A-6600292
Decided by Central Office April 16, 1951
Marriage (foreign) — Effect of annulment by United States District Court for District of Columbia (1948) — Whether immigration status at time of entry (1947) affected, if marriage not annulled ab initio.
A marriage abroad in 1946 rendered void only from the date of decree of annulment in 1948, by the United States District Court for the District of Columbia, did not affect the nonquota immigrant status of the alien wife at the time of her entry here in 1947, as the wife of a United States citizen member of the armed forces of the United States during World War II.
CHARGE:
Warrant: Act of 1924 — Quota immigrant not in possession of unexpired quota immigration visa because entry as a nonquota immigrant under provisions of the Act of December 28, 1945, was obtained through fraud.
BEFORE THE CENTRAL OFFICE
Discussion: The record relates to a native and citizen of France, who last entered the United States at the port of New York, N.Y., on February 9, 1947, as a passenger on the S.S. Admiral Hugh Rodman. The respondent was admitted for permanent residence, quota exempt, under Public Law 271 approved December 28, 1945. She was married to a native-born United States citizen, a member of the Armed Forces of the United States during World War II, at Wiesbaden, Germany, on December 21, 1946. Therefore, at the time of her entry she was admitted as the wife of such United States citizen member of the United States Armed Forces, under the provisions of the above act, without being charged to any quota.
On October 21, 1948, the respondent was granted a decree, voiding the above marriage, by the United States District Court for the District of Columbia which reads in part:
Adjudged and decreed that the marriage contract heretofore entered into between the plaintiff, S---- A---- O---- R---- and the defendant, S---- M---- R---- be and the same is hereby declared void on the ground of the matrimonial incapacity of the said S---- M---- R---- at the time of said marriage and such incapacity is continued, * * *,".
The applicable part of the statute whereunder this decree was issued is as follows: Section 16-403, the District of Columbia Code:
" Provided further, That marriage contracts may be declared void in the following cases:
"First. Where such marriage was contracted while either of the parties thereto had a former wife or husband living, unless the former marriage had been lawfully dissolved.
"Second. Where such marriage was contracted during the lunacy of either party (unless there has been voluntary cohabitation after the lunacy) or was procured by fraud or coercion.
"Third. Where either party was matrimonially incapacitated at the time of marriage and has continued so.
"Fourth. Where either of the parties had not arrived at the age of legal consent to the contract of marriage (unless there has been voluntary cohabitation after coming to legal age), but in such cases only at the suit of the party not capable of consenting (March 3, 1901, 31 Stat. 1345, ch. 854, § 966; August 7, 1935, 49 Stat. 539, ch. 453, § 1)."
The District of Columbia Code section 30-103 relates to marriages in the District which are illegal and void from the time of their nullity by decree and reads as follows:
"§ 30-103 (14:3). Marriages void from date of decree — Age of Consent. — The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely:
"First. The marriage of an idiot or of a person adjudged to be a lunatic.
"Second. Any marriage the consent to which of either party has been procured by force or fraud.
"Third. Any marriage either of the parties to which shall be incapable, from physical causes, of entering into the married state.
"Fourth. When either of the parties is under the age of consent, which is hereby declared to be eighteen years of age for males and sixteen years of age for females (March 3, 1901, 31 Stat. 1391, ch. 854, § 1285; June 30, 1902, 32 Stat. 543, ch. 1329; August 12, 1937, 50 Stat. 626, ch. 596, § 1)."
NOTE:
The District of Columbia Code section 30-101 under chapter 1, Prohibitions and Marriages void ab initio, reads as follows:
"The following marriages are prohibited in the District of Columbia and shall be absolutely void ab initio, without being so decreed, and their nullity may be shown in any collateral proceedings, namely:
"First. The marriage of a man with his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's son's wife, wife's son's daughter, wife's daughter's daughter, brother's daughter, sister's daughter.
"Second. The marriage of a woman with her grandfather, grandmother's husband, husband's grandfather, father's brother, mother's brother, father, stepfather, husband's father, son, husband's son, daughter's husband, brother's son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, husband's son's son, husband's daughter's son, brother's son, sister's son.
"Third. The marriage of any persons either of whom has been previously married and whose previous marriage has not been terminated by death or a decree of divorce (March 3, 1901, 31 Stat. 1391, ch. 854, § 1283)." Yet, these "prohibited" marriages "void" without being so decreed, may be annulled.
The District of Columbia Code, section 30-102, Marriage may be decreed to be void, reads as follows:
"Any of such marriages may also be declared to have been null and void by judicial decree (March 3, 1901, 31 Stat. 1391, ch. 854, § 1284)."
A decree annulling a marriage in the District of Columbia is final and conclusive and not subject to collateral impeachment, Moran v. Moran, 160 F. (2d) 925. The jurisdiction of the marriage res depends on the residence or domicile of at least one party, and where it has jurisdiction of the parties, as in the present case, it is immaterial where the marriage was solemnized, Hitchins v. Hitchins, D.C., 47 F. Supp. 73. In the present case the jurisdiction to hear and determine the suit for avoidance of the marriage is regulated by statute.
The warrant charge can be sustained only if it is determined that the marriage was void ab initio. Under section 30-103 (14:3) of the Code of the District of Columbia, any marriage "either of the parties to which shall be incapable, from physical causes, of entering into the marriage state" shall be void from the time when its nullity shall be declared by decree. In the instant case, the marriage was annulled by reason of the husband's physical inability referred to by the court decree as "matrimonial incapacity" which is the language set forth in section 16-403 of the District of Columbia Code set out in pertinent part in footnote 1. By the words of the code above referred to, that is "shall be void from the time when their nullity shall be declared by decree," the annullment in this case is not an excision of the marriage or annulment ab initio.
A like result was reached as to the consequences of an annullment in New York State in Matter of B----, A-3170648, B.I.A. 1947, 3 IN Dec. 102, where the charge in the warrant of arrest referred to "visa procured by fraud," act of 1924, and "marriage annulled ab initio," act of 1937; and Matter of M----, A-3697183, B.I.A. 1947, 3 IN Dec. 25, where the charge in the warrant of arrest referred to "not nonquota as specified in visa," act of 1924; see Op. of Sol. of Labor, November 24, 1930, 8/240.
Accordingly, the charge in the warrant of arrest will not be sustained. Since there appears to be no other ground of deportability indicated from this record, the proceedings will be terminated.
Order: It is ordered that the proceedings under the warrant of arrest issued November 19, 1949, and served January 20, 1950, will be terminated.