Interim Decision #1763 

MATTER CrE GONZALEZ-GOMEZ 

In Deportation Proceedings 

A-14220655 

Decided by Board August 9, 1987 

The provision or section 310(c), Immigration and Nationality At*, SIS amended. 

requiring that proof of loss of "United States nationality be established by a 

preponderance of the evidence, and which provision is applicable to loss of 

citizenship under section 301(b) of the Act, is left undisturbed by the standard of clear, unequivocal and convincing evidence enunciated in Woo(lbu v. 

Immigration and Naturalization Service, 384 V.S. 904. 

MADGE: 

Order: Act of 2952—Section 241(a) (1) [8 1251(a) (1)3—Excludable 

at time of entry—No immigrant visa. 

Ox BEHALP or RESPONDENT: Donald L. Ungar, Esquire 

517 Washington Street 

San Francisco, California 94111 

This is an appeal from the decision of the special inquiry officer 

finding respondent deportable as charged and granting voluntary departure with an alternative order of deportation to Mexico in the 

event that respondent does not leave the United States when and as 

directed. 

The record relates to a 29-year-old married male alien, a native and 

citizen of Mexico who last entered the United States at San Ysidro, 

California on or about April 14, 1965 without an immigrant visa upon 

his claim to be a United States citizen. Respondent derived United 

States citizenship under section 1933 of the Revised Statutes of the 

United States, as amended by the Act of May 24, 1934, by reason 

of his mother having been born in the United States and thus being 

a United States citizen. 

It is the contention of the Immigration and Naturalization Service 

that respondent prior to his last entry into the United States had 

lost his citizenship because he had not fulfilled the requirement of five 

years physical presence in the United States prior to his twentyeighth birthday as required by section 301(b) of the Immigration and 

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Nationality Act (8 U.S.C. 1401 (b) ). This statute provides that a 

person born abroad only one of whose parents was a citizen of the 

United States ". . shall lose his nationality and citizenship unless he 

shall come to the United States prior to attaining the age of 23 years 

and shall immediately following any such coming be continuously 

physically present in the United States for at least five years : Provided, That such physical presence follows the attainment of the 

age of fourteen years and precedes the age of twenty-eight years." In 

respondent's case this means that he must have been continuously physically present in the United States for at least five years between 

July 24, 1952 (his fourteenth birthday.) and July 24, 1966 (his twentyeighth birthday). Of course, he would have had to arrive in the 

United States prior to July 24, 1961, which was his twenty-third 

birthday, in order to have been in the United States for five years prior 

to his twenty-eighth birthday. The special inquiry officer further found 

that respondent's loss of United States nationality was supported by a 

preponderance of the evidence. 

Respondent's first contention is that under Woodby v. Immigration 

and Naturalisation Service, 87th S. Ct. 483, 384 U.S. 904, respondent's 

loss of United States citizenship must be shown by proof that is clear, 

unequivocal, and convincing rather than simply by a preponderance 

of the evidence. 

In deportation proceedings the burden is always on the Service to 

establish alienage. Matter of A—Air—,7 I. & N. Dec. 332. Section 349 

(e) of the Immigration and Nationality Act of (8 U.S.C. 1481 (e) ) provides that whenever the loss of United States nationality is put in 

issue the burden shall be upon the person or party claiming that such 

loss occurred to establish such claim by a preponderance of the evidence. Respondent contends that the holding in the Woodby case is 

broad enough to cover the situation where loss of United States nationality is put in issue under section 301(b) and thus the degree of 

proof should be that of clear, unequivocal and convincing rather than 

preponderance as provided for in section 349(c), Immigration and 

Nationality Act. We do not agree with this contention but hold that a 

preponderance of the evidence is the degree of proof necessary. 

In the Woodby case the Court stated that the Congress had not 

addressed itself to the question of what degree of proof is required in 

deportation proceedings, and thus this question had been left to the 

judiciary to resolve. However this is not the situation in reference to 

a case involving loss of citizenship. Here, Congress specifically set 

forth in section 349(c) whit the degree of proof is—a preponderance 

of the evidence. It is clear that in the Woodby case the Court took 

nobles of this. The Court stated : 
Interim Decision 401763 

In denaturalization cases the Court has required the Government to establish 

its allegations by clear, unequivocal and convincing evidence. The same burden 

has been imposed in expatriation cases. 

Following the last sentence the Court adds a footnote as follows: 

17. Gonzales v. Landon, 350 U.S. 920; Nishikawa v. Dulles, 356 U.S. 129. But 

see section 849(c) of the Immigration and Nationality Act, 75 Stat. 656 (1961), 

8 u. SAL sec. 1481 (c). 

Section 849 (c) was specifically enacted by Congress to change the 

degree of proof required in loss of citizenship cases from clear, unequivocal and convincing, as enunciated in the Gonzales and Nieltikutou cases, supra, to that of preponderance. This purpose is clearly 

shown in the legislative history of this statute: Section 849 (e) is broad 

enough to cover loss of United States nationality whether by expatriation or by failure to comply with the citizenship retention provisions 

of section 301(b) as in the instant case. It appears clear that the United 

States Supreme Court considered that the degree of proof provision of 

section 819 (e) was an exception to the rule the Court was enunciating 

in the Woodby case. We hold that the Court in the Woodby case left 

undisturbed the preponderance of evidence provision of section 349( e) . 

Turning now to the evidence supporting respondent's loss of citizenship, the record contains two sworn statements by respondent's mother 

(Ex. 5 and 6) in which she states that respondent lived in the United 

States for one year in 1955-56 and then he returned to Mexico and 

lived with her until 1962. We cannot accept the strained interpretation 

given this statement by respondent's counsel that what the mother 

meant was that her son had a residence in Mexico and that her statement did not mean that he was physically present there. When respondent's mother stated that he lived with her in Mexico we can give no 

other interpretation to this than that respondent was staying with his 

mother in Mexico—that he was physically there with her 

Respondent executed an affidavit on April 21,1964, which is part of 

the record (Ex. 6) , in which he states that he did not start his residence 

in the United States until after his twenty-third birthday. What did 

he mean by this Can we construe that respondent was making a fine 

distinction between the words "residence" and "physical presence" as 

counsel contends/ The common sense interpretation of his statement 

is simply that he did not come to live (reside) in the United States 

until after his twenty-third birthday. We feel that his statement means 

nothing more or nothing less than this. 

The Service has made a thorough investigation, using all of the 

information and leads furnished by respondent, in an attempt to find 

some evidence of respondent's being in the United States prior to his 

House Report 1086, August 30, 1961 to accompany S. 220T. 

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twenty-third birthday. Six alleged former employers were contacted 

but no one could place respondent, either under his true name or under 

the various aliases and several social security numbers he had, as being 

in the United States prior to his twenty-third birthday. 

The Department of Employment, Sacramento, California was contacted in order to ascertain respondent's place of employment and earnings in 1961, which of course is the year in which respondent attained 

age 23, on July 24th. The Department of Employment checked the 

social security records and there was no record of any employer or 

earnings for respondent during 1961. 

Respondent was married on July 31, 1962 and at the hearing his 

wife testified that she met him in the United States in May or June of 

1961. This would place respondent in the United States before his 

twenty-third birthday. However this testimony was contradicted by 

respondent's own testimony that he had known his wife only about 

three months before they were married. 

The record shows by a preponderance of the evidence that respondent lost his United States nationality under section 301(b), Immigration and Nationality Act. 

Counsel contends that section 301(b) is unconstitutional because of 

the broad sweep of the Supreme Court's decisions in A.froyim v. Runk, 

887 U.S. 253, 87 S. et. 1660 and Schneider v. Rusk, 337 U.S. 163, 84 

S. Gt. 1187. However it is not within the province of the Board of Immigration Appeals to pass on the constitutionality of the statutes it 

administers. Determination of constitutionality is a judicial function' 

Thus we will not consider counsel's allegation. 

We will dismiss the appeal. Voluntary departure with an alternative order of deportation appears justified. 

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

dismissed. 

See Matter of H—, 8 L & N. Dec. 411; Natter of .T.,—, 4 L & N. Dee. 556, and 

eases cited therein. 

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