Citation Codes

Equivalent Citations

citation codes

Docket Number

A-21307895

Attorney(S)

ON BEHALF OF PETITIONER: Pro se

Acts

Aliens And Nationality — Immigration And Nationality — Immigration — Selection System — Allocation Of Immigrant Visas

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Smart Summary

Matter of Bautista (Board of Immigration Appeals, Sept. 12, 1978)

Factual and Procedural Background

The petitioner, a 32-year-old native of the Philippines and lawful permanent resident admitted November 29, 1977, married the beneficiary, a 22-year-old native and citizen of the Philippines, on December 18, 1977. On December 29, 1977, the petitioner filed a visa petition under section 203(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(2)) seeking second-preference status for his wife. An Immigration Officer denied the petition on April 20, 1978, concluding the marriage would not be recognized for immigration purposes because it was within a degree of kinship prohibited by Philippine law. The petitioner appealed pro se; the Board of Immigration Appeals sustained the appeal and approved the visa petition.

Legal Issues Presented

Whether the marriage between the petitioner and the beneficiary is valid for immigration purposes given their degree of kinship under Philippine law (Article 81 of the Civil Code of the Philippines).

Arguments of the Parties

Immigration Officer's Position

Denied the visa petition on the ground the marriage would not be recognized for immigration purposes because the parties were related within the degree of kinship prohibited from marrying under Article 81 of the Philippine Civil Code.
Relied upon Article 81 and concluded the marriage was proscribed (the decision indicates the officer applied subsection 1, though the record showed collateral relationship).

Petitioner's Position

Filed the appeal pro se seeking recognition of the marriage and issuance of an immigrant visa for his wife. In his Notice of Appeal he incorrectly described the relationship as uncle and niece; the record shows the parties are second cousins (the petitioner is the first cousin of the beneficiary's mother).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Arenas, Interim Decision 2343 (BIA 1975)	The validity of a marriage for immigration purposes is governed by the law of the place where the marriage was celebrated.	The Board applied this rule to hold the petitioner's marriage must be judged by Philippine law (the place of celebration).
Matter of Dela Cruz, 14 IN Dec. 686 (BIA 1974)	Used as a comparative decision.	The Board cited this decision for comparison with the present case.

Court's Reasoning and Analysis

The Board observed that recognition of marriages for immigration purposes is governed by the law of the place of celebration (Matter of Arenas). The Immigration Officer had relied on Article 81 of the Philippine Civil Code, which proscribes (1) marriages between ascendants and descendants of any degree and (2) marriages between collateral relatives by blood within the fourth civil degree. The record showed the parties are collateral relatives: the petitioner is the first cousin of the beneficiary's mother, making the parties second cousins. Applying the civil-law method of computing degrees (and citing 23 Am.Jur.2d Descent and Distribution §48), the Board concluded that children of a cousin are related in the fifth degree. Because Article 81 proscribes only up to the fourth civil degree, the marriage between the petitioner and the beneficiary (a fifth-degree relationship) is not prohibited by Article 81. On that basis the Board reversed the Immigration Officer's decision and approved the visa petition; it noted Matter of Dela Cruz for comparison.

Holding and Implications

The Board sustained the appeal, reversed the decision of the Immigration Officer, and approved the visa petition.

Direct effect: the beneficiary's visa petition was approved and the Immigration Officer's denial was vacated. The opinion does not discuss broader precedential implications beyond its application of governing rules to these facts.

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MATTER OF BAUTISTA. In Visa Petition Proceedings.

(1) The marriage of the petitioner and the beneficiary, second cousins, will be recognized for immigration purposes only if it is valid under the law of the Philippines, the place of celebration.

(2) Article 81 of the Civil Code of the Philippines proscribes marriage between collateral relatives within the fourth civil degree. Since the beneficiary, the child of the petitioner's cousin, is related to the petitioner in the fifth degree, her marriage to the petitioner is not proscribed by Article 81 of the Philippine Code and will be deemed valid for immigration purposes. Compare Matter of Dela Cruz, 14 IN Dec. 686 (BIA 1974).

The petitioner has appealed from the decision of the Immigration Officer, dated April 20, 1978, denying the visa petition filed on behalf of the beneficiary as his wife under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal will be sustained.

The petitioner, a 32-year-old native of the Philippines, was admitted to the United States as a lawful permanent resident on November 29, 1977. On December 18, 1977, he married the beneficiary, a 22-year-old native and citizen of the Philippines. On December 29, 1977, the petitioner filed a visa petition, seeking to accord his wife second preference status for the issuance of an immigrant visa.

In his decision denying the visa petition, the Immigration Officer found that the marriage between the petitioner and the beneficiary would not be recognized for immigration purposes because they were related within the degree of kinship prohibited from marrying under Philippine Law. In reaching this conclusion, the Immigration Officer relied upon Article 81 of the Civil Code of the Philippines, which provides:

Marriages between the following are incestuous and void from their performance, whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree;

* * *

(2) Between collateral relatives by blood within the fourth civil degree.

The Immigration Officer found that the petitioner's marriage to the beneficiary was proscribed under subsection 1 of Article 81. However, it appears from the record that the parties are collateral relatives, and their relationship should be governed by subsection 2 of Article 81, which proscribes marriages within the fourth civil degree.

The petitioner is the first cousin of the beneficiary's mother, thereby making the relationship between the parties that of second cousins. In his Notice of Appeal, the petitioner incorrectly categorizes his relationship to his wife as that of an uncle and niece.

The general rule governing recognition of marriages for immigration purposes is that the validity of a marriage is governed by the law of the place where the marriage was celebrated. Matter of Arenas, Interim Decision 2343 (BIA 1975). The petitioner's marriage to the beneficiary, therefore, is valid for immigration purposes only if it would be valid under Philippine Law, the law of the place of celebration.

In computing the degree of the relationship between the parties in this case, we look to the rule of the civil law, as Article 81 of the Philippine Code proscribes marriages between collateral relatives within the fourth civil degree. The fourth degree of relationship includes first cousins, great-uncles and great-aunts. Children of a cousin are related in the fifth degree. See 23 Am.Jur.2d Descent and Distribution § 48. Since the beneficiary in this case, the child of the petitioner's cousin, is related to the petitioner in the fifth degree, her marriage to the petitioner is not proscribed by Article 81 of the Philippine Code, and will be deemed valid for immigration purposes. Compare Matter of Dela Cruz, 14 IN Dec. 686 (BIA 1974). We will, therefore, sustain the appeal filed in this case, and approve the visa petition filed on the beneficiary's behalf.

ORDER: The decision of the Immigration Officer is reversed, and the visa petition is approved.

IN THE MATTER OF BAUTISTA