Interim Decision *1861 

MAR•TIS or LUGO-GITADIANA 

In Deportation Proceedings 

A-12990025 

Decided by Board May 18,1968 

(1) Where alienage is in issue in a deportation proceeding, there must be an 

evaluation of all the evidence and a =ding with regard to Ito credibility 

before the clear, convincing and unequivocal burden of proof test, as set forth 

in Woodby v. Immigration and Naturalization Service, 385 U.S. 278, comes into 

play. 

(2) An official, contemporaneous record of respondent's birth in Mexico, supported by his prior admissions of birth in that country, satisfies the clear, convincing and unequivocal test of Woodby, supra, in establishing alienage, where 

the testimony of respondent's witnesses as to his birth in the United States, 

supported by a delayed birth certificate has been found lacking in credibility. 

CHARM: 

Order: Act of 1852—Section 241(a) (2) (8 U.S.C. 1251(a) (2) )—Entered without inspection. 

ON BEHALF OF RESPONDENT: ON BEHALF OF Sauvzcs: 

Filemon B. Vela, Esquire Irving A. Appleman 

1144-1140 E. Madison Street Appellate Trail Attorney 

Brownsville, Texas 78520 Bernabe Q. Maldonado 

Trial Attorney 

(Brief filed) 

An order to show cause, issued on March 1, 1967, charges that the 

above-captioned respondent is a native and citizen of Mexico who last 

entered as a. citizen of the United States at the port of Brownsville, 

Texas, on or about February 26, 1967, upon presentation of a delayed 

birth certificate showing birth in La Paloma, Texas, on July 17, 1914. 

It also alleges that the respondent falsely claimed to have been born 

in the United States and was not then inspected and admitted by an 

immigration officer as an alien. The special inquiry officer in an order 

entered on November 20, 1967 terminates the deportation proceeding 

upon a finding that alienage has not been established by clear, unequivocal and convincing evidence. The trial attorney appeals from 

this order. 

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Interim Decision #1861 

It is conceded that the respondent last entered the United States at 

the port of Brownsville, Texas on or about February 26, 1967; that 

he was admitted as a citizen of the United States upon presentation 

of a delayed birth certificate showing birth in La Paloma, Texas on 

July 17, 1944. It is also conceded that the respondent was not inspected 

as an alien. The only issue presented by the case is whether the 

Immigration Service has established deportability by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true (8 CFR 242.14(a) ). 

The respondent's father, his mother and two aunts testified that the 

respondent was born on the La Paloma ranch near San Benito, Texas 

during the early morning hours of July 17, 1944. The respondent's 

father testified that he and his expectant wife were -visiting his grandfather who was seriously ill ; that they were admitted by the immigration authorities at Brownsville, Texas on July 16, 1944; that his wife 

became ill soon after their arrival at the ranch and that their first 

child was born at the ranch on the morning of July 17, 1944. The 

respondent's aunt, Diogracia, testified that she assisted in the delivery, 

and her testimony was corroborated by the testimony of the respondent's father, his mother and another aunt who was present in the home 

at the time of the alleged birth. 

The Immigration Service introduced in evidence a Mexican birth 

certificate (Ex. 3) showing that the respondent's father, Jesus Lugo, 

appeared on July 29, 1944 before an official of the civil registry, in 

Matamoros, Tamaulipas, Mexico to report the birth of the respondent 

at 11 p.m. on July 17, 1944 in Matamoros, Mexico. The evidence establishes the respondent's parents were then living in Ejido La Puerta, 

within the jurisdiction of the municipality of Matamoros, Tamaulipas, 

Mexico. 

The respondent, assisted by his father, applied for a nonresident 

alien's Mexican border crossing card (Ex. 2) at Brownsville, Texas 

in 1958. He submitted in support of his application a Mexican Form 

13, a document issued by the Mexican Servicio de Poblacion, as a travel 

document in lieu of a passport. The Mexican document was issued by 

the Mexican Government on the basis of the respondent's Mexican 

birth record (Ex. 3; pp. 10 and 11) . 

The respondent was accorded a hearing in deportation proceedings 

at San Francisco, California, on October 12, 1962 (Ex. 8). He had 

entered the United States as a citizen on February 21, 1962 upon 

presentation of a baptismal certificate showing birth in the 'United 

States (Ex. 4). During the deportation hearing, he admitted birth 

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Interim Decision *1861 

in Mexico and justified his false claim to United States citizenship with 

the following testimony: 

Q. When you were apprehended by immigration officers, did you tell them 

that you were born in the United States, or did you ten them that you were 

born in Mexico, when they questioned you? 

A. Well, you know bow It is. When you need work, you'll do just anything; 

co I told them I was born here (United States). 

The respondent was deported to Mexico on October 27, 1963. He applied for permission to reapply for admission into the United States 

after deportation on December 5, 1963 (Ex. 9). He stated in his 

application that he was born at Matamoros, Tamaulipas, Mexico on 

July 17, 1944; that he was assisted by a notary public with the application and that he voluntarily told the notary public that he was 

born in Mexico (p. 98). The application for permission to reapply was 

denied. 

The respondent appeared at the port of Del Rio, Texas on October 

17, 1965 and sought admission into the United States as a citizen. 

-When questioned by an immigration officer he admitted that he was 

born in Mexico on July 17, 1944. He was questioned as to how he oblained the delayed birth certificate that he presented when he applied 

for admission. He replied: 

I took my fe de baptismo to a notary public there in Brownsville, Texas and he 

filled out a blank form and asked me to take it to my godmother Diogracia Garcia 

that lives in Harlingen, Texas and she signed it as a witness to mry birth and 

stated that she was the one' who delivered me, then I took it to my father and 

my mother and they signed it- After that I took it back to the notary public and he 

sent It to Austin, Tama • * s. 

Q. Why did you arrange false documents to show that you was born in the 

U.S.? 

A. I had a great need to work because I am the one who supports my family. 

I only wanted and I did not have any intentions of doing any harm to 

anyone. 

Q. The you swear that you was born in El Ejido de la Puerta Ranch near Matamoros, Tamps., Mexico and that your birth is registered in the civil registry 

office there? 

A. Yes Sir that is true. (p. 2 of Er. 10) 

The issue presented by the evidence before us is whether an official 

certified record of the respondent's birth in Mexico (Ex. 3) supported 

by his admissions of birth in that country prior to this proceeding is 

rebutted by the parol evidence of the respondent's parents and two 

aunts that the respondent was born in the United States. The parol 

evidence of birth in the United states is supported by a delayed birth 

certificates (Ex. 6) issued some 20 years after the claimed date of birth 

and a baptismal record issued on November 1, 1965. 

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Interim Decision #1861 

The same weight does not attach to a delayed birth certificate, such 

as the one before us, as would attach to one contemporaneous with the 

actual birth, Liakaleoe v. Kennedy 1 195 F. Supp. 680, 682 (U.S.D.O. for 

D.C., 1961). A delayed certificate is merely prima facie evidence and 

may be rebutted whereas a contemporaneous birth certificate may be 

said to be almost conclusive evidence of the facts stated therein (Ibid 

at p. 631). 

If the documentary evidence submitted by both the respondent and 

the Immigration Service stood alone, there would be no question as to 

which should be given more weight. We are confronted, however, with 

the testimony of the respondent's parents and aunts which corroborate 

the facts set forth in the delayed birth certificate. They are competent 

as witnesses by reason. of the relationship. The "competency" and 

"credibility" of a witness are not synonymous terms. One may be a 

competent witness and yet not credible State v. Beal, 154 S.E. 604, 617, 

199 N.C. 278. 

A determination of whether there is clear, unequivocal and convincing evidence that the respondent is an alien resolves itself into a determination of whether the testimony of the respondent's witnesses is 

worthy of belief. Credibility involves more than demeanor. It apprehends the overall evaluation of testimony in light of its rationality or 

internal consistency and the manner in which it hangs together with 

other evidence. Carbo v. United States, 314 F.2d 718, 749 (C.A. 9, 

1963). . 

The special inquiry officer is of the opinion that the testimony of the 

respondent's witnesses should be given "considerable weight" notwithstanding the fact that "the preponderance of documentary evidence 

favors the Government's case . . "He concedes that the witnesses for 

the respondent and the respondent "gave testimony not entirely consistent" but concludes that their testimony has not been "discredited or 

that the minor discrepancies made the testimony unworthy of belief" 

(p. 3, special inquiry officer's opinion) . 

An overall evaluation of the respondent's testimony, the testimony of 

his parents and the testimony of his aunts pursuant to the guidelines 

set forth above leads us to an opposite conclusion. There is no rationality or consistency in the respondent's prior testimony under oath in 

1958, 1962, 1963 and 1965 that he was born in Mexico when evaluated 

with his testimony in this proceeding. The testimony of the respondent's parents with regard to the circumstances surrounding the respondent's birth at his great grandfather's home in the United States on 

July 17, 1944 is not consistent with their testimony concerning the 

registration of his birth in Mexico some 12 days later on July 29, 1944. 

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Interim Decision #1861 

The testimony of the respondent's aunts does not "hang together" with 

the other evidence. One of them testified that her grandfather died in 

1950 (p. 59) whereas her brother, the respondent's father, testified 

that the grandfather died "one or two months" after the respondent 

was born on July 17, 1944 (p. 37). The delayed certificate of birth in the 

United. States is entitled to little weight in light of the respondent's 

testimony concerning the evidence he submitted in support of its issue. 

The fact that the respondent's witnesses are not disinterested parties is 

a factor to be considered in evaluating their testimony. 

We are mindful of the fact that United States citizenship is a. privilege -Which should be guarded zealously. A claim to birth in the United 

States for the offspring of Mexican parents who reside close to the 

international border 3 is not uncommon. Where alienage is charged in 

stick a tee° and the Government has introduced both documentary and 

parol evidence in support of the charge and the opposing side has introdliced evidence intended to rebut the Government's case there must 

be an evaluation and a weighing of all the evidence and a finding made 

kith regard to its credibility before the test for burden of proof as set 

lift.* in Woodby v. Immigration awl Naturalization. Service 2(385 

'U.S. 276) conies into play. Upon evaluating and weighing the evidence 

'submitted by both the Government and the respondent, we find that the 

evidence introduced by the Government is more credible than that 

introduced by the respondent. Based on this finding, we conclude that 

there is clear, unequivocal and convincing evidence that the facts 

alleged as grounds for deportation are true. The order entered. by 

the special inquiry officer will be reversed. 

ORDER : It is directed that the order entered by the special inqiiiry 

officer terminating the above-captioned proceedings be and the same is 

withdrawn and the following order in lieu thereof is hereby entered : It 

is directed that the respondent be deported to Mexico on the charge 

stated in the order to show cause. 

1The residence of the respondent's parents in Mexico is only 35 miles from the 

place of his alleged birth in the United States. 

* The Supreme Court held that the test for burden of proof in a deportation 

proceeding is as follows : "No deportation order may be entered unless it is found 

by clear, unequivocal and convincing evidence that the facts alleged as grounds 

for deportation are true." 

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