The case of the day is Demirchyan v. Gonzales (C.D. Cal. 2013).¹Sloppy! 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 [ellipsis] 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.” 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.²It’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. 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).³FRE 902(3) is similar. 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?

• 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 [ellipsis] 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.