Interim Decision #2044
MATTER OF PEIGNAND
In Deportation Proceedings
A-11862196
Decided by Board May 1, 1970
Since respondent, who was born out of wedlock on January 29, 1936, was
never legitimated, he did not, through the naturalization of his mother in
December 1943, acquire U.S. citizenship under the Nationality Act of
1940, neither did he derive citizenship under section 321(a) of the Immigration and Nationality Act since he was over 16 years of age on December 24, 1952, the effective date of the Act.*
CHARGE:
Order: Act of 1952— Section 241(a) (11) [8 U.S.C. 1251 (a) (11) I—Convicted of violation of any law or regulation
relating to the illicit traffic in narcotic drugs, to
wit, heroin.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Antonio C. Martinez, Esquire R. A. Vielhaber
77 Seventh Avenue Appellate Trial Attorney
New York, New York 10011
(Brief filed)
The respondent appeals the decision of the special inquiry
officer who denied his motion to reopen the proceedings to give
further consideration to the question of his deportability. We will
dismiss the appeal.
At the deportation hearing on September 25, 1964, the special
inquiry officer found that the respondent was deportable as
charged and ordered that he be deported to his native country,
the Dominican Republic. He also found that respondent was not
eligible for any type of discretionary relief. The appeal alleges
that the respondent was not accorded due process of law at the
hearing because he was not represented by counsel and also that
the respondent is a United States citizen and thus is not subject
to deportation.
* Reaffirmed. See 440 F.2d 757 (1971).
566
Interim Decision 4#2044
The respondent is a 34-year-old unmarried male, born in the
Dominican Republic on January 29, 1936, who at last arrived at
San Juan, Puerto Rico on July 30, 1963, at which time he was admitted as a visitor for pleasure. On March 6, 1964, he was convicted in the Superior Court of Puerto Rico, San Juan Division,
of possession of heroin and was sentenced to serve a term of five
to nine years in prison.
The record is quite clear that at the time of the original deportation hearing, the respondent was duly advised of his right to
counsel and that he intelligently and knowingly waived the right.
It is settled law that in a deportation hearing the respondent has
the absolute right to waive counsels and if the hearing is eminently fair in all respects, respondent's constitutional rights are
not violated by the absence of counsel, since a deportation hearing is a civil and not a criminal matter. 2 A respondent has not
been denied counsel when he waives his privilege to be
represented.' In the instant case the respondent received a fair
hearing in accordance with the law and there was no denial of
due process of law.4
The respondent's claim that he is a United States citizen is
without foundation. He was born on January 29, 1936 and was an
illegitimate child. He was never legitimated. His mother came to
the United States and was naturalized on December 2, 1943.
Under the Nationality Act of 1940, which was in effect when the
mother was naturalized, a child born out of wedlock and never
legitimated could not derive United States citizenship from the
naturalization of either his father or his mother. 5 Moreover, he
did not derive citizenship under the Immigration and Nationality
Act of 1952, which became effective on December 24, 1952. Section 321(a) of the Act, which expanded the 1940 Act, provides
that an illegitimate child will derive citizenship when the mother
is naturalized provided the child is under age 16 at the time of
naturalization, which was the case here. However, it has been
1 Murgia-Melendrez v. INS, 407 F.2d 207 (9 Cir., 1969) ; Millan-Garcia v.
INS,
343 F.2d 825, 828 (9 Cir., 1965), reversed on other grounds
382 U.S. 69
(1965).
2 Woodby v. INS,
385 U.S. 276 (1966); Harisiades v. Shaughnessy,
342
U.S. 580 (1952); U.S. ex rel.. Bilokurnsky v. Tod,
263 U.S. 149 (1923); Diric
v. INS,
400 F.2d 658 (9 Cir., 1968) ; Murgia-Melendrez v. INS, supra; Espinosa v. INS,
404 F.2d 544 (9 Cir., 1968).
3 Burr v. INS,
350 F.2d 87 (9 Cir., 1965). See also U.S. ex ref. Mustafa v.
Pederson,
2117 F.2d 112 (7 Cir., 1953).
4 Hee Chan v. Pilliod,
178 F. Supp. 793 (U.S.D.C., N.D. Illinois 1959).
5 Espindola v. Barber,
152 F. Supp. 829 (U.S.D.C., N.D. Calif., 1957).
567
Interim Decision #2044
specifically held that this provision of the 1952 Act is not retroactive, and if the child is over 16 years of age on the effective date
of the Act, he has no claim to citizenship by derivation. 6 Respondent was almost 17 years old on December 24, 1952.
The respondent is not entitled to the privilege of voluntary departure because section 244 (e) specifically prohibits this discretionary relief to anyone who has been convicted of a narcotics
violation. Further, the discretionary relief of suspension of deportation under section 244 (a) (2) is precluded by the fact that the
person seeking such relief must have resided in the United States
for at least 10 years after the offense was committed. Respondent
cannot meet this requirement.
Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
6 E$pindola v. Barber, supra.; Matter of 1,—,
8 I. & N. Dec. 272 (BIA,
1959).
568
