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
388
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
389
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, con-
390
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.
391
