Idiocracy of Matter of Villanueva

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Idiocracy of Matter of Villanueva

  1. 1. Cite as: 19 I&N Dec. 101 (BIA 1984) MATTER OF VILLANUEVA In Visa Petition Proceedings A-22860111 Decided by Board June 5, 1984 Unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such persons United States citizenship. ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: Richard Stern-Boswell, Esquire Michael J. Heilman Diana Boruchin, Accredited Acting Appellate Representative Trial Attorney Immigration Clinic George Washington University Benjamin D. Somera 2000 L Street, N.W., Suite 307 General Attorney Washington, D.C. 20052 Barbara A. Jones, Esquire Daniel C. Harms, Accredited Representative Houston Center for Immigrants, Inc. 2314 Cochran Street Houston, Texas 77009BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board MembersOn November 15, 1983, the district director denied the petition to classify the beneficiary as animmediate relative spouse of a United States citizen under section 201(b) of the Immigration andNationality Act, 8 U.S.C. Sec. 1151(b)(1982). The petitioner has appealed from that decision.The record will be remanded.The petitioner is a 58-year-old alleged native and citizen of the United States. The beneficiary isa 51-year-old native and citizen of Mexico. The record contains a certified but unauthenticatedcopy of the parties apparent marriage certificate which reflects that they were married in a civilceremony on August 26, 1947, in Mexico. The petitioner originally submitted a visa petition onbehalf of the beneficiary on May 17, 1978. On December 21, 1978, the district director 101
  2. 2. Interim Decision #2968denied that petition, finding that the petitioner had failed to establish he was a United Statescitizen, thereby rendering the beneficiary ineligible for classification as an immediate relativeunder section 201(b) of the Act. The district directors decision was affirmed by this Board andthe petitioners appeal was dismissed on February 5, 1982.The petitioner subsequently filed a new petition for the beneficiary. In support of this petition,the petitioner submitted a certified copy of two pages from a United States passport issued to himas a United States citizen on February 24, 198, and valid for 5 years, along with various otherdocuments and affidavits which the district director considered in his initial 1978 decision. Thedistrict director did not find the petitioners passport to be adequate evidence of United Statescitizenship because he "assumed" it had been issued to the petitioner on the basis of his delayedTexas birth certificate, the same document which was previously determined to be insufficientproof of his United States citizenship claim. See generally Matter of Serna, 16 I&N Dec. 643(BIA 1978). Accordingly, the district director also denied the instant petition.On appeal, the petitioner argues that the district director erred by failing to consider thepetitioners United States passport as conclusive proof of his United States citizenship, asrequired by 22 U.S.C. Sec. 2705 (1982). Based upon the following analysis of this statute, weagree with petitioners position.Prior to enactment of 22 U.S.C. Sec. 2705 (1982), a United States passport was regarded only asprima facie evidence of United States citizenship. See Peignand v. INS, 440 F.2d 757 (1st Cir.1971); Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Now, however, United Statespassports are given the same weight for proof of United States citizenship as certificates ofnaturalization or citizenship. Specifically, this statute provides as follows: The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States.Accordingly, it is next necessary to examine the force and effect given to judicial andadministrative certificates of citizenship as proof of United States citizenship.Unless void on its face, a judicial certificate or decree of naturalization is not subject toimpeachment in a collateral proceeding but only can be revoked by a direct attack through courtproceedings--a denaturalization suit--prescribed in section 340 of the Act, 8 102
  3. 3. Interim Decision #2968U.S.C. Sec. 1451 (1982). 41 Op. Atty Gen. 452 (1960). See generally Johannessen v. UnitedStates, 225 U.S. 227 (1912); Mutual Benefit Life Insurance Co. v. Tisdale, 91 U.S. 238 (1876);Spratt v. Spratt, 29 U.S. (4 Pet.) 393 (1830); MacKay v. McAlexander, 268 F.2d 35 (9th Cir.1959), cert. denied, 362 U.S. 961 (1960). Significantly, section 332(e) of the Act, 8 U.S.C. Sec.1443(e)(1982), also provides that an administrative certificate of citizenship shall have the sameeffect in all public offices of the United States as a judicial certificate of citizenship. Based uponthat provision, the Attorney General has issued his formal opinion that an administrativecertificate of citizenship is likewise immune from collateral attack. 41 Op. Att y Gen. 452(1960). 1/ Therefore, unless void on its face, an administrative certificate of citizenship isconclusive proof of United States citizenship absent its direct cancellation pursuant to section342 of the Act, 8 U.S.C. Sec. 1453 (1982).The foregoing principles also apply with regard to the force and effect of a United States citizenpassport because such a passport is equivalent to a judicial or administrative certificate ofcitizenship under the terms of 22 U.S.C. Sec. 2705 (1982). Accordingly, we hold that unless voidon its face, a valid United States passport issued to an individual as a citizen of the United Statesis not subject to collateral attack in administrative immigration proceedings but constitutesconclusive proof of such persons United States citizenship. 2/Because the district director did not apply the provisions of 22 U.S.C. Sec. 2705 (1982) in thiscase, we find it appropriate to remand the record to the district director for his properconsideration under the above holding. Thus, the petitioners apparently valid United Statescitizen passport will constitute conclusive proof of his claimed United States citizenship in thesevisa petition proceedings unless it is invalid on its face. 3/ The district director also shouldaddress the validity of the parties claimed relationship and should satisfy himself as to theauthenticity of the various foreign documents contained in the record. 4/ Thereafter, the district__________1/ The Board and the Service are bound by the formal determinations of the Attorney General.See Matter of Fong, 14 I&N Dec. 670 (BIA 1974).2/ We note that the validity of a United States passport can be directly attacked only under theauthority and procedures set forth at 22 C.F.R. Sec.Sec. 51.71, 51.75-76, and 51.80-89 (1984).3/ Inasmuch as the two pages from the petitioners asserted United States passport contained inthe record are certified to be true copies only by a private attorney, the district director is free todirect that the original passport be submitted for the record. 8 C.F.R. Sec.Sec. 103.2(b)(1) ,204.2(h) (3) (1983).4/ See 8 C.F.R. Sec. 287.6 (1984); Matter of Lau, 16 I&N Dec. 115, 117 (BIA 1976). 103
  4. 4. Interim Decision #2968director will render a new decision based upon the entire record as then constituted.ORDER: The record is remanded to the district director for further proceedings consistent withthe foregoing opinion and entry of a new decision. 104 IDIOCRACYThe above decision is a testament to the procedural quagmire of bureaucracy sometimes knownas idiocracy, i.e. the idiocy of bureaucrats.When one is a slave to nonsensical procedures and becomes blind to the truth then justice is notserved.Matter of Villanueva makes zero reference to Matter of Rocha, 10 I&N Dec. 770 (BIA 1969)which held: Notwithstanding that respondent acted in good faith and made a full disclosure of all the facts at the time of her application for a United States passport, the erroneous issuance to her of such a passport by an official or the U.S. Government does not bestow citizenship on her when she did not acquire U.S. Citizenship at birth abroad under any statute, and she is deportable as an alien who was excludable at the time of entry.Villanueva makes a big stink about a passport being “conclusive proof” unless “void on its face”and states that a passport cannot be collaterally attacked in administrative proceedings. This isincorrect and incomplete. While INS on its own could not collaterally attack the passportadministratively in 1984, just as USCIS cannot do so today; DOS could then and still can, indeedalways could, easily revoke a passport administratively.The phrase “void on its face” is not developed. That particular case was remanded to be furtherdeveloped. Was that record developed to the point where the erroneous basis and invalidity ofthe wrongly issued passport was so obvious that the challenge to its validity was not a mere“collateral attack” but a head-on challenge? Was the erroneous issuance of the passport soblatantly obvious that it was easily revoked?Current USCIS procedure is to hold the USCIS case in abeyance and consult DOS to reconsiderand revoke a passport. Villanueva is overstated. It needs to be revisited and replaced withsomething more accurate and in tune with the current reality. It is interesting to note thatVillanueva did not mention or overrule Rocha.

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