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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 that 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 officer may receive in evidence any oral or written statement which is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial." Since the record of the derivative citizenship proceeding under section 341 of the Act could have been received in evidence without the testimony of the nationality attorney, we find no prejudice to the respondent since counsel had an opportunity to cross-examine the witness.
Upon evaluating and weighing the evidence submitted by both the Government and the respondent, we find that the respondent's claim of derivative citizenship is not supported by a preponderance of credible evidence and for this reason, there is ample support for the rejection of the respondent's claim that he is a citizen of the United States. Based on this finding, we conclude that
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.
MATTER OF PENA HERRERA
In Adjustment of Status Proceedings
Decided by District Director July 29, 1969
Since it has been established that applicants' father, because of his class of
admission and his duties, would have been eligible for the benefits of section 13 of the Act of September 11, 1957 following termination of his diplomatic status, his loss of eligibility for such relief (having last entered the United States as a visitor) does not disturb nor in any way affect the eligibility for the benefits of section 13 of the Act of applicants, who have remained in this country since their admission on January 25, 1953 under section 101 (a) (15) (A) (i) of the Immigration and Nationality Act, as amended, as his accompanying minor children.
The applicants are two sisters, one twenty three and one twenty five, both natives and citizens of Ecuador. They were last admitted to the United States on January 25, 1953 under the provisions of section 101 (a) (15) A) (i) of the Immigration and Nationality Act, as amended, as the accompanying minor children of Cesar F. Penaherrera, then Ecuadoran Consul General at San Francisco, California.
The father of the applicants officially terminated his position as Consul General at San Francisco, California on July 8, 1953. Mr. Penaherrera left the United States for San Salvador in the summer of 1956. He was issued an immigrant visa by the American Consulate in San Salvador, El Salvador on August 17, 1956 and admitted to the United States for permanent residence on October 2, 1956. On May 2, 1958 the American Embassy, Guatemala made a determination that he had lost his residence status in the United States. Mr. Penaherrera was next admitted to the United States at Miami, Florida on January 13, 1962 as a visitor for pleasure until March 12, 1962. He left the United States to return to El Salvador on December 20, 1962 and the record does not indicate that Mr. Penaherrera has ever returned to the United States since his last departure.
The applicants have remained in the United States since their entry on January 25, 1953. Due to their early age at the time of arrival and their long stay in the United States they came to believe until recently that they were lawful permanent residents of the United States.
The applicants are presently employed, Maria Penaherrera as a traffic agent for Foremost Foods Company, 111 Pine Street, San Francisco, California, and Barbara Penaherrera as an office clerk in the same city. They desire to remain in the United States because they believed they were lawful permanent residents for many years and regard this country as their home.
The good moral character of the applicants has been established. They are not inadmissible to the United States under the excluding provisions of the Act, except for lack of entry documents. They have fulfilled all the requirements for eligibility under Section 13 of the Act of September 11, 1957. The Secretary of State has no objection to the granting of permanent resident status.
Title 8 of the Code of Federal Regulations, part 245.3, states in part that “The benefits of section 13 of the Act of September 11, 1957 shall be accorded only to an alien admitted to the United States under the provisions of either section 101 (a) (15) (A) (i) or (ii) or 101 (a) (15) (G) (i) or (ii) of the Act who performed diplomatic or semidiplomatic duties and to members of his immediate family.” (Emphasis supplied) Since it has been established that their father would have been eligible for the benefits of the Act, because of his class of admission and his duties, his loss of eligibility by having last entered the United States as a visitor for pleasure does not disturb or in any way affect the continued eligibility of these applicants for the benefits of section 13.
It is ordered that the status of the applicants be adjusted to that of lawful permanent residents of the United States.
It is further ordered that if during the session of Congress at which these cases are reported or the session next following, either the Senate or the House of Representatives passes a resolution unfavorable to the applicants this order be automatically revoked and the applicants be required to depart from the United States in the manner required by law.
MATTER OF NAND
In Deportation Proceedings
Decided by Board July 24, 1969
A foreign record of respondent's conviction in Fiji, signed and attested to by
the clerk of court as a certified true copy, accompanied by a certification of signature and position of the clerk of court made by an American vice-consul, is properly authenticated under Rule 44 (a) (2) of the Federal Rules of Civil Procedure, as amended December 31, 1967, so as to support an order of deportation based on such criminal conviction.
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excluda
ble at time of entry—crime conviction: breaking, entering and larceny in violation of sections 327 (a) and 288 (1) of the Penal Code of Fiji.
ON BEHALF OF RESPONDENT:
Emanuel P. Razeto, Esquire
ON BEHALF OF SERVICE:
Irving A. Appleman
The case comes forward on appeal from the order of the special inquiry officer entered January 8, 1969 finding the respondent deportable on the charge stated in the order to show cause, denying the respondent's application for permanent resident status under section 245 of the Immigration and Nationality Act, granting voluntary departure in lieu of deportation on or before February 8, 1969 with the further order that if the respondent failed to depart when and as required, he be deported to Canada, alternatively, to Fiji.
The record relates to a native of Fiji, a subject of Great Britain, 33 years old, male, married, who last entered the United States at Blaine, Washington on March 24, 1967 as a temporary visitor. On January 14, 1958 the respondent was convicted by the