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Volume 5 (Page 698)
United States Department of Justice
Board of Immigration Appeals
IN THE MATTER OF B–
In VISA PETITION Proceedings
Decided by the Board March 4, 1954
Preference quota status-Section 203 (a) (3) of the Immigration and Nationality Act-Proxy marriage-Consummation must occur subsequent to marriage to meet requirements of section 101 (a) (35)-Valid in Italy, therefore legitimate children born out of wedlock.
(1) The requirements of section 101 (a) (35) of the Immigration and Nationality Act have not been met where a proxy marriage is not consummated, even though the parties lived together as husband and wife and there was consummation prior to the marriage as evidenced by the birth of three children. Eligibility for preference status for the spouse under section 203 (a) (3) of the Act is not established.
(2) Since proxy marriages are valid in Italy, the children heretofore born out of wedlock are now legitimate and are entitled to preference status under section 203 (a) (3) of the Immigration and Nationality Act.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the orders dated December 7, 1953, denying the visa petition on behalf of the alleged husband on the ground that he does not qualify as a husband pursuant to section 101(a)(35) of the Immigration and Nationality Act for the reason that the proxy marriage has not been consummated; and denying the visa petition on behalf of S– B– on the ground that he is not a legitimate child in accordance with section 101 (b) (1) (A) of the Immigration and Nationality Act.
The petitioner is a lawfully resident alien and seeks a preference for the beneficiaries under section 203(a)(3) of the Immigration and Nationality Act as her spouse and child respectively. The record indicates that the petitioner and V– B– attempted to become married in Italy in 1943 but were unable to do so because of the insistence of Italian authorities upon submission of certain Yugoslavian documents. They commenced to live together as husband and wife and so held themselves out to the community and as
a result of this relationship three children were born, the third of whom is the child beneficiary. On May 17, 1951, the petitioner and her two oldest children were admitted to the United States for permanent residence. The petitioner and her husband were married by proxy marriage celebrated at Coli, Piacenza, Italy, on February 27, 1953.
Section 101(a)(35) of the Immigration and Nationality Act provides that the terms "spouse," "wife," or "husband" do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated. It is true in the instant case that the parties lived together as husband and wife and that there was consummation prior to the marriage as evidenced by the birth of three child
ren. However, at the time of this consummation there was no marriage in existence, and such marriage did not come into existence until February 27, 1953. The proxy marriage has never been consummated and the marriage therefore fails to satisfy the requirement of section 101(a)(35) for the purpose of making parties thereto husband and wife. Accordingly, the visa petition will be denied as to the husband.
It appears however that proxy marriages are valid in Italy. The marriage therefore will be given the same effect as in the place of celebration except for the limitation placed thereon by section 101(a)(35) of the Immigration and Nationality Act as to a spouse for purposes of immigration. Inasmuch as a valid marriage has been performed in Italy, the children heretofore born out of wedlock are now legitimate (Article 280, Italian Civil Code of 1942). Inasmuch as the child has been legitimated under the laws
of Italy, the visa petition will be approved for the child, Matter of W–, VP- 423722, 4, I. & N. Dec. 209, B. I. A., 1950.
Cognizance is taken of the brief filed by counsel and the New Jersey case referred to therein but it is not believed that the decision of that case furnishes precedent for an immigration matter which is governed by a specific provision of law.
Order: It is ordered that the appeal be dismissed as to the petition filed on behalf of V– B–.
It is further ordered that the petition be approved for preference status under section 203 (a) (3) on behalf of S– B–.