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have authority therefor, shall be invalid for want of such authority or on account of any informality, irregularity, or omission, if it was celebrated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.” The Court, in the dispositive portion of its decision, states:

Section IX of the Marriage Law is in the nature of a curative provision intended to safeguard society by legalizing prior marriages. . . . In moving toward our conclusion, we have not lost sight of the decisions of this court in the cases of United States vs. Tubban [(1915), 29 Phil. 434] and United States vs. Verzola [(1916), 33 Phil. 285). We do not, however, believe these decisions to be controlling. In the first place, these were criminal actions and two Justices dissented. In the second place, in the Tubban case, the marriage in question was a tribal marriage of the Kalingas, while in the Verzola case, the marriage was performed during the Spanish regime by a lieutenant of the Guardia Civil. In neither case ... was any consideration given to the provisions of Section IX of General Order No. 68. We are free to admit that, if necessary, we would unhesitatingly revoke the doctrine announced in the cases above mentioned.

In the light therefore of the above decision, it would appear that the rule of recognition of a tribal marriage, during the time under consideration, depended on whether it was celebrated before or after the promulgation of the Order; if prior thereto, Section 9 becomes applicable and produces a valid marriage; if subsequent, the contrary result follows. [The facts of U.S. vs. Tubban (1915) are not clear on when the tribal marriage in question took place.] However, later decisions of the Philippine Supreme Court do not seem to conform to such a rule as the following would show.

People vs. Bituanan, 56 Phil. 23, August 31, 1931, is a case which, like U.S. vs. Tubban, raises the question of whether a certain provision of the Penal Code is to be made applicable to the accused, who in this case, is a Mohammedan married to another in accordance with the rites of their religion. While the facts do not clearly establish the date of the marriage, it is interesting to note that in upholding its validity, the Court cites Adong vs. Cheong Seng Gee (1922), supra, as authority, and invokes, at the same time, “the nature of the provisions of the Philippine Marriage Law." [i.e., General Order 68]

People vs. Rosil, 56 Phil. 722, March 31, 1932, involves the question of whether the accused committed the crime of parricide when he killed a girl he had married according to the rites of their tribe (Tagbanua). In finding the accused guilty of parricide, the decision is most noteworthy in that it does not go into any detail as to the validity of the marriage. It is not clear from the

facts either as to when the marriage was celebrated. However, Justice Malcolm, in a concurring opinion states:

The decision ... contains the following very significant language: "The above statement of facts ... leaves no room for doubt that the accused was the one who caused the death of the deceased. ... to whom he was married according to the rites of the tribe of the Tabanuas . .. which rites sanctioned said marriage according to the admission of the accused, and constitutes the crime of parricide.” This means, I take it, the definite abandonment of the doctrine announced in the cases of United States vs. Tubban ... and United States vs. Verzola. ... With the understanding, therefore, that the decision means a complete reversal of the attitude adopted in the two cases previously referred to, I concur in the result.

A case which is probably of greater importance for your purposes, is that of People vs. Bitdu, 58 Phil. 817, November 21, 1933, where it appears that the accused was married twice to members of her tribe in accordance with Mohammedan rites and customs. It is not clear from the facts exactly when the marriages were celebrated. A careful reading of the decision, however, would seem to indicate that the first marriage was performed while General Order 68 was already in force, and the second, seven months after the accused had secured a divorce from her first husband in accordance with Mohammedan customs. In resolving the question of whether there was bigamy or not, the Court had to decide: 1) the validity of the first marriage; 2) the validity of the divorce. The first was upheld. It is worthy of note, however, that none of the cases heretofore discussed is cited in the decision. Prepared by David M. Valderrama, Legal Specialist Hispanic Law Division Law Library-Library of Congress


In Section 246 Proceedings


Decided by Board October 17, 1969

(1) When there is a conflict of testimony in rescission proceedings under

section 246 of the Immigration and Nationality Act, there must be an evaluation of all the evidence and a finding made with regard to its credibility before the clear, unequivocable and convincing burden of proof test of Woodby v. Immigration and Naturalization Service, 385 U.S. 276,

comes into play. (2) A claim of prejudicial and unfair hearing accorded by the substituted

special inquiry officer is rejected where a de novo review of the entire record fails to reveal any error on the part of the special inquiry officer with

regard to his rulings as to the admissibility of the proffered evidence. (3) Section 241 (f) of the Act, by its very terms, and the Supreme Court de

cision in Immigration and Naturalization Service v. Errico-Scott, 385 U.S. 214 (1966), are limited solely to a deportation proceeding and are not ap

plicable to rescission proceedings under section 246 of the Act. ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE: Deyan Ranko Brashich, Esquire

R. A. Vielhaber 20 East 46th Street

Appellate Trial Attorney New York, New York 10017

Nathan Levine Harry Wallach, Esquire

Trial Attorney 110 East 42d Street

(Brief filed) New York, New York 10017

The respondent appeals from a decision and order entered by the special inquiry officer on October 11, 1968 rescinding the adjustment of his nonimmigrant status to that of a permanent resident alien which was granted on June 23, 1960. Counsel on appeal maintains that the special inquiry officer's decision and order is not supported by evidence which is clear, unequivocal and convincing. Counsel also urges error in that there was prejudice and bias on the part of the special inquiry officer.

The record relates to a native and citizen of Spain who last entered the United States at the port of New York on February 9, 1960. He was admitted as a nonimmigrant visitor for business and authorized to remain in the United States until July 1, 1960, He married a citizen of the United States on February 24, 1960. A visa petition for nonquota status filed by the citizen wife was approved on May 20, 1960 and his application for status as a permanent resident alien was approved on June 23, 1960.

The respondent's citizen wife obtained a divorce from him in the State of Alabama during August of 1961. A notice of intention to rescind the respondent's adjustment of status was served upon him on October 27, 1964. The special inquiry officer on May 3, 1965 after hearing entered an order rescinding the respondent's adjustment of status pursuant to the provisions of section 246 of the Immigration and Nationality Act. The Board of Immigration Appeals affirmed in an order entered on August 20, 1965 and on November 1, 1965 denied a motion for rehearing, reargument and reconsideration of the Board's order of August 20, 1965. Deportation proceedings were instituted by the service of an order to show cause on September 7, 1965. The Board on May 16, 1966 dismissed an appeal from the special inquiry officer's order of January 3, 1966 finding the respondent deportable as charged in the order to show cause but granting the privilege of voluntary departure in lieu of deportation, with a further order that if he failed to depart when and as required, he be deported to Spain.

A petition for judicial review pursuant to 8 U.S.C. 1105a (a) was thereafter filed with the United States Court of Appeals for the Second Circuit and on March 29, 1968, the respective parties entered into a stipulation that the matter of the rescission of the respondent's adjustment of status be remanded for further consideration in light of the Supreme Court's decision in Woodby v. INS, 385 U.S. 276 (1966). The Woodby case (supra) holds that no deportation order may be entered unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true. We noted in our opinion of July 18, 1968, remanding the case to the special inquiry officer for further proceedings, that the Courts of Appeals for the Third and Ninth Circuits have held that the Woodby rule of clear, une quivocal and convincing evidence is equally applicable to rescission proceedings under section 246 of the Act, Waziri v. INS, 392 F.2d 55 (9 Cir., 1968); Rodriques v. INS, 389 F.2d 129 (3 Cir., 1968). Prior to the special inquiry officer's decision now before us on appeal, counsel for the respondent and the trial attorney entered into a stipulation dated September 9, 1968 that the matter be submitted to the special inquiry officer on the original record

without a reopening of the hearing and without further testimony.

The special inquiry officer in his original decision of May 3, 1965 (p. 15) found that:

the Service has borne its burden of establishing by a preponderance of credible evidence that is reasonable, substantial and probative, that the respondent entered into a marriage with Edith Ivette Garces on February 24, 1960, solely for the purpose of obtaining nonquota status under the immigration laws without intent to enter into a bona fide marital relationship with Edith Ivette Garces and it is found that the respondent was not eligible for the adjustment of status granted to him on June 23, 1960.

The special inquiry officer after an overall reevaluation and reconsideration of all of the evidence adduced during the rescission proceeding now finds that the testimony of the respondent's former spouse and her mother is far more credible than that of the respondent and his witnesses. He concludes that there is clear, unequivocal and convincing evidence of record that the respondent was ineligible for adjustment of status on June 23, 1960 because his marriage on February 24, 1960 to Edith Ivette Garces, a United States citizen, was a sham entered into with no intent to be a valid and subsisting one and that it was solely for the purpose of enabling the respondent to adjust his immigration status in the United States and circumvent the immigration laws (p. 4, special inquiry officer's opinion, October 11, 1968).

On this appeal, counsel maintains that the hearings accorded the respondent by the special inquiry officer were prejudicial and grossly unfair. The substance of counsel's argument on the issue of a fair hearing is the charge that the respondent was prejudiced by the fact that the original special inquiry officer assigned to the case had testified in a criminal proceeding in which the respondent was a defendant and that this factor created bias and prejudice which carried over to the special inquiry officer who completed the hearing. Counsel also maintains that the special inquiry officer did not adhere to the remand order of the Court of Appeals for the Second Circuit in that he did not truly reconsider the matter before him in light of Woodby (supra) but merely gave and rendered a pro forma perfunctory revision of his previous biased and prejudiced decision.

The basis for counsel's claim that the special inquiry officer did not truly reconsider the matter before him is the fact that there is only a span of 22 working days between the signing of the stipulation and the special inquiry officer's decision of October 11, 1968. Counsel states:

It is strange that the Special Inquiry Officer, among all of his other duties

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