GONZALEZ-GOMEZ
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry—No immigrant visa.
ON BEHALF OF 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 1993 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 twenty-eighth birthday as required by section 301(b) of the Immigration and
Respondent‘s first contention is that under Woodby v. Immigration and Naturalization 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-M-, 7 I. & N. Dec. 332.
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
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 349(c) of the Immigration and Nationality Act , 75 Stat. 656 (1961),8 U.S.C. sec. 1481(c) .
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
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
Counsel contends that
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.