VP 3-I-98742
Decided by Board June 13, 1957
Parent and child — Section 101 (b), Immigration and Nationality Act — Marriage — Validity of foreign religious marriages.
(1) A foreign religious marriage will be held valid for immigration purposes, even though proof of its formal perfection is lacking, where it was entered into in good faith under the color of a marriage ceremony, where the parties lived together over a period of time and considered themselves married, and where children have been born to the union.
(2) Hence, the marriage of the petitioner's parents in Italy in 1928 in accordance with the edicts of the Orthodox Jewish religion, although not contracted in accordance with the Italian civil law, will be held valid for the purpose of establishing the relationship of parent and child and conferring second preference quota status upon petitioner's mother under section 203 (a) (2) of the act.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the District Director, New York District, denying the visa petition on the ground there was no civil marriage of the parents of the petitioner and for this reason the beneficiary-mother is not considered to be a parent as defined in section 101 (b) (2) of the Immigration and Nationality Act.
The petitioner, born in Trieste, Italy, on July 26, 1929, seeks preference quota status on behalf of her mother, likewise born in Trieste, under the provisions of section 203 (a) (2) of the Immigration and Nationality Act. Section 203 (a) (2) grants preference quota status to parents of adult citizens of the United States. By definition in section 101 (b) of the act, the relationship of parent arises only in connection with a legitimate child, a stepchild, or a legitimated child. The denial appears to be predicated on a letter from the Consul General of Italy at New York, New York, to the effect that from a perusal of the petitioner's birth certificate her parents were not legally married according to the Italian law, and that, in fact, the certificate recites that she was born of the natural union of I---- P----, single (celibe), and A---- C----, also single (nubile).
The petitioner's representative contends that proof has been submitted that the parents of the petitioner entered into the relationship of husband and wife in October 1928, in Trieste, Italy, following a religious ceremony in accordance with the edicts of the Orthodox Jewish religion. There have been submitted a photostatic copy and a translation of the original marriage contract in the Hebrew language duly signed by the parties and witnessed showing the marriage in October 1928, at Trieste, Italy. The petitioner has executed a sworn statement in which she explains that her father was born in Russia; that he fled shortly after the Russian revolution, because he was opposed to communism, and that her father could not secure a birth certificate and other documents required by the Italian Government for a civil marriage, and as a result entered into religious marriage in October 1928. She further sets forth that she was born nine months after her parents' marriage; that her father and mother were never separated until he died in 1938; and that during all that time her father was recognized as head and provider of the family. There has been submitted a birth certificate showing that the respondent was born of the natural union of I---- P---- and A---- C----. There has also been submitted a Statement of Consent of the mother consenting to the marriage of the petitioner and United States Army Corporal A---- K----, and her consent for her daughter to emigrate to the United States. In addition, the petitioner's Italian passport indicates that she is the daughter of I---- and A---- C----. The representative submits that all the elements of a normal valid marriage were present due to the existence of a religious ceremony, a lasting relationship of husband and wife of the parents, the existence of the home, the acknowledgment of the child, and the recognition that it was impossible to secure documentation from Russia in order to meet the requirements of a civil marriage in Italy.
The question of the validity of religious marriages, particularly in Mexico, has previously received consideration and they have been held to be valid in certain cases and invalid in others. (See cases cited in Matter of M---- D----, A-6910783, 3 IN Dec 485, at page 487, and in Matter of A---- E----, A-7445502, 4 IN Dec 405, at page 407.) A review of the cases concerned with legitimacy and derivative citizenship reveals the following pattern: Where the evidence of record indicates that the foreign religous 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 indicated 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 ( Matter of M---- D----, supra; unreported Matter of M---- Y----, 1600-98579 (B.I.A., Feb. 25, 1955)). The philosophy underlying these holdings appears to stem from an Opinion of the Solicitor of Labor of September 14, 1933, dealing with cases involving applications for certificates of derivative citizenship. The Solicitor of Labor stated:
I believe that it is unwise to make too minute an investigation of his family tree. If the person has always believed that his parents were lawfully married and that he was a legitimate child, I see no public advantage in making a search of the laws of some foreign state in order to prove that his parents were living in sin and that he is a bastard. A certificate of derivative citizenship can be issued to a person if his parents have always acted upon the assumption that they were lawfully married and one of the parents were naturalized while applicant was a minor.
We have generally found that where parties have held themselves out to be man and wife, have lived together over a period of time and have considered themselves married, where there have been a number of children born to a union, particularly where there has been the color of a marriage ceremony, for immigration purposes this is a good marriage, even though proof of its formal perfection may be lacking. Upon a full consideration, we are satisfied that the marriage herein satisfies the requirements set out above and that for immigration purposes this represents a good marriage. Accordingly the visa petition will be approved.
Order: It is ordered that the visa petition be approved for preference status under section 203 (a) (2) of the Immigration and Nationality Act.