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parties resided. The statute involved is almost identical to the one in Pennsylvania. In holding that the offense did not involve moral turpitude, the Commissioner said, "* “*** It appears in some jurisdictions, including one State in this country (Rhode Island), that the marriage of an uncle and niece is permitted and valid. Statutory enactments rendering the same marriage void and criminal in other jurisdictions should not stigmatize such marriages as being inherently immoral." This position finds support in judicial as well as administrative decisions.5

The only question remaining is whether the State of Pennsylvania would regard the continued cohabitation therein of the petitioner and the beneficiary as criminal. It appears that they have cohabited in that State since their marriage in Rhode Island on December 6, 1950, and there is no showing of criminal action having been taken against them. Marriage is treated by all civilized nations as a peculiar and favored contract. The general rule we have stated is that between persons sui juris, the legality of marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere (Patterson v. Gaines, 47 U. S. 550; Van Storch v. Griffin, 71 Pa. 240; Story, Conflict of Laws, sec. 113). Infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights if the validity of the marriage contract were not to be tested by the laws of the country where it was made (2 Kent's Commentaries 92).

The foregoing rule, however, is subject to exceptions and cannot be applied to sustain polygamous marriages or one that is by all civilized nations regarded as incestuous and immoral. When we refer to incestuous marriages, care must be taken to confine the doctrines to such cases as by a general consent of all nations are deemed incestuous (Story, Conflict of Laws, sec 114). The reason for this exception seems to be that as the rule derives its force only from comity among civilized nations, it cannot avail to sustain a marriage which is forbidden by divine law. The marriage of persons within the degree of uncle and niece was not prohibited by common law. Marriages of uncle and niece are regarded as valid in many foreign countries and one State of the United States. It is countenanced by the Hebrew religion. The marriage with which we are here concerned is not, therefore, unlawful because incestuous within the

'Petition of Lieberman, 50 F. Supp. 121; U. S. v. Francioso, 164 F. (2d) 163, (C. C. A. 2, 1947); Rpt. of A. G., N. Y. State (1933), p. 83; In re L GC-5905500; In re N- D- P, C-6612714; In re S T— C-6287379.

'Harrison v. Burwell, 2 Ventris 9 (Eng.); Wightman v. Wightman, 4 Johnson's ch. 343 (N. Y.); Campbell v. Crampton, 2 Fed. 417, C. C. N. Y.

7 Russia, Poland, Germany, Italy; Rhode Island.

meaning of the general exception to the rule recognized by the law of nations.

The foregoing gives rise to another exception to the general rule insofar as the States of the United States are concerned. It may be stated thus: When a State by statute prohibits marriage between persons related in a certain degree expressly upon the ground that such marriages are "contrary to God's law," and a citizen of that State marries in violation of such prohibition while in another State where the marriage is lawful, such marriage will, upon the return of the citizen to his own domicile, be held invalid by the courts of that domicile.

We must, therefore, consider the provisions of the Pennsylvania statute and the cases construing that statute in light of the foregoing principles to determine whether the parties to this proceeding, by their continued cohabitation in the State of Pennsylvania, would be subjected to criminal prosecution on the basis of a marriage lawfully contracted in the State of Rhode Island. That portion of the statute pertinent here merely says, "Whoever *** intermarries within the degrees of consanguinity or affinity*** is guilty of incest ** *” The statute does not in express terms attempt to fix upon persons domiciled in Pennsylvania a personal incapacity to marry within the prohibited degrees outside the State of Pennsylvania, nor does the statute expressly declare such a marriage to be immoral or contrary to divine law. The statute makes no reference to the existence of the marriage relationship or cohabitation in Pennsylvania as man and wife.

The only criminal prosecutions that we can find in the reported cases of Pennsylvania concern that portion of the statute which deals with incestuous fornication and incestuous adultery. True, the courts of Pennsylvania have held that marriages contracted under the conditions here presented are encumbered with certain legal disabilities if the parties thereto seek the protection of the Pennsylvania courts. However, in every instance that we have been able to find, the legal disability concerns the contractual obligation. Thus it has been held that a citizen of Pennsylvania who married his niece in Rhode Island may take advantage of the illegality in a subsequent action for divorce filed in the Pennsylvania court (Weiss v. Weiss, 6 Pa. D. & C. Rep. 669 (1925)). As stated above, the Pennsylvania courts have held that such a marriage is voidable and not void, (Parker's Appeal (supra)). The Pennsylvania courts have also held that where a marriage similar to the one here under consideration has not been dissolved during the

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Commonwealth v. Bruce, 4 P. L. J. 14 (1845); Commonwealth v. Jenkins, 46 D. & C. 677 (1942); Commonwealth v. Gieringer, 16 Berks County L. J. 112 (1923); Commonwealth v. Wigenroth, 38 Lancaster L. R. 413 (1923).

lifetime of the parties, its legality may not be inquired into after the death of either spouse (Walter's Appeal, 70 Pa. 392).

The language of the statute, giving the word "intermarries" its usual and ordinary meaning, in our opinion refers to the original making of the contract or the ceremony of marriage. The implications arising from the reported cases and subsequent legislation referred to herein, when coupled with the fact that the statute does not expressly state that the legislative action was taken as a declaration that the marriage status of cohabitation is contrary to divine law or immoral, leads us to conclude that the general rule as to the validity of foreign marriages prevails insofar as the subsequent criminal prosecution of the parties hereto is concerned. In the absence of authority to the contrary, we are not warranted in assuming that it was the intention of the Legislature of the State of Pennsylvania to criminally prosecute persons lawfully married in Rhode Island because they cohabit in Pennsylvania where the celebration of such marriages is unlawful. The position we take is supported by a letter dated April 14, 1952, from the deputy attorney general of the State of Pennsylvania wherein he cites the case of Parker's Appeal (supra), as authority that a marriage of an uncle and a niece is voidable and not void ab initio. Under the circumstances, therefore, it would hardly seem reasonable that the State of Pennsylvania would criminally prosecute the parties to such a marriage prior to the litigation of its validity. The appeal will be sustained.

Order: It is directed that the appeal be and the same is hereby sustained.

IN THE MATTER OF L B——— D————

In EXCLUSION Proceedings

1300-122155

Decided by Board April 29, 1952

Decided by Attorney Genral June 11, 1952

Citizenship-Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941-Revised Statutes 1993, as amended by act of May 24, 1934— Retention conditions-Section 201 (g) and (h) of the Nationality Act of 1940. (1) A child who acquires United States citizenship by birth abroad on September 12, 1935, to a citizen parent who had resided in the United States prior to the birth of the child under Revised Statutes 1993, as amended by the act of May 24, 1934, is subject to the provisions found in section 201 (g) and (h) of the Nationality Act of 1940, relating to retention of citizenship. As a general rule, if such child does not return to the United States by the time he reaches the age of 16, so that it becomes impossible for him to complete 5 years' resiIdence in the United States before reaching the age of 21 years, he becomes divested of his American citizenship.

(2) However, when the individual's failure to comply with the provisions of section 201 (g) and (h) of the Nationality Act of 1940, was not the result of his own inaction or lack of diligence, he will not be held to have lost his American citizenship. When a showing is made that the individual has acted diligently in his efforts to reach the United States before he attained the age of 16 years and that his inability to arrive prior to that date was due to the failure of a consular officer to provide timely documentation (United States passport), the individual is not regarded as having been divested of his United States citizenship under the pertinent provisions of the Nationality Act.

Editor's note.-This decision overrules the conclusion reached by the Acting Attorney General on March 23, 1951, in Matter of LW— Y, Int. Dec. No. 242.

BEFORE THE BOARD

(April 29, 1952)

Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on December 13, 1951, affirming the appellant's exclusion on the above-stated grounds and paroling him into the United States for a period of 90 days to permit him to adjust his immigration status. Counsel in his exceptions to the order relies upon two recent decisions of the United States District Court of the

260397-54- -42

Ninth Circuit1 which hold that where the delay in entering the United States was due to reasons beyond the control of the applicant, expatriation under section 201 (g) and (h) of the Nationality Act of 1940 (8 U. S. C. 601 (g) and (h)) does not follow. Counsel moves for a review of a ruling by the Attorney General 2 which is consistent with the action taken by the Acting Assistant Commisioner but contra to the interpretation of the foregoing sections of the Nationality Act of 1940 by the District Courts of the Ninth Circuit.

The facts of the case are fully stated in the opinions below. Briefly they relate to a native of China who alleges birth on September 12, 1935, of an alien mother and a United States citizen father, L

W- J———. There is an affirmative showing that the citizen father was in China for the period necessary for paternity of the appellant (January 1931-May 1937). The appellant seeks to enter as a derivative citizen under the provisions of section 1993 of the Revised Statutes, as amended by the act of May 24, 1934. A preponderance of the evidence favors the claimed relationship. The only issue presented is whether the appellant is entitled to enter as a citizen in view of the provisions found in section 201 (g) and (h) of the Nationality Act of 1940 respecting retention of citizenship.

There is a showing of record that the appellant departed from Hong Kong on September 12, 1951, on a Philippine Airlines plane destined for San Francisco and first reached United States territory when the plane arrived at Guam on September 13, 1951, at 1:41 a. m. local time. If the appellant had arrived in the United States or any of its possessions prior to 12: 01 a. m. on September 12, 1951, he would have "taken up residence" by the time he reached the age of 16 years within the meaning of section 201(g) (supra, footnote 3). There is an affirmative showing that the delay in the appellant's arrival appears to have been due in large measure to a factor over which he had

1

Lee Bang Hong aka Bung Hong Lee by Lee Chin Fat, his natural guardian, Plaintiff v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 1052, U. S. D. C., District of Hawaii; complaint filed under sec. 503, Nationality Act of 1940 (8 U. S. C. 903); judgment for the plaintiff November 29, 1951; Hong Yick Foo and Hong Yick Ming, Plaintiffs v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 29428, U. S. D. C., N. D. Calif., Southern Div., October 12, 1951; complaint filed pursuant to sec. 503, Nationality Act of 1940 (8 U. S. C. 903); judgment for the plaintiff October 12, 1951.

2 Matter of L

W

Y——, A-7821371, decided by the Acting Attorney General March 23, 1951, Interim Decision No. 242.

3 Sec. 201 (g) of the Nationality Act of 1940 provides:

"If the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of 16 years or if he resides abroad for such a time that it becomes impossible for him to complete the 5 years' residence in the United States or its outlying possessions before reaching the age at 21 years, his American citizenship shall thereupon cease."

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