Interim Decision #1318

Volume 10 (Page 444)

United States Department of Justice

Board of Immigration Appeals

In VISA PETITION Proceedings

A-15192045

Decided by Board February 3, 1964

Under Indiana law petitioner's marriage in that State while under 16 years of age, the age of consent for females, is voidable and not void; therefore, in the absence of action to void the marriage, it is considered valid for immigration purposes and will sustain a visa petition to accord her spouse nonquota status.

The case comes forward on appeal from the order of the District Director, Chicago District, dated December 10, 1963, denying the visa petition for the reason that evidence presented in support of the visa petition indicates that the petitioner was born on February 8, 1948, and married the beneficiary on June 12, 1963; therefore, the petitioner's marriage in Indiana was not legal in that the age of consent for females entering into marriage in that state is sixteen.

The petitioner, a native-born citizen of the United States, seeks nonquota status on behalf of her husband, a native and citizen of Greece, born April 27, 1942. The parties were married at Crown Point, Lake County, Indiana, on June 12, 1963. The visa petition indicates that the petitioner was born on February 8, 1947, at Milwaukee, Wisconsin. However, the file contains the birth certificate of the petitioner showing that she was actually born on February 8, 1948, and her birth certificate was filed on March 6, 1948.

An attempt was made to resolve the discrepancy in the age of the petitioner. The petitioner's mother was interviewed on November 4, 1963, by a Service investigator. She insisted that her daughter was 16 years of age at the time of her marriage and that she accompanied her daughter and was present during her marriage to the beneficiary and gave her consent to the marriage. She would not furnish details of the nature of the consent nor would she furnish any information concerning an alleged subsequent church wedding ceremony in Milwaukee. She indicated that her daughter and her husband, the beneficiary, were then living in Chicago. The petitioner's attorney stated that the beneficiary expected to start work in Chicago on November 11, 1963, but that the petitioner returned from Chicago to reside with her grandmother in Milwaukee. Reference is made to an affidavit of the beneficiary that he became acquainted with his wife about three months before their marriage and that their marriage was consummated.

Upon the basis of the documentary evidence present in the record concerning the birth of the petitioner, it is established that she was born on February 8, 1948, and that at the time of her marriage on June 12, 1963, she was fifteen years and four months old.

The issue in the case is whether the marriage of the petitioner to the beneficiary is a legal one in view of the fact that she was under the age of consent for females before entering such a marriage. The State of Wisconsin, where the parties resided at the time of their marriage, provides in section 245.02 of the Wisconsin Statutes of 1961 that every female person who has attained the full age of marriage shall be capable in law of contracting a marriage if otherwise competent; that if the female is betwee n the ages of 16 and 18, no license shall be issued without the consent of the parents given before the county clerk under oath or certified under the hand of such parents and properly verified by affidavit before a notary public or other official authorized by law to take affidavits, which certificate shall be filed of record in the office of record in the office of said county clerk at the time of the application for said license. Section 245.04 provides if any person residing and intending to continue to reside in Wisconsin, who is disabled or prohibited from contracting a marriage under the laws of that state, goes into another state or country and there contracts a marriage prohibited or declared void under the laws of Wisconsin, such marriage shall be void for all purposes in Wisconsin with the same effect as though it had been entered into in Wisconsin. The Indiana Statutes, section 44-101, provides the same minimum age requirement of 16 years, but provides that if satisfactory proof is furnished to th e judge of any circuit, superior or juvenile court that the female is pregnant or that the parties desire to be married to each other and that the parents consent thereto, then the judge may waive the minimum age requirement and by written instrument authorize the clerk of the court to issue the marriage license to the parties if they are otherwise qualified by law. Another provision of the Indiana Statutes, section 44-202, provides that if the female is under the age of eighteen years the marriage license cannot be issued unless the application for the license is accompanied by a verified written consent by the parents and after due consideration and investigation, the judge may direct the clerk to issue a license without requiring the submission of any required consent; that a person applying for a license to marry is required to submit a certified copy of his birth record or other written evidence of the date and place of birth. The penalties for failure of the clerk to observe these requirements are estab lished. Section 44-106 provides that in the cases of voidable marriages, such as where either of the parties to a marriage shall be incapable from want of age, the same may be declared void on application of the capable party but the children of such marriage begotten before the same is annulled shall be legitimate.

The pertinent question in the case is whether this marriage was void or voidable under Wisconsin or Indiana law. It has been held that a marriage entered into by persons below the age of consent and above the age of seven years who are capable of consummating the marriage is voidable and not void; that during the time intervening between such a marriage and a divorce on the ground of nonage the marriage is valid, subject to a condition subsequent, such as a disaffirmance of the marriage 1 . The marriage of a woman when only fifteen years of age is not an absolute nullity but is valid until annulled by the judgment of a court 2 . In Indiana it has been held that females under 16 years of age cannot contract valid marriages and any female may have such a marriage annulled unless the same is ratified after arriving at the age of 16 years 3 . Section 44-106 of the Indiana Statutes includes in the list of voidable marriages those contracted by persons incapable from want of age. When either of the parties to such a marriage shall be incapable from want of age, the same may be declared void on application of the incapable party in the case of want of age by a court having jurisdiction to decree divorces, but the children of such marriages begotten before the marriage is annulled shall be legitimate.

The law appears to be clear, that both in the State of Wisconsin and in the State of Indiana, the marriage of a person under the age of consent is voidable and not void; that it may be ratified after arriving at the age of 16 years; and that it is valid between the date of the marriage and the date of the divorce decree for nonage, subject to a condition subsequent such as a disaffirmance. As far as the record shows the evidence indicates that the parties have consummated their marriage and there is no indi cation of any act of disaffirmance. The parties appear to be living together except that they appear to be temporarily separated due to the necessity of the beneficiary in obtaining employment in Chicago during which time the petitioner has returned to Milwaukee.

The fact that the petitioner might be permitted to disavow if she does not ratify it after the age of 16 does not disturb the fact that it is, at present, a valid and bona fide marriage 4 . Upon the present record the appeal will be sustained.

ORDER: It is ordered that the appeal be sustained and that the visa petition be approved for nonquota status.

ENDNOTES

Interim Decision # 1335

Volume 10 (Page 516)

United States Department of Justice

Board of Immigration Appeals

MATTER OF GARCIA-CASTILLO

In DEPORTATION Proceedings

A-13710425

Decided by Board April 30, 1964

Adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied as a matter of discretion to an alien from a nonquota country who sought and gained entry into the United States with a preconceived intention to establish permanent residence, since the bona fides of the alien in securing his nonimmigrant visa is a persuasive factor in considering the exercise of such discretion. [NOTE: See also, Matter of Garcia-Castillo , Int. Dec. No. 1416, of which the alien in this case is also the subject.]

CHARGE:

Order: Act of 1952--Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Visitor, remained longer.

In an opinion dated February 24, 1964, the special inquiry officer found the respondent herein deportable on the charge contained in the order to show cause and granted his application for status as a permanent resident under section 245 of the Immigration and Nationality Act. From that opinion the trial attorney has appealed to this Board. The appeal will be sustained.

The respondent is a native and citizen of Peru, single, who was last admitted to the United States on June 13, 1963, at which time he was authorized to remain in the United States as a visitor until July 15, 1963. On October 2, 1963, he applied for adjustment of status to that of a permanent resident and that application was denied on November 26, 1963. He was thereafter permitted to remain in the United States until December 26, 1963. He remained beyond that time without authority and is, therefore, deport able on the charge contained in the order to show cause.

The special inquiry officer in his opinion found that it was the respondent's intention at the time he came to the United States to apply for adjustment of status from that of a visitor to that of a permanent resident. The record shows that even though he knew it was illegal for him to work in this country, he nevertheless obtained employment about a week after his arrival. Moreover, his first application for a visitor's visa to the United States was rejected by the American consul. Thereafter he requested a travel agent in his home country to assist him and it is his testimony that the travel agent arranged for him to get a letter from a doctor to the effect that the respondent was making a trip to the United States in order to secure medical treatment. Upon presentation of this letter to the American consul, the visitor's visa was issued.

The special inquiry officer in considering the application of the respondent cited our decision in the Matter of Barrios , Interim Decision No. 1264. He concluded from this opinion that our holding was that when an alien comes from a nonquota country, his bona fides in securing the nonimmigrant visa is immaterial to consideration of an application under section 245. Accordingly, he reasoned that the exercise of discretion in applications under section 245 should only be based on other factors in the case of the applicant. We cannot agree with the special inquiry officer in this regard. In Barrios we limited our decision to gr ant relief to the particular facts of that case. There we had a situation of a nonquota alien who entered the United States as a nonimmigrant fully cognizant of the fact that he could not remain permanently unless permitted to do so lawfully. We found no lack of good faith in his entry as a nonimmigrant, nor any intention to circumvent the normal procedures of entering the United States for permanent residence. In that case we did not agree with the Service that Barrios unequivocably admitted that it was hi s intention to come here permanently at the time he applied for and obtained his visitor's visa. These factors are not present in the instant case. Here the respondent upon his first application for a nonimmigrant visa obtained and presented to the American consul a false employment statement. On his second application for a nonimmigrant visa he presented a letter from a doctor stating that it was necessary for him to travel to the United States for medical reasons. Moreover, within one week after arriving in the United States the respondent took employment. The record shows beyond a doubt that the respondent sought and gained entry into the United States with a preconceived intention to establish permanent residence here. The respondent freely concedes his deception upon the American consul. His testimony in this regard states that his reason for seeking this method of permanent residence in the United States was because he did not want to wait a long time to get an immigrant visa and because he has no "guar antee" or financial sponsorship in the United States. It is his testimony that he seized upon this method after finding out from several friends who had also entered the United States as tourists and were able thereafter to adjust their status to that of permanent residents. The trial attorney in a brief on appeal sets forth the above factors as reasons for not exercising discretion favorably. We agree with the trial attorney's assertion that to grant the respondent the relief he seeks would tend to encoura ge deliberate evasion of consular functions. We have so held in the Matter of D– , Interim Decision No. 1330, decided by BIA on April 3, 1964.

The special inquiry officer considering the factors other than the bona fides of the respondent in his entry into the United States as a nonimmigrant, seizes upon the factor that the respondent was completely truthful in describing the circumstances under which he gained admission to the United States. The special inquiry officer characterizes his candor as refreshing and concludes that he should not be punished for such truthfulness.

This Board has carefully reviewed the record herein, together with representations made by the trial attorney on appeal. Furthermore, we have given thorough consideration to the brief of counsel for the respondent. We are not concerned herein with matters of material misrepresentations inasmuch as that charge has not been lodged in the present proceeding. Our sole consideration is directed to the proper exercise of discretion in a case such as this where there has been a flagrant disregard by the respondent of the lawful visa procedures. We concede the respondent is statutorily eligible for the relief he seeks. Refreshing though as his candor may be, we cannot ignore nor can we condone the method he has used to seek permanent residence into this country. We do not think that under these circumstances section 245 was placed into the law to avoid the properly authorized visa issuing procedures of the American consuls abroad. Desirable as his residence in the United States might be, we deem it appropriate that s uch residence should be attained in the proper manner. We re-assert the important fact that bona fides of an applicant for relief under this section in his securing of a nonimmigrant visa for entry into the United States is a persuasive factor in the exercise of discretion as provided to the Attorney General for the consideration of the applications under section 245. In this particular case we find that the circumstances do not warrant a favorable exercise of that discretion. Accordingly, the following ord er will be entered.

ORDER: It is ordered that the appeal of the trial attorney be sustained and that the application of the respondent for relief under section 245 of the Immigration and Nationality Act be denied as a matter of discretion.