VP 13-I-41561
Decided by Board October 25, 1957
Visa Petitions — Marriages — Validity of marriage by Chinese custom in Macao, Portuguese China.
Where the evidence establishes that the petitioner and beneficiary, both of the Chinese race, were married in 1949 by Chinese custom in Macao, Portuguese China, such marriage is deemed to have been valid under the law existing in that jurisdiction. Hence, nonquota status will be conferred upon the beneficiary as the wife of a United States citizen.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the District Director, San Francisco, California, dated August 19, 1957, denying the visa petition on the ground that the petitioner had not satisfactorily established his relationship to the beneficiary, inasmuch as information furnished by him in the petition is in conflict with information furnished by him at the time of his admission to the United States on November 21, 1949; and since the petitioner claims marriage in Macao in accordance with Chinese customs, it would appear that the marriage would not be legal under the law in effect at that time in Macao.
The petitioner, born in China on July 7, 1929, whose citizenship status as the son of a son of a native is not contested, seeks nonquota status on behalf of the beneficiary whom he alleges he married in Macao, Portuguese China, on March 25, 1949, by Chinese ceremonial custom. The beneficiary was born in Macao on December 1, 1929. The visa petition indicates that the petitioner first arrived in the United States on April 3, 1940, and the relating immigration file, A-10836944, indicates that he was admitted as a United States citizen. This immigration file also discloses that upon his return from China on November 21, 1949, after his departure on January 24, 1947, the petitioner indicated he was not married.
The visa petition is supported by affidavits executed by the petitioner and his father, a number of letters received from the alleged wife during the period 1953 to 1955, remittances sent by the petitioner to his wife, a power of attorney executed by the petitioner while serving as a member of the United States Army on August 25, 1951, naming his father, N---- L----, as his attorney in fact for the purpose of representing him in all matters necessary to accomplish a transmittal of the proceeds of his allotment or other moneys to his wife, J---- L----, residing in Macao, China. There has also been submitted a photograph of the petitioner and the beneficiary which is stated to have been taken shortly after their marriage.
The affidavit executed by the father of the petitioner sets forth that the affiant departed from the United States about January 1948 and was in Macao from February 1949 to the latter part of May 1949 and resided with his wife and son during that period, during which the petitioner (his son) was introduced to the beneficiary and that they decided to get married after one or two months' acquaintance. The affidavit sets forth that the marriage was performed at the affiant's home in Macao on March 25, 1949, under the custom recognized by persons of the Chinese race constituting a valid marriage and that the affiant attended the marriage and has personal knowledge that his son, the petitioner, and his son's bride, the beneficiary, resided in Macao for 7 months after their marriage up to the time of the departure of the petitioner for the United States in November 1949. The affiant further says that he believes such marriage is to be valid in Macao. However, after the son arrived in the United States, the latter indicated that he had some doubt as to the validity of his marriage in view of the attempt by himself and by his wife to obtain a regular marriage license from the Marriage License Bureau in Hong Kong which was unsuccessful because of the requirement that as minors they needed the consent of their parents. The father further sets forth in his affidavit that both he and his son were informed that the marriage ceremony constituted a valid marriage and that the son while a member of the United States military forces applied for and was granted a dependency allotment for his wife which was directed to the father because of the reluctance of military authorities to send military allotment checks directly to Macao.
The affidavit by the petitioner sets forth his trip to Macao, Portuguese China, and his marriage in Macao on March 25, 1949, by Chinese custom, which friends had advised him was the recognized practice. Attempting to follow the advice of friends that it would be advisable for him to have a marriage ceremony performed in Hong Kong in order to get a regular record of his marriage, they visited the Marriage License Bureau in Hong Kong but were turned down because he needed the consent of his father since he was still under the age of 21. The petitioner further sets forth that because of the conflicting advice received by him and his inability to quality for a regular marriage license in Hong Kong, he was uncertain as to whether he could properly claim to have been validly married to the beneficiary under the laws of Macao in view of the fact that they only had a Chinese custom marriage and for such reason the affiant did not claim to be married at the time of his arrival at the port of San Francisco, and that he did not make such claim solely because of doubt as to whether he was considered to have been validly married in Macao on March 25, 1949. He further sets forth that subsequent to his induction into the United States Army in 1951 he applied for and was granted an allotment for his wife and that following his discharge he was advised that if he was married in accordance with the Chinese custom in Macao such marriage would be considered as a valid marriage and for this reason he submitted the instant visa petition.
It is believed that in view of the conflicting advice received by the petitioner concerning the validity of his marriage, and the advice to have a civil ceremonial marriage recorded in Hong Kong which he was unsuccessful in doing, he may have become so confused that he thought best to state to immigration authorities that he was not married when he returned to the United States in 1949. In view of the evidence presented in the form of the affidavit of the father who was personally present at the marriage, the marriage ceremony in Macao on March 25, 1949, as well as the other evidence consisting of the photographs, the letters, remittances and the army allotment, it is believed that the petitioner has established that he underwent a marriage ceremony by Chinese custom with the beneficiary in Macao on March 25, 1949, as claimed.
The Service asserts that such a marriage by Chinese custom would not be legal under the law in effect in Macao and counsel makes the claim that such a marriage would be legal. Neither party cites any legal authority to support the position and since the validity of the marriage is determined by the law of the place of its celebration, it is obvious that a determination cannot be made without inquiry into the law of Macao concerning the validity of such marriages. The desirability of a citation of local legal authority in Macao therefore is readily apparent and such authority should have been submitted in connection with the appeal.
Through the kind cooperation and courtesy of the Library of Congress the applicable law has been found in the Codification of Uses and Customs of Chinese in Macao (Macau). Article I of the decree of June 17, 1909, provides that the provisions of this code which are contrary to the laws regulating Catholic marriages are not applicable to Catholic (Christian) Chinese. Article II of the decree of June 17, 1909, provides that marriages celebrated between Chinese according to the rites of their religion produce the same civil effect that the laws of the (Portuguese) kingdom recognize to Catholic and civil marriages.
Contained in the publication by Luiz da Cunha Goncalzes, Tratada de Direito Civil, vol. I, part 1 (1955), p. 170.
It thus appears that under the law existing in Macao, Portuguese China, the marriage of the petitioner and the beneficiary in 1949 by Chinese custom constitutes a valid and binding marriage. The explanation offered by the petitioner regarding his failure to report his marriage to immigration authorities upon his return in 1949 and the evidence submitted by him to support the existence of such a marriage is considered sufficient to sustain the burden upon the petitioner to establish the marriage.
Order: It is ordered that the appeal be sustained and the visa petition be approved for nonquota status on behalf of the beneficiary.