Volume 12 (Page 439)

United States Department of Justice

Board of Immigration Appeals

In Visa Petition Proceedings

A-17100396

Decided by Board September 14, 1967

A marriage contracted in South Carolina in 1966 between first cousins, residents of Wisconsin, for the purpose of evading the statutory prohibition against such marriages in the State of Wisconsin to which they immediately returned to live and in which such marriages are void and criminally incestuous, is not a valid marriage for the purpose of conferring immediate relative status on the beneficiary/wife.

ON BEHALF OF PETITIONER:

Joseph P. Balistrieri, Esquire

211 West Wisconsin Avenue

Milwaukee, Wisconsin 53203

(Oral argument)

ON BEHALF OF SERVICE:

R.A. Vielhaber

Appellate Trial Attorney

(Oral argument)

The case comes forward on appeal from the order of the District Director, Chicago District, dated April 12, 1967 denying the visa petition for the reason that the petitioner cannot confer immediate relative status on the beneficiary since he is not lawfully married to the beneficiary under the laws of the State of their residence, Wisconsin.

The petitioner, a native born citizen, 37 years old, male, seeks immediate relative status on behalf of the beneficiary as his wife. The beneficiary is a native and citizen of Italy, 24 years old. The parties were married at Columbia, South Carolina on July 8, 1966. A prior marriage of the petitioner was terminated by a judgment of divorce granted by the Circuit Court, Milwaukee County, Wisconsin on March 6, 1962.

A sworn statement was taken from the petitioner on December 20, 1966. In pertinent part the petitioner stated he knew he and the beneficiary were first cousins (their respective mothers being sisters) and that they could not marry in Wisconsin. He consulted a lawyer to find out whether they could get married somewhere else and his lawyer ascertained that they could get married in South Carolina, Texas and one other state. In a second sworn statement taken February 21, 1967 the petitioner testified that he a nd his wife left Milwaukee for South Carolina for the purpose of marriage, arriving in South Carolina on July 7, 1966 and returning July 8, 1966. He testified they had no intention of taking up residence in South Carolina and went to South Carolina solely to marry because South Carolina would recognize a marriage between first cousins and also there was a twenty-four hour waiting period.

A sworn statement from the petitioner's mother, Mary Zappia, taken December 15, 1966, confirms that the petitioner's mother and the beneficiary's mother are sisters and that the petitioner and the beneficiary are first cousins.

The notice of denial contains an attachment of even date setting out the statutory basis for the conclusion that the parties have contracted a marriage that is prohibited by Wisconsin State statutes and are, therefore, not legally married in the State of Wisconsin. These Wisconsin statutes are as follows:

Chapter 245.03(1). No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than second cousins excepting that marriage may be contracted between first cousins where the female has attained the age of fifty-five.

Chapter 245.04(a) .... if any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state goes to another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state.

Chapter 944.06 defines the crime of incest: whoever marries or has nonmarital sexual intercourse with a person he knows is a blood relative and such relative is in fact related in a degree within which the marriage of the parties is prohibited by law of this state may be imprisoned not more than ten years.

Counsel has filed a brief. He alleges that Chapter 245.03(1) of the Wisconsin statutes does not prohibit marriages between first cousins. The parties herein at the time of the marriage in July 1966 were 36 and 23 years old, respectively. Section 245.03(1) of the Wisconsin statutes is an absolute prohibition against marriage of those who are nearer of kin than second cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years. This exception where th e female has attained the age of 55 years was motivated by the fact that the probability of child bearing at such advanced age was remote. The point is not material since the parties were married at a much earlier age. Furthermore, such a marriage comprises the crime of incest in the State of Wisconsin.

The principal cases relied upon by counsel are Lyannes v. Lyannes , 177 N.W. 683, 171 Wis. 381 (1920), and In re Estate of Campbell , 51 N.W. 709, 260 Wis. 625 (1952). Upon close examination, the cases do not appear to stand for the precedent counsel has alleged. The Lyannes case involved a marriage which had been celebrated in another state without compliance with the antenuptial physical examination required in the State of Wisconsin and without a marriage license, and non-compliance with those requirements, was held not to affect the validity of the marriage within the provision of the predecessor marriage statute. However, the court did say that the predecessor statute insofar as it related to marriages solemnized without the State of Wisconsin, rendered null and void such pretended marriages only so far as the parties thereto were disabled or prohibited from entering into a marriage under any circumstances under the law of Wisconsin; in other words, such section makes null and void only such marriages as are prohibited by the predecessor statute, which likewise prohibited marriages between persons who were nearer of kin than second cousins. The case also held that a void marriage, strictly speaking, is one where the relationship between the parties is necessarily incestuous (such as the one in the present case).

The Campbell case followed the general rule that marriages valid where celebrated are valid everywhere, except those contrary to the law of nature and those which the law has declared invalid upon the ground of public policy. The marriage herein is prohibited by the law of Wisconsin as being against the law of nature and is punishable as incestuous. It is not one, as in cases cited by counsel, where there has been some procedural or other unimportant omission such as failure to have an antenuptial physical examination or a marriage license, or consent of the parents, or failure to have the required number of witnesses. First cousins marrying in another state and returning to Wisconsin to reside are subject to the incest provisions of criminal law. 19 Op.Wisc. Atty.Gen. 306 (1930). Such marriages were null and void. 5 Op.AttyGen. 227 (1916).

We do not think it significant that no judicial action has been taken to declare the marriage void or incestuous. The burden of establishing eligibility for the benefit conferred by the immigration laws upon the basis of a valid relationship is upon the petitioner. Thus, we have not recognized Mexican "mail order" marriages, sham marriages to United States citizens contracted solely to obtain quota exemption 1 , and marriages entered into during the existence of a prior marriage which are considered void despite the absence of any judicial decree. Matter of Hirabayashi , 10 I. & N. Dec. 722, may be distinguished on the ground that there was evidence in the case that there was no intent to evade the prohibition of the Illinois law prohibiting marriages between first cousins; and in addition, cohabitation between first cousins was no longer considered a crime under Illinois statutes 2 . In the present case the evidence established that the primary intent of the parties in having the marriage celebrated in the State of South Carolina was to knowingly evade the provisions of the Wisconsin statutes. Such marriages are regarded as incestuous and are characterized as void.

In view of the evidence establishing that the parties were aware of the prohibition of Wisconsin law against the marriage of first cousins and with full knowledge of that prohibition, had the marriage celebrated in South Carolina solely for the purpose of evading the laws of the State of Wisconsin to which they immediately returned, it must be concluded that the petitioner has not borne the burden of establishing eligibility for immediate preference status on behalf of the beneficiary as his legal wife.

In view of the recent birth of a citizen child to the couple, it is suggested that should petitioner be able to secure a judgment under the provisions of section 247.04 of the Wisconsin statutes, as amended, affirming the validity of the marriage, he may submit such judgment together with a motion to reopen.

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

ENDNOTES

Interim Decision # 1800

Volume 12 (Page 482)

United States Department of Justice

Board of Immigration Appeals

MATTER OF BLANCO

In Section 249 Proceedings

A-11283040

Decided by District Director October 6, 1967

Since the previous record of applicant's lawful admission in 1957 for permanent residence was cancelled in 1964 under the provisions of section 247(a) of the Immigration and Nationality Act, she is not precluded from establishing statutory eligibility for the benefits of section 249 of the Act as no such record is otherwise available.

The applicant is a 40-year-old married female, a native and citizen of Guatemala, who was born at Guatemala City, Guatemala. Her application for the creation of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act, as amended, was denied on March 6, 1967, on the ground that a record of lawful admission was otherwise available in her case. The Service re-opened her application on April 18, 1967 for further consideration.

The applicant entered the United States on August 20, 1946, and with the exception of several brief trips abroad, has remained continuously in the United States since her original entry. During one such brief trip to Guatemala, she procured an immigrant visa and was admitted to the United States as a nonquota immigrant for permanent residence at Miami, Florida on February 1, 1957.

The Embassy of Venezuela advised the Department of State on November 6, 1963 that the applicant was working as a secretary to the Minister of Economic Affairs at the Embassy. The Department of State informed the Service on December 10, 1963 that it considered the applicant to be entitled to classification under section 101(a)(15)(A)(ii) of the Act. Accordingly, the Service advised her on January 22, 1964 that pursuant to section 247 of the Act, it was proposed to change her status from that of an alien lawf ully admitted for permanent residence to that of a nonimmigrant, unless she wished to retain her residence status by signing a waiver of all rights, privileges, exemptions, and immunities accruing to her by reason of her occupational status.

The applicant did not sign or return the waiver request and her status was then changed on February 27, 1964 from permanent resident to that of a nonimmigrant employee of a foreign government under section 101(a)(15)(A)(ii) of the Act. The previous record of lawful admission for permanent residence was cancelled under the provisions of section 247(a) of the Act.

The applicant's employment with an official of a foreign government terminated on May 2, 1966. No longer having a lawful status, she applied on August 1, 1966 for the creation of a record of lawful admission for permanent residence under section 249 of the Act.

The record in the applicant's case shows that she entered the United States prior to June 30, 1948, that she has had her residence in the United States continuously since such entry, that she is a person of good moral character, and that she is not ineligible to citizenship. The only remaining prerequisite to a favorable recommendation on her application concerns the availability of a record of lawful admission for permanent residence.

This case is distinguishable from Matter of Bufalino , Int.Dec. No. 1517, wherein the respondent was found statutorily ineligible for the creation of a record of lawful admission under section 249 of the Act since a record of lawful admission in his case was still available. In the instant case, the record of lawful admission no longer exists, having been cancelled by the Service on February 27, 1964.

Section 249 of the Act provides that a record of lawful admission for permanent residence may be made in the case of any alien, if no such record is otherwise available and such alien satisfies the Attorney General that he is not inadmissible under section 212(a) of the Act as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he entered the United States prior to June 30, 1948, has had his residence in th e United States continuously since such entry, is a person of good moral character, and is not ineligible to citizenship. On the basis of the entire record, it is concluded that eligibility for the benefits of section 249 has been established.

It is ordered that the application for the creation of a record of lawful admission under section 249 of the Immigration and Nationality Act, as amended, be granted.

Interim Decision # 1801

Volume 12 (Page 484)

United States Department of Justice

Board of Immigration Appeals

MATTER OF WONG-SETOO

In Visa Petition Proceedings

A-14620994

Decided by Board October 12, 1967

The visa petition filed by the United States citizen petitioner to accord beneficiary, her blood niece, preference classification under section 203(a)(5) of the Immigration and Nationality Act, as amended, as her adoptive sister, on the basis of the alleged adoption of beneficiary by petitioner's parents (beneficiary's grandparents), is denied since under Chinese law a grandparent cannot adopt a grandchild.

The case comes forward on appeal from the order of the District Director, Los Angeles District, dated July 28, 1967 denying the visa petition for the reason that the petitioner has failed to establish eligibility on behalf of the beneficiary as her sister through adoption in that there has not been established a valid adoption pursuant to Chinese law.

The petitioner, a native of China, a naturalized citizen of the United States, 59 years old, female, seeks preference status under section 203(a)(5) of the Immigration and Nationality Act on behalf of the beneficiary as her sister. The beneficiary is a native and citizen of China, 27 years old, married. The visa petition indicates that the beneficiary was not related to the petitioner by adoption.

The order of the District Director sets forth the basis for the denial in such detail that only parts thereof need be repeated for the purpose of this decision. On July 27, 1966 the petitioner under oath stated that the beneficiary was born of the marriage between Pak Shing-Wong, the petitioner's brother through adoption, and Quon-Lun. She alleged that Pak Shing-Wong failed to support his wife and their child and for that reason the petitioner's mother, with whom the beneficiary and her parents resided, acc epted responsibility for the beneficiary. The beneficiary and the beneficiary's mother resided with the petitioner's mother from at least July 25, 1922 (the date of birth of the beneficiary) until 1955. The petitioner stated that the assumption of responsibility of the beneficiary was accepted as a family obligation and there was no ceremony or formal adoption of the beneficiary. The beneficiary's father died in Korea in 1948 or 1949.

On July 28, 1966 the visa petition was denied for the following reason:

There is no evidence that the petitioner's parents ever contemplated the adoption of their granddaughter either before her seventh birthday or at any time thereafter. Acts of human kindness referable to an undertaking to rear and educate a helpless child do not alone prove an agreement to adopt, nor is standing in loco parentis the equivalent of adoption. The mere fact that the petitioner's parents may have stood in loco parentis to the beneficiary granddaughter because of the failure of the beneficiary's f ather to support his wife and daughter, is insufficient to effect adoption in accordance with the applicable provisions of the Chinese Civil Code, since in order to be recognized as an adoption it is necessary that the adoptive parents have brought up the child intending to adopt it 1 .

The order of denial of July 28, 1966 concluded that the petitioner had not borne the burden of establishing eligibility on behalf of the beneficiary as her sister through adoption in that there has not been established a valid adoption pursuant to Chinese law. The petitioner appealed from the decision of denial, alleging that evidence of the adoption would be forthcoming. The petitioner subsequently submitted a document purporting to be an original adoption agreement effected August 22, 1927 in China and wa s permitted to withdraw her appeal and reopen the case.

The case was forwarded to the Hong Kong office for investigation and research. A report dated March 10, 1967 indicates that the beneficiary is the granddaughter of the persons by whom she claims to have been adopted. Further, her blood father, Wong Sau Din also known as Wong Bah Sing, may be presently resident in the United States. All independent witnesses swore that the beneficiary is in fact related to the petitioner as niece to aunt and not as adopted sister. Only those witnesses supplied by either the beneficiary or her family claimed that an adoption took place. The concubine of the beneficiary's claimed adoptive father in a sworn affidavit stated that the beneficiary, her blood mother and her adoptive mother resided together in the same household until the beneficiary was married at the age of 18 or 19. A report dated October 18, 1966 of an evaluation of the adoption agreement submitted by the petitioner by members of the consulate staff indicated that the deed of adoption was not genuine for the reaso n that the adoption paper was allegedly prepared in 1927 and that it was almost 40 years old; paper of this type would have turned yellowish after so many years but the adoption paper submitted was definitely new and a bit stiff to the touch. A report from the Federal Bureau of Investigation dated May 9, 1967 is to the effect that examination of the document did not disclose any evidence which would tend to prove or disprove the authenticity of the document. The consular investigative report sets forth a de tailed investigation. It is believed that the synopsis set forth above is sufficient for our purpose.

The facts as alleged were presented to the Far Eastern Law Division of the Library of Congress for evaluation of the legality of the claimed occurrence of an adoption by the grandparents of their granddaughter. In a communication received July 26, 1967 the Law Librarian furnished an excerpt from an outline of Modern Chinese Family Law 2 .

A person may not adopt a collateral relative by blood within the eighth degree, or a collateral relative by marriage within the fifth degree, if they are of a different rank (Interpr. 761).

There is no statutory provision to this effect, but the Ssu-fa-yuan laid down this rule in Interpr. 761 3 June 7th 1932; XVI p. 14; THERY 105. The Judicial Council based itself upon the legal principle that the relations between the adoptive child and the adoptive parents should be of the same nature as those of legitimate children.

It is consequently not possible to have an adoptive child which would not be of a generation following the adoptive parents. This evidently is a reminiscence of the rules belonging to the institution of an heir.

Assuming, but not conceding, that an adoption did occur, such an adoption would have been contrary to Interpretation 761, supra, in view of the original collateral relationship between the alleged adopter and adoptee. We concur with the District Director that the petition must be denied for the reason that the petitioner has failed to establish eligibility on behalf of the beneficiary as her adopted sister and that there has not been established a valid adoption pursuant to law. In addition, the visa peti tion must be denied on the ground that the petitioner has failed to bear the burden of establishing that an adoption actually occurred.

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

Interim Decision # 1805

Volume 12 (Page 495)

United States Department of Justice

Board of Immigration Appeals

MATTER OF FUJII

In Visa Petition Proceedings

A-14628516

Decided by District Director May 16, 1967

Notwithstanding beneficiary's adoption when two years of age, since he and the United States citizen petitioner are legitimate children of the same parents, he is classifiable as the brother of the petitioner and, therefore, is eligible for preference classification under section 203(a)(5) of the Immigration and Nationality Act, as amended.

IN BEHALF OF PETITIONER:

Louis Sampson, Esquire

448 South Hill Street, Suite 518

Los Angeles, California 90013

The petitioner is a 32 year old married female, native and citizen of the United States.

The beneficiary is a 25 year old single male, native and citizen of Japan.

The petitioner and beneficiary are the legitimate issue of the same parents, natives and citizens of Japan.

The beneficiary was legally adopted according to Japanese law (Articles 846 and 849, Civil Code of Japan) on December 8, 1944 by the widowed sister-in-law of the father of the present petitioner and beneficiary, the natural parents having agreed to the adoption in his behalf (Article 843, Civil Code of Japan).

The petitioner, beneficiary and their natural mother have all testified that the beneficiary never resided in the house of the beneficiary's adoptive mother who is now deceased, but he has since his birth remained in the home of his natural parents.

On the termination of the adoption agreement between the beneficiary, made in his behalf by his natural parents, and his adoptive mother a notice of restoration of his name to the family register of the beneficiary's natural father was filed on July 22, 1966 and "accepted and officially so recorded on the same day" (Articles 862 and 865--dissolution of adoption--Japanese Civil Code). Article 875 of the Japanese Civil Code provides as follows: "By dissolution of adoption the adopted child recovers the status which he or she possessed in his or her original house ..."

The issue to be resolved is whether there exists between the beneficiary and the petitioner the relationship required for status under section 203(a)(5) of the Immigration and Nationality Act as amended.

The petition was initially denied on the following grounds:

You have failed to establish that the beneficiary is your brother in that the relationship that existed at his birth was terminated for immigration purposes as the result of his adoption by Sugano Fujii on December 8, 1944. The termination of the adoption agreement and restoration of his name on the family register, filed and recorded on July 22, 1966, does not restore the original brother-sister relationship that existed at birth.

The matter is now before the District Director for reconsideration.

Section 203(a) provides for the allocations of visas to "(5) .... qualified immigrants who are the brothers or sisters of citizens of the United States". The term "brothers or sisters" as used in section 203(a)(5) of the Immigration and Nationality Act is not defined. The normal definition is a person having the same parent or parents as another. Funk and Wagnall's New Standard Dictionary of the English Language (1947 ed.); Bouvier's Law Dictionary (3rd Rev.1914); Black's Law Dictionary (4th ed., 1951). As previously stated, the petitioner and beneficiary are the legitimate issue of the same parents. Section 101(b)(1)(A) defines "child" as used in section 203 and other provisions of the Act as including "a legitimate child". That definition is applicable to determine status under section 203 and other provisions of Title II of the Act.

The petitioner has established the beneficiary is her "brother", the legitimate child of her parents, and that he has since birth resided with her parents as part of the same household. It is "the well-established policy (determined by Congress) of maintaining the family unit whenever possible" ( Matter of K– S– W– , 9 I. & N. Dec. 396, decided by the Attorney General 8- 7-61).

To conclude without judicial or precedent administrative determination to the contrary (and we find none) that the relationship of brother and sister created by the legitimate birth of the petitioner and beneficiary to the same parents was destroyed by the subsequent adoption of the latter would be to place upon the statute a harsher construction than that intended by Congress.

Although the fact that the beneficiary had been adopted is immaterial for the reasons indicated below, it is noted that the adoption was legally dissolved under the law of the jurisdiction in which the adoption occurred (Japan) and that, pursuant to such dissolution, the beneficiary recovered "the status which he ... possessed in his ... original house ..."

Section 101(b)(1)(E) of the Immigration and Nationality Act, as amended, contains the proscription that no natural parent of an adopted child described in that section "shall thereafter, by virtue of such parentage be accorded any right, privilege, or status under this Act". However, neither that section nor any other provision of the immigration laws, contains a similar proscription with regard to brothers, sisters or other natural relatives of the adopted child. I find that the petitioner has established that she and the beneficiary are sister and brother, by reason of their being the legitimate children of the same parents. Hence, the beneficiary is eligible for the preference classification sought.

ORDER: The petition is approved for the classification of the beneficiary under section 203(a)(5) of the Immigration and Nationality Act, as amended.

Interim Decision # 1821

Volume 12 (Page 549)

United States Department of Justice

Board of Immigration Appeals

MATTER OF RODRIGUEZ

In Adjustment of Status Proceedings

A-11240700

Decided by Regional Commissioner December 28, 1967

An alien, a native and citizen of Cuba, who arrived in the United States on January 1, 1959, at which time he was paroled, and who was further inspected and paroled at a later date, has been "inspected and admitted or paroled into the United States subsequent to January 1, 1959" for the purposes of adjustment of his status pursuant to the provisions of section 1 of the Act of November 2, 1966.

Discussion: The case comes forward by certification from the District Director, San Juan, Puerto Rico, who denied the application on the ground that the applicant has not been inspected and admitted or paroled into the United States subsequent to January 1, 1959, as contemplated by the statute.

The applicant is a native and citizen of Cuba, born in Artemisa, Pinar del Rio, Cuba on November 7, 1919. He last arrived in the United States on January 1, 1959 at New Orleans, Louisiana and requested political asylum. He was paroled until January 5, 1959 to report to the New York City Office of the Service. However, he actually reported on January 5, 1959 to our Miami Office where his parole was continued indefinitely. On May 4, 1959, pursuant to the applicant's request, he was authorized by our Miami Off ice to proceed to New York City. The record indicates the applicant was, in effect, reparoled for an indefinite period at New York on May 18, 1959. He was subsequently referred to a Special Inquiry Officer who, on November 3, 1959, found him excludable on documentary grounds and ordered his exclusion and deportation. The applicant declined to appeal, and on November 3, 1959 he was reparoled under section 212(d)(5) of the Immigration and Nationality Act. He has remained in this country in that status until t he present time.

On February 27, 1967, he made application for adjustment of status to that of a permanent resident under the provisions of section 1 of the Act of November 2, 1966 (Public Law 89-732), which states in pertinent part that:

The status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 .... may be adjusted .... to that of an alien lawfully admitted for permanent residence if the alien makes an application for adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. (emphasis supplied).

The sole question in the instant case is whether the applicant has in fact been inspected and admitted or paroled into the United States subsequent to January 1, 1959.

It is well established that an alien who is paroled into the United States has not made an "entry" within the meaning of the immigration laws ( Leng May Ma v. Barber , 357 U.S. 185 (1958)). In addition, section 212(d)(5) of the Immigration and Nationality Act provides that parole of an alien into the United States shall not be regarded as an admission, and that when the purpose of the parole has been served, the alien's case shall be dealt with in the same manner as any other applicant for admission to this country. Thus, parole upon application for admission clearly contemplates further inspection of the alien as to his admissibility.

Section 1 of the Act of November 2, 1966 does not require that the alien must have arrived in the United States subsequent to January 1, 1959. It requires that, subsequent to that date, the alien must have been "inspected and admitted or paroled into the United States". In the case of the applicant, his inspection, which commenced when he arrived in the United States on January 1, 1959, was continued at Miami on January 5, 1959. Pursuant to the latter inspection, he was again paroled, this time for an indef inite period. It is concluded that the applicant meets this statutory requirement, as well as the other requirements of section 1 of Public Law 89-732. Accordingly, the application will be approved.

ORDER: The decision of the District Director, San Juan, Puerto Rico, is reversed, and the application for adjustment of status is approved.