A-5229425
Decided by the Board March 10, 1953
Marriage: Presumption of validity, New York — Suspension of deportation: Presumption of validity of marriage in New York.
(1) In New York State where two marriages of the same person are shown, the second marriage is presumed valid. The presumption of the validity of the second marriage is stronger than and overcomes the presumption of the continuance of the first marriage. A party who attacks the validity of the second marriage has the burden of producing evidence of its invalidity by affirmatively establishing that the first marriage has not been terminated.
(2) Although married to a woman in England at the time he left that country in 1924, an alien who enters into a subsequent common-law marriage with another woman (United States citizen) in New York in 1925 is entitled to the presumption of the validity of his second marriage, notwithstanding his inability to prove lawful termination of his first marriage (common-law marriages being recognized as valid in New York if contracted prior to April 29, 1933).
(3) Under the circumstances stated above, where no affirmative evidence has been offered to prove existence of his first marriage, the alien may rely upon the presumption in favor of the validity of his second marriage in New York to establish eligibility for suspension of deportation under section 19(c) of the Immigration Act of 1917, as amended, as the spouse of a United States citizen.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1924 — Remained longer — Seaman.
BEFORE THE BOARD
Discussion as to Deportation: The record relates to a 50-year-old married male, a native of England and subject of Great Britain who entered the United States at New York, New York, on August 15, 1925, as a seaman. The record does not reveal that the entry has been verified. The respondent testified that at time of entry it was his intention to reship. He has remained in the United States without authority. He was a bona fide seaman at the time of his entry, that entry being a lawful one, he is deportable solely on the charge lodged under the Immigration Act of 1924.
Discussion as to Eligibility for Suspension of Deportation:
The respondent's application for suspension of deportation was submitted prior to June 27, 1952, and will therefore be considered under section 19 of the Immigration Act of 1917, as amended (Public Law 414, sec. 405). Respondent's marital status requires consideration. His testimony was that about November 1924 he married J---- B---- a woman of about 23 years of age, at Liverpool, England; and the day after the marriage he sailed away and never returned. No children were born of this union. In August 1925 he came to the United States where he met A---- K---- with whom he fell in love. Several of his friends were then going to England. He asked them to check the status of his marriage in England. None of the friends was successful in finding J---- B----. He informed A---- of his previous marriage and the failure of his friends to locate J----. Because they were unable to locate her, they arrived at the conclusion that J---- was dead. On November 22, 1925, in the State of New York, the respondent and A---- commenced living together as man and wife. Since they were unable to establish the fact of the death of J----, they did not go through a formal marriage ceremony. However, they have lived together continuously since November 1925 and during all that time have considered themselves as man and wife. A---- was and is held out to the community as the respondent's wife and she carries respondent's family name. Three children were born of the union. They received the respondent's family name at birth. In 1944 or 1945 he again requested a friend who was going to England to attempt to locate J----. The friend was unable to find any trace of her. The Service introduced no evidence contradictory of this testimony.
We must determine whether the marital arrangement entered into with A---- K---- constituted a "marriage" and if it did, whether it was a valid marriage.
We believe that the record establishes that the respondent married A---- under the common law of the State of New York on November 22, 1925. A common-law marriage in New York States, contracted before April 29, 1933, is as valid as a solemnized marriage ( People v. Massaro, 42 N.E.(2d) 491). The testimony of record reveals an actual and mutual agreement to enter into a matrimonial relationship. This agreement was carried out by the parties. They lived together as husband and wife; they held each other out as husband and wife; three children were born of the union, all being given the respondent's family name; and a stable and lasting relationship resulted. The situation outlined bears a similarity to the facts in the case of In re Bilotta's Estate, 110 N.Y.S.(2d) 331 (1951). In the Bilotta case, the male spouse married in Italy in August 1912 and came to the United States sometime after September 1913. His wife remained in Italy where she died in 1936. In 1922, he and Marie procured a license to marry; thereupon the male placed a ring upon Marie's finger and pronounced her to be his wife and she consented to take him as her husband. For many years they continued to live as husband and wife and were so known by their relatives, friends, and neighbors. Two children were born of the union. The court found a valid common-law marriage had been entered into. We note also that in New York there is a presumption in favor of the legality of a common-law marriage in the same way and to the same extent as the law indulges in favor of a ceremonial marriage ( Kopit v. Zilberszmidt, 35 N.Y.S.(2d) 558 (1942)).
Does proof of the existence of the prior marriage in and of itself require a finding that the second marriage was invalid?
The clear weight of authority in New York requires an answer in the negative. The rule in New York is that where two marriages of the same person are shown, the second marriage is presumed valid; that such presumption is stronger than and overcomes the presumption of the continuance of the first marriage and that a person who attacks the second marriage has the burden of producing evidence of its invalidity ( Fagin v. Fagin, 151 N.Y.S. 809; In re Tuttle's Estate, 254 N.W.S. 65, reversing 247, N.Y.S., 825 reversal affd. Conklin v. Tuttle, 260 N.Y. 663, 184 N.E. 136; Kopit v. Zilberszmidt, ( supra); In re Bilotta's Estate, ( supra); Shepherd v. Shepherd, 47 N.Y.S. (2) 947, affd. without op. 47 N.Y.S. (2) 624). This presumption of validity can only be negatived by disproving every reasonable possibility ( Kobit v. Zilberszmidt, supra). Where there is issue of the second marriage, the presumption of the validity of the second marriage, strong as it is, is further strengthened by the presumption of the legitimacy of the issue ( In re Tuttle's Estate, supra).
Fagin v. Fagin, ( supra), was an action to annul a marriage on the ground that the defendant's former husband was living at the time of the second marriage. It appeared that defendant had been previously married in Russia. The plaintiff who sought annulment offered no further proof. "He neither proves the existence of the former husband nor that the former marriage was not legally dissolved." The court held that "of the conflicting presumptions presented at bar, the one of continuance of a preexistent state of facts should, in my opinion, give way to the presumptions of innocence and legality of marriage." The complaint was dismissed.
The latest relevant expression of the court in New York State appears to be in the case of In re Bilotta's Estate. ( supra). We have previously given the pertinent facts of this case. It involved a petition for letters of administration by a nephew of the male spouse who had died intestate. Four other persons filed objections to the petition. After finding that the second marriage with Marie was a valid common-law marriage, the court stated:
The contention * * * is that decedent's second marriage, so contracted, is void, since it has been established that he had been married to Saveria Lobello August 24, 1912, and that she was still living on August 19, 1922, when decedent married Marie Fazzio. The law is settled that mere proof of a prior marriage and the existence of a spouse of a former marriage does not overcome the presumption of innocence of the parties to the second marriage and particularly the presumption of legitimacy of the issue of such second marriage. The parties attacking such second marriage have the burden of proving that neither party to the first marriage had obtained a divorce and that one or the other party to the second marriage was, at the time of its celebration, barred from entering into a marriage. [Citing cases.]
Proof that the Italian law requires a report of the dissolution of the marriage to be made to the office of the vital statistics wherein a marriage is recorded and that such office in Tiriolo has no such report of the dissolution of decedent's first marriage, is not sufficient under the authorities cited to establish the nondissolution of such marriage. * * *
Marie Bilotta was held entitled to letters of administration.
We take cognizance of the following three New York cases which do not appear to have been decided according to the rule we have set forth above. The first two appeared to be against the great weight of authority in New York and the third, if not contrary to the great weight of authority in New York, may be distinguishable on the ground that the parties of the second marriage made no inquiry to determine the whereabouts of a spouse of the prior marriage ( In re Hamilton (1894) 27 N.Y.S. 813; Peo. v. Kay, 252 N.Y.S. 518; Alixanian v. Alixanian, 59 N.Y.S. 1068).
The rule in New York as to the presumption of the validity of the second marriage and as to the burden of establishing the invalidity of the second marriage, was followed by the Circuit Court of Appeals for the Second Circuit in Hatfield v. United States, 127 F.(2d) 575, where the court stated "the presumption will not fail unless common sense and reason are outraged by a holding that it abides" (p. 577). In other States where the rule has been similar to the New York rule, the Federal courts have followed the rule. See Harsley v. United States, 187 F.(2d) 214 (C.A.D.C., 1950) (first marriage in England, second in Maryland); Derrell v. United States, 82 F.Supp. 18 (D.C.E.D.Mo.); Prentis v. McCormick, 23 F.(2d) 803 (C.C.A. 6, 1928). The Federal rule appears to be similar to the New York rule. Sy Joc Lieng v. Gregorio Sy Quia, 228 U.S. 335 (1913).
The record establishes a marriage between the respondent and A----; and the fact that three children were born of the union. There is a presumption of the validity of this marriage and of the legitimacy of the children which is stronger than the presumption of the continuance of the respondent's first marriage. This presumption of the validity of the second marriage can be negatived by proper proof on the part of the Government which has questioned the marriage. It is not incumbent upon the respondent to prove that the earlier marriage was valid and was terminated by death, annulment, or divorce. The Government has failed to establish by clear convincing and substantial evidence that the first marriage was in existence at the time the respondent entered into the second marriage. We find the second marriage is valid.
Of the three children which are the issue of the second marriage, two are adults who maintain their own domicile. The third resides with his parents and is supported in part by the respondent. The respondent's wife is employed as a clerk and earns $49 a week. She has no assets of her own. She has been supported by the respondent since their marriage. According to the record, the respondent is employed as the garage manager of a large dairy company at a salary of $390 a month. The family assets consist of about $1,000 in cash and personal effects worth about $3,000. It is clear from the record that deportation of the respondent would result in a serious economic detriment to his citizen spouse.
Evidence of record also conclusively establishes that the respondent has resided in the United States in excess of 7 years, and was so residing on July 1, 1948. He has met the residence requirements for suspension of deportation under section 19(c)(2)(b) of the Immigration Act of 1917.
As the respondent is a nonquota immigrant under section 101(a)(27)(A) (Public Law 414), he could readily obtain an immigration visa if granted the privilege of voluntary departure and preexamination. He would appear to be eligible for preexamination since his last application for relief was submitted on November 21, 1951, and a previous application had been submitted in 1948.
A check of appropriate local and Federal records has failed to reveal an arrest or criminal record. His application reveals that in 1933, he received public assistance in the sum of about $500. He registered under the Selective Training and Service Act of 1940 but is not required to register at this time under the Selective Service Act of 1948. He has registered under the Alien Registration Act of 1940 and has submitted the reports required of him. Inquiry has disclosed that he has no connection with subversive groups. Service investigation and affidavits of witnesses reveal that the respondent is, and has been, a person of good moral character from at least 1941 to date. Two affidavits have been submitted which state that the respondent is considered a person friendly and loyal to the United States, and well disposed toward the order and happiness of its people. His employer since 1933 has furnished letters stating that he is an honest and conscientious employee as well as a person of good moral character. On the record, he has established his eligibility for suspension of deportation.
Order: It is ordered that deportation of the alien be suspended under the provision of section 19(c)(2) of the immigration Act of 1917, as amended.
It is further ordered that the order entered by the Assistant Commissioner on May 6, 1952, be and the same is hereby withdrawn. It is further ordered that if during the session of the Congress at which this case is reported, or prior to the close of the session of Congress next following the session at which this case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien, a quota immigrant, be charged to the quota of Great Britain and Northern Ireland.