MATTER OF LABIANO

In Visa Petition Proceedings

A-14241315

Decided by Board April 30, 1965

Since the marriage on September 1, 1964, at Reno, Nevada of petitioner and beneficiary, uncle and niece, respectively, is void under section 125.290 of the Nevada Revised Statutes because within the degree of consanguinity prohibited by section 122.020 of the Nevada Revised Statutes, approval of the visa petition to accord beneficiary nonquota status on the basis of that marriage is revoked.

The case comes forward on appeal from the order of the District Director, San Francisco District, dated January 11, 1965 revoking the nonquota visa petition previously approved on behalf of the beneficiary on October 22, 1964 for the reason that the marriage of the parties, who are uncle and niece, is not valid under Nevada law and the petition was approved in error.

The petitioner, a native of the Philippine Islands, a naturalized citizen of the United States, 56 years old, seeks nonquota status on behalf of the beneficiary, a native and citizen of the Philippine Islands, 23 years old. The parties were married on September 1, 1964 at Reno, Nevada. A prior marriage of the petitioner was terminated by a decree of divorce in the Superior Court of the State of California for the City and County of San Francisco on July 13,

1961.

A sworn statement was taken from the beneficiary by a Service officer on November 9, 1964. She testified that the petitioner is her uncle, the brother of her mother, whose maiden name was Mariano. She stated that her unele changed his family name when he applied for naturalization. The petitioner and the beneficiary's mother have the same common parents, Severo Mariano and Modesta Paulo.

Section 122.020 of the Nevada Revised Statutes provides: "1. Male persons of the age of 18 years, and female persons of the age of 16 years, not nearer kin than second cousins or cousins of the half blood,

and not having a husband or wife living may be joined in marriage." Section 125.290 of the Nevada Revised Statutes (1957) reads: "The following marriages, if celebrated within the state, are void without any decree of divorce or annulment or other legal proceedings: 1. All marriages which are prohibited by law because of: (a) Consanguinity between the parties; ***”

The petitioner and the beneficiary in the instant case are uncle and niece, respectively. Their marirage is within the degree of consanguinity prohibited by section 122.020 of the Nevada Revised Statutes and they do not possess the capacity to enter into a valid marriage. Under section 125.290 of the Nevada Revised Statutes the marriage is void. The parties appear to have been ignorant of the provisions of Nevada law but that does not remedy the defect in their marriage. The appeal will be dismissed.

ORDER: It is ordered that the appeal from the order of the District Director revoking the approval of the visa petition be and the same is hereby dismissed.

A conviction for issuing or passing a worthless check in violation of paragraph 943.24 of the Wisconsin Statutes is not a conviction of a crime involving moral turpitude.

CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]-Convicted

after entry of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, issue of worthless check.

The special inquiry officer certified his order terminating proceedings.

Respondents, a 40-year-old male and his 30-year-old wife, are natives and citizens of Poland lawfully admitted to the United States for permanent residence: the male on September 11, 1951 and the female on January 5, 1952. The deportation of each is sought because of their separate convictions for passing worthless checks in violation of paragraph 943.24 of the Wisconsin Statutes. The male was convicted on May 25, 1963 for passing of checks on January 12, 1963 and on February 9, 1963; his wife was convicted on February 7, 1962 for issuing a worthless check on October 3, 1961 and one on November 28, 1961; and she was convicted on May 29, 1962 for issuing a worthless check on March 21, 1962. All convictions were on a plea of guilty; the defense of a single scheme is not raised.

The statute provides that the crime is committed when one issues a check “which, at the time of issuance, he intends shall not be paid.” The statute provides that lack of intent to pay may be found prima facie from proof that at the time of issuance there was no account, or from proof that there was a failure to pay within five days after

notification of nonpayment and the drawer had insufficient funds either at the time the check was drawn or the time it was presented for payment. The special inquiry officer terminated proceedings because he found that intent to defraud was not an element of the statute. The Service concedes that intent to defraud has not been an element of the offense since 1955 but maintains that moral turpitude is involved because moral turpitude was found in a similar statute involving the Virgin Islands (Matter of M—, 9 I. & N. Dec. 743). The Service believes that Matter of M- has not been modified or overruled. At oral argument, the Service representative contended that while the presence of an intent to defraud establishes moral turpitude, the absence of an intent to defraud does not necessarily establish the nonexistence of moral turpitude. The Service representative points out that the statute was changed in 1955 to make possible the conviction of a person who had funds on deposit to pay a check but had issued a check intending to stop payment upon it. He attempts to distinguish Matter of Bailie, Int. Dec. No. 1379, from the case before us on the ground that Bailie, involving a similar statute, turned on the fact that a person could be convicted who had no intent to defraud whereas in the instant case the change of the statute was brought about by a desire to convict a person who had the intent to defraud but who because of the wording of the previous statute could not be convicted. He contends that an intent not to pay the check is an element of the crime.

Counsel contends the primary reason for the change in the statute before us was the inability of courts to cope under previous statutes with the large number of cases involving the issuance of worthless checks. He distinguishes the instant case from Matter of M—, in that, here knowledge that sufficient funds did not exist to meet the payment is not required whereas in Matter of M- such knowledge was required. He points out that the record establishes that the respondents did not intend to stop payment and that they hoped to pay the check. In Matter of Bailie, supra, and Matter of Kinney, Int. Dec. No. 1343, involving statutes similar to the one before us, we pointed out that since an intent to defraud was not involved, there was absent the moral turpitude required to support an order of deportation. We stated that the language in Matter of M—, supra, involving the Virgin Islands was broad and would be reexamined when a case involving the law of the Virgin Islands was again before us. The issuance of Matter of Bailie, and the caution concerning the language contained in Matter of M—, is sufficient to prevent Matter of M- being considered as a precedent for cases not involving the law of the Virgin Islands. Matter of M- will be considered

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in light of all the evidence concerning the law of that jurisdiction when the issue is again before us. The intent not to pay the check set up by the Wisconsin statute is found irrespective of the drawer's actual intent, upon a showing that one of several alternative methods of payment have not been made; conviction is possible although the check was drawn and passed with intent to pay it; intent to defraud is not an element. It is well settled for the purpose of the immigration laws that it is not the act committed by the alien which is to be made the basis for deportation proceedings but the act which is punished by law. The statute here punishes an act committed without intent to defraud. It cannot therefore be made the basis for deportation proceedings (Matter of Bailie, supra, Matter of Kinney, supra).

ORDER: It is ordered that no change be made in the order of the special inquiry officer.