Interim Decision 4t1239 

11-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privilege of voluntary departure would be withdrawn and the respondent deported from the United States to the Philippines on the lodged 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 1because 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 

1Section 1993, U.S.R.S., as amended by Act of May 24, 1034; section 301(a) (7) 

of the Immigration and Nationality Act. 

2This 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 :ryudietzta 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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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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