A-3697183
Decided by Board September 17, 1947
Marriage (foreign) — Effect of annulment of such foreign marriage (valid where entered into) by New York State Court (1942) — Effect on nonquota immigrant status at time of entry (1938) — Doctrine of "relation back."
(1) The New York State courts have annulled ab initio "foreign" marriages which were invalid by the laws of the place where performed or were incestuous marriages between direct descendents or between brother and sister.
(2) The New York State courts do not follow blindly the doctrine that an annulment decree issued under section 7 of its Domestic Relations Law destroys the marriage from the beginning. (See 3 IN Dec. 102.)
(3) The foreign marriage was valid where entered into (Rumania) when the alien married her uncle, and when she entered the United States in 1938 and took up residence in New York State, she could have lawfully cohabited there, according to the view of the New York State Attorney General. However, upon advice of attorney that such marriage was considered improper in New York, the parties separated after 1941 and the husband brought an annulment suit which declared such marriage as void (1942). Such annulment was found not to necessarily operate under the doctrine of relation back (voiding the marriage ab initio) under New York law so as to render the alien as one not entitled to her nonquota status at the time of her entry.
CHARGES:
Warrant: Act of 1924 — Not nonquota as specified in visa.
Act of May 14, 1937 — Not entitled to admission on nonquota visa.
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Rumania, 27 years old. Her only entry to this country occurred in July 1938. She was admitted in possession of a nonquota immigration visa as the wife of a citizen of the United States. Her marriage was annulled in New York in May 1942 and she remarried. Her present husband is also under deportation proceedings. He urges that the deportation proceedings against respondent be canceled and he seeks suspension of deportation on the ground that his deportation would result in serious economic detriment to his wife, who is a legally resident alien. ( Matter of M----, 5334166). Since the Rumanian quota is oversubscribed, respondent and her husband cannot adjust their immigration status if we find that respondent is subject to deportation.
Respondent's first husband was her uncle. Marriage between uncle and niece is void under New York law. (McKinney's Consolidated Laws of New York (1941), Domestic Relations Law, section 5). If such a marriage is solemnized, the statute provides that the parties shall be fined between $50 and $100 and they may be sentenced to jail for 6 months. The same punishment is prescribed for a person who knowingly solemnizes such a marriage.
"A marriage is incestuous and void whether the relatives are legitimate or illegitimate between * * *:"
The marriage occurred in Rumania and under the laws of that country a marriage between uncle and niece is apparently valid. Respondent and her first husband are Jewish. They had a religious as well as a civil ceremony, and under the laws of the Jewish religion marriage is permitted between uncle and niece.
The marriage was apparently bona fide and respondent did not marry for the purpose of enabling her to come to the United States as a nonquota immigrant. She testifies, in fact, that she did not know her marriage would enable her to enter the United States, and that at the time of her marriage she had no specific intention of coming to this country. She and her husband lived together in Rumania for about a month immediately after the marriage, until his return to the United States. He petitioned for nonquota status on her behalf, and after she entered the United States in July 1938 she resided with her husband as man and wife until June 1941. At that time she and her husband consulted an attorney and they were advised that their marriage was considered improper in New York. They separated, and the husband subsequently brought the annulment suit.
We agree with the Presiding Inspector and with the Central Office that respondent is not subject to deportation on the warrant charge based on the act of May 14, 1937. The element of fraud was not present in the marriage and, therefore, the 1937 act does not apply.
We come now to the second ground of deportation. The theory here is that the respondent's marriage was not recognized as valid in New York, that she was not legally the wife of a United States citizen at the time of her entry, and, therefore, she was not entitled to admission on a nonquota visa.
A somewhat similar case was considered by the Attorney General in 1933, 37 Op. Atty. Gen. 102. A, a resident of Virginia, went to Poland and married his niece there. The uncle was a citizen of the United States. He petitioned for nonquota status for his wife and the immigration authorities approved the petition. The State Department, however, had doubts. Under the law of Poland, a marriage between uncle and niece was valid. Under Virginia law, such a marriage, if it took place in Virginia, was voidable; however, a resident of that State could marry his niece abroad in a country where it was lawful and the parties could return to Virginia and live there as man and wife, provided only that the man did not have this intention in mind when he left the State.
The Attorney General pointed out that the question was whether the immigrant could be considered the wife of the petitioner within the immigration laws. Since the parties could lawfully live together as husband and wife in Virginia, the Attorney General ruled that the woman was entitled to nonquota status as the wife of an American citizen. In the light of his opinion, the question in the present case is whether respondent at the time of her entry, could, under the laws of New York, lawfully live with her husband in that State.
In 1933, a question of this nature was considered by Mr. Bennett, Attorney General of the State of New York. Annual report of the Attorney General of New York for 1933, page 83. The State Department at Washington had inquired of the New York authorities whether a foreign marriage between a resident of New York and his niece, which was valid in the country where it was performed, would be recognized in New York if the parties came to that State to live. Mr. Bennett pointed out that the lex loci contractus determines the validity of a marriage contract. He observed that marriages which are polygamous or incestuous by natural law form a well-settled exception to this general rule, but that in the State of New York the exception relating to incest goes in further in the collateral line than to prohibit marriages between brother and sister. He then considered section 5 of the Domestic Relations Law, set forth above, which declares that a marriage between uncle and niece is void. He pointed out, however, that this statute referred in express terms only to marriages contracted in the State. He said at page 86:
The rule thus applied to marriages does not prevent a State from refusing to recognize a marital status contracted outside of the State because contrary to its public policy but simply requires that this policy be clearly expressed in the written law as applicable to such marriages before it can change the jus gentium that marriages valid where contracted are valid elsewhere unless polygamous or contrary to natural law. * * *
The better view in America seems to be that the distinctive policy, in order to invalidate a foreign marriage, must be distinctly expressed by legislation applicable in terms to foreign marriages. * * *
* * * It is my opinion that the New York courts could hold this marriage valid without contravening any express legislative enactment, following the application which they have previously made of the principles of conflict of law which form a part of our domestic law and in entire accord with principles followed by other American courts.
Mr. Bennett then referred to section 1110 of the New York Penal Law which declares it a crime for people between whom marriage is prohibited in New York because of consanguinity to marry or cohabit. He said, at page 87:
* * * I conclude that such cohabitation would be considered a crime under our penal law only where it is between unmarried people or those whose marriage took place in a State or country where, as in New York, it could have no validity and could not thus be recognized by our courts. It would be an anomaly indeed if our courts could hold this marriage created a valid civil status and the parties could yet be prosecuted for the consummation of the rights accompanying that status.
While the opinion of Mr. Bennett did not conclude expressly that under New York law a foreign marriage between uncle and niece, valid where performed, would be recognized as legal in New York, the whole tenor of his opinion is that the marriage would so be regarded. This view of Mr. Bennett's opinion is fortified by his conclusion that the criminal statute on incest would not be applicable to the parties to such a marriage.
At the time of respondent's entry to the United States in 1938, the only definite expression of New York law with respect to her marriage was the 1933 opinion of Mr. Bennett. According to that opinion, the marriage would be recognized as valid in New York, and the parties could lawfully live together as man and wife. This would be sufficient to dispose of the case, except for the fact that the marriage was annulled in New York. It becomes necessary, therefore, to consider the effect of the annulment decree.
The judgment of the court in the annulment action was undoubtedly inconsistent with Mr. Bennett's opinion, because the court granted an annulment of a foreign marriage on the ground that the parties to the marriage were uncle and niece. However, the decree does not imply that the cohabitation of respondent with her husband in New York was illegal unless the decree invalidated the marriage ab initio.
The decree does not expressly purport to operate in this way. It simply declares the marriage void and annuls it. True enough, it was issued by authority of section 5 of the Domestic Relations Law, and a marriage invalid under section 5 is ordinarily regarded as void from its inception. See Smith v. Smith, 179 Misc. 19, 37 N.Y.S. 2d 137 (Dom. Rela. Ct. 1942); Remlein v. Remlein, 54 N.Y.S. 2d 323, 324 (Sup.Ct. 1945); Weinberg v. Weinberg, 255 App. Div. 366, 368, 8 N.Y.S. 2d 341 (1938); Earle v. Earle, 141 App. Div. 611 (1910). That section, however, as the 1933 opinion of Attorney General Bennett, supra, points out, refers in terms only to marriage performed in the State. We do not attack the power of the court in the present case to annul the marriage; we think, however, that the decree should not be regarded as operating ab initio. There are cases, it is true, in which the New York courts have annulled foreign marriages. But in these cases the marriage was invalid by the law of the place where performed, Earle v. Earle, supra; Bracksmayer v. Bracksmayer, 22 N.Y.S. 2d 110 (Sup.Ct. 1940); Miodownik v. Miodownik, 259 App. Div. 851, 19 N.Y.S. 2d 175 (1940); Lederkremer v. Lederkremer, 173 Misc. 587, 18 N.Y.S. 2d 725 (Supp. Ct. 1940); cf. Incuria v. Incuria, 155 Misc. 755, 280 N.Y. Supp. 716 (Dom. Rela. Ct. 1935) or an incestuous marriage between direct descendants or between brother and sister. See Mr. Bennett's opinion, supra. And in such a case it may be conceded that a New York court would go so far as to annul the marriage ab initio. But apart from this, we do not think that New York law empowers the courts of that State to annul from its inception a marriage valid where performed. See Simmons v. Simmons. Note 2.
There is one court of appeals case holding that a New Jersey marriage, concededly valid in New Jersey, could be annulled because the plaintiff was under the New York age of consent at the time of the marriage. Cunningham v. Cunningham, 206 N.Y. 341, 99 N.E. 845 (1912). Here, however, the court rested its decision on the fact that both parties were residents of New York. Cf. Earle v. Earle, supra. On the other hand, an annulment sought by plaintiff on the ground that she was under the New York age of consent was denied because the marriage was valid in the British West Indies, and both parties were residents of the British West Indies at the time it was performed. Simmons v. Simmons, 208 App. Div. 195, 203, N.Y. Supp. 215 (1924).
We conclude, therefore, that while the court decree terminated respondent's marriage, it did not have the same effect as a decree issued under section 5 where the marriage was performed in New York. Did it, then, operate to nullify the marriage from the time the parties came to the State of New York with the intention of residing there? We see no reason to so construe the decree. Annulment is a creature of statutory law. See Nelson, Divorce and Annulment (1945) 277. Under New York statutes annulment decrees are of two kinds: (1) Where the marriage is absolutely void, as in sections 5 and 6 of the Domestic Relations Law, and (2) where the marriage is "voidable," as in section 7. Since we have concluded that the decree in the present case does not fall under the first category, it must, of necessity, belong to the second. In other words, the decree should be regarded as if it were issued in an annulment action brought under section 7.
At this point, however, we are confronted with a rather curious doctrine of the New York courts on the effect of an annulment decree which terminates a "voidable" marriage. Section 7 of the Domestic Relations Law provides that certain factors including fraud, insanity and nonage render a marriage void "from the time its nullity is declared" by a competent court. But the New York courts hold that where a marriage is annulled for fraud or insanity, the decree relates back to the date of the marriage and the marriage is considered "as if it had never been." Matter of Moncrief, 235 N.Y. 390, 139 N.E. 550 (1923); Price v. Price, 124 N.Y. 589 (1891); Jones v. Brinsmade, 183 N.Y. 258 (1905). Under this view the annulment decree in the present case would be regarded as operating ab initio, and it would have the same effect as a decree under section 5 of the Domestic Relations Law, annulling a marriage performed in New York.
However, the New York courts do not follow blindly the doctrine that an annulment decree issued under section 7 destroys the marriage from the beginning. See American Surety Company of New York v. Conner, 251 N.Y. 1 (1929); Sleicher v. Sleicher, 251 N.Y. 366 (1929). In the Sleicher case the facts were as follows: A divorce decree ordered the defendant to pay alimony to the plaintiff so long as she remained unmarried. Plaintiff contracted a second marriage but subsequently obtained an annulment on the ground of fraud. She brought an action for back alimony from the date of the second marriage. A majority of the court of appeals held that she was entitled to recover installments of alimony running from the date of the annulment but not for the period during which the second marriage was in force. Chief Judge Cardozo remarked that when a marriage procured by fraud is annulled, "It is effaced as if it had never been." He pointed out, however, that "The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice. * * * To say that the judgment of annulment has put the defendant in default through the fiction of relation is to say that the plaintiff shall have support or an equivalent from each of two men during the same period of time, and this by force of a fiction subservient to justice." A concurring opinion argued that the defendant was obligated to pay alimony installments running back to the date of the marriage. This conclusion was based logically on the rule that when the decree of annulment was pronounced the marriage became absolutely void from its inception. The majority of the court, however, departed from this logical application of the doctrine. The Sleicher and Conner cases, therefore, hold in effect that an annulment decree under section 7 of the Domestic Relations Law will not be given retroactive effect if this would operate to impair the rights of an innocent party which have arisen from the marriage.
On the basis of these cases, we think that the annulment decree in the present case should not be regarded as nullifying the marriage at the time plaintiff entered the United States. Our conclusion is, we think reinforced by two opinions of the Solicitor of Labor. See 8/240, November 24, 1930, and 8/258, March 14, 1932. In both cases an alien woman had married an American citizen and the question was whether the woman became naturalized through her marriage despite the fact that the marriage had been annulled by a New York court. In the first case the Solicitor concluded that the annulment operated only in the future, 3 months after the date of the decree. He based his conclusion partly on the language of the decree and partly on the fact that the woman was innocent and that the parents of the husband had had the marriage annulled because he was under age at the time of the marriage. In the second case the Solicitor concluded that the woman had not become naturalized because the annulment decree was equivalent to a decision that there had never been a valid marriage. He rested his conclusions partly on the language of the decree, but also on the ground that the woman had procured the marriage by fraud, because she had not intended to cohabit with her husband and she had not subsequently ratified the marriage.
We think that the present case resembles the earlier of the two cases considered by the Solicitor of Labor. Plaintiff was innocent of any wrong doing; she was not guilty of fraud; she cohabited with her husband for 3 years until they learned that their marriage was improper.
Under these circumstances, we think that the annulment decree should not operate to invalidate her marriage at the time of her entry into this country. As Judge Cardozo pointed out in the Sleicher case, the doctrine that an annulment decree relates back to the date of the marriage "is a fiction of law adopted by the courts solely for purposes of justice."
At the time plaintiff entered the United States she was, according to Attorney General Mitchell's 1933 opinion, entitled to nonquota status if she and her husband could lawfully cohabit as man and wife in the State of New York. In 1938, at the time of her entry, the only definite expression of New York law on this question, by the Attorney General, the chief legal officer of the State, was to the effect that the cohabitation of the parties in New York was legal.
Under New York law the 1942 annulment decree should not be regarded as nullifying the marriage retroactively to the date of entry. We conclude, therefore, that plaintiff at the time of her entry to this country was legally the wife of a United States citizen and, therefore, that she was entitled to nonquota status.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That respondent is an alien, native, and citizen of Rumania;
(2) That respondent's only entry to the United States occurred in July 1938, when she was admitted in possession of a nonquota immigration visa as the wife of an American citizen;
(3) That respondent married her uncle in Rumania in July 1937, by civil and religious ceremony;
(4) That under Rumanian and Jewish law the marriage was valid;
(5) That respondent and her husband lived as man and wife for about 1 month immediately after their marriage, and for 3 years after her arrival in the United States;
(6) That the respondent did not marry for the purpose of enabling her to enter the United States as a nonquota immigrant;
(7) That at the time of respondent's entry her marriage was considered lawful under the laws of New York, and it was legal for respondent and her husband to cohabit in that State;
(8) That in May 1942 the marriage was annulled in New York as incestuous.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of May 14, 1937, and section 14 of the Immigration Act of 1924, respondent is not subject to deportation on the ground that she secured a nonquota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, was judicially annulled retroactively to date of marriage;
(2) That under sections 13 and 14 of the Immigration Act of 1924 respondent is not subject to deportation on the ground that at the time of entry she was not a nonquota immigrant as specified in the visa of her immigration visa.Other Factors: The record contains character evidence which we need not set forth in view of our conclusion that the proceedings must be canceled.
Order: It is ordered that the warrant of arrest be canceled and that these proceedings be terminated.