Interim Decision #1990 

MATTER OF 'TIJERINA-V1LLARREAL 

In Deportation Proceedings 

A-13644691 

Decided by Board Jury 14, 1969 

In deportation proceedings where respondent claims to have derived citizenchip through his father who was born in this country but such claim is 

not supported by a preponderance of credible evidence, the clear, convincing and unequivocable burden of proof test, as set forth in Woodby v. 

Immigration and Naturalization Service, 385 U.S. 276, is met in establishing alienage upon proof of birth abroad. 

CHARGE: 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry under section 212(a) (20) [8 

U.S.C. 1182 (a) (20) ]—no immigrant visa. 

ON BEHALF OF RESPONDENT: 

Louis T. White, Esquire 

Post Office Box 955 

Alamo, Texas 78516 

(Brief filed) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial. Attorney 

Bernabe Q. Maldonado 

Trial Attorney 

(Brief fibo1) 

The respondent is a native of Mexico. He has been found deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act as an alien who was excludable at 

the time of entry under the provisions of section 212 (a) (20) of 

the Act (8 U.S.C. 1251(a) (1) and 1182(a) (20)). He appeals 

from an order entered by the special inquiry officer on October 

21, 1968 granting•him the privilege of voluntary departure in lieu 

of deportation. He maintains that he is not deportable as an alien 

because he derived United States citizenship through his father 

who was born in the United States. 

The respondent concedes that he was born in Mexico on March 

25, 1944. He also concedes that he last entered the United States 

at the port of Hidalgo, Texas on December 19, 1966; that he was 

then entering for the purpose of residing in the United States as 

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Interim Decision #1990 

a citizen; that he did not present an immigration visa; and that 

he has never been admitted to the United States for permanent 

residence (pp. 4 and 5). Counsel for the respondent and the trial 

attorney further stipulated that the respondent's father was born 

on March 19, 1912, at La Lomita, Texas and is now a citizen of 

the United States ; that the respondent's mother was born in Mexico on March 12, 1910, and is a citizen of Mexico; that they were 

lawfully married in Mexico on October 3, 1930, and that "the 

main issue to be resolved in this proceeding is whether or not the 

respondent's father had sufficient residence, prior to respondent's 

birth . . . to confer citizenship on the respondent under the provisions of section 201 (g) of the Nationality Act of 1940" (8 U.S.E. 

601 (g) , 1940 Ed.) (p. 8). 

Section 201 (g) of the Nationality Act of 1940 provides in substance that a person bon) outside of the United States of parents 

one of whom is a citizen of the United States derives United 

States citizenship at birth if prior to the birth of such person, the 

citizen parent resided in the United States or one of its outlying 

possessions for a-period of ten years, at least five of which were 

after attaining the age of 16 years. The respondent in order to 

derive citizenship through his father has the burden of establishing that his father resided in the United States for a total of ten 

years prior to . the respondent's birth and that five of the ten 

years were subsequent to March 19, 1928, since his father was 

horn on March 19, 1912. 

The evidence with regard to the residence of the respandent's 

father prior to the respondent's birth in Mexico has been fully 

discussed in the opinion of the special inquiry officer. Briefly, it 

establishes that fOur of the respondent's. brothers and one sister 

have been issued certificates of derivative citizenship. They were 

all born prior to the effective date of the Nationality Act of 1940; 

and, under the law in effect on the date of' their birth there was 

no requirement that their father- reside in the United States. for 

any specified period of time.' The applications submitted in their 

cases show that the periods of their father's residence in the 

United States were -variously alleged to be from 1912 to 1914 and 

from 194X to 1959; from 1912 to 1915 and from 1943 to the date 

of the application; no period.of residence in the United States alleged; and residence in the United States "unknown." 

Three applications for derivative citizenship have been submitted by or on behalf of the respondent. All have been denied on the 

' Section 1993, Revised Statutes and section 1, Act of May 24, 1934. 

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Interim Decision #1990 

ground that the respondent's father did not have the required period of residence in the United States. The respondent's father 

testified under oath on June 19, 1963, in connection with the application filed on April 29, 1963, that he resided in Mexico from 

1914 until April of 1943. It was alleged in connection with the 

second application far derivative citizenship, submitted in behalf 

of the respondent on October 15, 1964, that his father resided in 

the United States from 1912 to 1915 and from 1943 until the date 

of that application. 

The third application for derivative citizenship was submitted 

by the respondent on December 22, 1966. The respondent's father 

testified on October 25, 1967, in connection with this application, 

that he was taken to Mexico as an infant but reurned to the 

United States in 1913; that he resided in the United States from 

1913 to 1922 and from 1930 to 1936. He further testified that he 

has resided in the United States from 1938 to the present time 

(Ex. 14, p. 5). When questioned concerning the discrepancies in 

his previous testimony concerning his residence in the United 

States, the respondent's father testified: 

Well, because I didn't have a lawyer and there was no one to tell me 

where I'd been or where I'd lived, or with whom I had worked during this 

time . . I'm telling the truth now because this man told me . . asked me a 

lot of questions that no one has ever asked me before. (p. 9 of Ex. 14) 

The evidence introduced by the respondent in this proceeding 

to rebut the Government's claim of alienage is practically the 

same as the evidence he submitted in support of his application 

for derivative citizenship filed on December 22, 1066. The respondent's father testified on August 14, 1968 that he was born in 

Texas on March 19, 1912; that he was taken to Mexico "at the 

age of three" (1915); that he "returned and lived with [his] 

grandmother here in McAllen from that age until I was about 

seven or eight years old" (1920) ; that he returned to Mexico 

"about 1921 more or less" and came back to the United States "in 

1930 and worked here in the United States with a Mr. Woods 

until 1936"; that in 1930 he returned to Mexico to marry and remained there for only ten days "because I had to work"; that his 

wife continued to live with her parents in Mexico; that he visited 

her "about every six or eight months"; that he resided in Mexico 

"in 1937 and part of 1938" when he returned to Raymondville, 

Texas; that he secured a birth certificate in 1943 and registered 

under the Selective Service on May 1, 1943 (Ex. 4); and that he 

has resided in the United States "from 1938 to the present time" 

(pp. 9, 14, 17, 19, 20 and 23). 

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Interim Decision #1990 

The witness, Walter Lane, who testified in support of the respondent's derivative application filed on December 22, 1966, also 

testified in this proceeding. He stated that he worked with the respondent's father on the Otto Wood ranch a few miles north of 

Edinburg, Texas, from 1930 to 1936; that the respondent's father 

"lived in a house there on the ranch" and that the respondent's 

father did not have his family with him (pp. 53, 80). This witness in a statement taken from him on October 25, 1967 testified 

that he ha: known the respondent's father "about 36 years ... we 

worked on the Wood ranch"; that when he first met the respondent's father "I think he was living here in Edinburg' - ' and that 

during the five years that the respondent's father worked on the 

Wood ranch he lived "Here in town, he would rent a house" (pp. 

2 and 3 of Ex. 14). 

The same documentary evidence submitted by the respondent 

in support of his derivative application filed on December 22, 

1966 was also introduced in this proceeding. An affidavit executed 

by Abundio Amador (now deceased) (p. 16) on December 2, 1967 

states that he and the respondent's father lived and worked on 

the Otto Wood ranch from at least 1933 to 1936 (Ex. 3). The respondent's paternal grandmother states in an affidavit executed 

on January 16, 1967 that her son, the respondent's father, resided 

in the United States from at least 1915 to 1922; from 1930 to 

1936 and from 1938 to the present time (Ex. 5). Tomasa Anzal 

Davila verified the information contained in the affidavit of the 

respondent's grandmother in _an affidavit executed on June 10, 

1967. A 1920 census record submitted by the respondent states 

that Jose Maria Tijerina, age 7, born in Texas, nephew of Trinidad and Perfecta S. Sanchez, was enumerated in the Sanchez 

family at 1919 - 17th Ave., McAllen, Texas. 

The burden to establish alienage in a deportation proceeding is 

upon the Government. When there is a claim of citizenship, however, one born abroad is presumed to be an alien and must go forward with the evidence to establish his claim to United States citizenship, Matter of A—M--, 7 I. & N. Dec. 332, 336 (BIA, 1956) ; 

U.S. ex rel. Ronoetti v, Neelly, 207 F.2/I 281 -284 J'7 Cir., 1953). 

The issue here is whether the respondent has presented a 

preponderance of credible evidence sufficient to overcome the presumption of alienage which attaches by reason of his birth in 

Mexico. The record before us presents conflicting evidence as to 

whether the respondent's father resided in the United States for 

the required period of five years subsequent to his 16th birthday 

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Interim Decision # 1990 

and prior to the respondent's birth so as to confer citizenship on 

the respondent under the provisions of section 201(g) of the Nationality Act of 1940. Were the evidence presents a conflict with 

regard to whether the respondent acquired citizenship at birth, it 

must be -valuated and weighed and a finding made with regard 

to its cre..tiJility before the test for burden of proof on the issue 

of deportability as set forth in Woodby v. INS 2(385 U.S. 276) 

comes into play. Cf. Molter of Lugo-Guadiana, 12 I. & N. Dec. 

726 (BI A, 1968). 

We are mindful of the fact that United States citizenship is a 

privilege which should be guarded zealously. We also realize that 

where a claim of derivative citizenship has reasonable support, it 

cannot be rejected arbitrarily. However, when good reasons appear for rejecting such a claim such as the interest of witnesses 

and important discrepancies, then the special inquiry officer need 

not accept the evidence proffered by the claimant. Experience•has 

demonstrated in cases of this character that the testimony of parties in interest cannot always be accepted or relied upon. Cf. Lew 

Walt Fook v. Brownell, 218 F.2d 924, 925 (9 Cir., 1955) ; Flynn 

ex rel. Yee Sney v. Ward, 104 F.2d 900 (1 Cir., 1939). 

The respondent's father in prior applications for derivative citizenship submitted in behalf of five of his oldest children as far 

back as 1956 has consistently stated that he resided in Mexico 

from 1915 to 1943. Concerning his residence in the United States, 

he now claims that he actually resided in this country from 1930 

to 1936 and from 1938 to the present time. A finding of lack of 

credibility with regard to his present testimony is more than 

amply warranted in light of his testimony on prior occasions that 

he "didn't have a lawyer and there was no one to tell [him] 

where I'd been or where I'd lived, or with whom I had worked 

during this time" (p. 9 of Ex. 14). 

Furthermore, the affidavit and the testimony of the witness, 

Walter Lane, reveal inconsistencies which cannot be reconciled. 

His affidavit executed on October 21, 1967, states that he worked 

with the *respondent's father on the Otto Woods ranch for about 

two years, and that thereafter the respondent's father worked on 

the McAllen ranch, but that he was confident that the respondent's father resided in the United States from 1930 to 1936 (Ex. 

9 attached to Ex. 12). Two days later in his statement of October 

2The Supreme Court held in Woodby 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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Interim Decision #1990 

25, 1967 he testified that the respondent's father worked on the 

Wood ranch for a total of five years (p. 3 of Ex. 14). When examined under oath by an immigration officer on October 25, 1967, 

he stated that his testimony was based upon what the respondent's father told him; that he thought the respondent's father was 

living in Edinburg, Texas, when he first met him, and at he did 

not have personal knowledge of where the respondent's father 

was living when he first met him. During this proceeding the witness testified that the respondent's father resided in a house on 

the Otto Wood ranch from 1930 to 1936 and that the respondent's 

father did not work for anyone else during the period 1930 to 

1936 (pp. 53, 80) . 

The affidavit (Ex. 5) executed by the respondent's paternal 

grandmother does not appear to be credible in light of her testimony in a derivative application filed by the respondent's sister 

in 1960 relating to the respondent's brother, Juan. She now 

claims that her son resided with her in McAllen, Texas, from 

1915 to 1922, and that she knows that the respondent's father 

"returned to the United States in the year 1930 and stayed .. . 

until sometime in the year 1936." At the time of the derivative 

application she testified that the respondent's father resided in 

the United States from 1912 to 1914 and from 1943 to the date of 

the application (Ex. 6). 

Counsel objects to the propriety of the Government calling the 

nationality attorney who conducted the prior derivative citizenship proceeding as a witness. We note that counsel made no 

objection to the appearance of the nationality attorney during the 

hearing. 8 CFR 242.14 (c) provides that "the special inquiry 

3fticer max receive in evidence any oral or written statement 

which is material and relevant to any issue in the case previously 

nade by the respondent or any other person during any investication, examination, hearing, or trial." Since the record of the de-

•vative citizenship proceeding under section 341 of the Act could 

aye been received in evidence without the testimony of the naionality attorney, we find no prejudice to the respondent since 

ounsel had an opportunity to cross-examine the witness. 

Upon evaluating and weighing the evidence submitted by both 

le Government and the respondent, we find that the respondent's 

aim of derivative citizenship is not supported by a preponderace of credible evidence and for this reason, there is ample sup- 

)rt for the rejection of the respondent's claim that he is a citimn of the United States. Based on this finding, we conclude that 

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Interim Decision #1990 

there is clear, unequivocal and convincing evidence that the facts 

alleged as grounds for deportation are true. 

An order dismissing the appeal will be entered. 

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

hereby dismissed.