56065/435
Decided by the Board May 8, 1942.
Admission of crime — Bigamy (Texas).
If an alien admitted the commission of bigamy in violation of article 481 of the Penal Code of Texas (1916), and if the evidence disclosed that his prior spouse had voluntarily withdrawn and had remained absent for 5 years, his admission was of no effect since, under the Texas statute, voluntary withdrawal of the spouse and absence for 5 years made the statute inapplicable.
CHARGES:
Warrant: (both) Act of 1924 — Immigrants without immigration visas.
(J---- M----.)
Act of 1917 — Convicted of or admits commission of crime involving moral turpitude.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: The warrant of arrest was issued February 14, 1941. The warrant was served March 24, 1941, and hearing was accorded the respondents thereunder on that date and on April 9, 1941, at Corpus Christi, Tex. The presiding inspector finds that the child is a citizen of the United States. He also finds that the father is subject to deportation on the charges stated in the warrant of arrest, and recommends that he be deported to Mexico.
The matter is now before this Board for review and decision.
DISCUSSION: The respondents are father and son, 56 and 10 years of age, respectively. Both are natives of Mexico, and the father is a citizen of Mexico. The citizenship of the son, J---- J----, is considered below. The father is married.
The father testifies that he and his son last entered the United States June 26, 1933, at Eagle Pass, Tex. There is no record of this entry. The father was a legal resident of this country for some years until 1931, but in May of that year, according to his testimony, he repatriated to Mexico with his family. There is no record of this repatriation. He testifies that the respondent, J---- J----, was born in Mexico during this period and that the entire family resided in Mexico until the entry in June 1933. At the time of his last entry, the father intended to reside permanently in the United States. Neither of the respondents possessed an immigration visa.
The father testifies that his first marriage took place in 1907, in Mexico, and that in 1912 his wife abandoned him and went to live with another man. Since that time he has not heard from his first wife, except that in 1931 someone told him that she was in Mexico. He has never obtained a divorce. In 1922 he married his present wife, P---- I----, in Texas. The record contains a baptismal certificate indicating that P---- was born in Eagle Pass, Tex. J---- M---- admits that by his marriage to P---- he committed the crime of bigamy.
At the time of the second marriage the bigamy statute in Texas was article 481 of the Penal Code (Vernon's Criminal Statutes 1916). However, article 482 provides:
The provisions of the preceding article shall not extend to any person whose husband or wife shall have been continually remaining out of the State or shall have voluntarily withdrawn from the other and remained absent for 5 years, the person marrying again not knowing the other to be living within that time; nor shall the provisions of said article extend to any person who has been legally divorced from the bonds of matrimony.
Since the wife had "voluntarily withdrawn from the other and remained absent for 5 years, the person marrying again not knowing the other to be living within that time," the husband was not guilty of bigamy when he married his present wife. Poss v. State, 47 Tex. Crim. Rep. 486, 83 S.W. 1109 (1904).
According to the presiding inspector, the respondent J---- J----, as the issue of a bigamous marriage, is illegitimate, and since his mother is a citizen of the United States, he derives citizenship from her, under the second paragraph of section 205 of the Nationality Act of 1940. We have found that the father was not guilty of bigamy. Although the statute does not specifically declare that the issue of the marriage is legitimate, it legalizes the marriage and hence there is no basis for asserting that the child is illegitimate. Moreover, Texas Civil Statutes, article 2581, which was in effect when the child was born, provides: "The issue also of marriage deemed null in law shall nevertheless be legitimate." Consequently, even if the validity of the marriage is attacked, the child is legitimate. See Hartwell v. Jackson, 7 Tex. 576 (1852); Lee v. Smith, 18 Tex. 141, 145 (1856); Defferari v. Terry, 128 Tex. 521, 532, 99 S.W. 2d 290 (1936). At the time of the birth of the child, he could not derive citizenship through his mother, and consequently he is an alien.
The child has applied for suspension of deportation, but the father has made no specific application for relief. The father testifies that he has resided in the United States since 1906, with the exception of the years 1931-33, and the record indicates that he was a legal resident for many years prior to 1931. In addition to J---- J----, there are four citizen children. The wife and children are dependent for their support on the father. We believe that the hearing should be reopened to permit the father to apply for suspension of deportation. At the reopened hearing an effort should be made to introduce the following evidence: a birth certificate for the wife (the baptismal certificate presented at the hearing is not the best documentary evidence); birth certificates for the four children born in the United States; and the results of an investigation as to the father's moral character.
ORDER: It is ordered that the hearing be reopened to permit the respondent, J---- M----, to apply for suspension of deportation and to permit introduction of evidence pursuant to the suggestions made above.