6660710
Decided by Board March 10, 1949 Decided by Board April 6, 1949
Nonquota status — Minor unmarried child of a United States citizen — Section 4 (a) of the Immigration Act of 1924 — Effect of marriage after "Section 4 (a)" visa issued — Effect of annulment of such marriage (Texas) ab initio.
Where an alien, the minor unmarried child of a United States citizen, was issued a nonquota visa under the provisions of section 4 (a) of the Immigration Act of 1924, but married thereafter before she entered the United States, she was not entitled to the nonquota status specified in her visa when she entered. Though she procured an annulment in Texas (March 3, 1949), there was no authority presented when the case was first considered on March 10, 1949, to establish that such annulment rendered the marriage contract void ab initio under the laws of Texas. However, the Texas court thereafter rendered a new order specifically dissolving the marriage at inception, whereupon she was deemed entitled to the nonquota status specified in her visa when she entered the United States.
CHARGE:
Warrant: Act of 1924 — Not nonquota as specified in visa.
BEFORE THE BOARD
(March 10, 1949)
Discussion: The case is before us on appeal from an order of the Assistant Commissioner dated December 7, 1948, wherein the application for voluntary departure was granted but the application for preexamination was denied.
Respondent, a 20-year-old native and citizen of Poland, last entered the United States at New York, on May 7, 1947; she was admitted as a nonquota immigrant on presentation of a section 4 (a) immigration visa, which had been issued to her on March 21, 1947, as a minor child of a United States citizen father. Two days after the issuance of respondent's visa (March 23, 1947), she married A---- J---- T----, a citizen of Poland, at Bad Reichenhall, Germany; T---- is now a lawful resident of Cuba. Respondent's parents (citizen father and legally resident alien mother), one brother, and two sisters reside in Houston, Tex.; her grandfather, uncles, and aunts also live in that city. She has no relatives abroad, other than her husband. The record shows that respondent was unaware of the effect of her marriage upon her nonquota status under the visa, hence, no fraud was involved as a result of her actions. It will be noted that she is only entitled to nonquota status while she is under 21 and unmarried; her twenty-first birthday is March 31.
Counsel has submitted a certified copy of a decree of the District Court of Harris County, Tex. (dated March 3, 1949) which annuls respondent's above-mentioned marriage. The decree states that the cause duly proceeded to trial without jury, upon filing and return of a waiver of service by the defendant (husband) with plaintiff and her attorney being present before the court. Thereupon, the court: "Ordered, adjudged, and decreed that the purported marriage entered into between the plaintiff and defendant on or about the 23d day of March 1947, be, and the same hereby is, dissolved, annulled, set aside, and held for naught because entered into by plaintiff under duress and fraud, and that said marriage is in nowise binding upon the plaintiff."
Counsel has presented no authority to establish that the effect of the annulment decree is to render the marriage contract void ab initio. However, from our study of the law, we find that such a decree as is here involved merely dissolves the marriage contract from the date of the court's decree. The pertinent Texas statute provides:
" Annulment. — The marriage relation may be dissolved where the causes alleged therefor shall be natural or incurable impotency of body at the time of entering into the marriage contract, or any other impediment that renders such contract void, and the court may decree the marriage to be null and void (Acts 1841. p. 19; G.L. vol. 2, p. 483). Vernon's Annotated Revised Civil Statutes of Texas, vol. 13, chap. 4, art. 4628.
Although article 4628 contains the word "void," it has been held that the legislature intended that the word "void" should have the force and effect of "voidable." The court of civil appeals stated in Carter v. Green et al., 64 SW 2d 1069 (Tex., 1933):
"We do not believe the legislature used the word "void" in its true meaning, but rather in the sense of "voidable" only, as it is well recognized that the courts, as well as the legislature, often use these words indiscriminately. In this particular statute we think there can be no doubt about the legislature using the word "void" in the sense of "voidable," since in the same statute it is expressly provided that "the Court," in the exercise of its jurisdiction, "may decree the marriage to be null and void." A judicial declaration of the dissolution of the marriage relation was evidently intended by the statute [p. 1071, italics supplied].
The respondent may again be the beneficiary of another nonquota visa grant; such a section 4 (a) visa may be granted a minor unmarried child of a citizen only if the application is in fact made while the child is under 21 years of age. This Board has previously held that such a person, traveling under a section 4 (a) immigration visa, must arrive at the port of entry before her twenty-first birthday in order to gain admission to the United States.
In consideration of all the facts involved, we deem this case to be an exceptionally meritorious one and will therefore grant the application for voluntary departure in lieu of deportation and preexamination.
Order: It is hereby ordered that an order of deportation be not entered at this time but that the alien be permitted to depart voluntarily to any country of her choice within 90 days.
It is further ordered, That the application for preexamination be granted.
Discussion: This case presents a motion to reconsider our order of March 10, 1949.
Briefly, the facts establish that B---- M---- T---- is a native and citizen of Poland, who last arrived in the United States at the port of New York on May 7, 1947, and was admitted upon presentation of a nonquota immigration visa issued to her on March 21, 1947, as the minor unmarried child of a citizen of the United States. It appears that 2 days after the issuance of said visa, she married one A---- J---- T----, a citizen of Poland, at Bad Reichenhall, Germany. T---- is a lawful resident of Cuba. The subject resides with her parents in Texas. Because the subject, at the time of arrival, was not the unmarried child (although she was then a minor) of a citizen of the United States, proceedings were instituted against her on the charge set forth above.
In seeking termination of proceedings, counsel submitted a certified copy of decree entered in the district court at Harris County, Tex. on March 3, 1949, which ordered, adjudged, and decreed that the purported marriage entered into between the subject and T---- on or about March 23, 1947, be dissolved, annulled, set aside, and held for naught because entered into by the subject under duress and fraud and that said marriage be in nowise binding upon the subject.
We determined that counsel presented no authority to establish that the effect of the annulment decree rendered the marriage contract void ab initio. Since the subject had not yet reached her twentyfirst birthday (it may be stated parenthetically that she became 21 years of age on March 31, 1949) we granted her the privilege of voluntary departure and preexamination. However, counsel, in his motion, again seeks termination of proceedings. He has now submitted certified copy of court decree which establishes that the effect of the annulment is to dissolve the marriage as of the date of its inception, namely, March 23, 1947. The exact wording of the new decree is as follows:
Ordered, adjudged and decreed by the Court that the purported marriage entered into between the Plaintiff and Defendant on or about the 23d day of March 1947, be, and the same hereby is, dissolved, annulled, set aside, and held for naught, as of March 23, 1947, because entered into by plaintiff under duress and fraud, and that said marriage is in nowise binding upon the plaintiff.
This new order has been certified to by the clerk of said court as of March 29, 1949.
On the basis of evidence now submitted, we are compelled to direct that proceedings be cancelled.
Order: It is ordered that proceedings in this case be and the same are hereby cancelled and the case closed.