the statutes recognize lack of jurisdiction and want of personal service as grounds for possible nonrecognition. We believe a court in Puerto Rico, regardless of any question of compliance with formal requirements of authentication and certification, would not give effect to the Qadi's judgment.

IV. Validity of the Puerto Rican marriage

Generally, the Supreme Court of Puerto Rico relies upon the principle of nationality, rather than domicile or place of marriage, in choosing the law to be applied to determine the effect of a marriage.24 The nationality rule applies most clearly where both spouses are citizens or both are noncitizens of Puerto Rico.25 Moreover, the cases we have found applied the national law of the noncitizens not to the marriages themselves, which occurred outside Puerto Rico, but to the controversy's subject matter-located within Puerto Rico.

Apparently the application of the nationality principle where one spouse is a citizen and the other a noncitizen of Puerto Rico has not been authoritatively decided. Ordinarily, in such a situation we would expect the court to follow the husband's law-except for Puerto Rican requirements for the form of celebration of the marriage if the marriage occurred there. Quite clearly, however, a Puerto Rican court would not apply beneficiary's national substantive law, which recognizes polygamy.

We are positive, therefore, that, regardless of beneficiary's alien status, and regardless of his domicile, Puerto Rico would apply its own substantive law to the marriage which occurred there, especially since petitioner is Puerto Rican.

Marriage in Puerto Rico is a social institution, regulated and controlled by public authority.26 Puerto Rican statutory provisions ex

24 Cabassa v. Nadal, 23 P.R.R. 691 (1916); Antongiorgi v. Registrar of Property, 6 P.R.R. 493 (1904); Cothran v. Registrar of Arecibo, 25 P.R.R. 602 (1917); Los Conflictos De Leyes En Materia De Matrimonio, Inmuebles Gananciales y Divorcio Segun La Doctrina Puertorriquena, 9 Rev. Jur. U.P.R. 95 (1939). For nationals of the United States the court applies a modified nationality doctrine referring to citizens of Puerto Rico or of the individual states.

In our jurisprudence the rule that the place of marriage governs the marriage's validity applies particularly to the celebration of the marriage whereas the law of the domicile frequently affects the validity of the resulting marital status. Ex parte Suzanna, 295 F. 713 (Mass., 1924).

25 Cases cited supra ".

26

U.S. v. Vega, 3 P.R. Fed. 480 (1908); Bravo v. Franco, 1 D.P.R. 242 (1902); Perez v. Leon, 52 P.R.R. 496 (1938), appeal dismissed 99 F. 2d 851 (1938) sub nom. Leon v. Torruella.

Sec. 68, Civil Code, 1930, 31 L.P.R.A. Sec. 221, provides:

Marriage is a civil institution, originating in a civil contract whereby a man and a woman mutually agree to become husband and wife and to discharge toward

pressly declare that a marriage not contracted and solemnized in accordance with the provisions of law is invalid.27 The Civil Code of Puerto Rico also specifically provides that a marriage is invalid if contracted by a person who is already legally married.28

Moreover, the public attorney may bring an action for a declaration of nullity of a marriage.29 The Puerto Rican Law of evidence contains a presumption that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage, but that presumption may be overcome.30 In any event, as we have seen, such a presumption is inapplicable here. A certified copy of a record of the civil registry constitutes only prima facie evidence of its contents and may be rebutted.31

Although the Puerto Rican Code provisions declaring the invalidity of marriages not complying with the statutory requirements are express and in mandatory terms, the courts have determined whether noncompliance with particular requirements of the statutes renders a marriage void ab initio or merely voidable. The Supreme Court of Puerto Rico, has held, however, that a marriage contracted by a person already legally married is void and not merely voidable.32

The Puerto Rican legislature and Judiciary have each expressed a strong public policy against marriage without termination of a prior marriage. Petitioner has not established that beneficiary has the legal capacity to contract marriage with her. Therefore, on the evidence here, the marriage between petitioner and beneficiary is not valid in Puerto Rico.

The petition depends upon the validity of that marriage. Therefore, it must fail. For the reasons discussed herein, we approve the district director's order denying the petition.

ORDER: It is ordered that the order of the district director denying the petition be, and hereby is, approved.

each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with the provisions of law; and it may be dissolved before the death of either party only in the cases expressly provided for in this title.

27

Among the requisites for validity of a marriage the Civil Code prescribes: *** authorization and celebration of a matrimonial contract according to the forms and solemnities prescribed by law. Civil Code, 1930, Sec. 69(3), 31 L.P.R.A. Sec. 231(3).

When a marriage has not been contracted according to the requirements of this title, the same is null and void. Civil Code, 1930, Sec. 110. 31 L.P.R.A. Sec. 411. "Civil Code, 1930, Secs. 69 and 70, 31 L.P.R.A. Secs. 231 and 232.

29 'Civil Code, 1930, Sec. 111, 31 L.P.R.A. Sec. 412.

20

Code of Civil Proc., 1933, Sec. 464 (29), 32 L.P.R.A. Sec. 1887 (29).

31 Code of Civil Proc., 1933, Sec. 433, 32 L.P.R.A. Sec. 1805; Estate of Felix Matos, 63 P.R.R. 72 (1944).

respondent had stated in his answer to Question 10 of the application. form, "I have not been charged with a violation of law," the Service also contends that he concealed his criminal record and obtained documentation as a permanent resident by fraud or by willfully misrepresenting a material fact. Since one of the basic requirements for status as a permanent resident under section 245 is that the person applying be admissible to the United States, if the respondent was in fact convicted of a crime involving moral turpitude not classifiable as a petty offense, he was not so admissible.

The respondent was convicted in the Court of Osimo, Province of Ancona, Italy, on January 20, 1951, of the crime of embezzlement, pursuant to Article 646 of the Italian Penal Code and Article 61, No. 11, of the Italian Penal Code. A copy of the record of conviction and the statute are a part of the record. Differences have arisen in the translation of the record of conviction, the translator for the respondent translating it as "embezzlement" and the translator for the Government interpreting the phrase as "misappropriation." Counsel for the respondent wishes to accept the Service translation. According to the Service translation, Article 646 of the Italian Penal Code is entitled "Misappropriation" and provides that "Anyone who, in order to obtain for himself or others an unjust profit, misappropriates money or someone else's property, which he is holding under any condition, is punishable, upon being sued by the offended person, to imprisonment of up to three years and to a fine of up to 10,000 lire." If the act is committed upon articles held necessarily on deposit (c. 1864.s) the penalty is increased. Legal action will be instituted, if the circumstances indicated in the preceding paragraph apply or any of the circumstances indicated in No. 11 of Article 61 of the Italian Penal Code. Article 61, No. 11, provides that when someone commits the deed with the abuse of authority or domestic relations, or else with abusing relations of office, relation of employment, of cohabitation, or of hospitality.

The translation of the record of conviction against the respondent (Exhibit 5) shows that in the Police Magistrate's Court of Osimo, in penal proceeding against the respondent, he was charged with the crime of aggravated embezzlement, he having misappropriated in order to obtain an unjust profit 24 accordions intrusted to him for business or commercial purposes while he was in the United States, and that he appropriated the money received from the sale of these accordions in the amount of $1421, as a result of which on January 20, 1951, he was convicted of the crime of aggravated embezzlement or misappropriation and was sentenced to two months imprisonment and to 10,000 lire fine plus the payment of the costs of trial; it was further

MATTER OF ADAMO

In RESCISSION Proceedings

A-12312321

Decided by Board June 4, 1964

(1) Conviction of "aggravated embezzlement" under Article 646 and Article 61, No. 11, of the Italian Penal Code, is conviction of a crime involving moral turpitude and is not classifiable as a "petty offense" since the equivalent offense under section 22-1210, District of Columbia Code, is "Embezzlement by executors or other fiduciaries," punishable by a possible sentence of 10 years in jail.

(2) Although the above crime was committed in the United States, the record of foreign conviction in Italy showing that it was a penal conviction is conclusive evidence of the nature thereof. Inquiry dehors the record of conviction as to the legal status of the tribunal which rendered the judgment of conviction is precluded, other than with rare exceptions relating to convictions in absentia for convictions for political offenses.

The case comes forward on appeal from the order of the special inquiry officer dated February 28, 1964, ordering that the status of permanent residence in the United States granted by the Immigration and Naturalization Service pursuant to section 245 of the Immigration and Nationality Act be rescinded.

The record relates to a native and citizen of Italy, 51 years old, male, who entered the United States in November 1960 at the Port of New York on the SS "Cristoforo Colombo" and was admitted as a visitor under section 101 (a) (15) (B) of the Immigration and Nationality Act. On January 15, 1962, he filed an application for status as a permanent resident pursuant to section 245 of the Immigration and Nationality Act and on March 13, 1962, the Service created a record of lawful admission for permanent residence.

On March 29, 1963, the Service instituted this proceeding under the provisions of section 246 of the Immigration and Nationality Act to rescind the status of permanent resident previously accorded the respondent. It contends that the respondent was convicted of a crime involving moral turpitude which disqualifies him for the status of permanent resident at the time it was granted to him. Inasmuch as the

593

respondent had stated in his answer to Question 10 of the application form, "I have not been charged with a violation of law," the Service also contends that he concealed his criminal record and obtained documentation as a permanent resident by fraud or by willfully misrepresenting a material fact. Since one of the basic requirements for status as a permanent resident under section 245 is that the person applying be admissible to the United States, if the respondent was in fact convicted of a crime involving moral turpitude not classifiable as a petty offense, he was not so admissible.

The respondent was convicted in the Court of Osimo, Province of Ancona, Italy, on January 20, 1951, of the crime of embezzlement, pursuant to Article 646 of the Italian Penal Code and Article 61, No. 11, of the Italian Penal Code. A copy of the record of conviction and the statute are a part of the record. Differences have arisen in the translation of the record of conviction, the translator for the respondent translating it as "embezzlement" and the translator for the Government interpreting the phrase as "misappropriation." Counsel for the respondent wishes to accept the Service translation. According to the Service translation, Article 646 of the Italian Penal Code is entitled "Misappropriation” and provides that "Anyone who, in order to obtain for himself or others an unjust profit, misappropriates money or someone else's property, which he is holding under any condition, is punishable, upon being sued by the offended person, to imprisonment of up to three years and to a fine of up to 10,000 lire." If the act is committed upon articles held necessarily on deposit (c. 1864.s) the penalty is increased. Legal action will be instituted, if the circumstances indicated in the preceding paragraph apply or any of the circumstances indicated in No. 11 of Article 61 of the Italian Penal Code. Article 61, No. 11, provides that when someone commits the deed with the abuse of authority or domestic relations, or else with abusing relations of office, relation of employment, of cohabitation, or of hospitality.

The translation of the record of conviction against the respondent (Exhibit 5) shows that in the Police Magistrate's Court of Osimo, in penal proceeding against the respondent, he was charged with the crime of aggravated embezzlement, he having misappropriated in order to obtain an unjust profit 24 accordions intrusted to him for business or commercial purposes while he was in the United States, and that he appropriated the money received from the sale of these accordions in the amount of $1421, as a result of which on January 20, 1951, he was convicted of the crime of aggravated embezzlement or misappropriation and was sentenced to two months imprisonment and to 10,000 lire fine plus the payment of the costs of trial; it was further