A-3170648
Decided by Board December 4, 1947
Marriage (New York State) — Effect of annulment (New York State) on ground of "fraud" — Doctrine of "relation back" — Effect upon nonquota immigration status at time of entry — Act of March 14, 1937 ("Gigolo Act").
(1) The alien married in New York State in 1936 and effected entry for permanent residence later in 1936 upon presenting a nonquota immigration visa based upon such marriage. This marriage was annulled in 1939 in New York State for "fraud" in a suit by the alien's husband. She chose not to contest. The actual fact was established that the marriage was consummated, they lived together for 2 years, and separated thereafter because of sexual incompatability, and there was no evidence or a court finding that the alien entered such marriage fraudulently for the purpose of obtaining a nonquota immigration status under the immigration laws. Under the circumstances of this case, the warrant charges were not sustained. (See 3 IN Dec. 25.)
(2) The New York State courts do not follow blindly the doctrine that an annulment decree issued under section 7 of its Domestic Relations Law destroys the marriage from the beginning. (See 3 IN Dec. 25.)
CHARGES:
Warrant: Act of 1924 — Visa secured through fraud.
Act of 1937 — Marriage judicially annulled, ab initio.
BEFORE THE BOARD
Discussion: This case is before us on respondent's motion requesting reconsideration of our decision of October 7, 1942, in which we found respondent subject to deportation under section 3 of the act of May 14, 1937.
Respondent is a 37-year-old native of the Union of Soviet Socialist Republics and last a citizen of Canada. She first came to the United States as a visitor in the spring of 1935. While here under that status she became acquainted with a naturalized American citizen whom she married in Brooklyn, N.Y., on February 2, 1936. Her husband thereafter filed a petition to establish respondent's status as a nonquota immigrant under section 4 (a) of the Immigration Act of 1924. The petition was approved and respondent returned to Canada and obtained an immigration visa. On August 22, 1936, respondent reentered the United States as a section 4 (a) nonquota immigrant.
In 1938 respondent's husband instituted an action in the State of New York to annul his marriage. In his complaint he alleged that respondent had falsely and fraudulently promised to cohabit with him and that he had consented to the marriage on the basis of these false representations. He further alleged that the marriage had never been consummated and that respondent had never lived with him. The complaint was served upon respondent in California, where she was then living. She decided not to contest the suit because of her desire to terminate her relationship with her husband. In June 1939 a final decree was entered annulling the marriage on the ground of fraud.
In truth and fact, there had been no fraud on the part of respondent in entering into the marriage. Furthermore, this record clearly shows that respondent and her husband lived together as husband and wife for about 2 years. There is no question that their marriage had been consummated. They separated only because of sexual incompatability.
After the marriage had been annulled, the immigration authorities, pursuant to a request made by respondent's husband, issued a warrant charging respondent with being in the United States in violation of the act of May 14, 1937. The Presiding Inspector, after a hearing, found that respondent had not entered into the marriage fraudulently for the purpose of gaining entry into the United States as a nonquota immigrant. He recommended that the warrant be canceled.
We first considered the case on October 7, 1942. We found, on the basis of our decision in Matter of F----, 5523799 (October 15, 1941) that the warrant charge was sustained. However, in lieu of entering an order of deportation, we granted the respondent the privilege of voluntary departure. On July 20, 1945, the Board reopened the hearing and on April 16, 1946, we authorized her preexamination. On January 24, 1947, the Commissioner extended the time for respondent's voluntary departure from the United States but, because the Russian quota was oversubscribed, placed the alien on notice that entry of an order of deportation would be proposed, subject to her right to file exceptions. Thereafter counsel for respondent filed the motion now pending before us. In support of his contention that the warrant charge is not sustained counsel cites the Board of Review's decision In Matter of S----, 55983/982 (December 9, 1938).
Under then existing regulations and because the Board's order was less favorable than that proposed by the Presiding Inspector, findings should have been served upon respondent and she should have been given an opportunity to file exceptions to our order.
Section 3 of the act of March 14, 1937, reads:
That any alien who at any time after entering the United States is found to have secured either nonquota or preference-quota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, has been judicially annulled retroactively to date of marriage, shall be taken into custody and deported pursuant to the provisions of section 14 of the Immigration Act of 1924 on the ground that at the time of entry he was not entitled to admission on the visa presented upon arrival in the United States. This section shall be effective whether entry was made before or after the enactment of this act.
The Act of March 14, 1937, is entitled "An act to authorize the deportation of aliens who secured preference-quota or nonquota visas through fraud by contracting marriage solely to fraudulently expedite admission to the United States, and for other purposes." In an opinion as to the meaning of the second paragraph of section 3 of the act of March 14, 1937, the Solicitor of Labor on May 22, 1940 (55804/996) pointed out that in construing this act the purpose for which the fraud was perpetrated must be " solely to fraudulently expedite admission to the United States." He went on to say:
The language just quoted and italicized appears in its entirety in the title of the act of 1937. While the usual rule of construction is that the title of an act forms no part of the act itself, such title may, nevertheless, be resorted to for an explanation of the meaning of the text or language of the act proper. So using the title in this instance, the words "through fraud, by contracting marriage" in section 3 mean fraud perpetrated solely to expedite admission to the United States. That is a reasonable and logical limitation of the effect of the law in view of the fact that the primary purpose of the legislation is to prevent the abuse or misuse of certain provisions in the immigration laws of this country, and was not sponsored with a view to defending or protecting the integrity of the institution of marriage.
This interpretation by the Solicitor of Labor was in accord with the Board of Review's decision In Matter of S----, supra. There the alien had been married in Poland in March 1931 to an American citizen. On the basis of the marriage, the alien obtained a preference-quota immigration visa and was admitted to the United States for permanent residence in June 1932. In March 1935 the marriage was annulled in the New York Supreme Court. The ground of annulment was fraud, the fraud being based on the allegation that the alien and his wife had agreed to have children but that the alien had, after the marriage, refused to live up to his promise. In finding that the deportation charge based on section 3 of the act of March 14, 1937, was not sustained, the Board of Review said:
* * * the parties lived together some time prior to the alien's arrival in the United States and for a period subsequent thereto. It is the judgment of this Board that the marriage contract by the alien and G---- S---- was not entered into for the purpose of effecting the entry of the alien into the United States as a preference-quota immigrant. Consequently, the case is not comprehended within the provisions of the act of May 14, 1937.
The decision in the S---- case and the Solicitor of Labor's opinion of May 22, 1940 represented the administrative practice in applying the act of March 14, 1937. Matter of F----, supra, concerned a Polish national who married an American citizen in Poland in June 1933. He obtained a preference-quota visa and entered the United States on December 5, 1933. In 1937 the marriage was annulled in the State of New York on the ground of fraud, the wife being the moving party. In her petition the wife alleged that her consent to the marriage had been obtained through fraud in that her husband had falsely promised to establish a home and live with her for the purpose of obtaining a preference under the immigration laws. The wife further alleged that her husband did not live with her after he entered the United States. The Board held that the "conclusive operative factor" subjecting an alien to deportation under the act of March 14, 1937 was the decree of annulment. For that reason it refused to consider the alien's testimony or any other testimony as to the facts of his marriage in order to show there was no fraud. The 1937 act charge was sustained.
Our decision in the F---- case was not necessarily inconsistent with our past administrative practice as represented by the S---- case and by the opinion of the Solicitor of Labor. In the first place, the court in the F---- case specifically found that the purpose for which the fraud was perpetrated by the alien was to obtain a preference under the immigration laws. In the second place, the alien appeared and contested the suit. There was more than ample evidence in that record to justify a finding that the marriage had been entered into solely to obtain admission to the United States. We thought it improper, under the circumstances of that case, to go behind the findings of the court to reach a contrary conclusion as to the purpose for which the marriage had been contracted.
We do not now decide whether, if the suit had not been contested, we would have gone behind the findings of the court with respect to the purpose of the marriage.
Applying these principles to the case before us, we must find respondent not subject to deportation under the act of March 14, 1937. Here, the court did not find that respondent had contracted the marriage for the purpose of obtaining a nonquota status under the immigration laws. Again, we note that respondent did not contest the annulment suit. The record clearly shows there was no fraud upon her part in entering into the marriage. The doctrine of the S---- case and the opinion of the Solicitor of Labor require us to hold the warrant charge invalid.
One more question remains to be decided. Is respondent subject to deportation under the Immigration Act of 1924 on the ground that at the time of entry she was not a nonquota immigrant as specified in her immigration visa? If so, we would have to reopen the hearing so that an appropriate charge could be lodged; otherwise, the proceedings will be dismissed. The issue presented, then, is whether we must, under the facts of this case, give retroactive effect to the decree of annulment, thus compelling a finding that respondent was never married to an American citizen and was, therefore, not entitled to enter the United States as a nonquota immigrant.
The suit for annulment in this case was brought under section 7 of the New York Domestic Relations Law which provides in part that a marriage annulled on the ground of fraud is void "from the time its nullity is declared by a court of competent authority." In Matter of M----, 3697183 (September 17, 1947), we discussed in detail the effect of an annulment decree obtained under this provision of New York law. We there pointed out that while, under the decisions of the New York Court of Appeals, the decree relates back to the date of the marriage, that principle is not applied blindly regardless of the facts of the particular case.
Matter of Moncrief, 235 N.Y. 390 (1923); Price v. Price, 124 N.Y. 589 (1891); Jones v. Prinamade, 183 N.Y. 258 (1905).
American Surety Company of New York v. Conner, 251 N.Y. 1 (1929); Sleicher v. Sleicher, 251 N.Y. 366 (1929).
Generally speaking, the New York courts are guided by equitable principles in applying the doctrine of "relation back." They refuse to apply this fiction where its application under the facts of a particular case would result in an injustice. Consequently, in the M---- case we refused to give retroactive effect to a New York decree annulling a marriage entered into by an uncle and niece in Poland, pointing out in our decision that the alien was innocent of any wrong doing; that she had not been guilty of fraud; and that she had cohabited with her husband in the State of New York for 3 years before learning that the marriage was improper in that jurisdiction.
In the case before us, it is clear that the respondent was an innocent party. So far as she was concerned there was no fraud in entering into the marriage. She lived with her husband for a period of 2 years. There was no intent on her part to circumvent the immigration laws by entering into the marriage. Under the circumstances we think it would be inequitable to apply the doctrine of "relation back" and thus deprive her of her status as a legal resident of the United States.
Order: Our order of October 7, 1942, is withdrawn, and
It is ordered that the warrant of arrest be canceled and the proceedings dismissed.