Interim Decision #2044 

MATTER OF PEIGNAND 

In Deportation Proceedings 

A-11862196 

Decided by Board May 1, 1970 

Since respondent, who was born out of wedlock on January 29, 1936, was 

never legitimated, he did not, through the naturalization of his mother in 

December 1943, acquire U.S. citizenship under the Nationality Act of 

1940, neither did he derive citizenship under section 321(a) of the Immigration and Nationality Act since he was over 16 years of age on December 24, 1952, the effective date of the Act.* 

CHARGE: 

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251 (a) (11) I—Convicted of violation of any law or regulation 

relating to the illicit traffic in narcotic drugs, to 

wit, heroin. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Antonio C. Martinez, Esquire R. A. Vielhaber 

77 Seventh Avenue Appellate Trial Attorney 

New York, New York 10011 

(Brief filed) 

The respondent appeals the decision of the special inquiry 

officer who denied his motion to reopen the proceedings to give 

further consideration to the question of his deportability. We will 

dismiss the appeal. 

At the deportation hearing on September 25, 1964, the special 

inquiry officer found that the respondent was deportable as 

charged and ordered that he be deported to his native country, 

the Dominican Republic. He also found that respondent was not 

eligible for any type of discretionary relief. The appeal alleges 

that the respondent was not accorded due process of law at the 

hearing because he was not represented by counsel and also that 

the respondent is a United States citizen and thus is not subject 

to deportation. 

* Reaffirmed. See 440 F.2d 757 (1971). 

566 
Interim Decision 4#2044 

The respondent is a 34-year-old unmarried male, born in the 

Dominican Republic on January 29, 1936, who at last arrived at 

San Juan, Puerto Rico on July 30, 1963, at which time he was admitted as a visitor for pleasure. On March 6, 1964, he was convicted in the Superior Court of Puerto Rico, San Juan Division, 

of possession of heroin and was sentenced to serve a term of five 

to nine years in prison. 

The record is quite clear that at the time of the original deportation hearing, the respondent was duly advised of his right to 

counsel and that he intelligently and knowingly waived the right. 

It is settled law that in a deportation hearing the respondent has 

the absolute right to waive counsels and if the hearing is eminently fair in all respects, respondent's constitutional rights are 

not violated by the absence of counsel, since a deportation hearing is a civil and not a criminal matter. 2A respondent has not 

been denied counsel when he waives his privilege to be 

represented.' In the instant case the respondent received a fair 

hearing in accordance with the law and there was no denial of 

due process of law.4 

The respondent's claim that he is a United States citizen is 

without foundation. He was born on January 29, 1936 and was an 

illegitimate child. He was never legitimated. His mother came to 

the United States and was naturalized on December 2, 1943. 

Under the Nationality Act of 1940, which was in effect when the 

mother was naturalized, a child born out of wedlock and never 

legitimated could not derive United States citizenship from the 

naturalization of either his father or his mother. 5Moreover, he 

did not derive citizenship under the Immigration and Nationality 

Act of 1952, which became effective on December 24, 1952. Section 321(a) of the Act, which expanded the 1940 Act, provides 

that an illegitimate child will derive citizenship when the mother 

is naturalized provided the child is under age 16 at the time of 

naturalization, which was the case here. However, it has been 

1Murgia-Melendrez v. INS, 407 F.2d 207 (9 Cir., 1969) ; Millan-Garcia v. 

INS, 343 F.2d 825, 828 (9 Cir., 1965), reversed on other grounds 382 U.S. 69 

(1965). 

2 Woodby v. INS, 385 U.S. 276 (1966); Harisiades v. Shaughnessy, 342 

U.S. 580 (1952); U.S. ex rel.. Bilokurnsky v. Tod, 263 U.S. 149 (1923); Diric 

v. INS, 400 F.2d 658 (9 Cir., 1968) ; Murgia-Melendrez v. INS, supra; Espinosa v. INS, 404 F.2d 544 (9 Cir., 1968). 

3 Burr v. INS, 350 F.2d 87 (9 Cir., 1965). See also U.S. ex ref. Mustafa v. 

Pederson, 2117 F.2d 112 (7 Cir., 1953). 

4 Hee Chan v. Pilliod, 178 F. Supp. 793 (U.S.D.C., N.D. Illinois 1959). 

5 Espindola v. Barber, 152 F. Supp. 829 (U.S.D.C., N.D. Calif., 1957). 

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Interim Decision #2044 

specifically held that this provision of the 1952 Act is not retroactive, and if the child is over 16 years of age on the effective date 

of the Act, he has no claim to citizenship by derivation. 6Respondent was almost 17 years old on December 24, 1952. 

The respondent is not entitled to the privilege of voluntary departure because section 244 (e) specifically prohibits this discretionary relief to anyone who has been convicted of a narcotics 

violation. Further, the discretionary relief of suspension of deportation under section 244 (a) (2) is precluded by the fact that the 

person seeking such relief must have resided in the United States 

for at least 10 years after the offense was committed. Respondent 

cannot meet this requirement. 

Accordingly, the appeal will be dismissed. 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

6 E$pindola v. Barber, supra.; Matter of 1,—, 8 I. & N. Dec. 272 (BIA, 

1959). 

568