The file also contains another certificate relating to baptism, this one from another parish, the Parish of Our Lady of Refuge, also in Matamoros, based upon affidavits by the petitioner's mother and Maria de Jesus Cordoba dated January 19, 1955. This certificate asserts the petitioner was baptized January 26, 1910, not at the San Juan ranch, but at the Palangana ranch in San Juan, Texas. In effect, it is a delayed baptismal certificate, secured at approximately the same time as the delayed birth certificate.

The petitioner, in his statement of April 16, 1970, said that there is a San Juan ranch adjacent to the Palangana ranch in the jurisdiction of Matamoros, Tamaulipas, Mexico.

In Mah Toi v. Brownell, 219 F.2d 642 (9 Cir., 1955), cert. denied 350 U.S. 823, a case involving a proceeding for the declaration of United States nationality, the court held that a California court order establishing birth in the United States was merely prima facie evidence and that presumptions arising from such evidence are rebuttable, not conclusive. The same rule was applied in the following cases involving delayed evidence of birth: Casares-Moreno v. United States, 226 F.2d 873 (9 Cir., 1955), a criminal case; Louie Hoy Gay v. Dulles, 248 F.2d 421 (9 Cir., 1955); and Liacakos v. Kennedy, 195 F. Supp. 630 (D. D.C., 1961), deportation matters. We applied the rule in a deportation proceeding, Matter of Lugo-Guadiana, 12 I. & N. Dec. 726 (BIA, 1968).

As the court did in the Mah Toi case, supra, we look behind the instrument itself and consider the supporting matter upon which it was issued. In the present case we note that one of the signers of a supporting affidavit was only three years old at the time of the alleged birth and, therefore, was not likely to have personal knowledge of the facts of birth. The basis of knowledge of the other affiant is not given.

The petitioner, then, has not come forth with documentary evidence that meets the requirements of any one of the three subsections of 8 CFR 204.2 (a). That is, his delayed birth certificate, standing alone, does not amount to a "birth certificate" within the contemplation of the first subsection; the two baptismal records submitted do not satisfy the second subsection, since they relate to a baptism which took place five, rather than two months after birth; and the petitioner has not submitted the two affidavits of United States citizens with knowledge of the facts of birth as required by the third subsection.

Even aside from his failure to comply with 8 CFR 204.2 (a), our appraisal of all the evidence leads to the conclusion that the petitioner has not met his burden of establishing eligibility for the benefit he seeks, Matter of Brantigan, 11 I. & N. Dec. 493 (BIA, 1966). That is, even though the delayed Texas birth certificate may be treated as prima facie evidence of the facts it relates, we find that those facts have been rebutted by contradictory documentary evidence in the form of the 1910 census record. Moreover, the delayed Texas birth certificate, along with the simultaneous delayed Mexican baptismal record, appears to be part of a scheme to deceive the immigration authorities.

We accordingly agree with the District Director's conclusion that the United States birth of the petitioner has not been established. Because the petitioner has failed to establish that he is a United States citizen, his petition for immediate relative status for his wife must be denied. The following order will therefore be entered.

ORDER: We affirm the decision of the District Director and dismiss the petitioner's appeal.

MATTER OF BARRAGAN

In Deportation Proceedings

A-19883045

Decided by Special Inquiry Officer April 22, 1971
Decided by Board September 13, 1971

The departures of respondent, an alien illegally in the United States, to Mexico on February 2, 1968, and April 3, 1970, pursuant to an administrative grant on each occasion of voluntary departure without the institution of deportation proceedings, were meaningful, rather than casual departures, despite her intent to return and actual return to the United States on the same day or within a short time thereafter. Therefore, the relatively brief periods of her absence from this country broke the continuity of her physical presence in the United States for the purpose of qualifying for suspension of deportation under section 244 (a) (1) of the Immigration and Nationality Act, as amended.

CHARGE:

Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant visitor-remained longer.

The respondent is a 36-year-old widow. As alleged in the order to show cause she admitted through counsel that she is a native and citizen of Mexico; that she entered the United States at San Ysidro, California in April 1970; that she was admitted as a nonimmigrant visitor and authorized to remain in the United States for a temporary period not to exceed 15 days, and that she has not departed from the United States. The respondent further con

ceded deportability on the charge contained in the order to show cause. On the basis of the foregoing admissions, I have determined and concluded that she is clearly deportable from the United States on said charge.

During the course of the hearing the respondent through counsel submitted an application for suspension of deportation (Exhibit 2). Counsel contended that the respondent was exempt from the provisions of section 244 (f) of the Act despite the fact that she is a native of contiguous territory because she is unable to obtain a labor certification as a sewing machine operator. Counsel also requested in the respondent's behalf, in the alternative, the privilege of voluntary departure in lieu of deportation. The Trial Attorney stated for the record that it was the Service's position that inasmuch as the respondent was statutorily ineligible for suspension of deportation the usual investigation conducted in such cases was being waived and that the Service for the purpose of the instant proceedings would concede that the respondent was and had been a person of good moral character for the past seven years.

The respondent testified that she first entered the United States in November 1963 at San Ysidro, California at which time she was admitted as a border crosser for not more than 72 hours. She stated that she has resided here continuously since then except for two departures to Mexico through the port of San Ysidro, California on February 2, 1968, and April 3, 1970. The respondent admitted that on both of the aforementioned dates she had been apprehended by officers of this Service who permitted her to leave the United States voluntarily. She declared that after her first departure on February 2, 1968, she returned to the United States at San Ysidro, California on the same day by presenting her border crossing identification card. She also admitted that after her second voluntary return to Mexico on April 3, 1970, she next returned to the United States at San Ysidro, California on April 10, 1970, again by presenting her border crossing card.

In order to qualify for suspension of deportation under section 244 (a) (1) of the Act an applicant must establish, among other things, that he has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of his application for suspension of deportation. The question to be determined in this regard is whether the respondent's departures from the United States to Mexico on February 2, 1968, and April 3, 1970, pursuant to the privilege granted to her on each occasion to depart voluntarily in lieu of

the institution of deportation proceedings, broke the continuity of her physical presence in the United States. Based upon the statements made for the record by the Trial Attorney it is assumed that it is the Service's contention that departures from the United States pursuant to directives of officers of the Service, acting for the Attorney General, cannot be characterized as brief and casual but, rather, were meaningful departures which serve to distinguish the instant case from the precedent decisions rendered in Wadman v. INS, 329 F.2d 812; Git Foo Wong v. INS, 358 F.2d 151; and Toon Ming Wong v. INS, 363 F.2d 234, all of which were bottomed upon the rationale of the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449.

It is the respondent's position, however, that although it is admitted that she left the United States on two occasions such departures were not a significant and meaningful interruption of her presence in the United States, citing Matter of Wong, 12 I. & N. Dec. 271 (May 10, 1967 and June 23, 1967). The respondent testified that on both occasions when she was required by officers of this Service to leave the United States she had intended to return to this country immediately. Although she departed to Mexico on February 2, 1968, with her daughter, a native and citizen of Mexico who was in the United States illegally also, she was not accompanied by the child on the occasion of her last departure on April 3, 1970. The respondent stated that because her daughter had remained in the United States it was her, the respondent's, desperate intention to return to the United States as soon as possible.

To state the primary issue in this case in another way: Does the departure by an alien who is illegally in the United States, pursuant to an administrative grant of voluntary departure without the institution of deportation proceedings, followed by a return to the United States on the same day or within a short time thereafter, break the continuity of physical presence required to qualify for suspension of deportation under section 244 (a) (1) ?

It has been held that deportation terminates residence. Mrvica v. Esperdy, 376 U.S. 560 (March 30, 1964). An alien who departs pursuant to an order of exclusion and deportation breaks the continuity of his residence. Matter P—, 8 I. & N. Dec. 167; Matter of R-, 8 I. & N. Dec. 598. It has also been held that departure pursuant to an order of voluntary departure granted in a deportation hearing does not break the continuity of residence for section 249 relief. Matter of Contreras-Sotelo, 12 I. & N. Dec. 596 (December 26, 1967); Matter of Benitez-Saenz, 12 I. & N. Dec.