A-8038432.
(VP-399862)
Decided by Board January 18, 1951
Visa petition — Husband-petitioner married his niece-beneficiary in Portugal (1948) — Validity of marriage.
The marriage of uncle and niece in 1948 in Portugal being considered valid in Portgual and the attorney general of the State of California having indicated that the parties to such marriage would not be prosecuted (on cohabiting in California), in the circumstances herein outlined, the visa petition of the husband on behalf of his wife would be approved, since it does not appear the uncle left California for Portugal with the intention of marrying his niece.
BEFORE THE BOARD
Discussion: This matter is before us by reason of a motion filed by counsel asking that the matter be reopened and the entire case reconsidered on the basis of a communication from the office of the attorney general of the State of California.
This matter was before us previously on appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated September 13, 1950, wherein it was ordered that "approval of the petition of Mr. E---- be revoked."
The subject of the petition, M---- R---- E----, was born in Santo Antao S. Jorge, Azores, on September 4, 1920. She is a citizen of Portugal. On September 27, 1948, she was married to one J---- or J---- S---- E----, she being the blood niece of her husband, to wit: The daughter of his sister and M---- B---- O----.
The facts in the case are set forth in decision of this Board dated November 28, 1950. In support of the validity of the marriage between the parties as aforesaid, there was submitted a certificate of marriage from the civil registry of the Portuguese Republic together with a translation of a communication from the general director of the department of justice, Lisbon, Portugal, dated August 8, 1950, to the effect "that the marriage celebrated between you and your uncle, * * * notwithstanding the lack of concession of dispensation of relationship for its consummation is fully valid under the laws of Portugal."
There was also submitted a communication from the district attorney of Santa Clara County, Calif., dated March 17, 1950, wherein it is stated in substance that it would not be a violation of the law for Mr. and Mrs. E---- to cohabit in California and if they do cohabit in California, his office would not prosecute for the violation of the California law making such marriage if contracted there unlawful.
Notwithstanding the communication of the district attorney of Santa Clara County, Calif., section 59 of the Code of Laws of the State of California provides that marriages between uncles and nieces are void and section 285 of the Penal Code provides for the punishment of persons who violate this provision of the State statute.
In the Matter of B----, decided December 8, 1949, File VP-377846, this Board indicated that the district attorney for Contra Costa, Calif. was consultant in that case and after consideration of an opinion dated May 17, 1933, of the attorney general of California (VP-173796), that officer stated that he could only say that if the parties cohabited in California they could be convicted of the crime of incest.
The attorney in the instant case has submitted a letter from the deputy attorney general of the State of California, wherein it is stated among other things that it is his opinion that the district attorney of Santa Clara County, Calif., has clearly stated the law applicable to the situation in this case and that his office concurs in the views thus expressed, to wit: That the parties would not be prosecuted in California for violation of the California law making marriages here contracted unlawful.
In an opinion of the Attorney General, it was held that the marriage between an uncle and niece was lawful in Poland and as the uncle and his niece could maintain the relationship of husband and wife at the place of residence in Virginia, provided the uncle left Virginia for Poland without any intention of marrying his niece, that there was no legal ground for refusing to accept the certification of the Department of Labor as to the wife's status.
That case is analogous to the case under consideration and inasmuch as the attorney general of the State of California has now indicated that the parties to the present marriage would not be prosecuted in California in the circumstances herein outlined, it is our conclusion that the order of November 28, 1950, should be withdrawn and that the approval of a petition for the issuance of an immigration visa should be reinstated.
Order: It is ordered that the order of this Board dated November 28, 1950, be withdrawn and that approval of the petition for the issuance of an immigration visa be reinstated.