VP-358694
Decided by Board December 29, 1948
Nonquota status — Petition for visa for wife of United States citizen — Validity of marriage entered into in Italy — Uncle and niece — Cohabitation in State of Illinois intended.
1. For immigration purposes the marriage between an uncle and niece is considered lawful if valid where performed and if the State in which they intend to reside does not regard their cohabitation therein as criminal (37 Op. A.G. 102, 1932).
2. Marriage in Italy between uncle and niece was prohibited under the laws in effect there in 1928 unless necessary dispensation was obtained from the Crown. The parties herein obtained necessary dispensation and were married on July 5, 1928, in Palermo, Italy. Under Civil Code, Italy, 1865 (Revised edition 1946) article 78, said marriage was lawful.
3. Since the petitioner/hubsand had not left Illinois to marry his niece/beneficiary in Italy, and since the marriage was valid where contracted, then under the circumstances of this case, their cohabitation in Illinois where they intend to reside would not subject them to criminal prosecution in that State; consequently, the visa petition filed by the husband/uncle on behalf of his wife/niece may be approved.
BEFORE THE BOARD
Discussion: This record is before us on appeal from an order entered by the Commissioner, September 30, 1948, withdrawing the approval of nonquota status (sec. 4 (a), Immigration Act of 1924, as amended) granted December 26, 1946, in behalf of the beneficiary, N---- M----, a resident and national of Italy and the wife of the above-captioned petitioner, a naturalized citizen of the United States.
The petitioner, a resident of the State of Illinois, journeyed to Italy during the year 1927 because of the serious illness of his father. Subsequent to his father's death and while in Italy he met for the first time his niece and present wife, a resident of Palermo, Italy, and the daughter of his blood sister, R---- M----. Under the laws of Italy in effect in 1928 a marriage between uncle and niece was prohibited unless the necessary dispensation could be obtained from the Crown.
It appears that the necessary dispensation was obtained by the parties and they were married on July 5, 1928, in the city of Palermo. The marriage of the petitioner and the beneficiary, therefore, is deemed to be lawful under the laws of Italy (Civil Code, Italy, 1865 (Revised edition 1946) article 78). The petitioner now resides in Cook County, Ill., and intends to continue to reside in Illinois with his wife if she is admitted to this country.
The Commissioner finds that the beneficiary is not the wife of a citizen of the United States as contemplated by section 4 (a) of the Immigration Act of 1924, as amended, for the reason that the marriage is incestuous under the laws of Illinois regardless of whether or not it is valid where contracted. The Commissioner is of the opinion that if the petitioner and beneficiary were to cohabit as husband and wife in the State of Illinois, they would subject themselves to prosecution under the criminal statutes relating to incestuous marriage. Petitioner through counsel contends that his marriage, being valid where contracted, was and is recognized as valid in the State of Illinois; that the laws of Illinois relating to incestuous marriage have not been violated and that no criminal prosecution could be instituted against the petitioner and his wife with any success.
For immigration purposes it is well established that the marriage of an uncle and niece is considered lawful if valid where performed and if the State in which they intend to reside does not regard the cohabitation therein as criminal (37 Op. A.G. 102, 1932). In support of his position that the petitioner's marriage is regarded as invalid in the State of Illinois and cohabitation therein criminal, the Commissioner cites several Illinois cases. A review of these cases indicates that the parties concerned, apparently domiciled in the State of Illinois, left that State temporarily solely for the purpose of evading the marriage laws and immediately returned thereto and cohabited. In the Arado case ( supra), involving a marriage of first cousins (prohibited by Illinois statute), the marriage was performed at Chicago, Ill., and both parties were domiciled and cohabited in Illinois ( Arado v. Arado, Bill of Annulment, Case No. B-8350, Circuit Court, Cook County, Ill., in chancery Dec. 4, 1915). In the case at bar there is no showing of an attempted evasion of the laws of petitioner's domicile since he went to Italy primarily to visit his sick father and incidentally, while there, married his niece in accordance with the laws of Italy.
Wilson v. Cook, 256 Ill. 460, 100 N.E. 222; Stevens v. Stevens, 304 Ill. 297, 136 N.E. 785; Arado v. Arado, 281 Ill. 123.
The Commissioner is of the opinion that the cohabitation of the petitioner and the beneficiary in the State of Illinois will result in criminal prosecution due to section 157 of the Illinois Criminal Code. The Illinois appellate court, however, has recognized as valid a marriage between first cousins celebrated in the State of Wisconsin, which permits such marriages where the facts established that the husband was a bona fide resident of the State of Minnesota, which also recognizes such marriages, and took his bride to his home in Minnesota to live although at the time of the marriage the bride was domiciled in the State of Illinois ( People ex rel. Schutt v. Siems, 198 Ill. App. 342, 117 A.L.R. 192, 1916). The court in their opinion said:
The legality of a marriage taking place in a foreign State, when questioned in Illinois, is to be adjudged by the law of the foreign State ( Reifschneider v. Reifschneider, 241 Ill. 92), except where the marriage is in violation of some positive law of this State ( Wilson v. Cook, 256 Ill. 460). * * * We hold that when persons domiciled in this State and who are subject to the provisions of the law leave the State for the purpose of evading these provisions, and go through the ceremony of marriage in another State and return to their domicile, such pretended marriage is within the provisions of the law and will not be recognized by the courts of the State * * * In the case at bar the relator was not a resident of this State but was a resident of Minnesota. He had a right to go to Wisconsin and be married and then return to his home in Minnesota, the law in both of those States permitting marriages between cousins of the first degree. The marriage was, therefore, valid and binding.
The Attorney General of the State of Illinois, relying on the above quoted case is of the opinion that the marriage between the petitioner and the beneficiary would be recognized as valid in his State provided the facts are as stated above. (Letter of Attorney General, State of Illinois, Nov. 29, 1948.)
We conclude, therefore, that under the marriage statutes of Illinois and the court decisions pertaining thereto there is no provision making it an offense for persons to marry within the prohibited degrees of relationship where the marriage is valid in the forum where performed and the parties therto did not leave their domicile in the State of Illinois solely for the purpose of avoiding the Illinois marriage laws and with the intention of immediately returning and do in fact return and cohabit as man and wife in Illinois. Inasmuch as there is no showing that the petitioner left his domicile in Illinois solely for the purpose of evading the marriage laws of that State and inasmuch as petitioner's marriage has been found to be valid where contracted, we find it is a valid marriage for immigration purposes and the beneficiary to be entitled to nonquota status as the wife of a citizen.
Provided the marriage does not violate the law of nature (marriages between direct lineals and collaterals of the first degree). Marriages which violate the law of nature are not recognized in any jurisdiction, even though valid where celebrated.
Order: It is directed that the appeal be and the same is hereby sustained; the approval heretofore granted the visa petition in behalf of N---- M----, December 26, 1946, to remain in full force and effect.