June 1965. Respondent told the investigator that he is married to a Chinese woman living in Hong Kong, that they have two children, ages 5 and 7, that he is a citizen of China, born at Kwantung, China, that he last arrived in the United States at New York on September 4, 1962, on the SS "Clydefield” as a member of the crew, was refused permission to go ashore by the immigration officers, but went ashore in violation of that order. We found in our previous decision over the objections of counsel that this statement was admissible in evidence under Title 8, Code of Federal Regulations, section 242.14(c), and under judicial decisions and prior decisions of this Board.

At the first hearing the special inquiry officer refused to accept the Service offer of the respondent's Government of Hong Kong Seaman's Discharge Book No. 2843. We implied that the offer was proper, citing Peirera v. Murff, 159 F. Supp. 81 (D.C.N.Y., 1958), wherein this Board had disregarded a passport offered under similar circumstances, but the court commented that the passport was properly introduced into evidence. At the reopened hearing the trial attorney again offered this document or information from it. The special inquiry officer accepted the offer. He did not place the book in evidence, but read the information into the record (R-4). The book shows the name of Pang Chiu, his rating as a sailor, his date of birth as 2-10-1930, and the date of issue as 7-12-54. The special inquiry officer stated that it contains "a good likeness" of respondent. It shows respondent's place of birth as Kwangtung, China, that he was engaged on June 24, 1961, at Hong Kong on the SS "Hindustan" and discharged April 12, 1962 at Hong Kong, that he was signed on the SS "Clydefield” at Hong Kong on June 13, 1962, and there is no notation concerning discharge. Exhibit 2 also states that respondent came to the United States on the SS "Hindustan” in 1961 or 1962 and was refused shore leave and that he arrived at New York on September 4, 1962, on the SS "Clydefield". The fact that his book contains no notation that he was discharged from the "Clydefield" is consistent with his statement that he arrived in New York on that ship on September 4, 1962, and did not depart with his vessel.

In his brief accompanying the appeal counsel again challenges the proceeding, stating that the rules of evidence have been ignored, that the "resident alien" is entitled to a fair hearing, that the admission into evidence of information from the respondent's Hong Kong seaman's discharge book is error, that there was failure to authenticate this document and that no foundation as to the document itself was laid. Counsel contends that the information contained in the seaman's book was hearsay, and that without the book there is nothing

in the record to support the special inquiry officer's order of deportation to Hong Kong. The special inquiry officer overruled counsel's objections.

On advice of counsel respondent elected to remain mute at the reopened hearing, as he had at the original hearing. Counsel contends that respondent should be endowed with the same privilges and immunities as the defendant in a criminal proceeding who is shielded with the cloak of innocence and cannot be compelled to give testimony against himself. This contention was discussed and dismissed by Bilokumsky v. Tod, 263 U.S. 149, wherein Mr. Justice Brandeis stated:

Silence is often evidence of the most persuasive character . . . there is no rule of law which prohibits officers charged with the administration of the immigration law from drawing an inference from the silence of one who is called upon to speak. . . A person arrested on the preliminary warrant is not protected by a presumption of innocence in a criminal case. These is no provision which forbids drawing an adverse inference from the fact of standing mute.

So far as we are aware, the rule is still that elucidated in Bilokumsky v. Tod. United Etates v. Sahli, 216 F.2d 33, 39 (7th Cir., 1954), and Cateano v. Shaughnessy, 133 F. Supp. 211 (S.D.N.Y., 1955), rely on Bilokumsky and reject the argument that a person in deportation proceedings should be surrounded by the same safeguards as a person charged with crime. In Caetano the court says, "Sufficient answer to this position is that the courts have uniformly held to the contrary", citing cases.

In Matter of Psarelis, 7 I. & N. Dec. 133, wherein the Board held that the alien's preliminary sworn statement may be relied upon as evidence of deportability, there was no other evidence but the inference drawn from the alien's silence. In Matter of Rupino-Soares, 7 I. & N. Dec. 271, and Matter of Bulmer, 5 I. & N. Dec. 738, we also held that refusal to testify without legal justification concerning matters of alienage, time and place of entry, and lack of proper documents, justifies the drawing of unfavorable inferences.

We are not left in the instant case to draw inferences from respondent's silence. There is sufficient evidence to support a finding that he is an alien, illegally in the United States, and deportable as such. The information taken from the seaman's book was admissible for the purposes for which it was used here. We have no doubt that one of its purposes is to establish the identity of its owner.

In Abel v. United States, 362 U.S. 217 (S.Ct., March 28, 1960), Justice Frankfurter discussed the legality of the seizure and use of documents belonging to an alien under deportation proceedingsforged birth certificate, a certificate of vaccination, a bank book, etc.,

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all in false names, and said, "We can see no rational basis for excluding these relevant items from trial." Doto v. United States, 223 F.2d 309, 310 (D.C. Cir., 1955), found that a series of evidentiary documents presented by the Government were admissible; among them was a birth register from Italy, a manifest showing voyages to this country of persons with names of appellant's family members, New York State census records including the family, including one with the name of defendant. The court stated (per Judge Prettyman) that this documentary evidence, if believed, made the conclusion as to respondent's alienage inescapable.

This alien landed illegally in the United States. He offered nothing to controvert the evidence presented by the Government as to his citizenship and his place of prior residence abroad. Counsel's request that this case be returned for further hearing is frivolous when respondent has declined to testify in the two hearings that have been accorded him. He had adequate opportunity to be heard. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and is hereby dismissed.

MATTER OF BRANTIGAN

In Visa Petition Proceedings

A-14680158

Decided by Board February 8, 1966

In visa petition proceedings the burden of proof to establish eligibility for the benefit sought rests with the petitioner, and in the absence of proof of the legal termination of a U.S. citizen petitioner's prior marriage, reliance on the presumption of validity accorded by California law to his subsequent ceremonial marriage in that State to beneficiary is not satisfactory evidence of the termination of his prior marriage and is insufficient by itself to sustain petitioner's burden of proof of a valid marriage on which to accord beneficiary nonquota status.

The case comes forward on motion of counsel that the Board reopen the proceedings and reconsider its decision rendered on October 28, 1965.

The record relates to a native of the Philippines, a naturalized citizen of the United States, who seeks nonquota status on behalf of the beneficiary, a native and citizen of the Philippines. The parties were married on February 23, 1965 at San Francisco, California.

In our decision of October 28, 1965 we relied upon the Petition of Sam Hoo, 63 F. Supp. 439 (N.D. Cal. S.D., 1945), where the petitioner rested on a presumption of validity accorded by California law to his marriage to an American citizen, and the court held that the burden of proof required of an applicant for United States citizenship never shifts, found there was no satisfactory evidence of the dissolution of the prior marriage, and that the presumption of validity was not a sufficient basis upon which to sustain the burden of proving a valid marriage as the basis of a claim to eligibility for citizenship. We held the reliance upon presumption as to the dissolution of a prior marriage was unsatisfactory evidence of the termination of the prior marriage. We noted that in the event the petitioner instituted an action (of which the Service would be no

tified) and secured a declaratory judgment affirming the validity of his marriage, a motion to reopen would be entertained.

In the present motion counsel indivates that a declaratory judgment in the California courts as to the validity of the marriage cannot be obtained and seeks to differentiate Petition of Sam Hoo on the ground that the petitioner in that case knew his second wife to be alive within the five-year period antedating his California marriage, that he had no reason to believe her dead when he married his American wife and that she did not die until the year after such marriage took place.

While the facts of the cited case are as recited by counsel, the holding of the court appears to go further. The court stated that it may well be the validity of petitioner's California marriage, if attacked by an interested party, would be sustained under California law because of the presumptions indulged in and recognized by the California courts. These presumptions clearly find their rationale in the laudable desire to sustain, in the public interest and well being, the stability of the marriage status in matters relating to legitimacy, inheritance, and other relationships growing out of and dependent upon the marital status. But the burden upon petitioner, when he seeks American citizenship, is different. The presumptions of California law must give way to the burden of proof required of an applicant for United States citizenship, The court held that the evidence as to the validity of petitioner's California marriage was not satisfactory; that citizenship is not to be bestowed upon an applicant by showing that he has indulged in a ceremony of marriage with an American citizen spouse which would leave the door open to fraud if an applicant could rest his case upon a ceremony of marriage in a so-called presumption of validity under California law. The burden of proof never shifts from a petitioner for citizenship to the Government and the petitioner must by satisfactory evidence establish the validity of his marriage before he may acquire the valued gift of citizenship. The court overruled a recommendation by the Naturalization Service that the petition be granted and instead denied the petition.

In Petition of Lujan, 144 F. Supp. 150 (D.C. Guam, 1956), the petitioner, a citizen and resident of the Philippines, obtained a Mexican mail-order divorce from her first husband in 1941 and married her United States citizen husband in 1951. The court held the mail order Mexican divorce was invalid but the petitioner contended that the court should follow the California law to the effect that the legality of a regularly solemnized marriage is presumed and that the