I

.
GARY FINN, ESQUIRE
Law Ofice of Gary Finn
82632 Highway 111, Suite B-2
Indio, CA 92201-0000
Name: CRUZ-ALVAREZ, FRANCISCO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigrtion Appeals
Ofce of the Clerk
5107 leebur Pike, Suite 1000
Fall s Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - IMP
1115 N. Imperial Ave.
El Centro, CA 92243
A076-375-249
Date of this notice: 2/28/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Malphrus, Garry D.
Miller, Neil P.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Francisco Cruz Alvarez, A076 375 249 (BIA Feb. 28, 2011)
7
U.S. Deparment of Justice
Executive Ofc fr Imigation Review
Falls Chuh, Virginia 22041
File: A076 375 249 - Imperial, CA
In re: FRNCISCO CRUZ ALVARZ
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Gar Finn, Esquire
ON BEHALF OF OHS: David P. Finn
Assistant Chief Counsel
CHARGE:
Decision of the Boad of Imigation Appeals
Date:
FEB 2 8 2011
Notice: Sec. 212(a)(6)(C)(ii), I&N Act [8 U.S.C. 1182(a)(6)(C)(ii)] -
False claim of United States citizenship
Sec. 212(a)(7)(A)(i)(I), I&N Act [8U.S.C.l182(a)(7)(A)(i)(I)] -
Immigant - no valid immigrant visa or enty document
APPLICATION: Termination
Te Depaent of Homeland Security ("OHS") appeals fom the decision of the Immigation
Judge dated July 28, 2009, ordering these removal proceedings terminated. The respondent asserts
in response that the decision of the Immigration Judge is corect. The appeal will be sustained, and
the record will be remanded to the Immigration Court.
We review the fndings of fct, including the deterination of credibility, made by the
Immigation Judge under a "clealy eroneous" standard. 8 C.F .R. 1003 .1 ( d)(3)(i). We review all
other issues, including whether the paties have met the relevat burden of proof, and issues of
discretion, uder a de novo standard. 8 C.F.R. 1003. l (d)(3)(ii).
The Imigation Judge deterined that although the respondent had delayed birth certifcates
fom both Califra and Mexico, the birth certifcate issued pursuant to an order fom the Superior
Cour of the State of Califria wa entitled to fll fith and credit pursuant to 28 U.S.C. 1738.
The Immigation Judge concluded that because the court adjudicated the fct of the respondent's
birth being in Fresno, Califria, he was compelled to abide by that decision and terinate the
removal proceedings.
The court-ordered delayed birth registration issued in this case is not conclusive evidence of the
respondent's birth in the United States. Mah Toi v. Brownel, 219 F .2d 642 (9th Cir.), cert. denied,
350 U.S. 823 (1955); Casares-Moreno v. United States, 226 F.2d 873 (9 Cir. 1955); see E parte
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Cite as: Francisco Cruz Alvarez, A076 375 249 (BIA Feb. 28, 2011)
A076 375 249
Lee Fong Fook, 74 F. Supp. 68, 70-71 (N.D. Cal. 1948) (state court decree refecting birth in the
United States is not conclusive upon the United States as to citizenship or as to the right of enty into
the United States); Mater of Sera, 16 l&N Dec. 643 (BIA 1978) (each case involving claim of
United States citiznship based on delayed birth certifcate mut be decided on its own fcts);
Mater of Herrera, 13 I&N Dec. 755, 758 (1971) (fnding that fcts presented in delayed Texa birth
certifcate had been rebutted by contradictor documentary evidence). Because the Immigration
Judge incorrectly fund that the respondent's Califria birh certifcate wa conclusive evidence
of the respondent's birh in the United States, he did not address other evidence in the record
concering the respondent's birt. In view of our limited fct-fnding authorit, we will remand the
record to the Immigation Judge fr issuance of a new decision in which all of the evidence
concering the respondent's birth is considered. 8 C.F.R. 1003 .1 ( d)(3)(iv); Mater of Fedorenk,
19 I&N Dec. 57, 74 (BIA 1984) ("[t]he Board is an appellate body whose fction is to review, not
create, a record").
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigation Court fr frther proceedings
consistent with the fregoing opinion and e entr of a new decision.
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Cite as: Francisco Cruz Alvarez, A076 375 249 (BIA Feb. 28, 2011)

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'
`Y
United States Department of Just...
- ' Immigration Cour
Imperial, CA
FILE NO. A076 375 249
..
)
IN THE MATER OF:
)
CRUZ-ALVAREZ, FRANCISCO )
ApplicanURespondent
)

On Behalf of Respondent:
{ hAA
ORDER
IN REMOVAL PROCEEDINGS
This mater came on for hearing on February 27, 2009
Hearing was recorded _ NOT recorded- pretrial conference, 8 CFR 1003.21
.\ y ?o 2009, at _amim becausei
I L'
Not enough time to complete the matter. (13} ICE Investigation (37} _IC forensics exa {43)
The mater was continued to
Not interpreter in the alien's native language Not ordered (32) FT A (33)44
The alien must file any and all applications for relief, including by

(asy 5;othr 6} ..
WARNING: You must file your aplication on time. Under 8 CFR. 1003.31 Cc). you will lose your chance to file
an aplication if you fle it late. Your application may/may not be filed by mail.
. _
_

_. ` '

Respondent requires fnger printing or records check & was informed of proces to follow ICE(24) Alien(36}
The alien wanted more time

_orney. (1} Alien atty re

conti

Jce (12} Both paries (45}

The alien I alien's attorney failed to appear. (11 ); (38) Alien ill; ( 39) At ill: (40) Witness ill
Alien / ICE not prepared for hearing. (2)-Alien; (3)-ICE; (4)-ICE no file; (47)-ICE lodged charge.
Notice of hering not properly sent to the alien. (10); 7 ICE application processing (78)
Reset to Merits hearing_Contests charges (51) 1aims U.S. citizenship @
Respondent rejected earliest possible asylum hearing date (22}
Awaiting OHS adjudication of l -130(7C); 1-140(70);
Parties to exchange evidence and witness list by

_ _

-2

_ f ___

1

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I advised the alien of the cons!qUQf any failure to appear. *_

. '
O
ther

..
SO ORDERED
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Cite as: Francisco Cruz Alvarez, A076 375 249 (BIA Feb. 28, 2011)