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Porter v. Quarantillo

United States Court of Appeals, Second Circuit

July 8, 2013

Randolph Porter, Plaintiff-Appellant,
Andrea Quarantillo, District Director, New York District of the U.S. Citizenship and Immigration Services, United States Citizenship and Immigration Services, Defendants-Appellees,

Argued: April 5, 2013

Appeal from a grant of summary judgment by the United States District Court for the Eastern District of New York (Irizarry, J.) in favor of Defendants-Appellees the United States Citizenship and Immigration Services and the agency's New York District Director Andrea Quarantillo. In "[p]roceedings for declaration of United States nationality" brought pursuant to 8 U.S.C. § 1503(a), Plaintiff-Appellant Randolph Porter sought a declaratory judgment under 28 U.S.C. § 2201(a) that he has been a United States citizen since birth due to his mother's United States citizenship and fulfillment of certain other requirements. To show that she met one of those requirements, presence in the United States for a full year before Porter's birth, Porter sought to admit into evidence statements from his mother and several others asserting that she was born in the United States and left after her first birthday. The district court deemed the statements to be inadmissible hearsay that did not come within the family history exceptions or any other exception to the hearsay rule. We hold that this determination was not an abuse of the district court's discretion.

Zoe Salzman, Emery Celli Brinckerhoff & Abady LLP, New York, NY, for Plaintiff-Appellant Randolph Porter.

Margaret M. Kolbe (Varuni Nelson, Scott Dunn, on the brief), Assistant United States Attorneys, of Counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, New York, NY, for Defendants-Appellees Andrea Quarantillo and United States Citizenship and Immigration Services.

Before: B.D. Parker, Carney, Circuit Judges, and Rakoff, [*] District Judge.

Barrington D. Parker, Circuit Judge

Plaintiff-Appellant Randolph Porter, a naturalized United States citizen, sought a declaratory judgment from the district court (E.D.N.Y., Irizarry, J.) that he was entitled to derivative United States citizenship as of his birth. Porter's brother was killed on Pan Am Flight 103 by Libyan terrorists in December 1988, and if Porter were able to prove derivative citizenship, he ostensibly would be entitled to compensation from a settlement fund established by the governments of Libya and the United States. His argument below for derivative citizenship rested in large part on the assertion that his mother, Mary Diamond, herself a United States citizen, had remained in this country for over a year following her birth before she moved to St. Vincent and the Grenadines. Lacking other evidence, Porter attempted to show his mother's age at the time of her move by reference to a number of affidavits from his mother, other family members, and a family friend. The district court, determining that these statements were inadmissible hearsay, granted summary judgment in favor of Defendants-Appellees United States Citizenship and Immigration Services ("USCIS") and the agency's New York District Director Andrea Quarantillo. Porter appeals from that decision, and we are called on to decide whether the district court abused its discretion by not admitting the statements under the family history exceptions to the hearsay rule. See Fed. R. Evid. 803(19), 804(b)(4). We conclude that the district court did not abuse its discretion.


Porter's brother died on Pan Am Flight 103, which was destroyed over Lockerbie, Scotland by Libyan terrorists on December 21, 1988. Under a settlement reached between the United States and Libya, Porter may have been entitled to compensation for his brother's death if he could show that he, Porter, was a U.S. citizen at the time of the Lockerbie bombing. See Libyan Claims Resolution Act, Pub. L. No. 110-301, 122 Stat. 2999 (2008); Decision No. LIB-I-001, at 5-6 (Foreign Claims Settlement Commission 2009) (limiting compensation to claimants who were United States nationals "at the time of loss" (internal quotation marks omitted)), available at

Porter was born in St. Vincent in 1955 and became a naturalized U.S. citizen in 1995. He argued to the USCIS in 2011, however, that he was entitled to derivative U.S. citizenship as of the time of his birth because his mother Mary Diamond was a U.S. citizen (as a consequence of having been born in this country) and had been present here for at least one continuous year before relocating to St. Vincent. See 8 U.S.C. § 1409© (1952) (establishing requirements for derivative citizenship).[2] Whether Porter, with derivative citizenship, would be eligible to claim from the settlement fund is not at issue in this litigation. The USCIS denied Porter a certificate of citizenship, and Porter sued in district court seeking a declaratory judgment pursuant to 8 U.S.C. § 1503(a) and 28 U.S.C. § 2201(a) that he was a citizen at birth.

Porter relied on several affidavits to support his claim. One of these affidavits, submitted by his mother, Mary Diamond, stated that she was born in Brooklyn in 1929 and moved to St. Vincent in 1930 when she was "between one year old and two years old." App. 136. Diamond's childhood friend in St. Vincent, Thomas Brown, also submitted an affidavit stating that when they were children, Mary Diamond told him that she moved from New York to St. Vincent "when she was about one and a half years old." App. 142. According to Brown, it was "common knowledge" among people who knew Diamond during her childhood that she left the United States "when she was about one and a half years old." Id. Finally, affidavits from Diamond's third cousin, Porter's siblings, and from Porter himself all stated, in substance, that it was Diamond's "reputation" among her family members that she arrived in St. Vincent from the United States when she was approximately one and a half years old.

The parties cross-moved for summary judgment. The district court ruled that the affidavits submitted by Porter were inadmissible hearsay assertions, not subject to the personal or family history exceptions in Rules 803(19) and 804(b)(4). The court reasoned that Diamond's statement concerning her age at relocation (as opposed to the fact of relocation) and her reputation for being a certain age at relocation were not inherently reliable enough to fall within those exceptions. The court then held that Porter had failed to prove that his mother had been present in the United States for at least one year before his birth, as required by § 1409©, and that, consequently, he was not entitled to derivative citizenship. The court granted the government's motion, and this appeal followed.


When a party challenges a district court's evidentiary rulings underlying a grant of summary judgment, we undertake a two-step inquiry. First, "we review the trial court's evidentiary rulings, which define the summary judgment record." LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 211 (2d Cir. 2005). Because the "principles governing admissibility of evidence do not change on a motion for summary judgment, " Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997), we review the district court's decision to exclude evidence as hearsay for abuse of discretion, see United States v. Coplan, 703 F.3d 46, 84 (2d Cir. 2012). "[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment, " and a "district court deciding a summary judgment motion has broad discretion in choosing whether to admit evidence." Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009). A district court abuses its discretion when it bases its ruling "on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions." Sims v. Blot (In re Sims), 534 F.3d 117, ...

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