Lista de contenidos

• Introduction
• Why should the apocryphal Mexican birth certificate be annulled?
• How Should an Apocryphal Mexican Birth Certificate be Annulled?
• Actual Procedure and Its Processing
• Nullity Procedure
• I.- Family Complaint (demand)
• 1.- The Judge Before Whom It’s Filed the Family Complaint
• 2.- The name of the plaintiff and the address to receive notifications
• 3.- Claims
• 4.- The Evidence Intended to be Presented at the Trial
• 5.- The Signature Stamped on the Family Complaint
• II.- Hearings
• III.- Judgment

Introduction

Living on the border with the United States of America engenders a different family dynamic than the rest of Mexico, as it is common for families to have ties on both sides of the border. That is the case, for example, of Ciudad Juárez, Chihuahua, where its inhabitants, seeking a better life for their children, hundreds of mothers decide to give birth in our neighboring country even if they plan to live in Mexico.

With such practices comes the need for the newborn to be able to move freely in both countries. Sadly, the solution for their parents, out of ignorance, also decide to register him in Mexico as if he were born here. This causes a double registration that, in the future, may bring immigration problems to newborns on both sides of the border. All for not knowing the simplicity and benefits of dual nationality—which we will discuss in another entry—.

Faced with this problem, once the newborns grow up and understand their situation and make their own decisions, they probably want to correct their immigration situation in Mexico, as their parents should have done from the beginning. That is, obtaining dual nationality and leaving behind the apocryphal birth certificate record wrongly carried out. But for this to be possible, what do they need to do it? In this entry, we will tell you.

Why should the apocryphal Mexican birth certificate be annulled?

First off, considering the multiple international treaties and information exchanges between the governments of the United States of America and Mexico, coupled with technology, now it is easy for both countries to realize if there is a double record of one of their citizens in their counterpart. Information that may lead to sanction them immigrationally as there is doubt about the true place of birth, which may come to light while registering, for example, with the Tax Administration Service or by submitting any important government procedure.

On the other hand, if the intention of people who have an improper double registration is to regularize their immigration status in Mexico and process dual nationality, one of the many requirements requested by the Civil Registry of the State of Chihuahua is a Certificate of Non-existence of Birth Certificate. That is, it effectively corroborates that you are not registered as born in Mexico, which you will not be able to satisfy without the nullity of the apocryphal birth certificate.

How Should an Apocryphal Mexican Birth Certificate be Annulled?

The procedure for invalidating a Mexican birth certificate depends on each federal entity of Mexico. In the case of Chihuahua, although the State Congress enacted an administrative and expeditious way to annul birth certificates on November 19, 2016, it failed to issue the respective regulations so that its creation would not be a dead letter.

We state the above because pursuant to article 130 of the Civil Code of the State of Chihuahua, lawmakers stipulated that the annulment of civil status certificates—including, of course, birth certificates—proceeds through administrative jurisdiction in the following case: […] C) to cancel the birth registration of a person who presents a different birth certificate issued by the competent authority of another country, duly apostilled or legalized by the issuing country.

Administrative venue that was supposed to be carried out before the Director of the State Civil Registry or Head of the Civil Registry Office of the Municipality or town in which the birth certificate to be annulled was issued. Moreover, once the annulment has been raised, the competent official, within 5 business days, would have to be immediately sent to the competent judge via voluntary jurisdiction—non-contentious judicial procedure—to be evaluated, and if there are no errors, it shall become final the annulment.

Procedure that, as we said, is not properly regulated in our state. Consequently, even if you comply with the requirement of carrying the original foreign birth certificate duly translated and apostilled, the administrative unit of the Civil Registry of the State of Chihuahua will refrain from annulling it without the court’s intervention.

Actual Procedure and Its Processing

As administrative jurisdiction is technically barred in our state, individuals who seek to annul their birth certificates must file an Ordinary Oral Family Trial to challenge their civil status, according to article 12^[1] of the Code of Family Procedures of the State of Chihuahua.

Nullity Procedure

I.- Family Complaint (demanda)

First, like any other lawsuit in family matters, the complaint must be drafted indicating and following these rules:

1.- The Judge Before Whom It’s Filed the Family Complaint

In our state, it shall be the Family Judge for Oral Trials.

2.- The name of the plaintiff and the address to receive notifications

The person who files the family complaint does not necessarily have to be the person whose certificate is to be annulled since, according to our state legislation, the following may also validly annul a birth certificate: 1) the people who are mentioned in the birth certificate labeled as null (parents, grandparents, etc. ) and 2) their heirs. This occurs, above all, in the case of disputes over inheritance issues.

In this kind of trial, it is an essential requirement to sue the official or person in charge of the Civil Registry who issued the apocryphal birth certificate, along with the parents of the interested party and/or their succession, if they have died, since it is the latter who, due to some circumstance, could have some interest in defending the legality of the birth certificate that is described as null in the lawsuit. This is corroborated with a very ancient criterion of the Supreme Court of Justice of the Nation that to these days is broached up by courts: CIVIL REGISTRY, NULLITY OF REGISTRATIONS RECORDED IN THE BOOKS OF THE. LITIS CONSORTIUM NECESSARY PASSIVE^[2].

As for the Civil Registry Official, you must consider that if your birth certificate, let’s say, was registered in the Municipality of Praxédis Guerrero, Chihuahua, it is the official of that registry that you must sue, even if you can challenge that certificate under Ciudad Juárez’s jurisdiction. This can be done because the judges of Ciudad Juárez have the power to summon the Civil Registry Officer of that region (and others) through a request-letter addressed to the minor or mixed Judge of Praxédis Guerrero soliciting their aid to render the service of summons, with the only consequence that the trial itself may take a little longer.

This is important to note because it is very common for parents who double-register their children to choose to register them in a sparsely populated municipality, perhaps to ‘reduce’ the risks of getting caught.

On the other hand, there may be a case in which one of your parents died or is untraceable simply because you have no relationship with them. In both cases, as the plaintiff, you must still notify the annulment claim through a service of summons.

In the first of the cases mentioned, through the estate executor, if he does not exist, you would have to begin your parent’s estate process following the corresponding procedure that we discuss in this entry where we discussed the rules of inheritance processes in Chihuahua. Regarding the lack of knowledge of the address of one of your parents, you must exhaust the procedure established in article 110 of the Family Procedures Code of the State of Chihuahua.

The previous procedure implies that the judge requests information from public and private agencies to obtain the defendant’s last known address. If they inform the address, an attempt must be made to notify them. If he is sure that it is not the address or simply informs that there are no known addresses, then the judge shall authorize the summons by publications, which is a legal fiction consisting of making three publications of the call for trial in a newspaper with wide circulation in the state, with a period of three in three days.

3.- Claims

Claim that in this case is that the court decrees the nullity and cancellation of the birth certificate deemed null and orders the registration of the resolution that so decrees.

4.- The Evidence Intended to be Presented at the Trial

In this stage, when there is really no controversy, either because the parents (who, as we have already stated, must be called to trial) do not decide to litigate the matter, it shall be enough to exhibit the foreign birth certificate with an apostille and duly translated to be considered enough to nullify it, as the Mexican Supreme Court of Justice of the Nation stated: MEXICAN BIRTH CERTIFICATE. THE FACT THAT IT STATES THAT THE DELIVERY HAPPENED IN MEXICAN TERRITORY, HAVING BEEN ACCREDITED IN TRIAL THAT IT HAPPENED ABROAD, CONSTITUTES A SUBSTANTIAL DEFECT WHICH MAKES THE NULLITY OF IT APPROPRIATE (LEGISLATIONS OF THE STATES OF JALISCO AND COAHUILA)^[3].

With the above, you can avoid providing unnecessary witnesses and other means of evidence that would only delay the process. However, this is only possible when comparing the two birth certificates can easily deduce that the original and legitimate is foreign. In any case, we recommend presenting other evidence (like public documents) proving the plaintiff lived all his life in the other disputed country and that he has never been settled in Mexico.

If there is still some trace of doubt after comparing the two birth certificates, we recommend you offer at least two testimonies that the foreign one is the legitimate one, especially when—rarely—one of the parents answers the family complaint and disputes the nullity of their son’s birth certificate.

Now, since it is impossible to offer evidence at any stage of the process, but rather, it must be mentioned at the beginning of the lawsuit while filing the case, it is always advisable to offer witnesses and all the evidence considered suitable for the case, but knowing that you can simply forgo the evidence if they are unnecessary during the trial.

Finally, if during the trial the defendants fail to answer the family complaint and, with this, everything is presumed to be true, coupled with the fact that the comparison of the two birth certificates shows that the Mexican one is later, then there you could easily not present your witnesses. However, we insist if there is no such clarity from this comparison, you would have to strengthen your claims with other evidence, such as testimonials, since even the lack of an answer from your parents is insufficient to generate conviction of the nullity of the Mexican birth certificate as our highest courts have established: NULLITY OF BIRTH CERTIFICATE. EVIDENTIAL SCOPE OF THE FICTA CONFESSION IN THE TRIAL^[4].

5.- The Signature Stamped on the Family Complaint

We believe that this topic does not deserve further explanation.

II.- Hearings

As a special rule contemplated in article 198^[5] of the Code of Family Procedures of the State of Chihuahua, since the matter of an annulment of a civil status record is being dealt with, the judge must summon an extraordinary hearing within no more than ten days, in where the evidence shall be presented orally, arguments shall be formulated, and the corresponding judgment shall be issued at the only hearing.

III.- Judgment

Unlike the rectification of civil status records, which, at the time of issuing the judgment, are reviewed ex officio by the Family Magistrate of the Superior Court of Justice of the State of Chihuahua, judgments declaring the nullity of a birth certificate are not reviewable ex officio. However, this does not prevent any of the interested parties from filing an appeal relief against the corresponding judgment.

By beLegal abogados S.C

Staff

Abogados en Ciudad Juárez, Chihuahua, México

Contact the firm at: [email protected]

Call (656) 774-75-73 for English assistance or (656) 271- 41-43 for Spanish assistance.

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^[1] Article 12.- The civil status legal actions are intended to: verify the birth, death,

marriage or its annulment, concubinage, filiation, recognition of sons and daughters, emancipation, guardianship, adoption, possession of status, divorce, absence and presumption of death, parental authority, interdiction, or contesting any of the records of the Registry Civil for its nullification, validation, replacement and rectification or adaptation to reality social of the interested party.

Judicial resolutions issued in the exercise of civil status’s actions harm even those who

did not litigate the case.

3.- The Names of People Being Sued

^[2] Third Chamber of the Supreme Court of Justice of the Nation. Seventh Judicial Epoch. Not binding precedent (tesis aislada) Digital Number: 241559.

^[3] Title: 1a./J. 88/2010. First Chamber of the Supreme Court of Justice of the Nation. Ninth Judicial Epoch. Binding precedent (jurisprudencia) Digital number: 161928.

^[4] Title: III.2o.C.188 C. SECOND COLLEGIATE COURT OF CIVIL MATTERS OF THE THIRD CIRCUIT. Ninth Judicial Epoch. Not binding precedent (tesis aislada) Digital Number: 162536.

^[5] Article 198.- In the case of matters that do not involve controversy, among others, the submission of the family complaint, as well as the rectification or nullity of a civil status record, the procedures shall be verified in an extraordinary hearing, in which the evidence shall be exposed orally, formulated pleadings and the judgment shall be issued it there.

If the disputed issues were purely of law and not of fact, once the litigation has been established, the court shall grant the parties the use of their voice to argue their right and shall summon them to the extraordinary hearing within a period of no more than ten days and therein the judgment shall be issue it.