Interim Decision #2714
MATTER OF AGUSTIN
In Deportation Proceedings
A-30742898
Decided by Board July 3, 1979
(1) Under Article 80 of the Philippine Civil Code, a marriage is void ab initio if it was not
properly solemnized or a valid marriage license was not issued.
(2) A marriage between two persons who have not freely given their consent to the
marriage is voidable under Philippine law, and valid until annulled or otherwise
terminated. Matter of Rice, 16 I&N Dec. 96 (BIA 1977), modified.
(3) An alien is not precluded from establishing eligibility for relief from deportation
under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(f), merely
because a deportation charge was brought under sections 241(a)(1) and 212(a)(20) of
the Act, 8 U.S.C. 1251(a)(1) and 1182(a)(20), if, in fact, immigration documentation
was obtained by fraud. Matter of Da Lomba,
16 I&N Dec. 616 (BIA 1978), followed.
(4) Where an alien misrepresented herself as single in her visa application when in fact
she was married, but contended the marriage was a nullity under Philippine law, case
remanded to determine whether there was a fraudulent intent which would support an
application for section 241(f) relief.
(5) An alien who was under the age of sixteen at the time an immigrant visa was issued
to her is not precluded from establishing that she was "otherwise admissible" at the
time of her entry for the purposes of section 241(f) relief for lack of a valid labor
certification under section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14).
CHARGE
Orden Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)j—Not in possession of valid
unexpired immigrant visa or other valid entry document.
ON BEHALF OF RESPONDENT: Raymond Lee, Esquire
1360 Pacific Trade Center
Honolulu, Hawaii 96812
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The respondent has appealed from the decision of an immigration
judge, dated July 3, 1978, denying her request for reopening of her
deportation proceedings. The record will be remanded.
The respondent is a 23-year-old native and citizen of the Philippines
who was admitted to the United States as a lawful permanent resident
on January 29, 1971. She obtained an immigrant visa as the unmarried
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Interim Decision #2714
daughter of an alien lawfully admitted for permanent residence under
section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1153(a)(2). On June 9, 1976, an Order to Show Cause was issued,
charging the respondent with deportability under section 241(a)(1) of
the Act, 8 U.S1C. 1251(a)(1), as an alien excludable at entry under
section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), as an immigrant not
in possession of a valid unexpired immigrant visa or other valid entry
document.
At a deportation hearing held on June 23, 1976, the Service introduced into evidence a statement of the respondent, dated June 23,
1976, in which she stated that, in December 1970, prior to her admission into the United States, she married Francisco Ignacio (Ex. 4). The
Service also introduced an excerpt from the Civil Register of Marriages in the Philippines which indicates that a marriage between
Lydia N. Carino and Francisco Ignacio was registered on January 6,
1971 (Ex. 3). However, on January 22, 1971, the respondent completed
an application for an immigrant visa in which she stated her marital
status as single (Ex. 2). The respondent conceded deportability, and the
immigration judge found her deportable in a decision dated June 23,
1976, but granted her the privilege of voluntary departure in lieu of
deportation.
On April 19, 1978, the respondent moved to reopen her deportation
proceedings, asking that the immigration judge reconsider his decision
and also allow the respondent to apply for relief from deportation
under section 241(f) of the Act, 8 U.S.C. 1251(f). On July 3, 1978, the
immigration judge denied the respondent's motion. The respondent
has appealed from that denial.
Initially, the respondent, through counsel, makes the legal argument
that the evidence does not support a finding that she was married
under Philippine law. She contends that she did not freely consent to
the marriage, that a valid marriage license was not issued, and that
the marriage was not properly solemnized. In support of her claim, the
respondent refers to various sections of the Philippine Civil Code
setting forth the requirements for a valid marriage_
The defects in the marriage referred to by the respondent do not
appear to be fatal to the validity of the marriage. The respondent has
not cited any authority clearly establishing that the marriage in this
case would be regarded as void ab initio under Philippine law. Article
80 of the Civil Code of the Philippines states:
The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the male and
female respectively, even with the consent of the parents;
(2) Those solemnized by any person not legally authorized to perform marriages;
Interim Decision #2714
(3) Those solemnized without a marriage license, save marriages of exceptional
character;
(4) Bigamous or polygamous marriages not falling under article 83, number 2;
(5) Incestuous marriages mentioned in article 81;
(6) Thom where one or both contracting parties have been found guilty of the
killing of the spouse of either of them;
(7) Those between stepbrothers> and stepsisters and other marriages specified in
article 82.
See generally Matter of Dela Cruz, 14 I&N Dec. 686 (BIA 1974). The
respondent claims, on appeal, that the marriage was not properly solemnized, and that a valid marriage license was not issued. However,
the registration of the marriage, entered into evidence as Exhibit 3 at
the respondent's deportation hearing, states that the marriage was
solemnized by Judge Hermenegildo Prieto. Article 56 of the Philippine
Civil Code provides that marriages may be solemnized by:
(1) The Chief Justice and Associate Justices of the Supreme Court;
(2) The Presiding Justice and the Justices of the Court of Appeals;
(3) Judges of the Courts of First Instances;
(4) Mayors of cities and municipalities;
(5) Municipal judges and justices of the peace;
(6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or
sect, duly registered, as provided in article 92, and;
(7) Ship captains, airplane chiefs, military commanders, and consuls and viceconsuls in special cases provided in articles 74 and 75'
Similarly-, Exhibit 3 indicates that a marriage certificate was
received by the Office of the Treasurer before registration of the
marriage. Article 67 of the Philippine Civil Code provides that a
marriage certificate contain ". . . [a] statement that the marriage
license has been issued according to law.. .." The respondent has not
introduced any evidence, other than her own testimony, to support her
claim that no marriage license was, in fact, issued. Accordingly, we
find that the evidence does not support a finding that her marriage to
Francisco Ignacio was invalid under Philippine law because of the lack
of proper solemnization or a marriage license.
The respondent has not argued that any other of the bases for
finding a marriage void under article 80 are present in this case.
Whether the marriage ceremony was voidable for one reason or
another is immaterial, since a voidable marriage is generally regarded
as valid until annulled or otherwise terminated. See United States v.
Sacco, 428 F.2d 264, 269 (9 Cir. 1970), cert. denied,
400 U.S. 903 (1970).2
Matter of Rice, 16 I&N Dec. 96 (BIA 1977), Wergadthicumn
'There is no claim advanced that Judge Prieto does not come within one of these
classes of persons authorized•to perform marriages under the Code.
In fact, the respondent testified that she obtained a divorce from Francisco Ignacio in
Hawaii in 1975 (Tr. p. 11). A divorce proceeding presupposes the existence of a valid
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that a marriage between two parties who have not freely given their
consent to the marriage is void ab initio under Philippine law as
incorrect, and we expressly disapprove of the language in our decision
today. We find, therefore, the respondent's argument that her marriage was of no legal effect to be without merit, and we hold that the
immigration judge correctly found her deportable on the basis of clear,
convincing, and unequivocal evidence.
However, we find that the proceedings should be reopened to enable
the respondent to apply for relief from deportation under section
241(f) of the Act.3 Concerning nondeportablility under section 241(f),
we determined, subsequent to the immigration judge's decision herein,
that an alien was not precluded from 241(f) relief merely because the
deportation charge was brought under sections 241(a)(1) and
212(a)(20) of the Act. Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978).
In Da Lomba, we held that it is not necessary that a deportation charge
be brought under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19), in
order for section 241(f) to be operative if, in fact, immigration documentation was obtained by fraud. In the present case, the respondent
admitted that she entered as an unmarried child and that she was
actually married at the time. Her defense to deportation that, as a
matter of law, she was unmarried at the time her visa was Issued is not
probative on the issue of her mental processes at that time! Accordingly, we shall remand the record for receipt of evidence on the issue of
whether there was fraudulent intent when the respondent represented
herself as single in her visa application.
The Trial Attorney has argued extensively in his brief on appeal
that, even assuming the respondent is eligible to apply for relief from
deportation under section 241(f), she was not "otherwise admissible"
at the time of her entry as required by that section. In Matter of
Gonzalez, 16 MN Dec_ 564 (BIA 1978), we held that section 241(f) was
not operative where the alien seeking relief was not "otherwise admissible" at the time of entry for lack of a valid labor certification and was
not exempt therefrom. However, we find that the respondent in the
present case was exempt from the labor certification requirements of
section 212(a)(14) due to her age. Volume 9 of the Foreign Affairs
Manual, note 1.1 under 22 C.F.R. 42.91(a)(14), provides:
Any alien under the age of sixteen when a visa is issued .. . would not require a labor
certification even though such alien might become employed upon attaining working
age. (Emphasis supplied-)
marriage. See Matter of F ,
9 I&N Dec. 275 (BIA 1561).
—
' The respondent testified at her deportation hearing that she was the parent of a
United States citizen child (Tr- p. 12).
Cf. Matter of Raqueno, Interim Decision 2713 (BIA 1979).
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Interim Decision #2714
The respondent was issued her visa on January 22, 1971, while she
was under the age of sixteen (Ex 2). We find, therefore, that she may
not be precluded from establishing that she was otherwise admissible
at the time of her entry within the meaning of section 241(f) for lack of
a labor certification. Accordingly, the motion to reopen will be granted
and the record remanded for consideration of the respondent's request
for termination under section 241(f).
ORDERt The proceedings are reopened and the record is remanded to the immigration judge for consideration of the respondent's
application for section 241(f) relief.
FURTHER ORDER; If relief should be granted by the immigration judge, the outstanding order of deportation shall be withdrawn.
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