The opinion of the court was delivered by: BARTELS
MEMORANDUM-DECISION AND ORDER
The United States, through the Immigration and Naturalization Service, has moved under section 340(j) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1451(j), to reopen an order and judgment naturalizing Benjamin Zabala as a citizen. The summary procedure of Rule 60(b)(3) of the Federal Rules of Civil Procedure is invoked to reopen the judgment upon the ground of fraud, which under the rule must be brought within one year. The alternative to a Section 340(j) summary procedure under these circumstances is a Section 340(a) plenary action to set aside an order of naturalization.
Zalala entered this country from the Philippines. On June 26, 1975, he filed a visa application in Manila for admission into the United States. In the form, he stated that he was never married and had no children. On August 28, 1975, Zabala was admitted into the United States as a permanent resident under Section 203(a)(2) of the Act, 8 U.S.C. § 1153(a)(2), as a second preference alien -- the unmarried son of a lawful permanent resident. On June 25, 1981, Zabala was naturalized in the United States District Court for the Eastern District of New York. Finally, on June 7, 1982, just within the one-year period allowed under Rule 60(b)(3), the government moved to reopen Zabala's naturalization based on fraud.
The gravamen of the government's complaint in the motion papers is that Zabala was married in 1974 at the time he applied for a visa, although he concealed this fact. However, later and after the lapse of one year the government, at a hearing before this court on October 20, 1982, raised for the first time a second claim for reopening. In this second claim the government alleged that Zabala exhibited a lack of "good moral character" by making false statements on both his visa application and Form I-130 filed three years later. It is to be noted that this second claim was not raised in the original motion papers or any amendments thereto, although the government filed a memorandum of law supporting the same. If the second claim is barred by the statute of limitations, there will be no need to further consider the same except insofar as it is a claim arising out of subsequent acts of Zabala in connection with his application for citizenship.
The first claim of the government is predicated upon the so-called 1974 marriage of Zabala to Lilia Aquino on August 17, 1974. The government's case is based upon a copy of a marriage contract obtained by the government from the files of the National Census and Statistics Office of the Philippines. The contract states that a marriage license was issued on August 12, 1974 to Zabala and Aquino, that both appeared before Municipal Judge Francisco H. Lopez on August 17 to take each other as husband and wife, that Bonifacia Babatid and Jose R. Tuazon appeared and signed the contract as witnesses to the solemnization, and that Judge Lopez signed the contract as the solemnizing official.
It is Zabala's contention that this marriage contract was void at its inception, in that he was not present at the ceremony before Judge Lopez on August 17, 1974, he did not freely consent to the marriage, and signed the contract in his boarding house when it was brought to him by Aquino's uncle because he was in fear for his life if he refused to do so. Aquino was pregnant at the time with a son who was born on December 24, 1974. If Zabala's claims are true, then the marriage is void under Article 55 of the Civil Code of the Philippines, which requires that both parties to the marriage freely consent to it in the presence of the solemnizing officer.
Zabala's evidence in support of his story consists of the affidavits of himself, Lilia Aquino, and Bonifacia Babatid, one of the witnesses to the contract. Ms. Babatid's affidavit states that:
to our great surprise, it was only Lilia Aquino who appeared before the Municipal Judge of Banaybanay, and we did not see and/or notice the presence of Benjamin B. Zabala; [t]hat because I was requested by the parents of Lilia Aquino to act as one of the witnesses to the Marriage Contract and without knowing its legal implication, I affixed my signature on the space reserved for witness, although the same was not yet signed by Benjamin B. Zabala, as he was not actually present during the marriage ceremony. . . .
Judge Lopez and Jose R. Tuazon, the other witness to the contract, are both deceased. Thus, the only three signatories to the marriage contract who are alive today all claim that Zabala was not present at the ceremony.
Against this evidence, the government contends that it is entitled to a presumption of validity of the contract under Article 410 of the Civil Code of the Philippines, which states that:
The books making up the civil register and all relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained.
In reply, Zabala has presented evidence that Article 410 refers to the Civil Register or Registrar's Office, which is headed by the Municipal Treasurer, and not to the National Census and Statistics Office. Moreover, Zabala has affidavits from both Rodolfo V. Aguilon, the Municipal Treasurer (Officer-in-Charge) of Banaybanay, Davao Oriental, and Rosita V. Ruta, the Clerk of the Court of the Fourth Municipal Circuit Court of Lupan-Banaybanay, to the effect that there are no records of the marriage in either office. Since the marriage contract states that the marriage took place in Banaybanay, both of the above mentioned offices should have copies of the contract ...