Volume 9 (Page 89)

United States Department of Justice

Board of Immigration Appeals

MATTER OF G–

In VISA PETITION Proceedings

A-8873593

Decided by Board September 29, 1960

Marriage--Minors--Voidable, not void, in Illinois.

Under Illinois law the marriage of minors without the consent of their parents is voidable but not void and will be recognized as valid for immigration purposes despite the possibility that the citizen spouse petitioner might be permitted to disavow the relationship upon reaching the age of consent.

BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the District Director, Chicago, Illinois, of August 2, 1960, denying the visa petition. The notice of denial states that the petitioner has failed to establish that she and the beneficiary entered into a valid marriage according to the laws of the State of Illinois, because the parties were under the age provided by law, did not have the consent of their parents to the marriage, gave false information as to their ages, that the license would not have been issued if corre ct information as to their ages had been furnished, and that the petitioner's mother was not and is not willing to give consent to the marriage. The only issue before the Board is the status of this marriage under Illinois law.

The petitioner, a United States citizen by birth, married the beneficiary on July 10, 1959, in Chicago, Illinois. The beneficiary is an alien, a native and citizen of Greece, who entered the United States on May 29, 1956, as a student. In the fall of 1957 he ceased to go to school and obtained employment. His wife represents to the Board that he is going to return to school on a part-time basis. However, at the present time he is not maintaining the status in which he entered.

A photostatic copy of petitioner's marriage license shows that she and the beneficiary represented their ages to be 18 and 21 years, respectively, at the time the license was obtained. In reality, the petitioner and the beneficiary were only 16 and 19 years of age.

The record contains a letter from an attorney retained by Mrs. W–, petitioner's mother, stating that on July 23, 1959 (less than two weeks after the marriage), he filed a petition in the Superior Court of Cook County for an annulment of the purported marriage. He advises further that Mrs. W– requested him to inform the Immigration Service that these proceedings have been dismissed. The record also contains an order of the court dated May 31, 1960, stating that the cause came on to be heard and was dismissed for want of prosecution.

So far as this record shows, petitioner and the beneficiary have been living together for more than a year. An investigator for the Immigration and Naturalization Service stated in January 1960 that the beneficiary is employed on a full-time basis by the Illinois Testing Laboratories in Chicago. The petitioner is employed by the Methodist Church at 740 N. Rush Street, Chicago. The neighborhood investigation disclosed that they appeared to be getting along well, and nothing derogatory was discovered. The pet itioner's mother stated to the investigator that she was not going to pursue her effort to have the marriage annulled.

The Illinois statute establishing the legal age of persons who may contract marriage is as follows:

Male persons of the age of 21 years and upwards, and female persons of the age of 18 years and upwards, may contract and be joined in marriage: Provided, that a male person of eighteen (18) years of age and upwards or a female person sixteen (16) years of age and upwards may contract a legal marriage if the parent or guardian of such person shall appear before the county clerk in the county where such minor person resides, and shall make affidavit that he or she is the parent or guardian of said minor and g ive consent to the marriage. Such parent or guardian shall, when giving consent to such marriage, make affidavit as to the date and place of birth, and place of residence of such minor and shall submit such proof of such minor's age as the county clerk may deem necessary to comply with the purposes of this act. Provided further, that this act shall not repeal any act or portion of any act entitled, "An Act concerning bastardy." 1874, Feb. 27, R.S. 1874, p. 694, § 3; 1905, May 13, Laws 1905, p. 317, § 1.

There are a number of Illinois cases construing this statute, and they hold, without exception, that such marriages will be found valid, even though the parties are under the ages of 18 and 21 years and contracted marriage without the consent of their parents. In Reifschneider v. Reifschneider , 241 Ill. 92, 98; 89 N.E. 255, 257, the court said:

Unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statute will be construed to be directory, only, in this respect, so that the marriage will be held valid although the disobedience of the statute may entail penalties on the licensing or officiating authorities.

In Long v. Long , 15 Ill.App.2d 276, 145 N.E.2d 509, the court declared:

Our statute does not specify the effect of a marriage in violation of its provisions.... One who marries before reaching the age of consent may avoid the marriage on reaching the age of consent, but such marriages are binding and valid until disaffirmed or until annulled by a judicial decree; and, when a party to such a voidable marriage reaches the age of consent, he may elect to ratify or repudiate the contract, and having elected to affirm, he may not thereafter disaffirm. 55 C.J.S. Marriage, par. 11, pp . 821, 822, 823.

To the same effect are People ex rel. Mitts v. Ham et al. , 206 Ill.App. 543, 550; Matthes v. Matthes , 198 Ill.App. 515, 520; Buszin v. McKibbin , 254 Ill.App. 519; and Walker v. Walker , 316 Ill.App. 261, 44 N.E.2d 937.

The fact that petitioner might be permitted to disavow this marriage before she reaches the age of 18 years does not disturb the fact that it is, at present, a valid and bona fide marriage. Indeed, from the Illinois cases it is not at all clear that, even if she were to seek an annulment, the effort would be successful. That jurisdiction seems disinclined to grant annulments even where the parties were under age at the time of marriage and have never cohabited. In Walker v. Walker , supra, the parties were 17 and 20 at the time of the marriage, and did not cohabit after their marriage. The court found there was no evidence of fraud, deceit or misrepresentation, no mental or physical disability, no duress or wrongdoing of a character amounting to fraud, and refused to permit annulment of the marriage, although neither party had contested the petition for annulment. See also Long v. Long, supra (here, there had been a child), and Ferdinand v. Threewitt , 338 Ill.App. 662, 88 N.E.2d 529 (1949).

The action of the Board in the instant matter is consistent with our view in Matter of E– , 5-305 (1953), and Matter of R– , 4-345 (1951). In Matter of E– , supra, the parties had lived together for six years but were separated when the appeal came up, because the wife was being treated for an anxiety neurosis. The Board held that the parties continued to be husband and wife until the marriage was dissolved by a court decree or by death. In Matter of R– , supra, the alien wife had been granted a decree voiding a marriage for physical incapacity of the husband. Under the District of Columbia Code such a marriage was void only from the time of the decree. We declared the wife not to be deportable as a nonquota immigrant who obtained her entry through fraud. The marriage was not void ab initio but only from the time of the decree.

There is no evidence that petitioner and the beneficiary are living in other than a valid, bona fide, presently-existing marriage, and the petition should be approved.

ORDER: It is ordered that the appeal be sustained and that the petition be approved.

Interim Decision # 1110

Volume 9 (Page 103)

United States Department of Justice

Board of Immigration Appeals

MATTER OF R– E–

In RESCISSION Proceedings

A-3697383

Decided by Assistant Commissioner October 7, 1960

Waiver of inadmissibility, section 212(c)--Not available to section 249 applicant lacking lawful domicile in United States.

Narcotic violation bars alien who has resided in United States since 1914 entry without inspection from qualifying for benefits of section 249 of 1952 Act. Ineligibility as narcotic violator not subject to waiver under section 212(c) of 1952 Act where alien lacks lawful unrelinquished domicile.

BEFORE THE ASSISTANT COMMISSIONER

DISCUSSION: Applicant is a 61-year-old married male, a native and citizen of Mexico. He and his lawful resident alien spouse are the parents of five United States citizen children ranging in age from 13 to 24 years.

Applicant first entered the United States on April 17, 1914, at El Paso, Texas. No record of that entry exists. Evidence has been presented to establish continuous residence in the United States since prior to July 1, 1924. On February 4, 1958, following a visit of a few hours in Mexico, applicant applied for admission at El Paso, Texas. Not being in possession of entry documents, he was paroled into the United States to file application for adjustment of status under section 249 of the Immigration and Nati onality Act. Such application was subsequently filed in the Service office at El Paso. The facts concerning applicant's residence in the United States are fully set forth in the Regional Commissioner's order of July 8, 1959, creating a record of lawful admission for permanent residence at El Paso, Texas, on April 17, 1914, and will not be further discussed here other than to set forth his conviction on April 9, 1942, in the United States District Court, El Paso, for unlawful transfer and concealment of ten grains of marijuana, the concealment being with intent to defraud the Government of tax. For this offense, the applicant was sentenced to prison for 15 days.

In granting the application for adjustment of status under section 249, section 212(c) of the Immigration and Nationality Act was employed to waive the ground of inadmissibility arising from the applicant's conviction for a narcotics law violation. The applicant was statutorily ineligible for the benefits of section 249 and, since only an alien who is returning from a temporary visit abroad to at least seven consecutive years of unrelinquished lawful permanent residence may be accorded the benefits of secti on 212(c) of the 1952 Act, the action creating a record of lawful admission for permanent residence appeared to be erroneous.

The applicant was notified, through counsel, that rescission proceedings under section 246 of the Immigration and Nationality Act were contemplated and he was afforded an opportunity to submit reasons why such rescission should not be made. On March 25, and 31, 1960, counsel presented oral argument in behalf of applicant in the Service office at El Paso, Texas. The Regional Commissioner entered an order on April 15, 1960, rescinding the applicant's status as a permanent resident and certified the case to th is office.

In order to qualify for the benefits of section 249 an applicant for whom no record of lawful entry for permanent residence exists must meet the following requirements of that section of law. He must satisfy the Attorney General that he is not inadmissible under section 212(a) of the 1952 Act insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotics laws or smugglers of aliens. He must also establish that he entered the United States prior to June 28, 1 940; that he has had his residence in the United States continuously since such entry; that he is a person of good moral character; and that he is not ineligible to citizenship. Only if the applicant can meet the above requirements can a record of lawful admission for permanent residence be created.

The applicant in the instant case did not meet the first of those requirements. At the time the application was considered it was determined that he was inadmissible to the United States under section 212(a)(23) of the Immigration and Nationality Act, the subsection relating to violators of the narcotics laws. In order to be eligible for the benefits of section 212(c) of the Act, an alien must be returning to a lawful unrelinquished domicile in the United States of seven consecutive years ( Matter of S– , 6-392). The sole reason for filing an application for the benefits of section 249 is to establish the record of lawful admission. Since the alien is not eligible for the benefits of section 249, obviously the relief provided by section 212(c) may not be utilized to overcome such ineligibility.

Counsel submits that rescission should not be had on the ground that the applicant is presumed to have been lawfully admitted to the United States based on his entry on April 17, 1914, and continuous residence since such entry and was thus eligible for the relief provided in section 212(c). Additionally, counsel argues that based on the principle found in Matter of L– F– Y– , 8-601, the application was properly granted and, finally, that section 249, as amended, does not require the applicant to establish he is not subject to deportation.

The applicant states he first entered the United States at El Paso on April 17, 1914, without inspection. This type of entry is not included within those found in 8 CFR 101.1. Therefore, no presumption of lawful admission may be found. Matter of L– F– Y– , supra, is distinguished from the case at hand, as here we have an alien who is inadmissible under one of the subsections of section 212(a) of the Immigration and Nationality Act relating to narcotics violations, whereas, in Matter of L– F– Y–, supra, this fatal defect is not present. We agree with counsel that in considering an application under section 249, deportability of the applicant is not an issue.

As the applicant was not a lawful permanent resident of the United States on July 8, 1959, he was not eligible for the benefits of section 212(c) of the Immigration and Nationality Act. He was precluded from adjustment under section 249 of the Act because of his inadmissibility as a narcotics law violator. In view of the above, the order of the Regional Commissioner will be affirmed.

ORDER: It is ordered that the record of lawful entry for permanent residence created in behalf of N– R– E– on July 8, 1959, be and the same is hereby rescinded.