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IN THE MATTER OF W

In VISA PETITION Proceedings

VP-423722

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, nativeWborn 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 Mhad considered marry

ing 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

*Editor's note.-In unreported Matter of L, VP-392123, C. O. September 23, 1949, a proxy marriage abroad (Azores) celebrated on June 23, 1945 according to the rituals of the Catholic Church, recognized as valid by the civil authorities abroad and the religious authorities, consummated abroad (Azores) on April 29, 1948, entitled the beneficiary husband under those circumstances to a nonquota status under sec. 4 (a) of the Immigration Act of May 26, 1924, it being held by the Central Office that such a proxy marriage upon consummation could be recognized as coming within the terms of the Immigration Act of May 26, 1924, notwithstanding the language of sec. 28 (n) of that act. (See Op. Sol. of Labor, April 6, 1933, 4/3328.)

his employment with the Boston Medical Supply Co., the SoconyVacuum Oil Co., the American Export Lines, Inc., the United States Army Air Transport Command, and the American consulate general all of such employment having been performed in Casablanca, Morocco, Africa, with the understanding that he shall prove to the satisfaction of the court wherein his admission to United States citizenship is proposed that he has been absent during those periods for the purposes described in the application and shall to the satisfaction of that court overcome the presumption raised by the statute that the continuity of residence required for naturalization has not been broken by reason of his absence from the United States for the period from March 1947 to October 17, 1947, an absence of more than 6 months but less than 1 year.

IN THE MATTER OF W

In VISA PETITION Proceedings

VP-423722

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

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Discussion: Petitioner filed a visa petition for nonquota status under section 4 (a), act of 1924, for his wife, M▬▬ B——— Wand daughter J—— E—— W— Petitioner, a 23-year-old, nativeborn 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

*Editor's note.-In unreported Matter of L, VP-392123, C. O. September 23, 1949, a proxy marriage abroad (Azores) celebrated on June 23, 1945 according to the rituals of the Catholic Church, recognized as valid by the civil authorities abroad and the religious authorities, consummated abroad (Azores) on April 29, 1948, entitled the beneficiary husband under those circumstances to a nonquota status under sec. 4 (a) of the Immigration Act of May 26, 1924, it being held by the Central Office that such a proxy marriage upon consummation could be recognized as coming within the terms of the Immigration Act of May 26, 1924, notwithstanding the language of sec. 28 (n) of that act. (See Op. Sol. of Labor, April 6, 1933, 4/3328.)

given a power of attorney. When the marriage occurred, respondent

Then 10 days later on March was born in Trieste. Petitioner

was in Cheyenne Wells, Colo. 31, 1949, beneficiary J-- Eadmits 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 cohabited 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.1

Order: It is hereby ordered that the appeal be dismissed.

1 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.

IN THE MATTER OF G-Y—G—

In EXCLUSION Proceedings

A-7491912

Decided by Board December 22, 1950

Approved by Acting Attorney General January 17, 1951

Seventh proviso relief-Section 3 of the act of February 5, 1917-DiscretionPolicy-Good moral character.

Whether an alien possesses sufficient good moral character and his case merits the favorable exercise of the discretion of the Attorney General under the seventh proviso to section 3 of the act of February 5, 1917, is determined from all the pertinent factors in the case; due consideration is given to the standards set forth by the Attorney General as well as the circumstances in each case in reaching such determination.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924-No immigration visa.

E. O. 8766-No passport.

Act of 1917-Convicted of crimes prior to entry, to wit:
Violation of Harrison Narcotic Act; and

Violation of Jones-Miller Act.

Act of 1917-Admits crime prior to entry, to wit: Perjury.

BEFORE THE BOARD

(December 22, 1950)

Discussion: This matter is before us by reason of an appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated September 27, 1950, wherein it was ordered that the excluding decision of the Board of Special Inquiry be affirmed in that at the time of arrival the appellant was an immigrant not in possession of an unexpired consular immigration visa as required under the provisions of section 13 (a) of the Immigration Act approved May 26, 1924 (8 U. S. C., sec. 213 (a)); and, that he admitted the commission of a crime involving moral turpitude; to wit: perjury and is therefore inadmissible because of the provisions of section 3 of the act of February 5, 1917 (8 U. S. C., sec. 136). Subject had no passport.

Section 13 of the act approved May 26, 1924 (supra), provides that— no immigrant shall be admitted to the United States unless (1) he has an unexpired immigration visa.

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