Matter of Peterson, 12 I&N Dec. 663 (BIA 1968): Consummation not Required to Establish Bona Fide Marriage

 

Introduction: Matter of Peterson, 12 I&N Dec. 663 (BIA 1968)

On March 8, 1968, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968) [PDF version]. The issue in Matter of Peterson was whether a marriage between a petitioner and beneficiary was valid where the couple did not reside together and where the petitioner testified that he had married the beneficiary to obtain a housekeeper. The Board held that the marriage was valid, noting several factors, including that the parties were “elderly,” lived in the same house, had known each other prior to the marriage, and intended to have a lasting and marital relationship that had been ongoing for over two years at the time of the decision.

In this article, we will examine Matter of Peterson and what it means for establishing the bona fides of a marriage.

Matter of Peterson

Factual and Procedural History: 12 I&N Dec. at 663-64

The petitioner, a 60-year old native-born U.S. citizen, sought immediate relative status on behalf of the beneficiary, his 53-year old wife who was a native and citizen of Iran.

The petitioner had been unmarried since his divorce in 1936. He had been retired for the previous five years prior to the decision in the instant case due to poor health. In his retirement, he was supported by social security and welfare assistance.

The petitioner stated that he had met the beneficiary through a mutual friend about one and a half years prior to their marriage. The petitioner needed a housekeeper and the beneficiary needed a place to live. The Board explained that, according to the petitioner, “it was understood between the petitioner, the beneficiary and her married daughter before the marriage that there would be no consummation and that he would reside in separate rooms.” The petitioner did not pay the beneficiary a salary. Instead, the petitioner bought groceries, and the beneficiary's spending money came from her daughter and her personal funds.

The petitioner denied that he had married the beneficiary for the purpose of assisting her in procuring adjustment of status. The petitioner instead stated that he married the beneficiary in order to obtain a housekeeper. The petitioner stated that he did regard the beneficiary as his wife, but he acknowledged that the relationship was different than his relationship with his first wife.

The Board had previously considered the case on June 22, 1967, on appeal from a former Immigration and Naturalization Service (INS) District Director in a decision dated March 6, 1967. The District Director had denied the petition after concluding that the marriage was not bona fide. The Board remanded to the District Director for questioning of the beneficiary regarding the relationship and further consideration of whether the marriage was bona fide.

On remand, a sworn statement was taken from the beneficiary. The beneficiary testified that her husband, the petitioner, had not had any employment since their marriage for health reasons (counsel stated that it was emphysema). The beneficiary testified that she knew the petitioner for about a year and a half prior to their marriage. While she acknowledged that she was not in love with the petitioner, she testified that she liked him and he liked her. She added that she felt sorry for the petitioner because he was alone and sick. She stated that she married the petitioner in order to take care of him.

The beneficiary testified that upon marrying, they lived together normally. However, the petitioner recommended that the beneficiary sleep in her own room because of his coughing. From that point forward, the petitioner and beneficiary lived in the same house but in separated rooms.

The beneficiary testified that the petitioner was too sick to engage in normal marital relations. However, the beneficiary denied that there was an agreement between her and the petitioner that specified that the marriage would not include normal marital relations between husband and wife. The beneficiary stated that the petitioner had asked her to take care of him and his house.

The beneficiary testified that she had not entered into the marriage as a basis for remaining in the United States or in order to facilitate her stay in the United States. Instead, she stated that she decided to stay with the petitioner for as long as he lived after they were married.

Analysis and Conclusions: 12 I&N Dec. at 665

The Board stated that the petitioner bears the burden of establishing eligibility for the benefit sought, in this case, permanent resident status for his wife based on marriage. The Board explained that a marriage comes into existence when it “has been duly solemnized in accordance with the laws of the place where it is performed … regardless of whether it is followed by sexual intercourse.” Here, the Board followed its precedent from Matter of M-, 7 I&N Dec. 601 (BIA 1957) wherein it held that consummation of marriage is not a requirement.

The Board took the position that “the [INS] has failed to take into account the circumstances of the marriage.” The Board listed the pertinent circumstances:

  • The parties were mature people.
  • The husband had been unable to work for five years due to illness.
  • The husband had been unmarried for over 30 years and he needed a housekeeper due to his age.
  • The wife agreed to become the husband's housekeeper.
  • The husband bought the food and the wife otherwise spent her own funds.

Due to these factors, the Board held that “the fact the parties sleep in separate rooms and have not had sexual intercourse [is] insignificant in view of the evidence showing that there was intended a valid and lasting marital relationship which has continued for over two years.”

In its conclusion, the Board stated that “[t]he reasons for the marriage appear to be far sounder than exist for most marriages.” The Board found “not a single iota of evidence that this was a sham marriage.” Here, the Board explained that in a bona fide marriage, “the marriage relationship is intended to be a valid and lasting one…” In the instant case, the parties continued to reside together for two years subsequent to their marriage. The Board held that once the parties continued to reside together for a number of years, “the motive or purpose in entering into the marriage is not a primary concern.” However, here, it is important to note that the Board meant this statement in the context of a “motive or purpose” other than to circumvent the immigration laws. Had the marriage been entered into for the primary purpose of securing immigration benefits for the beneficiary, the Board would not have concluded that it was a bona fide marriage.

Conclusion

Matter of Peterson is an interesting decision in the canon of decisions addressing establishing a bona fide marriage. The most significant part of the decision was the Board's affirmation that consummation of a marriage is not a requirement for proving that the marriage is bona fide. The rest of the analysis focused on the specific facts presented in Matter of Peterson. The analysis in Matter of Peterson foreshadowed the Board's later decision in Matter of Laureano, 19 I&N Dec. 1, 2 (BIA 1983) [PDF version] [see article], wherein it held that “[t]he central question is whether the bride and groom intended to establish a life together at the time they were married.” In Matter of Peterson, the Board concluded that the petitioner and beneficiary intended to establish a life together and had valid non-immigration reasons for entering into the marriage. Accordingly, despite the perhaps unorthodox nature of the marriage, the Board concluded that the marriage was bona fide.

While Matter of Peterson remains good law, it is important to note that marriages such as the one involved here that deviate from a normal marital relationship are likely to be closely scrutinized by the United States Citizenship and Immigration Services (USCIS). In fact, while the marriage in Matter of Peterson was ultimately found to be bona fide, it is worth noting that the petition was twice rejected by INS prior to the Board's decision on the merits. When seeking immigration benefits based on marriage, a petitioner and beneficiary should always consult with an experienced immigration attorney. An experienced attorney will be able to assess a case and identify the best path forward. Finally, regardless of the situation, it is essential for both the petitioner and beneficiary to be fully honest throughout the entire process. The INA contain severe penalties for both marriage fraud [see article] and fraud or willful misrepresentation of a material fact in order to procure immigration benefits.