A-7445502
Decided by Board June 14, 1951
Marriage — Validity of religious marriage in Mexico — Recognition of common-law marriage in State of Texas — Legitimation of child in Texas, by marriage with recognition by the father.
(1) A religious marriage ceremony in Mexico did not result in a valid marriage regardless of parties' intention that it be such.
(2) A valid common-law marriage was perfected in Texas in 1941 by the parties in this case under sections 17, 18, 20, and 28, Texas Jurisprudence (pp. 714-720).
(3) Under Texas law, marriage with recognition by the father, are the requirements for legitimation.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1918 — Executive Order 8766 — No passport.
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Assistant Commissioner dated July 19, 1950, affirming a majority opinion of a Board of Special Inquiry finding the subject of this record to be an alien, and excluding him from admission to the United States on the above-stated charges. The dissenting member of the Board of Special Inquiry found the subject to be a citizen of the United States.
The subject applied for admission to the United States at Brownsville, Tex., on April 7, 1950. He stated he wished to enter this country and work. At that time, he testified he was 23 years of age, single, a laborer, white, and that he was born at Durango, Mexico, on February 27, 1927. He stated that his father was a native and citizen of Mexico and that his mother was a citizen of the United States.
Regarding the issue of appellant's citizenship, appellant's father testified that in 1922 or 1923 he entered the United States, and thereafter fell in love with appellant's mother; that he and appellant's mother left this country for Mexico; and that they lived together as man and wife in Mexico without being married. After the couple had lived in Mexico for 3 or 4 years, the Holy Fathers came to the Rancho la Negra, where appellant's parents were residing, and baptized children who had not been baptized and married couples who were living together and who had not been married. The father stated that he and the appellant's mother were married at this time as were other couples. No marriage papers were given appellant's parents; nor was any record made at the church of the marriage. The father stated that the appellant was born in Mexico on August 22, 1927. Several other children were born in Mexico of the union; and later two children were born in the United States. Appellant's father testified that he believed the marriage ceremony by the Holy Fathers united him and his wife into a valid, binding marriage. However, the two were married by civil ceremony in San Benito, Tex., on November 13, 1949. The marriage took place to aid in adjusting the father's immigration status. The family has lived in the United States since 1941. The testimony of the appellant's mother was in substantial agreement with that of the father.
Appellant's mother has satisfactorily established that she is a United States citizen. The appellant made no direct claim to United States citizenship. The civil marriage in the United States between appellant's parents took place after he had attained his majority.
The majority of the board of special inquiry is of the opinion that the appellant is a native and citizen of Mexico, that he did not gain United States citizenship through his mother because the mother and father were legally married in their own beliefs in Mexico, that the only reason the parents were married by civil ceremony in the United States was because the father believed such marriage would help him in legalizing residence under 19 (c) of the Immigration Act of 1917, as amended.
The chairman of the board of special inquiry, who dissented, was of the opinion that the appellant is a United States citizen, having acquired such as the illegitimate son of a United States citizen woman. The chairman argues that common-law marriages are not recognized in Mexico; that they were not when the appellant was born; and that belief of a valid marriage did not in fact constitute a marriage.
The Mexican law relative to the validity of marriages is stated in the Mexican Constitution of February 5, 1857, as amended by the act of September 25, 1873 (a similar provision being contained in par. 3, art. 130, of the Mexican Constitution of 1917), which reads as follows:
"Marriage is a civil contract, Marriage and any other acts of a person's civil status are in the exclusive competence of the officials and authorities of the civil government in the terms provided by the laws, and they shall have the force and validity that the same attributes to them."
The Assistant Commissioner has concluded that the appellant is an alien. In his opinion it is stated that in determining the validity of religious marriages in Mexico such marriages are held to be valid in certain cases and invalid in others, the determination being based solely on facts and evidence of record. In support of this position, the following cases are cited: Matter of T----, AA-4033 (December 14, 1945); Matter of F----, 55837/836 (September 19, 1933); Matter of de V----, 56028/60 (February 9, 1940); Matter of V----, A-3085307 (56032/907) (April 25, 1944); Matter of R de I----, A-6518794; Matter of S----, A-6248084 and A-6248085 (September 2, 1947); Matter of P----, 2270-C-3771176 (September 6, 1933); and Matter of W----, 1502-2733 (August 18, 1948).
Most of those are not precedent decisions and their use in support of the Service's position has little value. Matter of de V----, 56028/60, decided February 9, 1940, by the then Board of Review, and Matter of V----, A-3085307 (56032/907), decided April 25, 1944, by the Board of Immigration Appeals, concerning the validity of religious marriages in Mexico, are pertinent to the instant proceedings and will be discussed briefly. In the Matter of de V---- ( supra), it was held that marriage of a female alien only by religious ceremony in Mexico did not divest her of United States citizenship acquired at birth. This appears to be at variance with the decision in the Matter of V----. That case related to a woman who was married in Mexico on March 17, 1904, by a religious ceremony to a native and citizen of Mexico. The husband was naturalized in Colorado on September 28, 1920, and in his naturalization record stated that he was not married and had no children, whereas actually he was married and had two minor children. In April 1925 the respondent joined her husband in Colorado, a State in which common-law marriage is recognized, and resided there for about a year when she moved to New Mexico. In that case, which involved deportation proceedings, the respondent's wife was found to have acquired United States citizenship under section 1994, Revised Statutes, by reason of her husband's naturalization on September 28, 1920. Proceedings were canceled, alienage not having been established.
We think the latter case can be distinguished from the former. In the latter there was a religious ceremony in Mexico, which was followed by cohabitation in a State which recognized common-law marriages. We think it important to note that full consideration was given to all circumstances in the case and it was concluded that on the record alienage was not established.
It is our conclusion that the appellant is legitimate and that he is an alien. However, such conclusion is not based on the reasons advanced by the Service. There was no valid marriage in Mexico entered into between the appellant's parents. That they intended their religious marriage as such is clear from the record. They entered Texas in 1941 while appellant was a minor. Texas recognizes common-law marriages. Under sections 17, 18, 20, and 28, Texas Jurisprudence it appears that the parents perfected a valid, common-law marriage. Under Texas law, marriage with recognition by the father are the requirements for legitimation. Appellant's father has always recognized R---- as his son. The appeal will be dismissed.
Order: It is ordered that the appeal be dismissed without prejudice to reapplication for admission when in possession of proper documents.