Interim Decision #2096 

MATTER OF HERRERA 

In Visa Petition Proceedings 

A-19086022 

Decided by Board September 13, 1971 

(1) For the purpose of establishing U.S. citizenship in visa petition proceedings, petitioner's delayed Texas birth certificate, standing alone, does not 

amount to a "birth certificate" within the contemplation of 8 CFR 

204.2(a) (1). Even though petitioner's delayed birth certificate may be 

treated as prima facie evidence of the facts it relates, those facts have 

been rebutted by contradictory documentary evidence in the form of the 

1910 census record. Further, the delayed certificate was issued on the 

basis of affidavits of 2 persons, one of whom was only 3 years old at time 

of petitioner's alleged birth and therefore, unlikely to have personal 

knowledge of the facts of birth; the basis of knowledge of the other affiant is not reflected. 

(2) Since the 2 baptismal records submitted by petitioner in support of his 

visa petition to accord his wife immediate relative status relate to a baptism which took place more than 2 months after birth, they do not satisfy 

the documentary requirement of 8 CFR 204.2(a) (1). 

ON BEHALF OF PETITIONER: Pro se 

The petitioner filed a petition to obtain immediate relative 

status for his spouse under section 201 (b) of the Immigration 

and Nationality Act. The District Director denied the application 

in an order dated January 19, 1971 on the ground that the petitioner was not a United States citizen. The petitioner appealed 

from that order. This Board, in our order dated March 19, 1971, 

remanded the matter for the reception of additional evidence and 

to obtain translations of evidence already in the record. 

After receiving additional evidence and securing the translations referred to, the District Director again denied the petition 

for the same reason as before. The District Director certified the 

matter to this Board pursuant to our order of March 19, 1971, in 

which we directed certification in the event the petition were denied, since we had made no ruling on the merits of the appeal. 

We will affirm the order of the District Director. 

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The petitioner, Mariano Herrera-Rendon, Jr., has submitted an 

immediate relative petition on behalf of his wife, whom he married on June 26, 1968. The validity of the marriage is not in 

issue. The beneficiary, a native and citizen of Mexico, is eligible 

for classification as an immediate relative, provided the petitioner 

is a citizen of the United States. 

As evidence of United States citizenship the petitioner submitted a delayed Texas birth certificate. The main issue in this case 

is whether the delayed Texas birth certificate, along with the 

other evidence presented, supports the claim of birth in the 

United States. 

The procedure for granting immediate relative status to a 

spouse is set forth in section 204 (a) of the Immigration and Nationality Act, which states: "The petition shall be in such form as 

the Attorney General may be regulations prescribe and shall contain such information and be supported by such documentary evidence as the Attorney General may require." 

The implementing regulation, 8 CFR 204.2 (a), states that an 

immediate relative petition filed by a United States citizen whose 

7,itizenship is based upon birth in the United States must be ac-

;ompanied by (a) his birth certificate, or (b) if his birth certifiate is unobtainable, a copy of his baptismal certificate under seal 

•f the church, showing his place of birth and a date of baptism 

,ccurring within two months after birth, or (c) if his birth or 

aptismal certificate cannot be obtained, affidavits of two United 

tates citizens who have personal knowledge of his birth in the 

united States. 

The petitioner submitted a delayed birth certificate showing 

rth in San Juan, Texas on June 8, 1910. This record of birth 

as filed February 21, 1955, 45 years after the birth. It was ised on the basis of affidavits executed by Guadalupe Herreramdon and Maria de Jesus Cordova Garza. The record indicates 

at Guadalupe Herrera-Rendon, who is the older brother of the 

titioner, was three years old at the time of petitioner's birth. 

Contradicting the claim of birth in the United States is the reed of the 1910 census for Cameron County, Texas, which lists 

petitioner as six months old on April 15, 1910, and notes that 

was born in Mexico. 

The petitioner also submitted a baptismal certificate, apparly made from contemporaneous entries in the parochial aryes of the Parish of Sanctuary, Matamoros, Mexico, showing 

baptism on January 26, 1910. It indicated birth "in the ranch 

San Juan' on the 8th day of November 1909 .. ." 

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Interim Decision #2096 

The file also contains another certificate relating to baptism, 

this one from another parish, the Parish of Our Lady of Refuge, 

also in Matamoros, based upon affidavits by the petitioner's 

mother and Maria de Jesus Cordoba dated January 19, 1955. This 

certificate asserts the petitioner was baptized January 26, 1910, 

not at the San Juan ranch, but at the Palangana ranch in San 

Juan, Texas. In effect, it is a delayed baptismal certificate, secured at approximately the same time as the delayed birth certificate. 

The petitioner, in his statement of April 16, 1970, said that 

there is a San Juan ranch adjacent to the Palangana ranch in the 

jurisdiction of Matamoros, Tamaulipas, Mexico. 

In Mah Toi v. Brownell, 219 F.2d 642 (9 Cir., 1955), cert. denied 350 U.S. 823, a case involving a proceeding for the declaration of United States nationality, the court held that a California 

court order establishing birth in the United States was merely 

prima facie evidence and that presumptions arising from such evidence are rebuttable, not conclusive. The same rule was applied 

in the following cases involving delayed evidence of birth: 

Casares-Moreno v. United States, 226 F.2d 873 (9 Cir., 1955), 

a criminal case; Louie Hoy Gay v. Dulles, 248 F.2d 421 (9 Cir., 

1955); and Liacakos v. Kennedy, 195 F. Supp. 630 (D. D.C., 

1961), deportation matters. We applied the rule in a deportation 

proceeding, Matter of Lugo-Guadiana, 12 I. & N. Dec. 726 (BIA, 

1968). 

As the court did in the Mah Toi case, supra, we look behind the 

instrument itself and consider the supporting matter upon which 

it was issued. In the present case we note that one of the signers 

of a supporting affidavit was only three years old at the time of 

the alleged birth and, therefore, was not likely to have personal 

knowledge of the facts of birth. The basis of knowledge of the 

other affiant is not given. 

The petitioner, then, has not come forth with documentary evidence that meets the requirements of any one of the three subsections of 8 CFR 204.2(a). That is, his delayed birth certificate, 

standing alone, does not amount to a "birth certificate" within 

the contemplation of the first subsection; the two baptismal records submitted do not satisfy the second subsection, since they 

relate to a baptism which took place five, rather than two months 

after birth; and the petitioner has not submitted the two affidavits of United States citizens with knowledge of the facts of birth 

as required by the third subsection. 

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Interim Decision #2096 

Even aside from his failure to comply with 8 CFR 204.2 (a), 

our appraisal of all the evidence leads to the conclusion that the 

petitioner has not met his burden of establishing eligibility for the 

benefit he seeks, Matter of Brantigan, 11 I. & N. Dec. 493 (BIA, 

1966). That is, even though the delayed Texas birth certificate 

may be treated as prima facie evidence of the facts it relates, we 

find that those facts have been rebutted by contradictory documentary evidence in the form of the 1910 census record. Moreover, the delayed Texas birth certificate, along with the simultaneous delayed Mexican baptismal record, appears to be part of a 

scheme to deceive the immigration authorities. 

We accordingly agree with the District Director's conclusion 

that the United States birth of the petitioner has not been established. Because the petitioner has failed to establish that he is a 

United States citizen, his petition for immediate relative status 

for his wife must be denied. The following order will therefore be 

entered. 

ORDER: We affirm the decision of the District Director and 

dismiss the petitioner's appeal. 

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