Volume 9 (Page 640)

United States Department of Justice

Board of Immigration Appeals

MATTER OF H–

In VISA PETITION Proceedings

A-12378722

Decided by Board May 1, 1962

Marriage--Valid-where-performed polygamous marriage not recognized for immigration purposes--Effect of subsequent divorce from first spouse.

The polygamous marriage of beneficiary and petitioner which is valid in Jordan where performed cannot be recognized as a valid marriage for immigration purposes and will not support a visa petition for nonquota status on behalf of the beneficiary because the marriage is repugnant to United States public policy. This invalidity is not altered by beneficiary's divorce of first spouse subsequent to the second (polygamous) marriage.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order of the District Director, New York District, dated March 2, 1962, denying the visa petition for the following reasons: the documents submitted by the petitioner in behalf of the beneficiary reflect that they were married on July 16, 1961; however, the beneficiary's divorce certificate does not indicate that his first marriage was terminated prior to the petitioner's marriage to the beneficiary; and in view thereof, the petitioner has not established that her m arriage is valid.

The record shows that the petitioner is a native-born citizen of the United States, born February 5, 1945, at New York. Her birth certificate discloses that her parents were born in Jerusalem. She seeks nonquota status on behalf of the beneficiary, a native and citizen of Jordan, 37 years old, male. Both parties are of the Moslem faith. Evidence has been submitted that the parties were married on July 16, 1961, the ceremony being performed by the legal mazoun of the Amman Sharia Court at Jabal el-Nasr, Amma n, Jordan. The beneficiary was at the time of the ceremony married, the petitioner being his second wife; multiple or polygamous marriages are permitted among persons of the Moslem faith according to the laws of the Hashemite Kingdom of Jordan. Subsequently, on November 21, 1961, the beneficiary divorced his first wife as evidenced by the registration of such divorce at the Sharia Islamic Court at Amman, Jordan.

The question presented is whether the polygamous marriage of the parties, which was valid where performed, constitutes a legal marriage for immigration purposes and whether the subsequent divorce by the beneficiary of his first wife affects the status of the parties. The general rule is that the validity of a marriage is determined by the law of the place where it is contracted or celebrated; if valid there, it is valid everywhere 1 . An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the public policy of the domicile of the parties, in respect to polygamy, incest, or miscegenation, or otherwise contrary to its positive laws. Such cases involve marriages which are repugnant to the public policy of the domicile of the parties or to the laws of nature as generally recognized in Christian countries 2 .

The question has been asked whether a marriage contracted in conformity with the local law, in a country allowing polygamy, would be recognized by the courts of this country. Anglo-American writers generally answer this question emphatically in the negative. They say that such a marriage is not a marriage as understood among the Christian nations and that its recognition would be opposed to sound public policy 3 . Whatever the particular theory of international law or conflict of laws followed, all recognize that effect will not be given to "foreign" law insofar as its application would conflict (1) with any prohibitory statute of the state in which the suit is brought; or (2) with the public policy of such state. Questions involving polygamous marriage demand a careful consideration of the facts of each particular case and of the conflicting policies involved, with a view to discovering whether the recognition of th e foreign law can be brought into harmony with the legal order of the forum 4 .

The recognition or nonrecognition of the existence of a polygamous marriage depends on the purpose for which such recognition is invoked 5 . In distinguishing between matters regarded as essential and those of pure formality, resort must be had to a functional test, namely, what is the reason or purpose of a particular legal system in imposing any requirement for marriage? Applying this test, it will be found that whether or not any requirement of marriage is an essential or formality depends on the degree or intensity of the public or social interest which it embodies and expresses 6 . There have been exceptions from the nonrecognition of polygamous marriages, such as American Indian tribal marriages, which have been upheld in the absence of a federal statute rendering such tribal laws and customs invalid. While the statement has been made in English decisions to the effect that no recognition will be given to foreign marriages which are not a monogamous union of one man and one woman for life, nevertheless, such marriages, valid under the law governing them, have at times been recogniz ed as valid in this country but such recognition does not involve a recognition of the right to exercise here all the incidents usual to the marriage relationship 7 .

The public policy of the United States against polygamists and polygamy as expressed in the immigration laws has been a part of the laws since the Act of March 3, 1891 (26 Stat. 1084), which added polygamists to the list of excludables under the immigration laws. Thereafter, every amendatory act has included polygamists among the inadmissible classes and the present statute prohibits the admission of aliens who are polygamists or who practice polygamy or advocate the practice of polygamy 8 . In view of this statutory expression of a strong federal public policy against polygamy, it is concluded that the polygamous marriage in the instant case falls within the well- recognized exception to the general rule that the validity of a marriage is determined by the law of the place of celebration. It is concluded that this polygamous marriage cannot be recognized as a valid marriage for immigration purposes and will not support a visa petition for nonquota status on behalf of the beneficiary. The fact that the prior marriage of the beneficiary was dissolved subsequent to the second polygamous marriage would not appear to affect the nonrecognition of the polygamous marriage. The appeal will be dismissed.

ORDER: It is ordered that the appeal from the denial of the visa petition be and the same is hereby dismissed.

ENDNOTES

Interim Decision # 1230

Volume 10 (Page 3)

United States Department of Justice

Board of Immigration Appeals

MATTER OF PRECIADO-CASTILLO

In DEPORTATION Proceedings

A-11431809

Decided by Board July 6, 1962

An alien who was lawfully admitted for permanent residence in 1918 and who was found deportable in 1961 on grounds arising subsequent to such admission is ineligible for creation of a record of lawful admission under section 249 since a record of lawful admission in his case is still available.

CHARGE:

Order: Act of 1952--Section 241(a)(4) [8 U.S.C. 1251(a)(4)]--Two crimes involving moral turpitude, petty theft and attempted petty theft.

The case comes forward on appeal from the order of the special inquiry officer dated May 14, 1962, denying the motion to reopen to afford the respondent an opportunity to apply for adjustment of status under the provisions of section 249 of the Immigration and Nationality Act.

The record relates to a native and citizen of Mexico, 61 years old, male, who first came to the United States in January 1914. His status in this country was adjusted by payment of head tax and there appears to be a record of his lawful admission for permanent residence on June 17, 1918. He has lived in this country continuously with the exception of a 23-day-visit to Mexico in October 1929. On September 12, 1961, after hearing, the respondent was found deportable under the provisions of section 241(a)(4) o f the Immigration and Nationality Act on the ground that he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: (1) petty theft in violation of section 484 of the Penal Code of the State of California, on February 20, 1951, in the Municipal Court of Oakland, California, and (2) attempted petty theft on March 29, 1938, in the Municipal Court of Oakland, California; and was granted the privilege of voluntary departure in lieu of deporta tion, with the further order that if he failed to depart as required, the privilege of voluntary departure would be withdrawn without further notice and the respondent would be ordered deported on the charge contained in the order to show cause.

Thereafter, in April 1962, counsel for the respondent submitted a motion to the special inquiry officer for reopening of the deportation proceedings to permit submission of an application for a change of status to that of a permanent resident under section 249 of the Immigration and Nationality Act. Although counsel concedes that the respondent did in fact enter the United States for permanent lawful residence, he points out it has been determined in the deportation proceedings that he is not at this time a lawful permanent resident of the United States. He argues that the respondent's record of entry has in effect been nullified by acts committed by him since entry, and that section 249 was enacted to make available a means of adjusting status for an alien who has no effective and subsisting record of lawful admission. In connection with the appeal counsel has filed a brief in which he repeats these arguments and in addition, urges that although the respondent was once lawfully admitted for permanent residen ce, either in 1914 or nunc pro tunc in 1918, he does not now have a status which entitles him to depart from the United States and re-enter, to apply for United States Citizenship or to take advantage of any other privilege normally available to a lawful permanent resident; that he does not have an effective subsisting useable status as an alien lawfully admitted for permanent residence who has not subsequently committed acts which would render him subject to deportation; and that the phrase in section 249 "if no such record is otherwise available" means there must be available to a section 249 applicant a record of admission for permanent residence as fully effective as on the day he was lawfully admitted.

The special inquiry officer denied the motion to reopen for adjustment of status under section 249 of the Immigration and Nationality Act on the ground that in the instant case, a record of respondent's lawful admission for permanent residence is available and consequently he would not come within the purview of section 249. In addition, the special inquiry officer cited Matter of S– , 6 I. & N. Dec. 392, in which the Board held that the status of one lawfully admitted for permanent residence is not vitiated by the fact that he may subsequently have become deportable.

Section 249 of the Immigration and Nationality Act, as amended by the Act of August 8, 1958 (Public Law 85-616, 72 Stat. 546), 1 provides as follows:

A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under Section 212(a) insofar as it relates to criminals, procurers and other immoral p ersons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he--

(a) entered the United States prior to June 28, 1940;

(b) has had his residence in the United States continuously since such entry;

(c) is a person of good moral character; and

(d) is not ineligible to citizenship.

The predecessor statute to section 249 was the Act of March 2, 1929; its purpose was to provide relief for aliens who entered the United States prior to July 1, 1924, (now June 28, 1940) where there was inability to locate a record of their permanent admission in conformity with the immigration law at the time of their entry. The Act of June 29, 1906, required that a registry be made of certain facts concerning each alien arriving in the United States and that "a certificate of such entry with the particula rs thereof" be granted to each alien. Section 249, and its predecessor statutes was passed in order to permit the naturalization, at the discretion of the government, of aliens who did not possess this certificate of registry--a certificate which was required for naturalization. In short, section 249 is an ameliorative provision; it appears to have been designed to aid a person who has formed a substantial tie to the United States and who should not be automatically denied naturalization because of his inab ility to furnish the certificate. 2

The amendments adopted in 1958 have enlarged the impact and significance of the registry proceeding and have expanded the number who can qualify. The major revision in 1958 advanced the cut off date to June 28, 1940 (the effective date of the Alien Registration Act of 1940, 54 Stat. 670), and eliminated the complete disqualification of those subject to deportation. Instead, the 1958 amendment disqualified only those inadmissible for certain aggravated grounds specified therein. Elimination of the disqualifi cation of deportables has made this procedure for administrative adjustment of status available to many who previously were deportable as overstayed nonimmigrants or as illegal entrants. 3

The 1952 Act in its original form, and prior enactments, barred relief to aliens who were deportable. This limitation was revised by the 1958 amendment, which withholds registry only from aliens who are inadmissible to the United States on criminal, prostitution, subversive, narcotics, or aliens smuggling grounds. This means that relief is available to aliens otherwise qualified under the statute, who are deportable for entry without proper inspection or documents or who overstayed the period or violated th e terms of temporary entry. 4

The statutory requirement in section 249 as amended, that there be no record of a lawful admission, is satisfied when there exists a record of admission which however is not lawful, ab initio as when an alien is admitted in a nonquota immigrant status to which he was not entitled. 5

Such a situation, however, does not apply to the instant case, where the requirement in the statute, that there be no record of a lawful admission, has not been met because there does exist such a record of lawful admission and the respondent has thereafter become subject to deportation on grounds arising subsequent to such admission. The fact that an alien lawfully admitted for permanent residence subsequently became deportable for causes arising after entry does not prevent the exercise of the discretion contained in section 212(c) of the Immigration and Nationality Act, which deals with discretionary relief for an alien lawfully admitted for permanent residence, for the reason that the status of such an alien did not change because of his subsequent deportability. 6 It has been held that a record of prior lawful admission did not preclude an adjustment of immigration status under section 249 where such record of lawful admission existed but was vitiated by a subsequent illegal entry, but in that case it was pointed out that the alien's departure and subsequent illegal entry without inspection was not the result of exclusion or expulsion proceedings, his absence was temporary, and he was not a member of one of the excludable classes enumerated in section 249. 7

In the instant case, the application for registry pursuant to section 249 of the Immigration and Nationality Act, as amended, is not available for the reason that there exists a record of lawful entry which has not been vitiated by the respondent's subsequent deportability on criminal grounds. The appeal from the order of the special inquiry officer denying the motion to reopen under the provisions of section 249 of the Immigration and Nationality Act, as amended, will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

ENDNOTES