Decided by Board December 22, 1950
Marriage — Validity of "proxy" marriage — Provisions of section 28 (n) of the Immigration Act of May 26, 1924.
In view of the provisions of section 28 (n) of the Immigration Act of May 26, 1924, that the terms of "wife" and "husband" do not include a wife or husband by reason of a proxy marriage, the proxy marriage celebrated abroad under the circumstances in this case, though valid there was an insufficient basis for granting a visa petition by the citizen spouse for a nonquota status under section 4 (a) of the above act for his alien wife.
BEFORE THE BOARD
Discussion: Petitioner filed a visa petition for nonquota status under section 4 (a), act of 1924, for his wife, M---- B---- W----, and daughter J---- E---- W----. Petitioner, a 23-year-old, native-born United States citizen, was stationed in Italy with the United States Army from August 8, 1946, to August 26, 1948, reentering this country at New York on September 7, 1948, aboard the S.S. General Callan.
From about February 1946 to August 23, 1948, petitioner was stationed in Trieste and lived with beneficiary M---- and her family. Petitioner stated that although he and M---- had considered marrying before he left Italy, they took no actual steps toward this end. However, petitioner said that when he learned in October 1948 that M---- was pregnant, he began to plan a proxy marriage. The marriage took place on March 21, 1949, in a Church ceremony in Trieste with petitioner being represented by an Army friend to whom he had given a power of attorney. When the marriage occurred, respondent was in Cheyenne Wells, Colo. Then 10 days later on March 31, 1949, beneficiary J---- E---- was born in Trieste. Petitioner admits that she is his child and now wishes both mother and child to join him in the United States.
The Assistant Commissioner denied the visa petition, because section 28 (n), act of 1924, excludes a wife by a proxy marriage from the general term "wife" and also because the parties have not co-habited since the date of the marriage.
Although proxy marriages are valid under the laws of Italy, such marriages are not recognized by specific provision of the 1924 act. Hence, the visa petition for wife, M----, cannot be granted. However, if the marriage is considered valid under the laws of Italy, the place where the ceremony was performed, and the laws of the father's domicile and the child is recognized as legitimated, then the child is a citizen. Order: It is hereby ordered that the appeal be dismissed.
The law of the lex loci celebrationis, of course, controls the validity of proxy marriages as it does other types of marriages. Silva v. Tillinghast, 36 F. (2d) 801 (D. Mass., 1929); Cosulich Societa, etc. v. Elting, 66 F. (2d) 534 (C.C.A. 2, 1933). See also, Lorenzen, Marriages by Proxy and Conflict of Laws, 32 Harvard L. Rev. 473. It will be noted that the record reveals no lack of good faith on the part of the parties to the proxy marriage, rather it appears to have been an attempt to legitimate the child before birth.