It would indeed taleeextensive
time and effort, and may weil be impossible, to backtrack through immigration records in
order to reach a definitive conclusion asto whether a derivative 11turalization has
occurred without the assistance ofthe individual in question • Although Ms. Ellingson
states that, in her experience, immigration authorities in the United States generally
12
experience little difficulty in accessing persona! information from alien resideqt files,
the contents of an individual 's "A" file can not be relied on to provide the necessary
information about whether that person benefited from derivative naturalization. lnstead,
the key information will be in the "A" files of the individual's parents, who may or may
not be identified in the individual's "A" file. In short, the most effective way to
determine whether these individuals are United States citizens would have been for
Mexico to have provided the information noted in my original declaration, principally
information conceming the individuals' parentsn. This Mexico has failed to do.
11 See Declaration ofDominick Gentile, Annex 19 to United States Counter-Memorial.
12
Ellingson Declaration, para. 9.
13In my previous affidavit, 1set forth the types of information that would be required in
order to make a determination of citizenship. See Declaration of Edward A. Betancourt,
Annex 18 to United States Counter-Memorial, paras. 4, 7 and 9. - 7 -
I solemnly declare upon my honor and conscience on /Oisth day ofDecember,
2003, that the facts stated herein are true ta the best of my knowledge and belief, and that
any opinions stated herein are in accordance withncere belief.
Edward A. Betancourt
Documents submitted by the United States of America after the Closure of the Written Proceedings