A-8609551
Decided by Board April 24, 1956
Marriage — Effect of annulment — Misrepresentation as to marriage — Excludability under section 212(a)(19), Immigration and Nationality Act.
(1) A decree annulling a marriage does not relate back so as to validate an attempted second marriage entered into by one of the parties prior to the rendition of the annulment decree. (Cf. Matter of M----, A-3697183, 3 IN Dec. 25 (1947); Matter of B----, A-3170648, 3 IN Dec. 102 (1947); Matter of R----, A-6600292, 4 IN Dec. 345 (1951).)
(2) An alien who was married for a second time in 1953 during the existence of a prior lawful marriage contracted in 1948 is held to have procured his immigrant visa by fraud or willfully misrepresenting a material fact when he concealed from the consul on January 17, 1954, the fact that his legal wife was the one to whom he was first married and represented the woman of his second marriage as his legal wife. The fact that he subsequently obtained a Mexican decree of annulment of his first marriage does not alter this conclusion.
(3) At the time of his last entry on July 17, 1954, the alien was inadmissible under section 212 (a) (19) of the Immigration and Nationality Act as one who has procured a visa by fraud or mispresentation and, hence, is deportable under section 241 (a) (1) of the act.
CHARGES:
Warrant: Act of 1952 — Excludable at entry — Admits crime — Bigamy.
Lodged: Act of 1952 — Visa procured by fraud or misrepresentation. Act of 1952 — No immigrant visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer dated November 28, 1955, directing the respondent's deportation solely on the lodged charges.
The respondent is a 27-year-old male, native and citizen of Mexico, who last entered the United States on July 17, 1954, as a returning resident upon presentation of a Form I-151 (alien registration receipt and border-crossing card). He had been admitted for permanent residence on January 20, 1954. The respondent married J---- C---- in Texas on January 19, 1948, and during the existence of this marriage he married R---- G---- on December 11, 1953. In his application for the immigrant visa, with which he secured admission on January 20, 1954, the respondent stated that his wife was R---- G---- de R---- and concealed the fact that his legal wife was J---- C----. During the reopened hearing on August 9, 1955, a Mexican decree and translation, purporting to annul the respondent's first marriage, were introduced into evidence. The special inquiry officer concluded that the respondent was excludable at the time of his last entry on July 17, 1954, because he had procured an immigrant visa on January 17, 1954, by fraud or by willfully misrepresenting a material fact and because his Form I-151 was not a valid entry document on July 17, 1954, in view of the fraud connected with the procurement of the original visa.
The respondent lived with his first wife about 6 months after the marriage, following which there was a short separation. A child was born to his wife about 10 months after the marriage. About 3 months thereafter the respondent voluntarily returned to live with J---- C---- and they lived together for 10 or 11 months. They have been separated since that time.
Counsel contends that the first marriage was not a lawful marriage for a number of reasons. He asserts that the marriage ceremony was in English, which the respondent does not understand, and that the respondent acted under duress, the latter assertion being based upon testimony of the respondent that he was about 19 years of age at the time; that he was illegally in the United States; and that he was threatened with arrest by deputy sheriffs of Hidalgo County if he should refuse to marry J---- C----. The respondent denied that he had had sexual relations with J---- C---- prior to their marriage. J---- C---- made a sworn statement on September 7, 1954, indicating that she was about 15 years of age at the time of the marriage and that there was no irregularity connected with it. Exhibit 2 is a document relating to this marriage which contains the certification of a justice of the peace that he united the respondent and his first wife in marriage. In view of this certification, the testimony of the respondent's first wife and the respondent's own testimony in 1954, we believe the first marriage has been amply established. The only evidence proffered of duress is the respondent's testimony and we find it to be entirely insufficient on that point.
Counsel also attacks the validity of the marriage by asserting that the respondent did not have a blood test at that time; that he never signed anything; and that he never had an agreement with J---- C---- to be man and wife subsequent to the marriage ceremony. Counsel has cited no authority that these were prerequisites for a valid marriage under the laws of Texas when the first marriage occurred on January 19, 1948. Exhibit 2 includes a license to marry which was issued by the Clerk of the County Court of Hidalgo County and we must assume, therefore, that the parties were found qualified to contract marriage and had complied with the legal requirements. Hence, these contentions of counsel are dismissed and we conclude that the first marriage was a valid one.
Counsel also contends that the dismissal of a bigamy charge against the respondent shows that the first marriage was not valid. Exhibit 6 establishes that case No. 7621 against the respondent was dismissed on June 16, 1955, on motion of the Criminal District Attorney. The record does not show that this was a prosecution for bigamy but we have no doubt that that is correct. The dismissal of the charge was specifically predicated on a lack of sufficient evidence to convict. We are not concerned in this proceeding, however, with the question of whether the respondent committed the crime of bigamy but only with the question of the validity of the first marriage.
The remaining question is the legal effect of the Mexican decree annulling the first marriage. Since the first marriage was performed in Hidalgo County, Texas, and the party seeking the annulment (the respondent) was a resident of that county, it would seem that the suit should have been instituted there. Counsel stated that it was instituted in Mexico because of the pending bigamy charge against the respondent in Hidalgo County. We are aware, of course, that the respondent's first wife was residing at Reynosa where the annulment decree was entered and we pretermit the question of whether the Secretary to the Mixed Justice of the Peace Court in Reynosa (acting as judge) had authority and jurisdiction to issue the decree of annulment.
In considering the effect of annulment of a marriage under the laws of New York and of the District of Columbia, we held that the marriage was not annulled ab initio ( Matter of M----, A-3697183, 3 IN Dec. 25 (1947); Matter of B----, A-3170648, 3 IN Dec. 102 (1947); Matter of R----, A-6600292, 4 IN Dec. 345 (1951)). It has been specifically held that a decree annulling a marriage does not relate back so as to validate an attempted subsequent marriage entered into by one of the parties prior to the rendition of the annulment decree ( Tetterton v. Arctic Tankers, Inc., et al., 116 F. Supp. 429, 432 (E.D. Pa., 1953)). When the respondent stated to the American consular officer on January 17, 1954, that the name of his wife was R---- G---- de R----, his marriage to J---- C---- was still in existence and had not been annulled. In view of the foregoing, it is our considered opinion that the respondent procured the visa on January 17, 1954, by fraud or by willfully misrepresenting a material fact. It follows that the two charges which were lodged at the hearing are sustained. Accordingly, the appeal will be dismissed. Order: It is ordered that the appeal be and the same is hereby dismissed.