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The facts are not in issue. Petitioner, who has been in the military service since 1944, was first married on December 24, 1943, at Los Angeles, Calif. His first wife was 17 and he 22 when married. After a short period together, he was sent overseas. Upon his return to the United States at the end of 1945, he and his first wife found that they were strangers and soon agreed to separate. Thereafter, his first wife consulted a Los Angeles lawyer, and was advised that a Mexican divorce was valid in California. She obtained petitioner's written consent to a divorce, and on February 27, 1947, went to Tijuana, Mexico, consulted a Mexican lawyer, executed the necessary papers, furnished her husband's written consent, paid a $95 fee, and returned to Los Angeles on February 28, 1947. Petitioner did not go to Mexico. Suit was instituted before the district court of Morelos, State of Tlaxcala, Mexico, on March 3, 1947, and judgment of divorce was rendered on March 8, 1947. Petitioner's first wife remarried at Los Angeles, Calif., on March 13, 1947, and has a child by her second husband.

Petitioner was transferred to Germany in 1948. He was married in Germany to the beneficiary on April 28, 1951. He had shown his papers evidencing his Mexican divorce to his superior officers, and had been advised that they were legal. The Air Force has recognized the marriage for allotment purposes. In an appearance before the Board of Immigration Appeals, petitioner stated:

In applying for marriage over in Germany, I had to file a copy of the divorce, with other papers, and nothing was said there at that time about the Mexican decree. They allowed me to go ahead and get married, under German law.

Petitioner has two children by the beneficiary, who were legitimated under German law by marriage. He has declared both children, born in Germany, to be American citizens. He now applies for nonquota status for entry of their mother as his wife.

The Congress has provided in the Immigration Act of 1924, as amended, for the grant of nonquota status to an immigrant who is the "wife" of a citizen of the United States. The status of "wife" is necessarily dependent upon the validity of the marriage which created it. Section 28 of the Immigration Act of 1924, as amended, provides in subdivision (n), as follows:

The terms "wife" and "husband" do not include a wife or husband by reason of a proxy or picture marriage.

But, apart from saying that picture and proxy marriages will not create the status of "wife" for immigration purposes, the Congress has not said what will. In the absence of such legislative provision, the generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration, (Beale, The Conflict of Laws (1935 Ed.), vol. 2, p. 669, and cases there cited; Cosulich Societa Triestina di Navigazione v. Elting, 66 F. (2d) 534, 536.) That is the

rule to be applied here, and the verified petition alleges a marriage which created the status of "wife" under German law.

The Acting Assistant Commissioner and the Board of Immigration Appeals, however, felt constrained to deny the petition on the authority of a decision of the Acting Attorney General, dated September 16, 1949, In the Matter of 0- (Interim Decision No. 93). That decision sought to lay down the following rule of general application:

The validity of divorces affecting cases arising under section 9 of the Immigration Act of 1924 (8 U. S. C. 209) shall hereafter be determined in accordance with the prevailing law of the country in which subject is domiciled and physically present at the time the divorce is obtained. No divorce obtained in absentia shall be valid for immigration purposes if such divorce is obtained while either party thereto is domiciled or physically present in the United States.

The Congress has neither said, nor implied, that in all circumstances a foreign marriage of a citizen of the United States is invalid for immigration purposes, although valid under the law of the place where contracted, unless a prior divorce satisfies the particular jurisdictional concepts laid down in that administrative decision. (For divergence of views expressed with respect to the concepts of domicile and jurisdiction see Williams v. North Carolina, 325 U. S. 226.) If the Congress had wished to make such provision, it could have done so as it did in the instance of picture and proxy marriages (Cf. 37 Op. A. G. 102, 110-111). But, it has not, although the issue has been a recurrent one over the years. Moreover, the introduction of such conceptual rigidity into the administration of section 4 (a) scarcely seems consonant with its beneficent purpose. A plain congressional purpose in providing preferential status for entry of immigrants closely related to American citizens was to facilitate and foster the maintenance of families, such as here involved. Consistent with that purpose it seems reasonable to believe that the Congress intended that the marriage of a citizen, valid where contracted, be accorded validity for immigration purposes.

For the reasons herein discussed, the decision In the Matter of O to the extent inconsistent herewith is overruled.

The decision and order of the Board of Immigration Appeals, dated February 18, 1952, is hereby disapproved and set aside and the matter remanded for appropriate action in accordance with this opinion.

BEFORE THE BOARD

(March 27, 1952)

The Attorney General has remanded to us for reconsideration the appellant's petition for a nonquota status in behalf of his wife. Briefly, the appellant, a native and citizen of the United States, a sergeant in

'The facts are stated in great detail in our decision of February 18, 1952.

the United States Air Force, was first married on December 27, 1943. On March 8, 1947, a judgment was entered by the civil court of the District of Morelos, State of Tlaxcala, Mexico, purporting to terminate that marriage. At that time the appellant and his then wife were residents of the United States. Relying on the validity of that judgment, the appellant on April 28, 1951, married his present wife, the beneficiary of the petition now under consideration, at Wiesbaden, Germany. The Acting Assistant Commissioner denied the petition on January 22, 1952, based upon the conclusion that the aforesaid judgment did not effectively terminate the earlier marriage. We dismissed appeal from that decision on February 18, 1952, and certified our decision to the Attorney General for review.

The basis for the denial of the petition was a ruling by the Attorney General on September 16, 1949, in Matter of O., Interim Decision No. 93, that no divorce obtained in absentia shall be valid for immigration purposes if obtained while either party thereto is domiciled or physically present in the United States. That decision seemed to admit of no alternative.

In remanding the case to us for consideration the Attorney General states that the rule to be applied here is "that the validity of a marriage is governed by the law of the place of celebration." Thus it appears that the rule to be applied is not the narrow one applied in the first instance, but that consideration is to be given to the law of the jurisdiction where the subsequent marriage occurs. If that law gives full faith and credit to the decree of termination of the prior marriage, for the purpose of immigration enforcement we likewise may give effect thereto.

It remains, therefore, in the present case, as in any similar case, to determine local law on the issue of whether the judgment is there, viz, where the subsequent marriage takes place, recognized as effecting its stated purpose.

We have very limited access to German law but we have consulted Dr. Vladimir Gsovski and Dr. Fred Kerpf, the chief and a member, respectively, of the Foreign Law Section of the Library of Congress, who inform us that the general rule is that foreign judgments are recognized in Germany provided that they are not in conflict with the jurisdiction of German courts, and that Mexican divorce decrees appear to have been accepted as valid by German authorities.2

Thus no impediment has been found in German law to recognition of the Mexican divorce decree. Furthermore, it appears that the

'Authority: Reichagemetablatt, pt. 1, p. 654; see 4th Decree Implementation of the Marriage Law of October 10, 1941, sec. 24. Commentaries: Konentar, Stein Das Jonas, 17th Ed. 1949, sec. 328, and German Marriage Law by Edgar Hoffman and Walter Stephan, 1950, pp. 159–160.

German licensing authorities have given recognition to the decree by authorizing the marriage, as have our military authorities in Germany by sanctioning the marriage.

This leads to the conclusion that the validity of the applicant's marriage in Germany should be recognized, and the appeal may be sustained.

Order: It is ordered that the appeal from the order denying the petition be sustained.

IN THE MATTER OF L

- M— and CYC

In EXCLUSION Proceedings

A-8082501 and A-8082511

Decided by Board February 20, 1952

Citizenship-Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941-Revised Statutes 1993, as amended by act of May 24, 1934-Retention conditions-Section 201 (g) and (h) of the Nationality Act of 1940.

A child acquired United States citizenship at birth abroad in 1935 to a United States citizen parent who had resided in the United States prior to the birth of the child, under Revised Statutes 1993, as amended by the act of May 24, 1934 (the other parent being an alien); and such citizenship status did not cease where the child took up residence in the United States on his 16th anniversary, thereby fulfilling the retention conditions of section 201 (g) and (h) of the Nationality Act of 1940 (the child arriving in September 1951 on his 16th birthday).

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924-No immigrati visa (both appellants).
Executive Order 8766-No passport (both appellants).

BEFORE THE BOARD

Discussion: The cases came forward on appeal from the decisions dated September 24, 1951, and September 19, 1951, respectively, of the Acting Assistant Commissioner affirming the decision of the Board of Special Inquiry finding the appellants to be aliens and inadmissible on the grounds stated above. The appellants have been paroled into the United States, such parole to be terminated upon the filing of an application for suspension of deportation, but the appellants have appealed from the finding of alienage. The cases have been combined for convenience inasmuch as they present the same question of fact and law.

The appellant, LM, was born on August 8, 1935, and the appellant, C Y—— C was born on August 2, 1935. Both appellants were born in China, their respective mothers were natives and citizens of China, while their respective fathers were citizens of the United States who had resided in this country prior to the birth of the appellants. Both appellants arrived in the United States on

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