to have been rendered in the instant case was an enforced one, neither party being a voluntary party thereto; further, that a divorce decree issued under Nazi law is not entitled to recognition under the full faith and credit clause of the Constitution of the United States inasmuch as that clause is applicable only to the judgments and public acts of the States of the Union and not those of foreign states (Aetna Life Insurance Company v. Tremblay, 223 U. S. 185), it being noted that in the Ecase a decree by a court in Massachusetts, affirming the marriage, was of record, while in the F case no such decree was present.

When the E case was considered by this service on October 25, 1946, it was concluded that Mr. E's visa petition be denied and that, he should inform his wife that she should make an application for a quota immigration visa, it having been decided that the order entered by the Probate Court for Suffolk County, Mass., on July 9, 1946, affirming his marriage to the beneficiary, could not be considered as having invalidated the divorce decree granted in Austria in October 1941. The order entered by the Massachusetts court, affirming Mr. E—'s marriage to the beneficiary, was granted in accordance with C. 207, section 14, Annotated Laws of Massachusetts, volume 6, 1933, which provides that:

If the validity of a marriage is doubted, either party may file a libel for annulling such marriage, or if it is denied or doubted by either party, the other party may file a libel for affirming the marriage. Such libel shall be filed in the same manner as a libel for divorce, and all the provisions of chapter two hundred and eight relative to libels for divorce shall, so far as appropriate, apply to libels under this section. Upon proof of the validity or nullity of the marriage, it shall be affirmed or declared void by a decree of the court, and such decree of nullity may be made although the marriage was solemnized out of the commonwealth, if at that time and also when the libel was filed the libellant had his domicile in the commonwealth or if he has resided in this commonwealth for five years last preceding the filing of said libel, unless the court finds that he has removed into this commonwealth for the purpose of obtaining said decree. (R. S. 76, secs. 3, 4; 1846, 197; 1855, 27; G. S. 107, secs. 4, 5; P. S. 145, sec. 11; 1886, 36; R. L. 151, sec. 11.)

Although it might well be argued as a result of a literal reading of the above-cited statute, that it was enacted for the purpose only of affording relief to individuals who are in doubt as to their marriages being valid at inception, the fact remains that a court in Massachusetts has apparently interpreted the statute broadly so as to include such a situation as was presented in the E- case. Therefore, it is not believed that the Government should at this time attempt to collaterally attack the decision of that court. On reconsideration, therefore, it is the Service view that in the E- case the sound basis for holding that that marriage is in force is the decree of the Massachusetts Probate Court affirming the marriage rather than the rule laid down by the Board of Immigration Appeals that the divorce was an

enforced one obtained under duress and therefore is not entitled to be recognized by this Government.

In line with the position taken by the Allied Control Council and the State Department, it is believed that where a court of competent jurisdiction in Germany or in the United States declares such marriages to be subsisting, the Service, in considering such cases, should be bound by such decrees. The adoption of this view will provide a method whereby a judicial determination of the facts can be obtained in each case which will serve to avoid an administrative determination of the issue as to whether duress was present as would be necessary under the formula laid down by the Board of Immigration Appeals. That latter rule would undoubtedly be a difficult one to administer because of many conflicting claims that would be made in cases concerning the matter of duress.

In the instant case, the divorce was rendered by the Munich Court on February 23, 1939, dissolving the marriage of the petitioner and the beneficiary, and that marriage has not been declared subsisting by competent judicial authority. Therefore, the beneficiary cannot be considered as the lawful wife of the petitioner within the meaning of the provisions of section 4 (a) of the act of May 26, 1924, and the submitted visa petition should be denied.

It is ordered that the submitted visa petition be denied.

In accordance with 8 C. F. R. 90.3, this case is referred to the Board of Immigration Appeals for consideration.

BEFORE THE BOARD

(July 18, 1947)

Discussion: The petitioner, M- P—, a naturalized citizen of the United States, executed a petition for the granting of a nonquota status in the issuance of an immigration visa in behalf of AP— nee K- and their minor son, P————

The petitioner, R— P— S also a naturalized citizen of the United States, has executed a similar petition in behalf of LK(S).

The Commissioner has ordered the petition in the S

case denied,

and revoked in the P- case insofar as relates to A P— (it having been originally approved), both on the same premise, namely: that in each case the marriage had been dissolved by divorce or annulment.

The matter is before us on appeal in accordance with section 90.3 of Title 8, Code of Federal Regulations.

P was married to A- — K— in Vienna, Austria, July 23, 1924. A son was born to them June 24, 1928. According to the petitioner, his wife (presumably a non-Jew) was forced to go through an annulment proceeding at the insistence of Nazi authorities. He as

serts that the proceeding was an enforced one, based on racial grounds, and that neither he nor his wife were voluntary parties thereto; that he has never accepted or recognized the annulment (presumably Ais of the same attitude, since she is the beneficiary of the petition herein). He also indicated that legal steps in Austria to restore the original marital status would take considerable time. It is not shown that either the petitioner, in this country, or A- P in Austria, has secured a decree from a competent court affirming the original marital status.

The petitioner S was married to L K— (S- -) in Germany on December 22, 1921. She obtained a divorce from him in Germany on February 23, 1939. In support of his claim that he considers the beneficiary to be his wife, despite the divorce, petitioner recites that the divorce was an enforced one, and that neither was a willing party thereto. He represents that following political changes in Germany in 1933, and because of attending difficulties visited upon persons of the Jewish race (his wife being a non-Jew), they applied for and were issued quota numbers at the American Consulate, Stuttgart, Germany, during 1937; that before they could emigrate, persecution against the Jews began and he was forced to flee. His wife, as a matter of protection to herself, went through divorce proceedings. Section 4 (a), Immigration Act of 1924, provides, in pertinent part, that a nonquota status may be accorded an immigrant who is the wife of a citizen of the United States.

Section 165.2, Title 8, Code of Federal Regulations, provides, in pertinent part, that in all cases the issuance of a visa will be withheld and approval of the petition may be revoked if it is ascertained that the petitioner has become divorced from the beneficiary wife.

The Allied Control Council,1 in considering whether means should be devised for setting aside decrees of dissolution rendered on racial grounds during the Hitler regime, reached the conclusion that, however obnoxious such decrees might be from the standpoint of military government policy, a party adversely affected by such a decree should not be given the right to claim restoration of a marriage which has been declared void or had been annulled or dissolved through divorce.

The United States being a member of the Allied Control Council, this Board takes the position that the view of the Council must be accepted as the position of this Government. Therefore, such decrees will be held to be valid decrees. (Compare Aetna Life Insurance Co. v. Tremblay, 223 U. S. 185, 39 Op. Atty. Gen. 226.)

However, since the generally accepted rule of law in this country, relating to marital status, is to determine questions arising therefrom

1 See report from Department of State, dated April 4, 1947, file Le.

on the basis of the law of the domicile,2 a decree by a court of competent jurisdiction (either in Germany or in this country) holding the marriage to be subsisting, will be recognized. This position does not contravene the view of the Council on the pertinent question involved. In the cases now before us such decree has been obtained by either the petitioner or the beneficiary.

Order: It is ordered that since neither the petitioners nor their wives have obtained a decree from a court of competent jurisdiction affirming their marriage, the decisions of the Commissioner, dated December 12, 1946, and June 3, 1947, denying and revoking the visa petitions as to P. and S. respectively, are affirmed.

2 Ohio ex rel. Popovici v. Agler, 280 U. S. 379; Burbank v. Ernest, 232 U. S. 162; Bell v. Bell, 181 U. S. 175; Williams v. North Carolina, 325 U. S. 226.

Aetna Life Insurance Co. v. Tremblay, 223 U. S. 185; Williams v. North Carolina, supra; Matter of E., A-7583089 B. I. A. (January 10, 1947).

IN THE MATTER OF S

In DEPORTATION Proceedings

A-4399310

Decided by the Central Office February 13, 1952

Decided by the Board January 23, 1953

Restoration of civil rights-State of Washington-Equivalence of "pardon" within the meaning of section 19, Immigration Act of 1917.

A certificate of Restoration of Civil Rights issued in 1946 by the Governor of the State of Washington has the same effect as a pardon within the meaning of section 19 of the Immigration Act of 1917, so as to avert deportation on the criminal charge involved.

CHARGE:

Warrant: Act of 1917-Convicted of crime prior to entry, to wit: Grand larceny BEFORE THE CENTRAL OFFICE (February 13, 1952)

Discussion: The record relates to a 60-year-old divorced male, native and citizen of Germany, who last entered the United States near Hannah, North Dakota in December 1920 or January 1921. The warrant of arrest was served on August 17, 1944.

The record discloses that respondent pleaded guilty to the crime of grand larceny, committed on or about May 23, 1919, and that he was sentenced to serve a term of imprisonment at hard labor in the State Reformatory at Monroe, Washington, for a period of not less than one year and not more than fifteen years. He was paroled on July 17, 1920, and was deported from the United States July 28, 1920, on the charges that he was convicted of a crime involving moral turpitude within 5 years after his entry into the United States and that at the time of his entry he was likely to become a public charge. He thereafter surreptitiously entered the United States in December 1920 or January 1921 and has resided continuously in this country since that time. He obtained a final discharge from parole on July 25, 1934 and on December 27, 1946, he obtained a Certificate of Restoration of Civil Rights issued by the Governor of the State of Washington.

Article 3, section 9, of the Constitution of the State of Washington reads as follows:

Pardoning Power-The pardoning power shall be vested in the Governor, under such regulations and restrictions as may be prescribed by law.