Interim Decision #2493

Interim Decision #2493

1Y1ATrEn. OF RAMOS

In Deportation Proceedings

A-20303516

Decided . by Board June 2, 1976

Where the record indicated that respondent was aware that he possessed United States

citizenship and had failed to come to the United States for a continuous period of at least

two years between the ages of 14 years and 28 years as required by section 301(b) of the

Immigration and Nationality Act, respondent lost his United States citizenship notwithstanding his claimed ignorance of the retention requirement of the statute.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C_ 1251 (02)1—Entered withoutinspection

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Donald T,_ Ungar, Esquire

Brian H. Simpson

Dial Attorney

Phelan, Simmons & Ungar

517 Washington Street

San Francisco, California 94111

In a decision dated October 14, 1975, the immigration judge found the

respondent deportable, but granted him the privilege of voluntary departure. The respondent has appealed from that decision, contending

that he is a citizen of the United States and not subject to deportation.

The appeal will be dismissed.

Counsel has conceded that the respondent is deportable under section

241(a)(2) of the Immigration and Nationality Act, if he is an alien.

Consequently, the only issues on appeal involve the respondent's claim

to United States citizenship.

The respondent was born in August of 1939 in Mexico. His father was

a citizen of Mexico, but his mother was a citizen of the United States.

She had been born in Kansas in 1919, but had been taken to Mexico at

the age of two or three and had resided there until 1957 or 1958. The

parties agree that the respondent was a citizen at birth by virtue of

section 1993 of the Revised Statutes, as amended by the Act of May 24,

1934 (48 Stat. 797), which provided:

Sec. 1993. Any child hereafter born out of the limits and jurisdiction of the United

States, whose father or mother or both at the time of the birth of such child is a citizen of

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the United States, is declared to be a citizen of the United States; but the rights of

citizenship shall not descend to any such child unless the citizen father or citizen mother,

as the case may be, has resided in the United States previous to the birth of such child.

In cases where one of the parents is an alien, the right of citizenship shall not descend

unless the child comes to the United States and resides therein for at least five years

continously immediately previous to his eighteenth birthday, and unless, within six

months after the child's twenty-first. birthday, he or she shall take an oath of allegiance

to the United States of America as prescribed by the Immigration and Naturalization

Service.

It is this provision which governs the respondent's acquisition of

United States citizenship. However, after the respondent's birth, Congress enacted several significant changes relating both to the acquisition

and retention of citizenship by persons born abroad. It is only the

changes to tie retention requirements which concern us here.

On the facts of this case, section 301(b) of the Immigration and

Nationality Act is the provision governing the retention requirements

applicable to the respondent. See generally sections 201(g) and (10,

Nationality Act of 1940 (Act of October 14, 1940, 54 Stat. 113'7); sections

201(a)(7), 301(b) and 301(e), Immigration and Nationality Act. Section

301(b) presently provides:

(b) Any person who is a national and citizen of the United States under paragraph (7)

of subsection (a) shell lose his nationality and citizenship unless (1) he shall come to the

United States and be continously physically present therein for a period of not less than

two years between the ages of fourteen years and twenty-eight years; or (2) the alien

parent is naturalized while the child is under the age of eighteen years and the child

begins to reside permanently in the United States while under the age of eighteen

years. In the administration of this subsection absences from the United States of less

than sixty days in the aggregate during the period for which continuous physical

presence in the United States is required shall not break the continuity of such physical

—

presence.

The respondent first entered the United States in January of 1973, at

the age of 33. At the hearing, counsel for the respondent conceded that

his client had failed to comply with the residency requirement, necessary for the retention of his United States citizenship, contained in

section 301(13,. A prima facie case of alienage was therefore established.

The respondent, bearing the burden of going forward with the evidence, then advanced two theories under which he claimed not to have

lost his United States citizenship. He contended (I) that he was ignorant

of the retention requirement and consequently that it should not apply

to him, and (2) that the government should be estopped from applying

the retention requirement to him because in 1957 his mother had been

advised by a United States consular official about the respondent's

citizenship, hit had not been advised about the retention requirement.

The immigration judge found• that the respondent was not in fact

ignorant of the residency requirement necessary for retention of United

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States citizenship. The immigration judge therefore did not directly

address the legal contentions raised by counsel for the respondent. On

appeal, counsel has specifically declined to pursue his estoppel theory,

and the only contentions which we must address involve the respondent's claimed ignorance of the retention requirements.

The immigration judge found that the respondent had failed to come

forward with any believable evidence that he was unaware of the

retention requirements of section 301(b). The record indicates that any

information which the respondent may have had about those requirements would have come from his mother and his older brother after

their visit in 1957 to a United States consular official.

In 1973, the respondent's mother and older brother testified in the

deportation case relating to another brother of the respondent. Their

testimony, which was also taken before the immigration judge -who

handled the respondent's case, was to the effect that the consular official

had never informed them of the requirements for retention of United

States citizenship. That testimony was introduced as an exhibit at the

respondent's hearing. The immigration judge found the testimony of the

mother and older brother to be confusing and not worthy of beliet The

immigration judge also found. that the respondent was not a credible

witness.

On appeal, counsel stresses that the important question concerns the

knowledge of the respondent, not the knowledge of his relatives. Counsel argues that the limited contact which the respondent had with his

relatives after their 1957 visit to the consular official, as well as the

general lack of education of all of the respondent's family, strongly

'suggest that the respondent did not know of the retention requirements, even if his mother and brother had been so informed.

We, however, agree with the immigration judge that the respondent

has not shown that he was in fact ignorant of the retention requirements

relating to his United States citizenship. The respondent's older brother

did write to the rest of the family concerning the visit with the consular

official, and the respondent's mother did visit with her family in Mexico

after 1957. The record establishes that the respondent's family in general was quite interested m the status of particular family members with

respect to the United States. We find it difficult at accept the possibility

that every detail of the 1957 consular visit was not reported to the rest

of the family, including the respondent. 'In addition, we cannot infer' a

lack of knowledge from the respondent's failure to enter the United

States at an earlier date, because the respondent's family was admittedly ton poor to finance the journey from their village in Mexico to the

United States.

We recognize that the testimony of the respondent and the other

members of his family is consistent on the issue of whether or not they

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received information on the retention requirements. The immigration

judge, however, found the witnesses to be incredible, and his finding is

entitled to considerable weight. Matter of Teng, 15 I. & N. Dec. 516

(BIA 1975); Matter of S—, 8 I. & N. Dec. 574, 576 (BIA 1960); Matter of

7'—, 7 I. & It. Dee. 417 (BIA 1957).

We have found that the respondent has failed to carry -his burden of

going forward with the evidence to show that he was ignorant of the

retention requirement associated with his United States citizenship.

Moreover, we have concluded that the respondent would have lost his

United States citizenship by virtue of his failure to comply with those

retention requirements, even if he was unaware of them.

Counsel argues that the respondent's alleged ignorance of the retention requirement is significant, because of the case law holding that a

person who is unaware that he possesses United States citizenship

cannot lose it. by performing an otherwise expatriating act. See Rogers

v. Patokoski, 271 F.2d 858 (C.A. 9, 1959); Matter of C—S—, 9 L & N.

Dec. 670 (A.G. 1962); Matter of C—A—, 9 I. & N. Dec. 482 (BIA 1961).

The respondent, however, was not unaware that he possessed United

States citizenship. The record shows that the respondent at least suspected that he had United States citizenship since the age of ten, and

that he clearly knew of his status after his relatives visited the consular

official in 1957. The cases relied on by counsel therefore are not in point,

and we need not now consider the questiom that would be presented if

the respondent had at all relevant times been ignorant of his claim to

United States citizenship. Cf. Petition of Acchione, 213 F.2d 845 (C.A.

3, 1954).

Counsel recognizes that the Supreme Court upheld the constitutionality of section 301(b) in Rogers v. Bellei, 401 U.S. 815 (1971). Counsel,

however, attempts to distinguish Bellei on the ground that the individual involved in that case was clearly aware of both his citizenship and

the retention requirements. Counsel evidently contends that ignorance

of the retention requirements alone is significant because of the Supreme Court's decision in Schneider v. Rusk, 377 U.S. 163 (1964).

In Schneider v. Rusk, supra, the Court declared unconstitutional the

expatriation of naturalized citizens merely for residing for several years

in a foreign country. The Court indicated that foreign residency was not

inconsistent with undiluted allegiance to the United States, and that the

distinction created by Congress between native-born and naturalized

citizens violated the equal protection guarantee contained in the Fifth

Amendment's due process clause.

Counsel for the respondent and the Service's trial attorney each

stress different aspects of the Court's decision in Schneider, attempting

either to analogize it to, or to distinguish it from, the ease at hand. We,

however, have our doubts concerning the precedential value to be

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assigned Schneider in view of the Supreme Court's subsequent decision

in Afroyim v. Rusk, 387 U.S. 253 (1967). Furthermore, we have concluded thatRogers v. Bellei, supra, is controlling for our purposes, even

if Schneider retains some present-day relevancy.

The retention requirement of section 301(b) was upheld in the face of a

constitutional challenge in Bellei. The statutory framework governing

the respondent's citizenship makes no mention of an exception from the

residency requirement for an individual ignorant of that requirement.

Counsel is, in essence, attacking the constitutionality of the retention

requirement as applied to an individual who knows of his claim to

citizenship, but who does not know of the retention requirement. We

know of no court case dealing with this very issue, and we do not

entertain constitutional challenges to the statutes we administer. Matter of L—,4 L & N. Dec. 556 (BIA 1951). We hold that the respondent

lost his statutorily based United States citizenship when he failed to

comply with the terms of the statute. He is an alien, and subject to

deportation on the charge contained in the order to show cause.

ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily

within 31 days from the date of this order or any extension beyond that

time as may be granted by the district director; and in the event to

failure so to depart, the respondent shall be deported as provided in the

immigration judge's order.

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