the hearing, and because the Government informed him that it could prove these things, and because he was informed that his client. would not be deported, counsel and respondent cooperated with the Service by signing the stipulation.

The hearing examiner in his recommended decision said:

To break up respondent's home and deport him because of an impulsive action that apparently consisted of no more than paying out the sum of 60 cents, and possibly signing his name to a membership card (although even this latter step is not shown in the record), 17 years ago, would appear to serve no useful purpose particularly at this late date, and respondent's family would be the chief sufferers in the event such penalty were imposed upon him.

Nevertheless, despite the many favorable factors to his credit, the fact remains that respondent is subject to deportation on grounds specified in section 19 (d) of the Immigration Act of 1917, as amended, and the undersigned is precluded by regulation from making any recommendation respecting possible relief in this case.

Following the hearing and this recommendation the Congress of the United States enacted the Internal Security Act of 1950, effective September 23, 1950, which eliminated the authority we had prior to that time to grant 7th proviso relief in this type of case. On March 28, 1951, Public Law 14 (S. 728) amending the act of 1918, as amended, was approved by the President. Section 1 of the new act provides: "That the Attorney General is hereby authorized and directed to provide by regulations that the terms 'members of' and 'affiliated with' where used in the act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary." Instructions governing the application of the amended act were prepared jointly by the Immigration and Naturalization Service, the Department of State and the Displaced Persons Commission. These instructions were issued on March 28, 1951. In part they provide as follows:

4. The term "voluntary" when used in relation to membership in, or affiliation with, a proscribed party or organization shall be construed to mean membership or affiliation which is or was knowingly created by the alien's act of joining or affiliating, upon his own volition, with such proscribed party or organization.

In order for membership in any organization to be considered voluntary, it is essential that the member be cognizant of the kind of organization he has joined. The stipulation in the present case provides that at the time of joining the party respondent had no knowledge that the Workers Party was communistic or was affiliated with the Communist Party, and that as soon as he discovered that it was such an organization he ceased his relationship with the Workers Party. The facts in this case support the stipulation.

There is no evidence in the record, aside from respondent's own statements, that he was in fact a member of the Communist Party. His membership came about in this way: In 1933 there was a pay cut

of 28 to 25 cents per hour in the furniture factory where respondent was working, resulting in a spontaneous strike. Respondent and others testified that there were several out-of-town organizers who attempted to enter the strike situation and organize unions. The respondent testified that he met a person named S— P— who told him that his (P——'s) organization would help the strikers with their picketing and provide funds and food. Respondent testified that he paid SP50 cents dues and later another 10 cents. He does not know who S P was, where he came from, or where he went. After the strike was over the organizers departed. He believes S P― to be dead. There were three meetings during the strike. The Assistant Commissioner's opinion states that these meetings were meetings of the Workers Party. Respondent and N B, who appeared as a witness for respondent, both testified that these meetings were not meetings of the Communist or Workers Party. They were organization meetings, meetings which were attempts to organize a union and to channel the strike activities into constructive outlets. An independent union did come out of the strike, and is still in existence in that plant. So far as respondent and his witness know, there is no active Communist or Workers Party in Jamestown, N. Y. Respondent has never received any membership card, dues book, or Communist literature. There is nothing in the record to show that SP was actually an agent for the Workers or Communist Party, or that the party ever received any of the 60 cents paid by respondent in the form of dues. We doubt that respondent has been at any time a member of or affiliated with a proscribed organization.

Respondent is no longer deportable under the Internal Security Act or the 1918 act as amended.

Order: It is ordered that the warrant and order of deportation be withdrawn and the proceedings terminated.

IN THE MATTER OF R

In DEPORTATION Proceedings

A-6600292

Decided by Central Office April 16, 1951

Marriage (foreign)-Effect of annulment by United States District Court for District of Columbia (1948)—Whether immigration status at time of entry (1947) affected, if marriage not annulled ab initio.

A marriage abroad in 1946 rendered void only from the date of decree of annulment in 1948, by the United States District Court for the District of Columbia, did not affect the nonquota immigrant status of the alien wife at the time of her entry here in 1947, as the wife of a United States citizen member of the armed forces of the United States during World War II. CHARGE:

Warrant: Act of 1924-Quota immigrant not in possession of unexpired quota immigration visa because entry as a nonquota immigrant under provisions of the Act of December 28, 1945, was obtained through fraud.

BEFORE THE CENTRAL OFFICE

Discussion: The record relates to a native and citizen of France, who last entered the United States at the port of New York, N. Y., on February 9, 1947, as a passenger on the S. S. Admiral Hugh Rodman. The respondent was admitted for permanent residence, quota exempt, under Public Law 271 approved December 28, 1945. She was married to a native-born United States citizen, a member of the Armed Forces of the United States during World War II, at Wiesbaden, Germany, on December 21, 1946. Therefore, at the time of her entry she was admitted as the wife of such United States citizen member of the United States Armed Forces, under the provisions of the above act, without being charged to any quota.

On October 21, 1948, the respondent was granted a decree, voiding the above marriage, by the United States District Court for the District of Columbia which reads in part:

Adjudged and decreed that the marriage contract heretofore entered into between the plaintiff, S- A O R and the defendant, S- MR― be and the same is hereby declared void on the ground of the matrimonial incapacity of the said S- MRat the time of said marriage and such incapacity is continued, ***"

'The applicable part of the statute whereunder this decree was issued is as follows: Section 16-403, the District of Columbia Code:

"Provided further, That marriage contracts may be declared void in the following cases:

"First. Where such marriage was contracted while either of the parties there

to had a former wife or husband living, unless the former marriage had been lawfully dissolved.

"Second. Where such marriage was contracted during the lunacy of either party (unless there has been voluntary cohabitation after the lunacy) or was procured by fraud or coercion.

"Third. Where either party was matrimonially incapacitated at the time of marriage and has continued so.

"Fourth. Where either of the parties had not arrived at the age of legal consent to the contract of marriage (unless there has been voluntary cohabitation after coming to legal age), but in such cases only at the suit of the party not capable of consenting (March 3, 1901, 31 Stat. 1345, ch. 854, § 966; August 7, 1935, 49 Stat. 539, ch. 453, § 1)."

The District of Columbia Code section 30-103 relates to marriages in the District which are illegal and void from the time of their nullity by decree and reads as follows:

"§ 30-103 (14:3). Marriages void from date of decree-Age of Consent.—The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely:

"First. The marriage of an idiot or of a person adjudged to be a lunatic. "Second. Any marriage the consent to which of either party has been procured by force or fraud.

"Third. Any marriage either of the parties to which shall be incapable, from physical causes, of entering into the married state.

"Fourth. When either of the parties is under the age of consent, which is hereby declared to be eighteen years of age for males and sixteen years of age for females (March 3, 1901, 31 Stat. 1391, ch. 854, § 1285; June 30, 1902, 32 Stat. 543, ch. 1329; August 12, 1937, 50 Stat. 626, ch. 596, § 1)."

NOTE:

The District of Columbia Code section 30-101 under chapter 1, Prohibitions and Marriages void ab initio, reads as follows:

"The following marriages are prohibited in the District of Columbia and shall be absolutely void ab initio, without being so decreed, and their nullity may be shown in any collateral proceedings, namely:

"First. The marriage of a man with his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's son's wife, wife's son's daughter, wife's daughter's daughter, brother's daughter, sister's daughter.

"Second. The marriage of a woman with her grandfather, grandmother's husband, husband's grandfather, father's brother, mother's brother, father, stepfather, husband's father, son, husband's son, daughter's husband, brother's son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, husband's son's son, husband's daughter's son, brother's son, sister's son.

"Third. The marriage of any persons either of whom has been previously married and whose previous marriage has not been terminated by death or a decree of divorce (March 3, 1901, 31 Stat. 1391, ch. 854, § 1283)."

Yet, these "prohibited" marriages "void" without being so decreed, may be annulled.

The District of Columbia Code, section 30-102, Marriage may be decreed to be void, reads as follows:

"Any of such marriages may also be declared to have been null and void by judicial decree (March 3, 1901, 31 Stat. 1391, ch. 854, § 1284)."

A decree annulling a marriage in the District of Columbia is final and conclusive and not subject to collateral impeachment, Moran v. Moran, 160 F. (2d) 925. The jurisdiction of the marriage res depends on the residence or domicile of at least one party, and where it has jurisdiction of the parties, as in the present case, it is immaterial where the marriage was solemnized, Hitchins v. Hitchins, D. C., 47 F. Supp. 73. In the present case the jurisdiction to hear and determine the suit for avoidance of the marriage is regulated by statute.

The warrant charge can be sustained only if it is determined that the marriage was void ab initio. Under section 30-103 (14:3) of the Code of the District of Columbia, any marriage "either of the parties to which shall be incapable, from physical causes, of entering into the marriage state" shall be void from the time when its nullity shall be declared by decree. In the instant case, the marriage was annulled by reason of the husband's physical inability referred to by the court decree as "matrimonial incapacity" which is the language set forth in section 16-403 of the District of Columbia Code set out in pertinent part in footnote 1. By the words of the code above referred to, that is "shall be void from the time when their nullity shall be declared by decree," the annullment in this case is not an excision of the marriage or annulment ab initio.2

Accordingly, the charge in the warrant of arrest will not be sustained. Since there appears to be no other ground of deportability indicated from this record, the proceedings will be terminated.

Order: It is ordered that the proceedings under the warrant of arrest issued November 19, 1949, and served January 20, 1950, will be terminated.

'A like result was reached as to the consequences of an annullment in New York State in Matter of B—, A-3170648, B. I. A. 1947, 3, I. & N. Dec. 102, where the charge in the warrant of arrest referred to "visa procured by fraud," act of 1924, and “marriage annulled ab initio," act of 1937; and Matter of M————, A-3697183, B. I. A. 1947 3, I. & N. Dec. 25, where the charge in the warrant of arrest referred to "not nonquota as specified in visa," act of 1924; see Op. of Sol. of Labor, November 24, 1930, 8/240.