Interim Decision #2871

Interim Decision #2871

MAll.•R OF RODRIGUEZ-CRUZ

In Visa Petition Proceedings

A 23050125

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Decided by Board June 10, 1981

(1) Pursuant to Article 130 of the Constitution of Mexico, only marriages contracted in

accordance with civil formalities are recognized in Mexico.

(2) A religious marriage ceremony in Mexico does not result in a valid marriage, despite

the parties' intention that it be such. Matter of A-E-, 4 I&N Dec. 405 (BIA 1951),

reaffirmed; Molter of K-, 7 l&N Dec. 492 (BIA 1957), overruled.

(3) Since the petitioner and the beneficiary's mother did not enter into a civil marriage

ceremony in Mexico until the beneficiary had already reached the age of 22, be cannot

meet the 18-year age requirement for legitimation in accordance with section 101(b)(1)(C)

of the Immigration and. Nationality. Act, 8

1101(b)(1XC).

ON DriNALL' Or Psurtorien: William. Stahl, Esquire

Stahl & Gardner

4040 Moorpark Avenue

San Jose, California 95117

BY: Affihollan, Chairman; Maniatis, Maguire, and Morris, Board Members

This is an appeal from the March 5, 1979, decision of the District

Director. denying the visa petition fled by the United States citizen

petitioner on behalf of the beneficiary as his son under section 203(a)(1)

of the Immigration and Nationality Act, 8 U.S. C. 1153(a)(1). The appeal

will be dismissed.

The United States citizen petitioner was born on February 4, 1927, in

Garland, Texas. The beneficiary is a 30 year old native and citizen of

Mexico. The District Director denied the visa petition based on his

finding that the beneficiary was born illegitimate and had been legitimated, by the marriage of his parents after he had reached the age of

18. He concluded therefore that the beneficiary could not qualify as the

child of the petitioner under section 101(b)(1)(C) of the Act, 8 U.S.C.

1101(bX1)(C), and consequently Could not be conferred visa preference

status as the son of the petitioner.

In order for a United States citizen to confer visa-preference status

upon the beneficiiry he must once have qualified as a "child" under

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Interim Decision #2871

section 101(6) of the Act, 8 U.S.C. 1101(b). Section101(b)(1)(C) of the

Act provides that:

The term "child" means an unmarried person under twenty-one years of age who is -(C) a child legitimated under the law of the child's residence or domicile, or under the

law of the father's residence or domicile, whether in or outside the Unitedi States, if

such legitimation takes place before the child reaches the age of eighteen years and the

child is in the legal custody of the legitimating parent or parents at the time of such

legitimation.

On appeal, the petitioner argues that the beneficiary qualifies as his

child since he entered into a religious marriage with the beneficiary's

mother on March 13, 1949, more than a year prior to the beneficiary's

birth. Contained in the record is a marriage certificate issued by. the

Vicaria Fija de San Miguel Arcangel in Uriangato, Guanajuato, Mexico,

verifying, the 1949 religious marriage of the p etitioner and the beneficiary's

mother. Also included in the record- is a marriage certificate issued by

the Guanajuato Civil Registrar which indichtes that the beneficiary's

parents entered into a civil marriage ceremony on November,

, 1972

Counsel for the petitioner contends that the question of the validity of

religious marriages, particularly in Mexico, is governed by the intent of

the parties. He cites Matter of K-, 7 I&N Dec. 492 (BIA 1957), for the

proposition that where the evidence of record indicates that the foreign

religious marriage was entered into in good faith and recognized by

the parties thereto, the validity of the marriage was presumed in the

absence of evidence to the contrary, reliance being had on the presumption in favor of the validity of a marriage and that the formalities of law

had been complied with.

The petitioner's reliance on Matter of K-, supra, is misplaced. The

generally accepted rule is that the validity of a marriage is governed by

the law of the place of celebration. See Matter of P-, 4 I&N Dee. 610

(A.G. 1952; BIA 1952); Matter of Freeman, 11 I&N Dec. 482 (BIA

1966). Article 130 of the Constitution of Mexico, in force at the time of

the 1949 religious marriage of the beneficiary's parents, provides:

Marriage is a civil contract. This and other acts concerning the civil status of persons

are within the exclusive competence of civil officials and authorities in the manner

prescribed by law. These acts shall have the force and validity attributed to them

thereby.

In Matter of A-E-, 4 I&N Dec. 405 (BIA 1951), we held that a religious marriage ceremony in Mexico does not result in a valid marriage,

notwithstanding the parties' intention that it be such. See also Matter of

Magana, 17 1&N Dec. 111 (BIA 1979). To the extent that Matter of

K-, supra, is inconsistent with Matter of 4-E-, supra, it is expressly

overruled. Since the religious marriage in question here was not performed in accordance with civil formalities, it did not result in a valid

marriage under Mexican law, despite any intent on the part of the

petitioner and the beneficiary's mother that it be such.

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Interim Decision #2871

In visa petition proceedings, the burden of proving eligibility for the

benefit sought rests with the petitioner. Matter of Brantigan, 11 LAN

Dec. 493 (BIA 1966). The law of a foreign country is a question of fact

that must be proven by the petitioner if he wishes to rely on it. Matter of

DMllon, 16 I&N Dec. 373 BIA 1977); Matter of Annang, 14 I&N Dec.

502 (BIA 1973). The petitioner has not presented any evidence to establish that the 1949 religious marriage would be recognized as valid under

the law of Mexico or the State of Guanajuato in effect at the time of the

marriage. Since the petitioner and the beneficiary's mother did not

enter into a civil marriage ceremony until 1972 when the beneficiarzhad

already reached the age of 22, the beneficiary cannot meet the 18-year

age requirement for legitimation in accordance with section 101(b)(1)(C)

of the Act. Consequently, the petitioner cannot confer visa-preference

status on the beneficiary as his son. The appeal, accordingly, will be

dismissed.

ORDER The appeal is dismissed.

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