Tag Archives: Hague Apostille Convention

Case of the Day: Walia v. Aegis Center Point Developers

The case of the day is Walia v. Aegis Center Point Developers Pvt. Ltd. (N.D. Cal. 2014). According to the complaint, Aegis was in charge of a real estate project in India. It recruited Gurinder Walia to serve as a director, manage investors, and raise capital. Walia and Siddhartha Kumar were the managers of Aegis, and they agreed to share the profits equally. Walia’s claim was that Aegis and Kumar improperly appointed a new director and deprived him of profits.

Walia sued Kumar and Aegis in a court in Chandigarh, India, seeking a permanent injunction. But the Indian court dismissed his claim on the merits. Walia then sued in the Northern District of California. Aegis and Kumar moved to dismiss.
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The New Handbook on the Apostille Convention

Fanny Cornette calls our attention to the new Handbook on the Apostille Convention published by the Permanent Bureau of the Hague Conference on Private International Law.

I would like to introduce the new Handbook prepared by the Permanent Bureau of The Hague Conference of Private International Law concerning the Apostille Convention.

According to the Conclusions and Recommendations of the 2009 Special Commission of the Hague Conference on Private International Law, the Permanent Bureau was encouraged to publish a practical Handbook concerning the Apostille Convention. Prior to this Handbook, the Permanent Bureau had already published two brochures.

The first one was “The ABCs of Apostilles (FAQs),” which provided practical answers to the fourteen most frequently asked questions. This brochure enabled anyone to understand how the Apostille system works.

The second brochure was a Brief Implementation Guide, which gave information to the relevant authorities of the states interested in joining the Apostille system.

The new Apostille Handbook is the latest and most complete one. Unlike the Service Convention Handbook, which must be purchased, the Apostille Handbook can be freely downloaded directly from the HCCH Website.

The Handbook is divided into six parts and five annexes:

I. About the Apostille Convention
II. Competent Authorities
III. Applicability of the Apostille Convention
IV. The Apostille process in the State of origin: request—verification—issuance—registration
V. Acceptance and rejection of Apostilles in a State of destination
VI. The e-APP

Annex I. Text of the Apostille Convention
Annex II. Flowchart on the accession procedure
Annex III. Model Apostille Request Form
Annex IV. Flowchart on requesting, issuing and registering Apostilles
Annex V. Notice for newly acceding States wishing to inform relevant authorities and the general public of the upcoming entry into force of the Convention

The Handbook will be a useful tool for all the national competent authorities but also for practitioners and researchers.

To conclude, just a few word to welcome the new Secretary General Christophe Bernasconi of The Hague Conference on Private International law, who assume the post since the 1st of July 2013. See his welcome note on the website of The Hague Conference.

Case of the Day: Demirchyan v. Gonzales

The case of the day is Demirchyan v. Gonzales (C.D. Cal. 2013). 1 In 2005, the government ordered Arutyun Demirchyan deported for reasons that do not appear in the decision. In Demirchyan v. Mukasey, 278 Fed. Appx. 778 (9th Cir. 2008), the Ninth Circuit affirmed the Board of Immigration Appeals’s decision not to reopen the proceedings, but it transferred the case to the District Court for a decision on the merits of Demirchyan’s claim that he was a United States citizen. If he were a citizen, then of course he could not be deported. The question turned on whether he was born in 1977, as Demirchyan claimed, or in 1976, as the government claimed. If he was born in 1977, then he was a citizen by virtue of his mother’s naturalization before he turned 18 years old. But if he was born in 1976, then he turned 18 before his mother’s naturalization, and he did not acquire citizenship when she was naturalized.

The District Court held evidentiary hearings in 2009 and 2010, and it found that Demirchyan had failed to prove by a preponderance of the evidence that he was a citizen. The judge relied primarily on two documents showing a 1976 birthdate: a “Registration for Classification as a Refugee”, and a copy of his birth certificate issued in 1988, which Demirchyan himself had submitted to the US embassy in Moscow when he sought to emigrate to the United States. The judge refused to credit a birth certificate issued by the Armenian government in 2000, showing a 1977 birth date, on the grounds that it was hearsay. 2 The judge also rejected testimony of relatives on the grounds that it was not credible.

On appeal to the Ninth Circuit, the court remanded the case to the District Court for the purpose of hearing additional evidence. Demirchyan offered a bunch of new evidence, including, notably, a birth certificate apparently issued by Armenia in 1997 showing a 1997 birth date. But to be self-authenticating (i.e., to be admissible without extrinsic evidence of authenticity) the birth certificate had to be “attested by an authorized person and [had to be] accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.” FRCP 44(a)(2)(A)(ii). 3 The reference to a “certification under a treaty or convention” is a reference to the Hague Apostille Convention. Armenia is a party to the Convention, but Demirchyan offered no apostille. Nor did he offer any other “final certification of genuineness,” which under FRCP 44(a)(2)(B) had to be made “by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.” In other words, Demirchyan didn’t follow the old-fashioned “chain legalization” procedure, and he didn’t follow the newer apostille procedure. So the document was not self-authenticating.

Of course, a document need not be self-authenticating to be admissible in evidence: under FRE 901(a)(1), all that is required is “evidence sufficient to support a finding that the item is what the proponent claims it is.” The judge considered and rejected the testimony of several witnesses that, if believed, would support a finding that the birth certificate was authentic, and the judge excluded the certificate from evidence. I think it would have been better to admit the certificate in evidence but then to find that it was not genuine. The judge may have proceeded as he did because there was no jury; but if there had been a jury it seems to me that the authenticity of the document would have been a jury question. But I digress.

The judge considered and rejected various other documents on his way to his ultimate finding that Demirchyan had failed to meet his burden of proof. Thus the judge rejected Demirchyan’s claim of citizenship.

If I may editorialize for a minute, could the government not cut Demirchyan some slack?

Notes:

  1. Sloppy! The case should have been re-titled Demirchyan v. Holder, since under FRCP 25(d), “An action does not abate when a public officer who is a party in an official capacity … ceases to hold office while the action is pending[, but the] officer’s successor is automatically substituted as a party[, and] later proceedings should be in the substituted party’s name.” On the other hand, “any misnomer not affecting the parties’ substantial rights must be disregarded.”
  2. It’s hard to understand the basis of a hearsay objection without more explanation, since under FRE 803(9), a “record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty” is admissible in evidence even if it is hearsay.
  3. FRE 902(3) is similar.