United States District Court, D. Nevada
before the court is plaintiff Mario Escobedo-Gonzalez's
motion for summary judgment. (ECF No. 18). Defendant
Secretary of the Department of State John Kerry (the
“government”) filed a response (ECF No. 22), to
which Escobedo replied (ECF No. 25).
case is about the Department of State's
(“DOS”) denying Escobedo a passport on the
grounds that he did not provide the requested evidence to
show that he is a U.S. citizen. On January 23, 1987, the
United States Department of Justice, through the Immigration
and Nationalization Service (“INS”), began
removal proceedings against Escobedo. (ECF No. 13). The INS
argued that Escobedo was born in Mexico and not in Cameron
County, Texas, as reported in his birth certificate. (ECF No.
13). The INS received evidence that the nurse who signed
Escobedo's birth certificate was not actually present
during his birth. (ECF No. 18-3). The immigration judge ruled
in favor of Escobedo finding that INS failed to satisfy its
burden to prove, by clear and convincing evidence, that he
was a deportable foreign national. (ECF No. 18-3).
this ruling, Escobedo applied for a passport with the DOS.
(ECF No. 13). The DOS approved Escobedo's application and
issued him a passport on July 21, 1995. (ECF No. 18-4).
Escobedo applied to renew his passport on March 28, 2005, and
the DOS issued his renewal on April 13, 2005. (ECF No. 18-4).
April 7, 2015, Escobedo applied for his second passport
renewal. (ECF No. 18-4). On May 7, 2015, the DOS requested
Escobedo's certified birth certificate to prove his
citizenship because the evidence had surfaced that the
midwife who signed Escobedo's birth certificate was not
present at his birth. (ECF No. 18). Escobedo, through his
counsel, responded with a letter and attached the immigration
judge's opinion which had resolved the issues that the
DOS was concerned with during a removal proceeding. (ECF No.
18-5). The DOS responded with an additional letter again
requesting Escobedo's birth certificate, or other
documentation to prove that Escobedo was born in the United
States, to which Escobedo did not respond. (ECF No. 18-5).
Two months later, the DOS denied Escobedo's renewal
request because Escobedo did not provide his birth
certificate, and because the DOS did not believe that
Escobedo had proven his citizenship by a preponderance of the
evidence. (ECF No. 18-5).
filed the underlying complaint alleging that the DOS's
actions in denying his passport renewal violates 8 U.S.C.
§ 1503 and asks the court to declare under 28 U.S.C
§ 2201 that Escobedo is a U.S. citizen. (ECF No. 13).
instant motion, Escobedo moves for summary judgement on that
claim. (ECF No. 18).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by ...