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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 judicata 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. After reviewing the cases 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. Br ell,4 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' ***.” 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 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, 1918, 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.
3 261 F. 2d 719 (1958). * 236 F. 2d 598.
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 Leyes de Partidas 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 all the rights of a legitimate wife and children, even though a deception was practiced.
5 Law, Title 13, Partida 4.
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: It is ordered that the appeal be sustained and the proceedings terminated.
• Lao v. Dee Tim, 45 Phil. 739; Francisco and Marcelo v. Juson, 60 Phil. 442. MATTER OF BUKOWSKA
In DEPORTATION Proceedings
Decided by Board August 24, 1962
While respondent, a native and citizen of Poland, might be unable to obtain em
ployment as a teacher in Poland because of her refusal to abandon her religious beliefs and to join the Communist Party, physical persecution under section 243(b) of the Immigration and Nationality Act is not established since she is a trained typist and the record fails to establish that she would be unable to obtain employment in other areas of the economic life of Poland.
Order: Act of 1952—Section 241 (a) (1) 18 U.S.C. 1251(a) (1) ]-Nonimmi
grant, remained longer than permitted.
The appeal is from the special inquiry officer's denial of the respondent's application for withholding of deportation to Poland under section 243(h) of the Immigration and Nationality Act. The special inquiry officer found respondent deportable on the ground stated above and granted her voluntary departure with the proviso that she be deported to Poland if she failed to depart voluntarily. The appeal will be dismissed.
Respondent, a 28-year-old divorcee, a native and citizen of Poland, was admitted to the United States as a visitor on October 6, 1961, for a period to end on December 9, 1961. Three days after her entry, she took employment as a nurse's assistant. She was apprehended on November 24, 1961; a statement was taken from her; she was placed under deportation proceedings by the issuance of an Order to Show Cause on January 8, 1962. No issue is taken with the finding of deportability. Respondent requests that she be permitted to remain in the United States under section 243(h) of the Immigration and Nationality Act because she will face physical persecution if she is returned to Poland.
The facts, based upon statements made by the respondent, have been fully set forth by the special inquiry officer. Briefly, the respondent
married in 1954; a son was born about 1955. Respondent had 11 years of elementary school and four years of lyceum. In September 1955 she was given a job as a substitute teacher in an elementary school. Although there was a shortage of teachers, she was not given a permanent job because of her refusal to join the Communist Party. She refused to join the Party because, as a Communist Party member, she could not have continued to attend church as it was her custom to do. Respondent attended church while teaching although she was asked to stop because, in the eyes of the party, she was setting a bad example to the children. Although asked by the party to teach the children that religion is superstition and that the Soviet Union is the best friend of Poland, she could not bring herself to do so. In 1958 she was given training for a year at a teachers college. She graduated and continued teaching until June 1961. At this time she was asked to join the Communist Party; upon her refusal she was dismissed from her teaching job.
Respondent applied for a Polish passport in January 1961 since she planned to come to the United States. She was not issued one until June 15, 1961. In the interval between the time of her application and the time of issuance, she was subjected to questioning concerning her reason for leaving Poland and her reason for refusal to join the Communist Party. She left Poland in August of 1961. The passport was extended in the United States on January 29, 1962, to June 9, 1963.
While teaching respondent belonged to the teachers union. She never joined the Communist Party. Respondent was trained to be a typist. She could not secure employment as a typist while she was a substitute teacher because of a prohibition against holding more than one job. For a short period of time, before she became a teacher, she was employed as an assistant to a clerk.
Respondent continued to attend church until immediately prior to coming to the United States. She was never arrested. No member of her family had been arrested while she was in Poland. Respondent was divorced in 1958 and received custody of her son, now six years of age. The son resides with her parents in Poland and receives support from her. Respondent's father is not employed in Poland and cannot obtain employment because he is opposed to the Communist regime. Government officials have made inquiry of her parents concerning her failure to return to Poland and her parents have advised her not to return.
Respondent alleges that if she is returned to Poland, she would be put in jail immediately and she could not get any other employment. The basis for this belief is her personal knowledge of conditions in Poland and the fact that local Communist Party officials were after