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U.S. Department of Justice Executive Office For Immigration Review Board of Immigration Appeals
March 10, 2008, Decided
File A42 474 527 - Los Fresnos , 3603
[*467] MILLER, Board Member:
In a decision dated August 28, 2007, an Immigration Judge found that the respondent did not derive United States citizenship through her father, denied her requests for cancellation of removal and voluntary departure, and ordered her removed from the United States. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge.
The record reflects that the respondent was born in El Salvador on November 13, 1976. On February 8, 1978, the respondent's parents were divorced. The respondent's father became a naturalized United States citizen on January 13, 1989. On November 3, 1990, the respondent's mother executed an affidavit relinquishing legal custody of the respondent and allowing her to go to the United States. On November 14, 1990, the respondent was admitted to the United States as a lawful permanent resident. The respondent claims that she automatically [**2] acquired United States citizenship pursuant to former section 321(a) of the Immigration and [*468] Nationality Act, 8 U.S.C. § 1432(a) (1988), 1 on November 14, 1990, when she was admitted to the United States as a lawful permanent resident under the legal custody of her father.
Because the respondent was born in El Salvador, she is presumed to be an alien and bears the burden of establishing her claim to United States citizenship by a preponderance of credible evidence. See Matter of Tijerina-Villarreal, 13 I. & N. Dec. 327, 330 (BIA 1969). Section 321(a) of the Act, which was in force prior to February 27, 2001, stated, in pertinent part, as follows:
A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment [**3] of the following conditions:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
24 I. & N. Dec. 467 *; 2008 BIA LEXIS 8 **
Matter of Heidy Hazel BAIRES-Larios, Respondent
naturalization, legal custody, citizenship, derivative, birthday, permanent, resident