Matter of Serna, Interim Decision Number 2681

• Decision Date: 06 December 1978
• Docket Number: Interim Decision Number 2681,A-21338935
• Parties: MATTER OF SERNA In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

16 I&N Dec. 643

MATTER OF SERNA

In Visa Petition Proceedings

Interim Decision Number 2681

A-21338935

Board of Immigration Appeals.

Decided by Board December 6, 1978.

(1) Delayed birth certificate, even where unrebutted by contradictory evidence, will not in every case establish petitioner's status as United States citizen. Matter of Herrera, 13 I. & N. Dec. 755 (BIA 1971), clarified.

(2) Each case in which United States citizenship is sought to be established through a delayed birth certificate must be decided on its own facts with regard to the sufficiency of the evidence presented as to petitioner's birthplace.

ON BEHALF OF PETITIONER: Laurier B. McDonald, Esquire Pena, McDonald, Prestia & Zipp P.O. Box 54 Edinburg, Texas 78539

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The petitioner has appealed from a decision of the District Director dated September 16, 1976, denying a petition filed on behalf of the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), for the reason that the evidence submitted by the petitioner had not established that she is a United States citizen. The record will be remanded.

The Code of Federal Regulations provides that a petition filed on behalf of a relative by a United States citizen whose citizenship is based on birth in the United States must be accompanied by the petitioner's birth certificate, or, if the birth certificate is unobtainable, a copy of a baptismal certificate under church seal that shows the place of birth and date of baptism (which must occur within two months after birth); or, if neither a birth certificate nor a baptismal certificate is obtainable, affidavits of two United States citizens who have personal knowledge of the petitioner's birth in the United States. 8 C.F.R. 204.2(a)(1).

In support of her citizenship claim, the petitioner submitted a certified photostatic copy of a birth certificate issued by the State of Texas, dated June 23, 1952, stating that Ramona Rodriguez was born in Raymondville, Texas, on March 10, 1951. The certificate contains two affidavits from Guadalupe Patino Rodriguez (who is listed as the petitioner's mother on the certificate) and Ofelia Rodriguez (who is listed as "not related" on the certificate) verifying the facts stated in the birth certificate. The petitioner also submitted a certified photostatic copy of a baptismal certificate for Maria Ramona Rodriguez that bears the same date and place of birth as the birth certificate. This document, dated November 5, 1974, states that the petitioner was baptized in the Our Lady of Guadalupe Church, Raymondville, Texas, on March 9, 1952.

The District Director concluded that the evidence submitted failed to meet any one requirement for proof of United States citizenship under 8 C.F.R. 204.2(a)(1).¹ He further stated that the documents were "inadequate by any reasonable standards."

On appeal, the petitioner contends that a "delayed" birth certificate may be treated as prima facie evidence of United States citizenship until it is rebutted by contradictory documentary evidence. In support of her position, the petitioner cites Matter of Herrera, 13 I. & N. Dec. 755 (BIA 1971).

In that case, the petitioner presented a birth certificate issued by the State of Texas 45 years after the date of his birth. He also presented baptismal certificates from two different parishes. However, contradicting his claim of a United States birthplace was a census record which listed the petitioner's birthplace as Mexico. The Board affirmed the decision of the District Director denying the...