Interim Decision 4t1239
111-A7.1T9t OF PERALTA
In DEPORTATION Proceedings
A-11811262
Decided by Board July 19,1982
Where there was nothing in the record contradicting the respondent's U.S. citizen
father's testimony that his wife by a previous undissolved marriage (1913)
was not known to him to be living for the space of at least 7 successive years
immediately preceding nis subsequent marriage in the Philippine Is'anal in
1929, the subsequent marriage is regarded as valid under the then existing
Philippine Marriage Law (General Order No. 86 of Dee. 18, 1899, as amended).
Accordingly, respondent, issue of the second marriage, who was born in the
Philippine Islands on August 9, 1934, is legitimate and his claim to derivative
citizenship Is established, the administrative adjudication of respondent's
United States citizenship, evidenced by the issuance to him of a United States
passport and his admission as a citizen on Oct. 20, 1957, not having been
overcome by clear, unequivocal and convincing evidence.
CHARGES :
Order: Act of 1952—Section 241 (a) (2) [8 U.S.O. 1251(a) (2)3—Mitered without inspection.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—no immigrant visa.
The case comes forward on appeal from the order of the special
inquiry officer dated April 17, 1962, finding the respondent to be an
alien and deportable on the lodged charge stated above, granting him
the discretionary relief of voluntary departure in lieu of deportation
with the further order that if he failed to depart as required, the
privilege of voluntary departure would be withdrawn and the respondent deported from the United States to the Philippines on the lodged
charge.
The respondent's father, Marcus Peralta, was born in the Philippines on April 22, 1882. He enlisted. in the United States Navy on
August 19, 1908, in the Philippines and entered the United States
about December 1909. He married one Josephine Susma,n on May 3,
1913, in Brooklyn, New York, and on November 11, 1918, he filed an
action for divorce in the Superior Court, Kings County, New York,
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Interim Decision #1239
which, however, was not prosecuted to a final conclusion and no decree
thereon was entered. On November 17, 1920, the respondent's father
was naturalized as a United States citizen. He was retired from the
Navy on December 27, 1928, and then returned to the Philippines
where he has since lived. On September 25, 1929, he married Felipe.
Garduque, a native and citizen of the Philippines_ The respondent is
the issue of that marriage, born August 9, 1934, at Pasuquin, Ilocos
Norte, Philippines. He was admitted to the United States at the
port of Seattle, Washington, on October 20, 1957, upon his claim that
he was a citizen of the United States. The record itself does not
disclose what document the respondent presented upon his entry into
the United States but the brief of counsel sets forth that he presented
a United States passport issued through the American Consulate
General in Manila, Philippine Islands. The issue in the case is the
alienage of the respondent. The Service contends that he did not
derive United States citizenship at birth 1 because he was an illegitimate child, inasmuch as the respondent's father had a prior undissolved marriage at the time of his marriage to the respondent's mother.
The record establishes that the respondent's father was first married
in Brooklyn, New York, on May 3, 1913 ; that he married the respondent's mother in the Philippines on. September 25, 1929; that his first
Marriage has never been dissolved; and that his first wife is still alive.
The law governing the validity of marriages in the Philippines at the
time of the marriage of the respondent's father and mother was a
Marriage Law designated as General Orders No. 68 of December 18,
1899, as amended by General Order No. 'TO, promulgated by the United
States Military Governor of the Philippine Islands which provided in
section III as follows:
A. subsequent marriage contraeted by any person during the life of a former
husband or wife of such person, with any person other than such former husband
or wife, is illegal and void from the beginning … (2) unless such former husband or wife was absent, and not known to such person to be living for the
space of seven successive years immediately preceding such subsequent marriage,
or was generally reputed and believed by such person to be dead at the time such
subsequent marriage was contracted; in either of which case the subsequent
marriage is valid until its nullity is adjudged by a competent tribunal. 2
1 Section 1993, U.S.R.S., as amended by Act of May 24, 1034; section 301(a) (7)
of the Immigration and Nationality Act.
2 This provision has been substantially re-enacted in Article 83 of the Civil
Code of the Philippines (Republic Act No. 386 effective June 1950) which provides as follows : Any marriage subsequently contracted by any person during
the lifetime of the-first spouse of such person with any person other than sucb
first spouse shall be illegal and void from its performance, unless : (1) the first
marriage was annulled or dissolved: or (2) the first spouse had been absent for
seven consecutive years at the time the second marriage without the spouse
present having news of the absentee being alive, or if the absentee, though he
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Interim Decision #1239
The file contains the testimony of the petitioner's father taken on
June 24, 1961, at Pasuquin, Ilocos Norte, Philippines, in connection
with the citizenship case of the respondent 'by a Consular Assistant
with the assistance of an interpreter (Exhibit 2). He testified that
he had previously been married at Brooklyn, New York, to Josephine
Susman on May 3, 1918; that he filed an action for divorce against
her on November 11, 1918, in the Supreme Court, County of Rings,
State of New York, and that he was never informed of the results of
this action; that he received information from the sister of his first
wife that she had died but that he no longer remembered when she
had informed him by letter or where and when his first wife had died.
He further stated he had a. son by his first marriage, born in Brooklyn,
New York, about 1915 whom he had never seen..beeause he was always
at sea; and that he had last seen his first wife in Brooklyn on Armistice
Day, November 11, 1918, when he passed her residence and saw her
at the third floor window; that he waved but that they did. not talk
to each other and he proceeded to Philadelphia that day. He further
stated that since the last time he saw her he never corresponded with
her even while the divorce action was pending and that he only communicated with his lawyer; that the last time he heard that his first
wife was still living was when he saw her on that Armistice. Day in
1918; that he continued in the service of the *United States Navy until
his discharge on December 27, 1928, and that he left the United States
at the port of San Francisco about 1928 when he proceeded to the
Cavite Naval Station in the Philippines. He stated he never departed
from the Philippines since 1928.
The file also contains a report of investigation dated August 1, 1960,
which indicates that the petitioner's first -wife was located in Brooklyn,
New York, and was interviewed on July 25, 1960, at which time she
stated that her marriage to the respondent's lather had never been
legally terminated; that about 1910 she and her husband separated by
mutual consent and that she has not seen nor heard from him since
and has no idea. of his whereabouts. A birth certificate in the name
of Herman Peralta, the issue of the first marriage, revealed he was
born February 21, 1914, contained his parents' names and disclosed
that on September 17, 1940, a corrected certificate was filed; that in
has been absent for less than seven years, is generally considered as dead and
believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390
and 391. Tile marriage so contracted sball be valid in any of the three cases until
declared null and void by a competent court. (Article 390 states that after an
absence of seven years, it being unknown whether or not the absentee still lives,
be shall be presumed dead for all purposes except for those of succession, and
shall not be presumed dead for the purpose Of opening his succession until after
an absence of ten years ; Article 391 is not relevant.)
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Interim Decision #1239
the application for correction of the certificate of birth, which was
signed by Josephine Peralta on August 24, 1940, it is indicated that
the father of the child was deceased. The petitioner's first wife stated
she did not remember making this statement and that it must have
been a mistake at the time of the application for correction of the birth
certificate was made out.
The special inquiry officer concludes that it is quite clear from the
evidence that it was the respondent's father who had absented himself,
not his wife; and no showing has been made that she was "generally
reputed" to be dead at the time of his second marriage; and finds that
the respondent's father's second marriage does not come within the
terms of the exception in the Philippine statute and concludes that
the marriage was not a valid one and that consequently the respondent
was illegitimate at birth. There is no indication of what measure of
burden of proof was used in reaching this conclusion.
Ordinarily, in deportation proceedings, the Service must establish
its case by a preponderance of reasonable, substantial and probative
evidence. The respondent in this case has already been adjudicated a
United States citizen by the issuance to him of a United States passport by the Department of State. True, this determination of citizenship is not res r:yudietzta and does not have the standing of a judgment. The determination as to his citizenship may be rebutted by a
showing that the decision was a result of fraud or error. The instant
case arises in the Ninth Federal Judicial Circuit in which the leading
case is that of Lee Hon Lung v. Dulles.' The plaintiff in that case
had been admitted as a United States citizen by a Board of Special
Inquiry in 1924, a proceeding which the Government contended was too
informal and summary to be trustworthy. Alter reviewing the eases
in 'favor of and against the opposing contentions, the court adopted
the rule of the Third Circuit as expressed in the case of Delmore v.
Brownell, to the effect that "once the United States has determined
that an individual is a citizen, it should be required to disprove its
own determination by 'clear, unequivocal and convincing evidence'
… .s." The court in. effect held that the standard of proof applicable
in denaturalization proceedings applied and that where one has, over a
long period of years, acted in reliance upon a decision of a Board of
Special Inquiry admitting him as a citizen of the United States, the
fraud or error which will warrant disregard of such decision must
be established by evidence which is clear, unequivocal and convincing.
In the instant case, in order to establish that the second marriage
was valid, it was necessary to prove that the former spouse was absent
and not known by the person married to be living for the space of seven
5 201 F. 2d 719 (1858)•
5
236 F. 2d 598.
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Interim Decision #1239
consecutive years immediately preceding the subsequent marriage, or
was generally reputed and believed by such person to be dead at the
time such subsequent marriage was contracted, in either of -which
cases the subsequent marriage remained valid until its nullity was
adjudged by a competent tribunal. The father, through whom the
respondent claims citizenship, has admitted being previously married
in 1913 in Brooklyn. However, he has testified that he last saw his
first wife in 1918 and that he has never heard from her since, although
he made efforts to obtain information about her and that he received
information from her sister that she was dead. The father has testified that he never saw his first son, Edward, who was born about 1915,
because he was always at sea. He instituted a divorce action against
his first wife, on the ground of adultery, on November 11, 1915, but
failed to prosecute this action. By coincidence, the same date of
November 11, 1918, is the last time the respondent's father saw his
first wife. There is nothing in the record that contradicts this affidavit
by the respondent's father, to the effect that he had not heard nor seen
his first wife since 1918. His second marriage occurred in the Philippines on September 25, 1929. It is to be remembered that the respondent's father was a native of the Philippine Islands and served on Naval
vessels from 1908 until his discharge in 1928. The report of the testimony from the first wife, which is not given verbatim, discloses an
obvious error in her statement, to the effect that she and her husband
separated by mutual consent in 1940, since it is obvious that they had
been separated for many years previously. The information in the
application for correction of the birth certificate of her son in 1940 to
the effect that the father of the child was deceased is not satisfactorily
explained. In any event, none of the information contradicts the testimony of the petitioner's father that his former wife was not known
by him to be living for the space of at least seven successive years
immediately preceding his marriage to the respondent's mother.
Upon a full consideration of the record, it is concluded that the evidence establishes compliance with the Philippine Marriage Law, General Order No. 86 of December 18, 1899, as amended by General
Order No. 70, to establish a lawful marriage, whose validity has
not been nullified by the judgment of a competent tribunal. Under
the Leye,s de P (cracks 5 where two women innocently and in good faith
are legally united in holy matrimony to the same man, their children
born will be regarded as legitimate children; the good faith of all the
parties will be presumed until the contrary is positively proved. The
children born of the second marriage under Spanish law are entitled to
Law, Title 13. Partida 4.
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Interim Decision #1239
all the rights of a legitimate wife and children, even though a deception
was prazticed.6
Upon a full consideration of the evidence, the validity of the marriage, the legitimacy of the respondent and his claim to derivative
citizenship have all been established. The ultimate adjudication of
citizenship, as evidenced by the issuance of a United States passport
and the admission of the respondent on October 20, 1957, has not been
overcome by even a preponderance of evidence, much less the strict
standard of clear, unequivocal and convincing evidence which represents the rule in the Ninth Federal Judicial Circuit. We conclude that
alienage has not been established. The appeal will be sustained and
the proceedings terminated.
ORDER.: IL is ordered that the appeal be sustained and the proceedings terminated.
°Lao v. Dee Tim 45 Phil. 789; itrancleoo and Marcelo v. Jason,
60 Phil. 442.
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