A-6910783
Decided by Central Office February 1, 1949
Marriage — Validity of religious marriage in Mexico — Illegitimacy of child at time of birth — Expatriatory effect upon legitimation by subsequent civil marriage in 1944, father being an alien.
1. The facts and evidence of record in each individual case determine whether a foreign religious marriage is presumed to be valid in the absence of evidence to the contrary, reliance being had on the presumption in favor of the validity of a marriage and that there had been compliance with the formalities of law, in a case in which the evidence shows such marriage was entered into in good faith and was recognized by the parties thereto.
2. A citizen mother having no desire to enter into marriage with the alien father by any ceremony, went through a religious ceremony in Mexico despite her objections; later she went through a Mexican civil ceremony (1944) after the birth of eight children, at which time (1944) both "parents" stated they were single, and the evidence showed an absence of good faith or recognition of the religious marriage by the parties thereto; under these circumstances she is not deemed to have been legally married to the alien father by such religious ceremony; and a child born of such union in 1933 was illegitimate.
3. Such a child is deemed to have acquired United States citizenship through the United States citizen mother at birth in 1933; and its subsequent legitimation through the civil marriage of the parents in 1944 had no expatriatory effect upon the child. (See Interim Decision No. 304.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Act of 1918 — No passport.
BEFORE THE CENTRAL OFFICE
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law made by the majority members of the Board of Special Inquiry at El Paso, Tex., and read to the alien on June 3, 1948, are hereby adopted except that conclusion of law (2) is amended to read as follows:
(2) That you acquired United States citizenship under section 205 of the Nationality Act of 1940.
An appeal has been taken by the dissenting member of the Board of Special Inquiry.
This case relates to a 15-year-old single male, who alleges birth in Mexico on February 22, 1933, of a citizen mother and an alien father. He applied for permanent admission to the United States as a citizen thereof on May 26, 1948. Two members of the Board of Special Inquiry voted to admit him as a citizen of the United States, while the dissenting Board member voted to exclude him on the ground of alienage. The acting District Director recommends that the majority decision of the Board be affirmed.
The applicant's mother testified in her son's behalf and alleged that she was born in Austin, Tex., on August 19, 1906, and lived in the United States from time of birth until the year 1931. She presented a baptismal certificate in the English language issued by the Rev. J---- McA---- of St. Mary's Cathedral, Austin, Tex., in corroboration of her claimed birth in the United States.
Prior to her departure for Mexico in 1931 she had lived out of wedlock with applicant's father in the State of California for a period of approximately 2 years. Applicant's mother further testified that despite her objections to a marriage ceremony of any kind, applicant's father's brother insisted that a marriage ceremony be performed and as a consequence, they were married by a Catholic priest in Rio Grande, Zac., Mexico. Subsequent to their religious marriage and prior to their civil marriage on September 4, 1944, eight children were born to the union. She stated that her civil marriage was performed for the reason that the American consul in Juarez requested proof of her daughter's legitimacy before he would issue an American passport in the daughter's behalf. While the record fails to contain evidence of her religious marriage, other than testimonial evidence, she presented a marriage certificate in the Spanish language issued by the judge of the civil registry at Praxedis G. Guerrero, Chihuahua, Mexico, in proof of her civil marriage. This certificate indicates that she was married to the applicant's father on December 4, 1944, and that both parties to the contract were listed as single.
At the reopened hearing held June 3, 1948, applicant's mother presented a birth certificate covering his birth in Mexico on February 22, 1933, which indicated that he was the fourth legitimate child of his parents. This certificate further indicated that applicant's parents were married and that his mother was a native of the United States. The mother denies that they were married at that time other than by a religious ceremony and further stated that she did not know why her husband declared that they were married or why he listed their son as the fourth legitimate child.
The applicant's father testified that he was married by a religious ceremony in 1931; that eight children were born of this union prior to their civil marriage in 1944; that after the birth of his children he registered them as legitimate; that his reason for so doing was that he had always intended marrying their mother and that he did not want to register them as natural children; and further that he did not know whether or not the Mexican Government recognized church marriages as valid. He further testified that he entered into the religious marriage in 1931, in good faith, continued to live as man and wife thereafter, and that they were generally known as man and wife in the community wherein they resided.
On the basis of the evidence of record, and previous decisions in similar cases, the dissenting member of the Board, found that the applicant was an alien and excludable on documentary grounds. The majority members of the Board found him to be the illegitimate son of a native-born citizen mother and a citizen of the United States under section 201 (g) and section 205 of the Nationality Act of 1940, and, therefore, not subject to the excluding provisions of the immigration laws. The reference to section 201 (g) was erroneous since that section is inapplicable to the facts in the instant case.
The question to be resolved in this case is whether the subject's parents' marriage by a religious ceremony in Mexico in 1931, may be regarded as valid.
In connection with the validity of religious marriages in Mexico the dissenting member of the Board of Special Inquiry cited numerous cases wherein the Service had held religious marriages to be valid in certain cases and to be invalid in others. Matter of T----, AA-4033 (Dec. 14, 1945); Matter of F----, 55837/836 (May 31, 1931); Matter of de V----, 56028/60 (Feb. 9, 1940); Matter of V----, 56032/907; 3085307 (Apr. 25, 1944); Matter of R---- de I----, A-6518794.
From a review of the cases cited and the following additional cases: Matter of S----, A-6248084 and 6248085, Sept. 2, 1947; Matter of P----, 2270-C-3771176, Sept. 6, 1933; and Matter of W----, 15022733, Aug. 18, 1948; it appears that the decisions in the individual cases were based solely on the facts and evidence of record. Where the evidence of record indicated that foreign religious marriages were entered into in good faith, and recognized by the parties thereto, the validity of the marriage was presumed in the absence of evidence to the contrary, reliance being had on the presumption in favor of the validity of a marriage and that the formalities of law had been complied with. Conversely, where the evidence of record indicates that the foreign religious marriage was not entered into in good faith or was not recognized by the parties thereto the usual legal presumption was deemed to have been rebutted by such evidence of lack of good faith or nonrecognition and the marriage deemed invalid.
In accordance with the above, the instant case will be decided on the factual and legal evidence of record.
The Mexican law, relative to the validity of marriages, paragraph 3, article 130, of the Mexican Constitution of 1917, provides as follows:
Marriage is a civil contract. Marriage and any other acts of a person's civil status are in the exclusive competence of the officials and authorities of the civil government in the terms provided by the laws, and they shall have the force and validity that the same attribute to them.
Article 193, requisite for contracting marriage, taken from the compendium of the laws of Mexico. revised edition (1938), provides as follows:
The marriage must be performed before the officials and with the formalities prescribed by law. Any condition contrary to the perpetuation of the species or to the mutual aid which the spouses owe to each other, is void.
A similar provision taken from the Mexican Civil Code of the Federal District and Territories, article 157 provides:
A marriage must be celebrated before the functionaries appointed by the law and with all the formalities which the law exacts.
Mr. E---- C----, consul of Mexico, El Paso, Tex., and Mr. R. L---- S----, attorney at law practicing in Mexico, expressed the opinion that church marriages occurring at any time in Mexico subsequent to February 5, 1857, at which time the Mexican Constitution was adopted, have never been recognized by the civil authorities and have no civil effect. Their opinion was apparently based on the articles quoted herein. They further stated that whenever any legal right of a couple, married only by a church ceremony, were dependent on their marital status, the marital status would be adjudicated by the civil authorities having jurisdiction, and, if it appeared that the couple had participated in the church ceremony in good faith in a bona fide attempt to be married, and if, through ignorance, they failed to be married in a civil ceremony, the presiding official would in many cases determine that they were, in fact, man and wife.
In connection with the above statement, a translation from the "Official Statement of Motives" obtained from the Congressional Library, Foreign Law Division, reflects that the legislators took into consideration the plebeian classes and their peculiar manner of establishing a family and as a result thereof enacted article 165, book II of the Civil Code for the Federal District and Territory of Mexico. This article provides as follows:
Ignorance of the laws does not excuse compliance with them; but the judges, taking into consideration the notorious intellectual backwardness (atraso) of sundry individuals, their remoteness from the ways of communication, or their miserable economic situation, shall, if approved by the Ministerio Publico, relieve them from the penalties which they may have incurred from failure to comply with the law of which they were ignorant, or if this is not possible, may grant them a period of time (plazo) to comply with it; provided that laws are not involved which directly affect the public interest.
It would appear that this article is the basis for the last statement made in the opinion of the individuals mentioned above. However, no Mexican court decision could be found to sustain the opinion cited.
At this point, a brief summary of the factual evidence of record will be set forth. The applicant's parents' civil marriage certificate of 1944 indicates that both parties to the contract were single. At the time of the religious ceremony, applicant's mother had no desire to marry his father by any ceremony. While one party to the religious marriage entered into it in good faith, it cannot be said that both parties entered into it in good faith, as contemplated in the opinion of the Mexican consul. The applicant's mother throughout the hearing endeavored to discredit the legal effect of their religious marriage upon the legitimacy of the children born thereafter. She specifically denied that they were legally married at the time of the birth of the applicant and stated that she did not know why her husband declared that they were married or why he listed applicant as their fourth legitimate child. Both parents were aware of the legal requirements for a valid marriage in Mexico, and as a consequence cannot plead ignorance of the law. Such knowledge is reflected in their civil marriage certificate, wherein they were listed as single at the time of the marriage.
In the light of the evidence of record, both as to fact and law, the presumption of validity has been rebutted and the religious marriage in Mexico of applicant's parents in the year 1931 cannot be regarded as valid. Thus, it would appear that at the time of applicant's birth on February 22, 1933, he was the illegitimate son of a citizen mother and an alien father.
The subsequent legitimation of the applicant by the 1944 civil marriage of his parents had no expatriatory effect whether such legitimation under Mexican law be retroactive to the date of birth or not, Matter of A----, 56213/973; 55852/636 (1945). It is noted in passing that article 332 of the Mexican Civil Code of the Federal districts and territories provides that legitimated children have the same rights as legitimate ones as of the day on which the marriage of their parents legitimating them was celebrated.
From the evidence set forth herein, it is apparent that the applicant acquired United States citizenship under section 205 of the Nationality Act of 1940 as the illegitimate son of a citizen mother. As such, he is admissible to the United States as found by the majority members of the Board of Special Inquiry. The majority decision of the Board of Special Inquiry will be affirmed and the applicant admitted as a citizen of the United States.
Recommendation: It is recommended that the majority opinion of the Board of Special Inquiry be affirmed and the applicant admitted as a citizen of the United States.
So ordered.