of sufficient factors warranting any change in the District Director's decision.

The record reflects that no precautions were taken to prevent the illegal entry of the alien, despite the fact that the carrier had been put on notice of his character by his efforts to bribe one of its representatives for his passport. The carrier merely permitted the passenger to go to a hotel of his own designation where he did not stay. The least that could have been expected would have been his placement in a lodging by the carrier with arrangements with the management thereof to immediately give notice of his departure. As we have already indicated, the passenger is still at large in this country and the carrier is required to furnish his return transportation, as a matter of law.

The carrier has indicated that when the passenger did not appear for his deferred inspection, its reservation agents who would recognize him checked hotels in the business district and in the vicinity of the airport. The carrier asserts that this was done on an overtime basis by the agents, at considerable cost to it. The carrier also asserts that it contacted United States immigration officers, border patrol stations, and the local police in an effort to locate the man. We, however, think that these factors, viewed in the light of the carrier's failure to take proper advance precautions, have been properly evaluated by the District Director in arriving at his decision as to the amount of mitigation merited.

Finally, we note that the carrier had set forth that since this passenger failed to report, it has placed all such people released to its custody under the surveillance of an armed guard; and that a passenger recently returned to its custody cost it over $100 detention expenses. While these factors do show good faith on the part of the carrier, they do not establish the existence of proper diligence with respect to the matter presently under consideration. Accordingly, no change will be made in the District Director's decision.

ORDER: It is ordered that the request for cancellation or further mitigation of the fine be denied; that the District Director's decision of June 24, 1969, be affirmed; and that the appeal be and the same is hereby dismissed. The penalty permitted to stand is $700.

MATTER OF AGBULOS

In Visa Petition Proceedings

A-19032023

Decided by District Director October 3, 1969

Since the marriage by tribal custom in the Philippines in 1919 between the U.S. citizen petitioner and beneficiary's mother is a valid marriage under the applicable laws in existence at that time (General Order No. 68, in force from December 1899 to June 1930, of the U.S. Military Government in the Philippines), beneficiary, issue of the marriage, is eligible for preference classification under section 203 (a) (4), Immigration and Nationality Act, as amended, as petitioner's married daughter.

Petitioner is a 78-year-old naturalized United States citizen who was born in the Republic of the Philippines December 14, 1890. He has filed a visa petition to classify his daughter as a preference immigrant pursuant to section 203 (a) (4) of the Immigration and Nationality Act, as amended. He has submitted as evidence of his marriage to beneficiary's mother joint affidavits subscribed by two unrelated Filipinos attesting to the fact that petitioner and his wife were married in the year 1919 before a tribe of people in Macaoayan, Burgos, Ilocos Sur., Philippines. The affiants alleged that there was no church nor school in the village and the only recourse to a wedding ceremony was by tribal custom. It is further alleged that the ceremony took place prior to the existence of a town with the result that no formal record of such marriage was even made.

In determining whether this marriage could be considered bona fide for immigration purposes inquiry was made of the Hispanic Law Division of the Law Library, Library of Congress. That Library, in replying, furnished a detailed report which states in part:

it would appear that General Order #68, in force from December 1899 to June, 1930 of the U.S. Military Government in the Philippines, was the applicable and pertinent law. Sections of this Order which should be of interest to you follows:

Sec. V. Marriage may be solemnized by either a judge of any court infe

UNIVER

rior to the supreme court, justice of the peace, or priest or minister of the gospel of any denomination.

Sec. VI. No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage that they take each other as husband and wife.

Sec. IX. No marriage heretofore solemnized before any person professing to have authority therefor, shall be invalid for want of such authority or on account of an informality, irregularity or omission, if it was celebrated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.

Two cases were discussed in which General Order #68 was considered in reaching a decision regarding the legality of triban marriages in the Philippines. In one case the Philippine Supreme Court states:

Section IX (see previously cited section) is in the nature of a curative provision intended to safeguard society by legalizing prior marriages...

and again from the Library of Congress:

In 1932, in People vs. Rosil 56 Phil. 722, a case involving the question of whether the accused committed the crime of parricide when he killed a woman he had married according to their tribal rites, Justice Geo. Malcolm, in a concurring opinion states:

The above statement of facts leaves no room for doubt that the accused was the one who caused the death of the deceased . . . to whom he was married according to the rites of the tribe of the Tagbanuas . . . which rites sanctioned said marriage according to the admission of the accused, and constitutes the crime of Parricide.1

From a subsequent report by the Library, it appears that while initially the Philippine Supreme Court limited the provisions of General Order #68 to marriages, celebrated prior to its promulgation, the Court subsequently treated the data of the marriage as immaterial in determining whether a valid marriage had been contracted.

When petitioner registered as an alien in 1940 he showed himself as married with his wife not living in the United States. In his petition for naturalization filed in October 1967 petitioner named his wife as Magialena nee Garan, that they were married in 1921, and that she lived apart from petitioner in the Philippines. Petitioner has submitted a baptismal certificate showing the beneficiary was born March 24, 1921 and baptized March 22, 1938. The parents are listed as petitioner and Magdalena Galang. The phonetic Garan listed for petitioner's wife on the Petition for Naturalization was added when petitioner was interviewed by a

1 For full text of the report see Appendix A.

2 For full text of subsequent report see Appendix B.

Naturalization Examiner, and is presumed to be the same person as "Galang" listed on other documents.

Based on the foregoing, it is concluded that petitioner did enter into a valid tribal custom marriage, recognizable as such under the laws of the Philippines in existence at that time. The beneficiary is therefore considered to be the legitimate child of petitioner, and now eligible for preference status under section 203 (a) (4) of the Act, as his married daughter. The petition will be granted.

ORDER: It is ordered that the visa petition filed by Benyan Domingo in behalf of Catalina Domingo Agbulos be and the same is hereby approved.

APPENDIX A

TRIBAL MARRIAGES UNDER THE LAWS OF THE PHILLIPPINES

The laws of the Republic of the Philippines on domestic relations have undergone many changes since the Spanish colonization of the islands. For the present, the marriage law in force may be found in the new Civil Code of the Philippines which became effective in August 1950. However, at the time of the celebration of the marriage mentioned in your letter, it would appear that General Order No. 68, in force from December 1899 to June 1930, of the U.S. Military Government in the Philippines, was the applicable and pertinent law. Sections of this Order which should be of interest to you follows:

Sec. V. Marriage may be solemnized by either a judge of any court inferior to the supreme court, justice of the peace, or priest or minister of the gospel of any denomination.

Sec. VI. No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife.

Sec. IX. No marriage heretofore solemnized before any person professing to have authority therefor, shall be invalid for want of such authority or on account of any informality, irregularity or mission, if it was celebrated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.

Other pertinent provisions of the Order relate to qualifications, restrictions, formalities, grounds for annulment, etc. It contains no express provisions relative to tribal marriages. A thorough analysis of the different laws reveals that it was not until 1930 that any such provisions first appeared on Philippine statute books, recognizing "marriages between Mohammedans and pa

gans . . in accordance with the rites or practices of their religion" [Sec. 25, Act 3613]. Thus, in a case [e.g., U.S. vs. Tubban, 29 Phil. 434], decided under the regime of General Order No. 68, the Philippine Supreme Court states: "We are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-Christians or members of uncivilized tribes, celebrated without compliance with the requisites prescribed by General Order No. 68." However, in another case involving a tribal marriage decided in 1922 by the same Court, it states:

Section IX [see previously cited section] is in the nature of a curative provision intended to safeguard society by legalizing prior marriages. . . . In moving toward our conclusion, we have not lost sight of the decisions of this court in the cases of U.S. vs. Tubban and U.S. vs. Verzola. We do not, however, believe these decisions to be controlling....

In 1932, in People vs. Rosil, 56 Phil. 722, a case involving the question of whether the accused committed the crime of parricide when he killed a woman he had married according to their tribal rites, Justice George Malcolm, in a concurring opinion, states:

The decision contains the following very significant language: "The above statement of facts leaves no room for doubt that the accused was the one who caused the death of the deceased . . . to whom he was married according to the rites of the tribe of the Tagbanuas . . . which rites sanctioned said marriage according to the admission of the accused, and constitutes the crime of parricide." This means, I take it, the definite abandonment of the doctrine announced in the cases of U.S. vs. Tubban and U.S. vs. Verzola. With the understanding, therefore, that the decision means a complete reversal of the attitude adopted in the two cases previously referred to, I concur in the result.

Prepared by David M. Valderrama, Legal Specialist Hispanic Law Division Law Library-Library of Congress

APPENDIX B

TRIBAL MARRIAGE UNDER LAWS OF THE PHILLIPPINES

The decisions of the Philippine Supreme Court which are digested below have been selected as possibly applicable and helpful in the case before you.

The case of Adong vs. Cheong Seng Gee, 43 Phil. 43 (1922), concerns a Chinese national, Cheong Boo, who was married in 1895 to Mora (Moslem) Adong, according to the Mohammedan rites prescribed by the book on marriage of the Koran. In upholding the legality of this tribal marriage, the Philippine Supreme Court invokes Section 9 of General Order 68 which provides: “No marriage heretofore soleminized before any person professing to