Olvera v. Immigration and Naturalization Service, 74-2655

• Decision Date: 13 December 1974
• Docket Number: No. 74-2655,74-2655
• Citation: 504 F.2d 1372
• Parties: Raul Ramos OLVERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Summary Calendar.* *Rule 18, 5th Cir., see Isbell Interprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970, 431 F.2d 409, Part I.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1372

504 F.2d 1372

Raul Ramos OLVERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 74-2655 Summary Calendar.* *Rule 18, 5th Cir., see Isbell Interprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir., 1970 431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 1974.

Albert Armendariz, Sr., El Paso, Tex., for petitioner.

William B. Saxbe, Atty. Gen., U.S. Dept. of Justice, Rex Young, Atty., Government Regulations, John L. Murphy, Chief Criminal Div., Washington, D.C., William S. Sessions, U.S. Atty., San Antonio, Tex., Ralph Harris, Ronald F. Ederer, Asst. U.S. Attys., El Paso, Tex., Troy A. Adams, Jr., Dist. Dir., Immig. & Nat., New Orleans, La., for respondent.

Before GEWIN, GODBOLD and CLARK, Circuit Judges. PER CURIAM:

Deportation proceedings against petitioner commenced on July 10, 1973 when he was served with a notice of hearing and order to show cause why he should not be deported as an alien who had entered the United States without inspection in violation of 8 U.S.C. 1251(a)(2). Petitioner appeared at the hearing on July 16, 1973 in the company of an attorney who made a motion for a thirty-day continuance on the basis that counsel of record, his father and law partner, was unable to attend because of participation in another trial; and that further time was needed to gather evidence to support petitioner's claim of citizenship. Counsel explained that he intended to establish citizenship through petitioner's mother, who had been born in the United States and had resided here until her marriage shortly after her nineteenth birthday. After reviewing some of the documentary evidence, the Special Inquiry Officer noted that it appeared unlikely that petitioner's mother had been a resident for the necessary length of time. ¹ In light of substitute counsel's apparent unfamiliarity with the case, the SIO granted a three-day continuance so that counsel could confer with his father to determine how to proceed. He cautioned, however, that at that time petitioner would need to 'come up with some very convincing reason' to justify further delay.

Upon resumption of the hearing on July 19 substitute counsel again moved for a continuance based upon the unavailablity for a continuance based upon the unavailability of his father as well as the need for additional time to research and obtain witnesses to support a new claim that petitioner was an illegitimate child and hence a United States citizen under section 205 of the Immigration and Nationality Act of 1940. ² In opposition to the motion the government offered petitioner's birth certificate, in which his mother had declared him to be legitimate, and his parents' marriage certificate which disclosed that his birth was within the marriage period. The SIO ruled that in light of the evidence of legitimacy these documents supplied, petitioner's claim of illegitimacy was not shown to have any 'prima facie merit'. He denied the motion for continuance, observing that the issues presented were uncomplicated.

At the close of the hearing, the SIO held that petitioner had not met his burden of proving that he acquired United States citizenship under either his initial theory that he was the legitimate child of an American citizen mother who met the residency requirement or that he was her illegitimate offspring. The SIO concluded that petitioner was deportable for the reasons charged in the order to show cause. The Board of Immigration Appeals affirmed. Petitioner now seeks review of the order under 8 U.S.C. 1105a.

Petitioner's lone allegation of error is that the denial of his motion for a...