Validity of Marriage for Immigration Depends on Laws Where Marriage Was Solemnized (Matter of P-)

 

Introduction

On March 18, 1952, then Acting Attorney General Phillip B. Pearlman [PDF version (see page 40)] issued published a precedential decision in the Matter of P-, 4 I&N Dec. 610 (A.G. 1952) [PDF version]. The Acting Attorney General recognized the generally applicable rule that the validity of a marriage is governed by the law of the place of solmization. In this article, we will examine the Matter of P- decision and certain subsequent decisions distinguishing its rule for purpose of immigrant visa and fiancé(e) petitions based on marriage. We will also examine situations that are distinguishable from Matter of P-.

Background: Factual and Procedural History and First Board of Immigration Appeals Decision: 4 I&N Dec. at 610-12

The petitioner, a U.S. citizen, had filed an immigrant visa petition on behalf of his wife, a citizen of Germany.

The question inhibiting the approval of the petition concerned the formal dissolution of the petitioner's prior marriage. The petitioner was first married on December 27, 1943. He and his first wife eventually reached a mutual agreement that their marriage should be terminated. The petitioner signed a nolo contendere. The petitioner's wife obtained legal counsel that a divorce procured in Mexico would be valid. Accordingly, his first wife went to Mexico, “and there engaged a lawyer, signed certain papers, paid him his fee, and returned to the United States.” After returning to the United States, the first wife received documents that divorce proceedings had been initiated in Mexican court. Neither the petitioner nor his first wife were present in Mexico during the divorce proceedings. The Mexican court entered a judgment finalizing the divorce five days after the commencement of proceedings with neither the petitioner nor his first wife present. In fact, neither one of them had ever been present in the Mexican state in which the divorce proceedings took place. Both the petitioner and his first wife subsequently remarried, both relying on the validity of the Mexican divorce decree.

The petitioner was a sergeant in the United States Air Force. Prior to entering into his second marriage with the beneficiary of the instant petition, he stated that he presented his divorce papers from the first marriage to his superior officers. His superior officers concluded that the divorce papers were legal and allowed him to proceed with his second marriage. The second marriage was solemnized in Germany under German law.

The Board stated that it was “impressed with the evident good faith of the parties immediately concerned herein,” and acknowledged the petitioner's concerns “at the possible necessity of his having to incur the delay and expense of further proceedings to legalize [his wife's and two children's] status, including a procurement of a divorce [from his first wife] and thereafter returning to Germany to remarry his [current] wife.” It is worth noting that whether the petitioner's second marriage was recognized would determine whether his children were U.S. citizens.

However, the Board concluded that the instant case was governed by a previous Attorney General decision in the Matter of O-, 3 I&N Dec. 33 (A.G. 1947) [PDF version]. In that case, then-Acting Attorney General Pearlman ruled as follows:

The validity of divorces under section 9 of the Immigration Act of 1924 … 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 immigration purposes if such divorce is obtained while either party thereto is domiciled in the United States.” 3 I&N Dec. at 39. (Emphasis added.)

The Board noted, however, several differences between the instant case and the Matter of O-. Firstly, the petitioner's first wife actually went to Mexico and signed the documents which formed the basis of the divorce proceeding. Secondly, the petitioner's divorce underwent “scrupulous investigation by American officials stationed abroad,” and that investigation resulted in the finding that the divorce was valid. Regarding this second point, the BIA noted that under Supreme Court precedent in Moser v. United States, 341 U.S. 41 (1951) [PDF version], the petitioner was justified in relying on the guidance of the highest authority to whom he could turn (his superior officers) and then acting on their advice in going forward with his second marriage.

Based on the foregoing, the Board stated that “we would sustain the [petitioner's] appeal as an exception to the rule [not recognizing in absentia divorces for immigration purposes] were it not for the broad rule enunciated in Matter of O-.” However, because of the scope of Matter of O- and the fact that it “seems to admit no exception,” the Board concluded that it had “no alternative to an affirmance of the order of the Commissioner [denying the petition].” While the Board dismissed the appeal, however, it opted to refer the case to the Attorney General for consideration of whether the rule set forth in Matter of O- should be modified.

Acting Attorney General Overrules Matter of O-: 4 I&N Dec. at 612-14

The Acting Attorney General began his review by restating the facts of the petitioner's divorce in somewhat more detail than had the Board. He then noted that the petitioner's superior officers in Germany had advised the petitioner that the papers evincing the termination of his first marriage were legal. Based on this conclusion, “[t]he Air Force has recognized his marriage for allotment purposes…” The petitioner testified before the BIA that his superior officers had said nothing about the Mexican divorce degree and that they allowed him to get married under German law.

The petitioner argued that his two children by the beneficiary, who were legitimated under German law by the marriage, were U.S. citizens. Because he argued that his marriage was valid, he sought to accord nonquota status to his wife for her entry into the United States as a permanent resident.

The Acting Attorney General explained that “[t]he status of 'wife' is necessarily dependent on the validity of the marriage which created it.” However, he added that the Immigration Act of 1924, which was the applicable statutory scheme at the time Matter of P- was decided, only specified for exclusions that “[t]he terms 'wife' and 'husband' do not include a wife or husband by reason of a proxy or picture marriage.” Absent the preclusion of proxy and picture marriages, the Acting Attorney General stated that Congress had not said what did create the status of “wife.” In the absence of such specification, the Acting Attorney General held that “the generally accepted rule is that the validity of the marriage is governed by the law of the place of celebration.”

Regarding Matter of O-, the Acting Attorney General concluded upon reexamination that “[t]he 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.” He noted that had Congress wanted to make such a rule, it could have done so in the same vein it explicitly provided that proxy and picture marriages were not marriages for immigration purposes under the Act of 1924. The Acting Attorney General stated that the rigidity of Matter of O- was inconsonant with the Congressional purpose “in providing preferential status to the entry of immigrants closely related to American citizens…” which was to “facilitate and foster the maintenance of families…” In overruling Matter of O-, the Acting Attorney General wrote that “[c]onsistent with that purpose it seems reasonable to believe that Congress intended that the marriage of a citizen, valid where contracted, be accorded validity for immigration purposes.”

Board Approves Petition on Remand: 4 I&N Dec. at 614-16

With the Acting Attorney General having overruled Matter of O-, the Board ultimately approved the petitioner's nonquota petition for his wife, having found that the divorce was recognized and the marriage solemnized under German law.

Distinguishable Situations

Matter of P- remains good law. However, it is important to note that the mere fact a marriage is recognized as valid in the jurisdiction it is solemnized does not necessarily make it valid for immigration purposes.

In Matter of Napello, 10 I&N Dec. 370 (BIA 1963) [PDF version], the Board held invalid a marriage wherein the petitioner had divorced his first wife in a Mexican divorce proceeding where there was no evidence that she had knowledge of the proceeding, and the petitioner subsequently married his second wife by proxy in Mexico. The Board found this situation to be factually distinguishable from Matter of P-, and noted that the subsequent marriage was not recognized as valid in Washington D.C. where it was presumed the petitioner and beneficiary would reside.

In two other cases, the Board rejected immigrant visa petitions where the petitioner obtained a mail order divorce in Mexico to dissolve his marriage with his first spouse. In Matter of Adamo, 13 I&N Dec. 26 (BIA 1968) [PDF version], the petitioner obtained a mail order divorce dissolving his first marriage, subsequently married his second wife (the petition beneficiary) in Nevada, and intended to reside with her in New York. The Board concluded that the second marriage was invalid for immigration purposes because the second marriage was invalid in Nevada due to the fact that “the State of Nevada demands that the requirement of domicile be satisfied before it will accept the jurisdiction of a foreign court over the parties to a divorce action and will not recognize a foreign divorce decree in which the requirement of domicile is lacking.” Id. at 28. In Matter of Pearson, 13 I&N Dec. 152 (BIA 1969) [PDF version], the Board reached a similar case where the petitioner's second marriage took place in Nevada after obtaining a Mexican divorce. However, in this case, the Board also found it pertinent that New York, the state of matrimonial domicile, would also not give extraterritorial effect to the Mexican divorce.

Furthermore, various precedents make clear that where a marriage would be invalid in the state of domicile under the strong public policy of the state, the marriage is invalid for immigration purposes. For discussion of these and related issues, please see our articles on the current United States Citizenship and Immigration Services (USCIS) policies on spousal petitions involving minors [see article] and on the precedent decision Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [see article].

Recent Citation

On November 13, 2018, the United States District Court for the Eastern District of Michigan relied upon Matter of P- to resolve an interesting petition in Beifen Wang v. Sessions, Case No. 2:17-cv-12744 (E.D. Mich. 2018) [PDF version]. The issue in this case concerned whether a naturalization applicant's second marriage in Nevada was valid after he had terminated his initial marriage in China. The District Court described the facts of the case as being generally analogous to those in Matter of P-. Following Matter of P-, the District Court wrote that it would “therefore look only to the validity of the Petitioner's Chinese divorce decree under Nevada law to determine the validity of the Petitioner's initial divorce and subsequent remarriage for immigration purposes,” just as the Board in Matter of P- had considered the validity of that petitioner's Mexican divorce under German law. After concluding that Nevada law would recognize the Petitioner's Chinese divorce as valid, the District Court ruled in favor of the Petitioner. It is worth noting that the Government appealed from the decision to the United States Court of Appeals for the Sixth Circuit. That appeal is pending at the time of the publication of this article.

Conclusion

Matter of P- recognizes the rule that, in general, the validity of a marriage is determined by the jurisdiction in which the marriage took place. Thus, in that case, the marriage was deemed to be valid because the law of Germany recognized the petitioner's Mexican divorce as valid. However, Matter of P- does not establish a universal rule regarding whether a subsequent marriage after a divorce is valid. For example, we discussed several decisions where the Board deemed a subsequent marriage invalid for immigration purposes where it would not be valid under the laws of the state in which it took place. Furthermore, if the state of residence or intended residence would not consider the marriage valid, it is generally invalid for immigration purposes.

Where the petitioner was previously married, the burden is on the petitioner to establish that the second marriage is valid [see article]. In general, a petitioner for a spouse should consult with an experienced immigration attorney for guidance. If either the petitioner or beneficiary was previously married, an attorney can assist the petitioner in presenting evidence that the prior marriage was properly terminated and that the subsequent marriage is valid. Similarly complicated situations may arise in cases where one or both parties to the marriage are minors or where there is a familial relationship between the parties.

To learn more about family immigration generally, please see our growing collection of articles on site [see category].