respondents deportable as charged, denied their application for adjustment of status under section 245 of the Immigration and Nationality Act, and granted them voluntary departure in lieu of deportation. The respondents have appealed from that decision. The appeal will be dismissed.

The respondents, natives and citizens of South Korea, have conceded their deportability under section 241(a)(2) of the Act as nonimmigrants who remained beyond the authorized period of admission. The only issues on appeal involve the denial of the respondents' applications for section 245 relief.

The respondents initially submitted their applications for immigrant visas to a United States Consulate in South Korea. They sought nonpreference status, claiming an exemption from the labor certification requirement of section 212(a)(14) on the basis of an investment in a dry-cleaning business. Their applications were accepted, and they were given a nonpreference priority date of October 17, 1973.' Their present applications for adjustment of status are based upon an investment in a new business.

The immigration judge denied the applications on two grounds: he held that (1) immigrant visas are not "immediately available" as required by section 245 and therefore the respondents are statutorily ineligible for adjustment of status, and that (2) the respondents do not merit a favorable exercise of discretion. The respondents, through counsel, contend that their priority date of October 17, 1973, is retained. Counsel asserts that the immigration judge erred in holding that the respondents were statutorily ineligible for the relief inasmuch as immigrant visas were available at the time of the immigration judge's decision to those aliens from South Korea with priority dates before January 1, 1974. The immigration judge, citing our order in Matter of Jo, Interim Decision 2412 (BIA 1975), rejected this argument in his decision.

In Matter of Jo we held that an alien whose application for adjustment of status is denied for failure to show an exemption from the labor certification requirement of section 212(a)(14) has not established a "priority date" within the meaning of 8 C.F.R. 245.2. Consequently, when the alien submits another application claiming an exemption from labor certification based on a different investment, the earliest "priority date" the alien can obtain is the date on which the new application was filed. The alien in that case had not been accorded a priority date by the Department of State.

Our holding in Matter of Jo is inapplicable in the present case. The respondents filed their applications for immigrant visas with a consular

'It appears as though the consular letter referring to the priority date given to the respondents was inadvertently left out of the record. The immigration judge, however, refers to the State Department determination in his decision.

official and were given a priority date. 8 C.F.R. 245.1(g)(2) provides that a priority date may be fixed by that priority date accorded the applicant by the consular officer as a nonpreference immigrant. It further provides that, “A nonpreference priority date, once established, is retained by the alien even though at the time a visa number becomes available and he is allotted a nonpreference visa number he meets the provisions of section 212(a)(14) of the Act by some means other than that by which he originally established entitlement to the nonpreference priority date." Therefore, according to the regulation, the respondents may claim the priority date of October 17, 1973, even though they now claim to be exempt from section 212(a)(14) on the basis of an investment different from that which supported their original applications for immigrant visas. The immigration judge erred in finding them statutorily ineligible for failure to establish the availability of immigrant visas as required by section 245.

With respect to the immigration judge's decision to deny the applications as a matter of discretion, we are in agreement. The record contains evidence that the respondents entered the United States with a preconceived intent to remain: an application for adjustment of status was filed only 16 days after arriving here. Such evidence adversely affects an application for discretionary relief. See Soo Yuen v. INS, 456 F.2d 1107 (9 Cir. 1972); Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971) cert. dismissed, 404 U.S. 801 (1971); Chenv. Foley, 385 F.2d 929 (6 Cir. 1967), cert. denied, 393 U.S. 838 (1968); Cubillos-Gonzalez v. INS, 352 F.2d 786 (9 Cir. 1965); Castillo v. INS, 350 F.2d 1 (9 Cir. 1965). We do not consider the favorable factors in the case sufficient to outweigh the adverse evidence.

Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondents shall be deported as provided in the immigration judge's order.

MATTER OF RICE

In Visa Petition Proceedings

A-21266592

A-21266593

Decided by Board January 27, 1977

(1) Article 66 of the Philippine Civil Code provides that when one or both of the contracting parties to a marriage are citizens or subjects of a foreign country, it shall be necessary, before a marriage license can be obtained, to provide themselves with a certificate of legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials. However, despite the lack of such a certificate a marriage license was issued and the marriage was contracted.

(2) The officer in charge concluded that the marriage was void under Philippine law and invalid for immigration purposes, and denied the immediate relative visa petitions filed by petitioner for his wife and daughter under section 201(b) of the Immigration and Nationality Act.

(3) Where the petitioner and beneficiary had the intent and capacity to marry when the license was presented to the municipal judge who performed the ceremony, the marriage was valid, notwithstanding failure to obtain the certificate of legal capacity from the consul under Article 66, and the visa petitions will be granted.

ON BEHALF OF PETITIONER: Pro se

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The United States citizen petitioner applied for immediate relative status for the beneficiaries as his wife and child under section 201(b) of the Immigration and Nationality Act. In a decision dated October 15, 1976, the Officer in Charge denied the petitions. He has certified his decision to the Board for review pursuant to 8 C.F.R. 3.1(c). His decision will be reversed and the visa petitions will be approved.

The adult beneficiary is a native and citizen of the Philippines. She and the petitioner married on June 15, 1972, while the petitioner was serving in the United States Armed Forces. Both parties were 18 years old. A daughter was born of this union in the Philippines. The child did not acquire United States citizenship because her birth occurred a month before her father reached the age of 19. See section 301(a)(7) of the Immigration and Nationality Act. The couple's son, born three years later, did derive United States citizenship from the petitioner.

The petitioner now seeks immediate relative status for his wife and daughter in order to bring the family back to his home state of Tennes

see.

The Officer in Charge concluded that the petitioner's marriage is invalid under the law of the Philippines, and hence, must be considered invalid for immigration purposes. This conclusion is based on the petitioner's admission that he failed to comply with Article 66 of the Philippine Civil Code.

The Officer in Charge is correct in applying the general rule that the validity of a marriage is determined by the law of the place of celebration-in this case-the Philippines. Matter of Gamero, 14 I. & N. Dec. 674 (BIA 1974); Matter of P-, 4 I. & N. Dec. 610 (BIA 1952; A.G. 1952); Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969).

In order to determine whether noncompliance with Article 66 invalidated the petitioner's marriage, we must refer to Title III of the Civil Code of the Philippines. Title III sets out numerous procedures to govern the licensing and solemnization of marriages. It also indicates which irregularities in the licensing and solemnizing process will render a marriage void, ab initio and which may subject the validity of a marriage to attack in a suit to annul.

Article 66 is one of several licensing provisions which are aimed at assisting in the enforcement of other marriage laws, by requiring persons who are not qualified to marry, to reveal such fact before the marriage is contracted. All applicants for marriage licenses must supply information, under oath, concerning age, relationship between them, if any, prior marriages, and whether such marriages have been dissolved by death or annulment (Article 59). In the case of foreigners, such as the petitioner, a certificate from diplomatic officials is required under Article 66 to help insure that the party has the required capacity to contract the marriage. Article 66 provides

When either or both of the contracting parties are citizens or subjects of a foreign country, it shall be necessary, before a marriage license can be obtained, to provide themselves with a certificate of legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials.

As the text of Article 66 indicates, a license should not be issued to a foreigner unless the certificate of capacity is furnished. However, in the petitioner's case, despite the absence of such a certificate, a license was issued. Hence, the question becomes-is the marriage which is subsequently entered into void or voidable because of this procedural irregularity?

Under the applicable provisions of the Civil Code of the Philippines (Articles 53, 80, 81, 82, and 83), the following requirements are essential to the validity of a marriage: (1) the contracting parties must have the legal capacity to marry each other; (2) their consent to the marriage

must be freely given; (3) the parties must have a marriage license, except in marriages of "exceptional character"; and (4) the person solemnizing the marriage must be duly authorized. Due to the mandatory nature of these requirements, failure to comply with any of them will render the contract void, ab initio. There is no suggestion in the record that either the petitioner or the beneficiary lacked the intent or the capacity to marry when they presented their marriage license to the municipal judge who performed the ceremony. Thus, we conclude that despite the petitioner's failure to provide a certificate of capacity, his marriage is not void under Philippine law.

On the issue of voidability, Article 85 allows parties or their parents to challenge the validity of a marriage in certain situations, by bringing a suit to annul. These provisions have no application here, however, since the parties are attempting to establish the validity rather than the voidability of their marital contract. Moreover, we note, parenthetically, that none of the grounds of which an existing marriage may be annulled have to do with an improperly issued marriage license. (See Articles 80, 81, 82, 83.)

We conclude that in this case, where the petitioner possessed the legal capacity to marry, his failure to obtain a certificate of legal capacity did not invalidate his marriage under the law of the Philippines.' Accordingly, we will consider his marriage valid for immigration purposes. The visa petitions predicated on the marriage will be approved.

ORDER: The decision of the Officer in Charge is reversed; the visa petitions are approved.

1 In Matter of Dagamac, 11 I. & N. Dec. 109 (BIA 1965), passing reference is made to Article 66 of the Philippine Civil Code. The case, however, does not address the issue raised here. In Dagamac, the petitioner did not possess the legal capacity to marry the beneficiary; hence, the mere lack of a certificate of capacity was not the critical issue.