Interim DecisiOn #2408 

MA.TTER OF VERGARA 

In Deportation Proceedings 

A-20527143 

Decided by Board July 15, 1975 

The immigration judge's refusal to issue a subpoena requiring respondent's father to 

testify in conjunction with a claim to United States citizenship which she began to 

explore during the course of deportation proceedings, did not result in a denial of due 

process since the whereabouts of the father was unknown and there was considerable 

uncertainty as to obtaining his testimony at all, and the issuance of the subpiena would 

require a further substantial delay in the proceedings which was unjustified in view of 

respondent's failure to obtain necessary evidence during an earlier adjournment of 

three and one-half months. Further, there has been no showinz that the testimony of 

the respondent's father was "essential" within the meaning of 8 CFR 287.4(a)(2), 

because respondent had failed in other respects to present a substantial claim to 

derivative citizenship. 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)]—Excludable at entry 

under section 212(a)(20)—immigrant without visa. 

ON BEHALF 01' RESPONDENT: Williard Hastings, Jr., Esquire 

90t Garden Street 

Santa Barbara, California 93101 

In a decision dated December 3, 1973, the immigration judge found 

the respondent deportable, but granted her the privilege of voluntary 

departure. The respondent has appealed from that decision. The appeal 

will be dismissed. 

The respondent is a native of Mexico who entered the United States 

in May of 1973. The Service has alleged that she is deportable under 

section 241(a)(1) of the Immigration and Nationality Act as an alien who 

was excludable at entry under section 212(a)(20). The respondent contests deportability. 

The respondent contends that she was denied due process at her 

hearing because the immigration judge refused to issue a subpoena 

requiring the respondent's father to testify. The respondent sought the 

testimony of her father in conjunction with a claim to United States 

citizenship which she evidently began to explore during the course of 

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Interim Decision #2408 

these proceedings. Ourrevie* of the record, however, convinces us that 

the-immigration judge properly 'refused to issue the subpoena. 

The hearing in the respondent's casd was commenced on August 13, 

1973. The respondent was then represented by a person described in the 

transcript as a' "friend': (Tr. p. 1). At that hearing, the respondent 

admitted that she was riot a citizen or national of the United States, and 

that she was a- native and citizen of Mexico (Tr. pp. 1-2). 

However, during the Servibe's'cross-examination of the respondent 

on her application for voluntary departure, the respondent indicated' 

that her father had been born in .the United States (Tr. p. 6). The 

immigration judge then began questioning the respondent with regard 

to the possibility that the responden•might have derived United States 

citizenship through her father. 'According to the respondent, her father 

had lived in the United States as a child, and had returned to the United 

States for at least two years prior to the respondent's birth in 1955 (Tr. 

pp. 7-8; 8-9). 

Any possible claim to derivative citizenship which the respondent 

may have would appear to be based on section 301(a)(7) of the Act. One 

of the requirements of section 301(a)(7) is that the parent, through 

whom citizenship is derived, have been physically present in the United 

States for a total period of at least ten years prior to the birth of the 

child, and that five of those years were after the parent reached the age 

of fourteen. The respondent did not have precise information regarding 

her father's periods of residence in the United States, and her own 

testimony failed to set forth the essential elements of a claim to derivative citizenship. The immigration judge, however, granted an adjournment in order to permit the respondent the opportunity to gather 

evidence in support of her claim. ' 

The hearing was resumed approximately three and one half months 

later on December 3, 1973. At that time the respondent presented only a 

birth certificate evidently relating to her father in support of her claim 

to derivative citizenship. She did not produce any documentary evidence relating either' to her own birth or to her parents' marriage. 

However, counsel, who apparently entered the case during the adjournment, requested that a subpoena be issued directing the respondent's father to testify. 

It appears that the respbrident's father is a migrant worker who 

makes a permanent hoMe in Mexico, but who works a substantial part of 

the year at various locations in the United States. The respondent had 

been unable to ascertain the whereaboutb of her father, but she suspected that he would be working certain fields in California within 

approximately four months of the December 1973 hearing. 

The immigration judge refused to issue the subpoena on the grounds 

that it was not sufficiently shown that the respondent's father could be 

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Interim Decision #2408 

located, and that the issuance of the subpoena would require a second 

substantial delay in the proceedings which was not warranted in view of 

the lack of documentation which had been obtained during the earlier 

adjournment. 

We agree with the immigration judge. The whereabouts of the witness was unknown, and the respondent had already failed to obtain 

needed evidence after a delay of three and one half months. Cf. Matter 

of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971). A further substantial delay in the proceedings was not justified. There had been no 

showing that the testimony of the respondent's father was "essential" 

within the meaning of 8 CFR 287.4(a)(2) because the respondent had 

failed in other respects to present a substantial claim to derivate citizenship. In addition, there was considerable uncertainty in obtaining the 

father's testimony at all. 

We also note that a substantial period of time has elapsed since the 

immigration judge's decision. The respondent, however, has not presented anything further with respect to her claim to derivative citizenship. Even at this time, there is no greater assurance that a remand and 

an issuance of a subpoena would accomplish the desired purpose of 

securing the testimony of the respondent's father. There has been no 

denial of due process in these proceedings. 

The respondent conceded alienage during the course of the hearing. 

Furthermore, having admitted birth in foreign country, she is presumed 

to be an alien and bears the burden of going forward with the evidence 

to establish her claim to United States citizenship. Matter of Ponco, 15. 

I. & N. Dec. 120 (BIA 1974); Matter of Tijerina—Villarreal, 13 I. & N. 

Dec. 327 (BlA 1969); Matter of A—M—, '7 I. & N. Dec. 332 (BIA 1956). The 

respondent has not rebutted the presumption. She is an alien. 

The respondent also contends that she is not deportable on the charge 

specified in the order to show cause by virtue of section 241(f) of the 

Immigration and Nationality Act. However, in Matter of Montemayor, 

15 I. & N. Dec. 353 (BIA 1975), we held that the construction of section 

241(f) adopbad by the Supreme Court in Reid v. INS, 420 U.S. 619, 95S. 

Ct. 1164 (1975), precludes the application of section 241(f) to a section 

212(a)(20). This is the precise charge against the respondent. 

The respondent's claim that her deportation would deprive her citizen 

child of constitutional rights is similarly without merit. Aalund v. Marshall, 461 F.2d 710 (C.A. 5, 1972); Perdido v. INS, 420 F.2d 1179 (C.A. 

5, 1969); Mendez v. Major, 340 F.2d 128 (C.A. 8, 1965); Matter of 

Anaya, 14 :. & N. Dec. 488 (BIA 1973); see Encisco—Cardozo v. INS, 

504 F.2d 1252 (CA. 2, 1974); Faustino v. INS, 432 F.2d 429 (C.A. 2, 

1970), cert. denied, 401 U.S. 921 (1971). 

The respondent conceded the factual allegations contained in the 

order to show cause. Deportability has been established by clear, con390 
Interim Decision #2408 

incing, and unequivocal evidence. The decision of the immigration 

edge was correct. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the repondent is permitted to depart from the United States voluntarily 

vithin 21 days from the date of this order or any extension beyond that 

ime as may be granted by the district director; and in the event of 

allure so to depart, the respondent shall be deported as provided in the 

mmigration judge's order. 

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