Imagini ale paginilor
PDF
ePub

supra, and provides: "The provisions of this section shall not be applicable to any alien who is a native of any country contiguous to the United States, or of any adjacent island named in section 1101 (b) (5) of this title.” 8 U.S.C. 1101 (b) (5) provides as follows: (5) The term “adjacent islands" includes Saint Pierre, Miquelon, Cuba, the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea.

The special inquiry officer held that British Honduras is a British territory or possession bordering on the Caribbean Sea and that it is within the defined term "adjacent islands" although actually it is not an island. The Service urges that we accept this ruling. Counsel submitted a brief, but neither party has referred us to anything in the legislative history of these statutory provisions which would be helpful in determining whether it was or was not the Congressional intent to include British Honduras in the term “adjacent islands”. We have also found nothing of value in our own examination of the legislative history.

A more important consideration is that British Honduras is, in truth and in fact, not an island. The word "island" is defined as a tract of land surrounded by water. British Honduras, however, is not surrounded by water; on the contrary, it is surrounded by land with the exception of the northeastern and eastern boundaries which are on the Bay of Honduras or Gulf of Honduras.

Another matter which is of significance is that 13 countries and places are specifically named in 8 U.S.C. 1101 (b) (5) and that every one of these is, in fact, an island or situated on an island. If Congress intended that the term “adjacent islands” should include British Honduras which is not an island, it seems unlikely that it would have failed to add this to the list of countries and places named, particularly since British Honduras appears to be the only British, French or Netherlands territory concerning which there would be any ambiguity.

It was suggested that Congress could have avoided the ambiguity which has arisen by using the language "other British, French, and Netherlands islands”, that is, substituting the word “islands” for “territory or possessions” as it appears in the statute. This would, of course, be somewhat repetitious. In addition, it seems probable that Congress, in precluding adjustment of status for natives of contiguous territory and adjacent islands, believed that the travel expense for such aliens would not be great and that they should return to their native countries to procure immigrant visas. We believe, therefore, that Congress was not attempting to classify British Honduras as an island when in actuality it is not an island, but that Congress was merely distinguishing between those islands which were to be considered adjacent to the United States and those islands which were not to be considered adjacent. In addition, “territory or possessions” appears to be a more comprehensive term because in the Caribbean Sea there are various tracts of land entirely surrounded by water which do not bear the appellation of "Island” but are instead named “Cay", “Bank”, or “Reef”.

During the oral argument, counsel and the Service representative referred to a regulation which was supposed to have included British, French and Dutch Guiana in the term “adjacent islands”, and counsel further stated that he believed this Board had corrected the interpretation so that a person from the Guianas could apply for adjustment of status under 8 U.S.C. 1255. However, counsel did not cite the supposed regulation nor any decision of the Board concerning the matter. Since British, French and Dutch Guiana are on the mainland of South America and do not border on the Caribbean Sea but are on the Atlantic Ocean, they clearly would not be within the purview of 8 U.S.C. 1101(b) (5). We do not believe that any decision which may have been made with respect to British, French or Dutch Guiana would be helpful in this respondent's case.

For the reasons indicated above, we hold that British Honduras is not an adjacent island under 8 U.S.C. 1101(b)(5) and that the respondent is not precluded from adjustment of status by virtue of the provisions of 8 U.S.C. 1255 (c). Since the special inquiry officer had denied the respondent's application on the ground of statutory ineligibility without reaching the merits of the application or receiving evidence in support of the application, we will reopen the hearing and remand the case to him for further action.

ORDER: It is ordered that the hearing be reopened and that the case be remanded to the special inquiry officer for further action consistent with this opinion.

MATTER OF PERALTA

In DEPORTATION Proceedings

A-11811262

Decided by Board July 19, 1962

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 his subsequent marriage in the Philippine Islands in 1929, the subsequent marriage is regarded as valid under the then existing Philippine Marriage Law (General Order No. 86 of Dec. 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.C. 1251 (a) (2)]—Entered with-

out inspection. Lodged : Act of 1952—Section 241(a) (1) 18 U.S.C. 1251 (a) (1)]—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 23, 1883. 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 Susman 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, 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 Felipa 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. 70, promulgated by the United States Military Governor of the Philippine Islands which provided in section III as follows:

A subsequent marriage contracted 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."

1

2

Section 1993, U.S.R.S., as amended by Act of May 24, 1934 ; section 301(a) (7) of the Immigration and Nationality Act.

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 such 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

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, 1913; that he filed an action for divorce against her on November 11, 1918, in the Supreme Court, County of Kings, 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 because 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 father had never been legally terminated; that about 1940 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 subse. quent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall 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, he 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.)

« ÎnapoiContinuați »