M

HOTTER OF

In DEPORTATION Proceedings

A-10335093

Decided by Board December 23, 1958

Nonoonto status—Alien spouse not entitled to nonquota status where marriage

was contracted solely to obtain quota exemption.

Respondent's marriage to a United States citizen spouse, contracted solely to

facilitate his admission to the 'United States, does not entitle him to issu-

ance of a nonquota visa. Where no bona fide husband-wife relationship was

intended, the marriage is deemed invalid for immigration purposes regard-

less of whether it would be considered valid under the domestic law of the

jurisdiction where performed.

CHARGES;

Order: Act of 1912—Section 241(a) (1)—No valid immigrant visa.

Act of loan — Section 241(a) (1)—Not nonquota immigrant as speci-

fied in immigrant visa.

BEFORE THE BOARD

Discussion: This is an appeal from the order of the special

inquiry officer requiring respondent's deportation upon the charges

shown above. The appeal will be dismissed.

The facts have been stated in detail by the special inquiry Maer.

Briefly, respondent, a 25-year-old male, native and citizen of Greece,

obtained a nonquota visa on the basis of his marriage on May 11,

1956, to a United States citizen. On February 14, 1957, he was

issued the visa and was admitted to the United States for perma-

nent residence on the same day. The Service claimed, and the

special inquiry officer found, that a valid marriage did not exist

between the parties because neither of the parties intended to enter

into a board fine marriage relationship, the marriage being entered

into merely to enable the respondent who was illegally in the United

States to become a permanent resident. Counsel argues that this

finding was wrong because the parties considered themselves married

and because the State of Pennsylvania where the marriage occurred

considers the marriage valid. In support of this argument, counsel

alleges that the alien attempted to live with his wife but was frus-

trated by her refusal to co-operate. As further evidence that the

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parties regard themselves as married, counsel points out that the

respondent has filed suit for divorce. Counsel cites Lamictmann v.

Leovewoom.‘, 171 Pa. Superior Ct. 147, 89 A. 2d 897, and Bose v.

Pineiotti, 46 District Court 159, in support of the proposition that

a valid marriage occurred here. The Service representative argues

that the issue is the intent of the parties at the time they enterd

into the marriage, and that the record conclusively establishes that

at that moment neither party intended to enter into a band fide

marriage relationship.

We believe the rule to be drawn from the cases is that an alien

is not legally entitled to receive a nonquota visa as the spouse of a

citizen unless a valid marriage existed when the visa was issued and

that even if the marriage is considered valid in the place where

it is performed, it cannot serve as the basis for th e proper inane of

a nonquota visa to a "spouse" of the marriage unless there is a

bona fide husband and wife relationship in existence.

There is a serious question as to whether the marriage here would

be, considered valid by the State of Pennsylvania. Lanli.ennamt was

an action for annulment on the ground that the marriage ceremony

had been gone through in jest, neither party intending to contract

a valid marriage. The parties to the marriage had married on a

dare; they had agreed that they would get married but would wait

about six months to decide whether they wanted to 'take it seri-

ously'. The marriage was never consummated. The mart ;dated

that the marriage ceremony had not been performed 'in jest', and

that it was not void oh initio because the parties had agreed that

the marriage should be a trial marriage and that either of the

parties had a six-month option to cancel it. Lannetnuinn is distin-

guiohoblo because the court found the parties had agreed to be

married but would decide later whether to cancel it. In the instant

case the parties did not agree to take the marriage seriously for any

period of time.

Bo-re was an action for annulment. It concerned two minors who

had sexual relations and married upon the understanding they

would not live together as husband and wife, and that they were

going through the ceremony for the sole purpose of giving a name

to a child whom they believed had been conceived from their rela-

tions. In fact, the child was never born. Later, the wife did bear

a child, which according to her testimony was begotten by another

man subsequent to the marriage. The court refined to greet an

annulment stating it would not permit the child to be bastardized

by the presumed parents, and that the marriage had been entered

into in due form and was therefore not void at initio. While this

case is some support for counsel's position, it can be differentiated

from the instant situation on the ground that declaration of the

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marriage's invalidity would have bastardized a child. This would

have been against public policy. In the instant case, the only child

involved is an illegitimate child had by the wife prior to the "mar-

riage." There is no claim that the respondent is the father of the

child. Moreover, counsel has failed to take cognizance of the ex-

istence of authority, contrary to her position, also from a court of

original jurisdiction. In Osgood v. Moore, 38 D. & C. 263, C. P.

Tioga County (1941), a petition for divorce was filed by Osgood.

Osgood and Moore had gone through a marriage ceremony with the

understanding that the ceremony was not to be effectual to make

them man and wife; that it was not to be consummated; and that

they were not to live together as man and wife. The purpose of the

marriage was to give a name to the unborn child of Moore who

claimed that Osgood was the father of the child. Osgood denied

paternity. After the marriage, the parties went to the homes of

their respective parents and the marriage was never consummated.

The court held that no valid marriage had taken place. The court

stated "mutual consent and bona fide agreement of the parties,

freely given and with the intention of entering into the valid state

of wedlvek, are fundamental and essential elements, without which

the marriage is invalid unless consummated by cohabitation." The

court held that since there had been no agreement to enter into the

relation s hip, there was no marriage.

Questions of public policy which require a state to hold a mar-

riage valid where it was entered into with the understanding that

it was one of form only, should not be determinative in cases inter-

preting the immigration laws. The matter of primary importance

in the immigration case involving the quota is the maintenance of

quota safeguards which have been enacted into the law. These

quota safeguards are waived for the alien spouse of a -United States

citizen. He is given the right to join his citizen spouse without

the delay involved in qualifying under the quota. This facilitation

of the entry of the alien was not done to create an exemption from

the quota, but to expedite the reunion of families in the United

States. Therefore, we must interpret the law so that it will not

create the waiver if the actual reunion of a family is not involved.

This requires the alien who seeks the waiver to establish that his

"marriage" is one which envisions life together with the citizen

spouse. The evidence of record here strongly proves that this mar-

riage was not entered into to establish a life together or to create

the relationship commonly understood as a "marriage," but rather

that it was entered into to obtain an exemption tinder the quota

and for no other reason and that this was the situation at the time

the visa was granted. Such a marriage where a bane fide husband

and wife relationship is not, seated does not entitle the alien to the

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issuance of a nonquota visa (Lutwal,- v. United States, 344 U.S. 604;

Giznyoulias.v. Landon., 226 F2d 356 (C.A. 9, 1955); United States

v. Itubenseet,,, 151 Fed 91.5 (C.A. 2, 1945), cart, den. 326 U.S. 766).

We have carefully examined the evidence of record and conten-

tions of counsel concerning it. We find that the record clearly

justifies the finding of the special inquiry officer that the parties did

not intend to consider themselves as husband and wife. We find

no prejudicial error committed. The appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby

dismissed.

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