VP 13-I-24150
Decided by Board November 20, 1956
Preference quota status — Section 203 (a) (3), Immigration and Nationality Act — Marriage by Japanese custom.
Petitioner and adult beneficiary were married on September 26, 1932, at Los Angeles, California, by Japanese custom. The evidence establishes that the marriage of the parties was duly noted in a separate family registration in a Japanese Government office on February 23, 1942, when both parties were present in Japan, and that subsequent thereto there was cohabitation between the parties. This constitutes a valid marriage under the provisions of the Japanese Civil Code for immigration purposes (see Matter of H---- H----, VP 16-5039, 6 IN Dec. 278, and Matter of B----, VP 8-14341, 6, I. N. Dec. 522). Therefore, the petitioner's wife and 4 minor children, born in Japan subsequent to the date the marriage was recorded, are eligible for preference quota status under section 203 (a) (3) of the act.
BEFORE THE BOARD
Discussion: This matter comes forward on appeal from the order of the District Director, Los Angeles District, dated June 14, 1956, denying the visa petition on the ground that the marriage agreement entered into in Los Angeles, California, on September 26, 1932, was not a marriage and, therefore, subsequent residence in Japan could not create a valid marital status.
The petitioner, a permanent resident alien, seeks preference status under section 203 (a) (3) of the Immigration and Nationality Act on behalf of his wife and 4 children who were born in Japan on May 8, 1942, October 3, 1943, February 23, 1945, and December 2, 1946. The petition sets forth that the petitioner married his wife on September 26, 1932, at Los Angeles, California, by Japanese custom. It is further indicated that the petitioner resided in Japan from April 8, 1940, to August 7, 1954, and was admitted as a returning resident on August 19, 1954. The petitioner has submitted an affidavit to the effect that he and his wife were present in Japan on February 23, 1942, when registration of separation of household was filed with the Japanese Government office. The file contains a certification from the Japanese Consul at Los Angeles, California, dated March 3, 1956, that pursuant to the Civil Code of Japan (section 775) in effect in 1942, that the registration of a separation of household on February 23, 1942, with statement of marriage of K---- S---- and K---- S---- as noted thereon with the presence of the parties in Japan legalizes said marriage heretofore recognized under registration as of that date. The file also contains an original translation of the K---- tohon (family record) showing the reporting of the marriage on September 26, 1932, and the transfer to a separate register of the separation of household on February 23, 1942. It is the contention of counsel that when the separation of household registration was filed with the appropriate Japanese office by the petitioner who was then present in Japan with his wife, such registration constituted the act of marriage. It is pointed out in addition that the marriage was thereafter consummated in Japan as witnessed by the birth of children subsequently.
Article 739 of the Japanese Civil Code provides that a marriage becomes effective by notification thereof in accordance with the provisions of the Family Registration Law. The notification mentioned must be made by both the parties and 2 or more witnesses of full age, either orally or by a document signed by them. As enforced, the act of notification consists of acceptance by the registrar, a government official having custody of official family records, of the application by both parties for insertion in the family register of the fact of marriage. Legally this constitutes the total act of marriage. A ceremony is neither a prerequisite to nor a part of the notification process. The date of marriage is the date on which the entry is made in the family register ( Matter of B----, VP 8-14341, 6 IN Dec. 522 (1955); Matter of H---- H----, VP 16-5039 6 IN Dec. 278 (1954)).
The evidence establishes that the marriage of the parties herein was duly noted in a separate family register on February 23, 1942, when both parties were present in Japan and that subsequent thereto there was cohabitation between the parties. The opinion expressed by the Japanese consul general as to the validity of the marriage appears to be in accord with the provisions of the Japanese Civil Code and with prior decisions to the effect that the registration of the marriage constitutes a valid marriage for immigration purposes. It is concluded that the evidence establishes a valid marriage and that the visa petition should be approved.
Order: It is ordered that the visa petition be approved for preference status under section 203 (a) (3) on behalf of the beneficiaries.