56107/232
Decided by the Board September 21, 1942.
Citizenship — Children — Section 205, Nationality Act of 1940 — Common-law marriage — Conflict of laws.
1. A child born in Mexico, the issue of a common-law marriage entered into by an American woman and a Mexican in Texas where such marriages are recognized, is not a United States citizen under section 205 of the Nationality Act of 1940 as the illegitimate child of a citizen mother.
2. Although in Mexico a marriage relationship cannot be created unless a ceremony is performed, Mexico under the rules of conflict of laws will recognize a common-law marriage valid under the laws of the jurisdiction in which it was created.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: After hearings held on April 29, May 11, and June 4, 1942, at El Paso, Tex., a board of special inquiry excluded appellant on the above ground, and he appeals.
DISCUSSION: Appellant was born in Mexico May 15, 1941. His mother claims that he is a citizen of the United States. Appellant's father is a citizen of Mexico. The mother testifies that she was born in the United States, and she presents a citizen's identification card. The mother claims that she and the father of the appellant have never been married, and she evidently bases her claim that he is a citizen on the Nationality Act of 1940. Under section 201 (g) of that act, citizenship at birth is conferred on:
A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: * * *
The mother says that she was born in February 1919. She and the father of the child went to Mexico in September 1938 and remained there for fifteen months. She returned to El Paso in November 1939 and went back to Mexico a month later. Since December 1939 she has been in Mexico. She became 16 years old in February 1935, and since that time she has resided in this country for less than five years. Thus the appellant did not acquire citizenship by virtue of section 201 (g).
Under section 205, if an illegitimate child is born outside the United States, and his paternity has not been established by legitimation or adjudication of a court:
* * * the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.
The mother was a citizen at the time of appellant's birth, and she had previously resided in this country. If he is illegitimate, therefore, he must be regarded as a citizen by virtue of section 205. The mother presents a birth certificate, which refers to appellant as a legitimate child. She explains that she gave this information in order that appellant might have his father's name. Appellant's baptismal certificate also states that appellant is the son of E---- C----. The mother insists that she and appellant's father have never been married. She presents a certificate signed by an official at Guadalajara, Mexico, stating that no record of the marriage of E---- C---- and B---- A---- appears in the marriage records for the years 1937 to 1941. She began living with the father in El Paso, Tex., in June 1937. She explains that no marriage ceremony was performed because her mother objected. She lived with him for six months in El Paso as man and wife, and then they lived in Los Angeles until September 1938.
Under the laws of Texas, a common-law marriage exists if the parties mutually agree to become husband and wife and proceed to cohabit as husband and wife pursuant to that agreement and hold each other out to the public as such. See Defferari v. Terry, 68 S.W. 2d 253 (Tex.Civ.App. 1933), and cases there discussed. According to the mother's testimony, when she began living with appellant's father it was their mutual intention to marry, and they held each other out to their friends as man and wife. The father was unmarried at the time, and we think that the evidence establishes a common-law marriage under the laws of Texas.
Mexico does not "recognize" a common-law marriage, but this means only that a marriage relationship cannot be created in Mexico unless a ceremony is performed. We believe that under conflict of laws rules the marriage of appellant's parents, valid under the laws of Texas where it was created, would be recognized as valid under the laws of Mexico. See 2 Beale, Conflict of Laws (1935) p. 675. If the parents were regarded as legally married under Mexican law when they came to that country to reside, it follows that appellant should be regarded as legitimate under the laws of Mexico. We have considered the Mexican law on this subject, and we see no obstacle to our conclusion. See Wheless, Compendium of the Laws of Mexico (1938) art. 225.
We find, therefore, that appellant is a legitimate child, and that he did not derive American citizenship at birth. His mother wishes to bring him to the United States to reside, but he does not possess an immigration visa.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That appellant was born in Mexico May 15, 1941;
(2) That appellant's mother is a citizen of the United States, who resided in this country from the time of her birth in February 1919 until September 1938;
(3) That since September 1938 the mother has resided in Mexico;
(4) That appellant's father is a citizen of Mexico;
(5) That appellant's parents have not had a ceremonial marriage performed, but they mutually agreed to become married at El Paso, Tex., in June 1937, and since that time they have lived together as husband and wife and hold each other out to the public as such;
(6) That appellant seeks admission for permanent residence but he does not possess an immigration visa.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That appellant did not acquire United States citizenship at birth, under sections 201 (g) and 205 of the Nationality Act of 1940;
(2) That under section 13 (a) of the Immigration Act of 1924, appellant is inadmissible because he does not possess an immigration visa.
OTHER FACTORS: Since appellant is inadmissible only on the documentary ground, he should be given permission to reapply when in possession of the proper documents.
ORDER: The excluding decision is affirmed on the ground stated by the board of special inquiry.
Appellant is hereby given permission to reapply within 1 year when in possession of the required documents.