Astudillo v. Immigration and Naturalization Service

• Decision Date: 02 June 1971
• Docket Number: No. 25510.,25510.
• Citation: 443 F.2d 525
• Parties: Clemente Farol ASTUDILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.2d 525 (1971)

Clemente Farol ASTUDILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 25510.

United States Court of Appeals, Ninth Circuit.

June 2, 1971.

Ronald J. Meltzer (argued), Seattle, Wash., Floyd V. Smith, Anchorage, Alaska, for appellant.

Paul Fenton (argued), Albert E. Stephan, Asst. U.S. Attys., Stan Pitkin, U. S. Atty., Seattle, Wash., John P. Boyd, Director, I&NS, Seattle, Wash., Stephen N. Suffin, Atty., I&NS, San Francisco, Cal., John N. Mitchell, Atty. Gen. of U. S., Washington, D. C., for appellee.

Before JERTBERG, ELY and KILKENNY, Circuit Judges.

PER CURIAM:

Appellant seeks a review of an order of the Board of Immigration Appeals dismissing his appeal from a decision of a Special Inquiry Officer directing petitioner's deportation to the Republic of the Philippines.

Petitioner is a native and citizen of the Republic of the Philippines. Prior to entering the United States, petitioner had been married twice: first to Purita Zabat, on January 28, 1958, and there are two children the issue of that marriage. Said marriage was dissolved in the State of Washington by a final decree of divorce procured by petitioner on March 14, 1968. The second marriage occurred on October 3, 1962, to Teodula Martinez. Said marriage was annulled in the Philippines on May 20, 1967. On August 3, 1968, at Renton, Washington, petitioner married Juanita C. Sarandi, a permanent resident alien.

He entered the United States on October 13, 1962, as a visitor for pleasure. He was granted a change of status to that of nonimmigrant student, and was authorized to remain in the United States until June 30, 1966.

On February 14, 1966, he applied for adjustment of status to that of a permanent resident. That application was denied on November 21, 1966 and petitioner was granted to January 3, 1967, to depart from the United States voluntarily.

On January 4, 1967, the Service ordered petitioner to appear before a Special Inquiry Officer to show cause why he should not be deported from the United States. Hearing was held before the Special Inquiry Officer on January 9, 1967, and at petitioner's request two continuances were granted by the Special Inquiry Officer to permit the petitioner to furnish evidence on the issue of his marriages. Hearings were held on February 10 and March 20, 1967 and March 21, 1969. By an order dated May 4, 1967, the Service, acting through its Special Inquiry Officer, denied petitioner's application for adjustment of status under Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1225. By order of October 17, 1967, the Board of Immigration Appeals affirmed the order of May 4, 1967.

On February 16, 1969, the Board granted petitioner's request to reopen. Further hearings were held before the Special Inquiry Officer. The Special Inquiry Officer on September 2, 1969, ordered petitioner deported from the United States to the Republic of the Philippines. On petitioner's appeal to the Board of Immigration Appeals, that Board on January 23, 1970, issued its decision dismissing the appeal and affirming the order of deportation.

In his order dated May 4, 1967, the Hearing Officer stated, inter alia:

"In a sworn statement before an immigration officer the respondent, on September 8, 1966 stated that he had never lived with Purita as her husband. On June 2, 1966 in a sworn statement before an investigator of this Service he had difficulty remembering his children\'s names and he could not state that he had supported the children. In his application for adjustment of status (Ex.2) he lists her as his wife.

"There was introduced into evidence a copy of a summons in an action in the Philippine courts (Ex.14), which alleges that the respondent entered into a bigamous marriage with Teodula Martinez Astudillo October 3, 1962 and that because of this bigamous marriage he left for the United States. The respondent has been unable to explain or straighten out his marital difficulties. Based on the statements he has made he has never assumed the responsibilities of a husband with respect to his first wife and two children and evidently was pursuing a meritricious (sic) relationship with Teodula Martinez."

In its order dismissing the appeal, dated October 17, 1967, the Board of Immigration Appeals stated, inter alia:

"Without detailing the evidence of record it is amply clear that respondent\'s course of conduct in the past and especially his dealings with the Immigration and Naturalization Service with principal emphasis upon statements made and testimony given to the Service, clearly precludes respondent from making a meritorious case.

"There is no question in our mind that respondent knowingly entered into a biagamous (sic) marriage, that he has made numerous conflicting statements and claims relative to his marital situation, that he is not supporting his two children, that much of his testimony especially relating to his marital situation was completely false. We cannot agree with respondent\'s counsel when he stated in oral argument on September 18, 1967 that respondent\'s marital woes were simply a case of misunderstanding. The record shows

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