Marriage Invalid if It Goes Against Public Policy of State of Residence (Matter of Zappia)

 

Matter of Zappia, 12 I&N Dec. 439 (BIA 1967)

On September 14, 1967, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [PDF version]. At issue was whether a marriage between first cousins was valid for purposes of an immigrant visa petition based on marriage. Specifically, the laws of Wisconsin prohibited marriages between first cousins, so the couple solemnized their marriage in South Carolina where such marriages were legal. The Board held that the marriage was invalid for immigration purposes because Wisconsin did not recognize first cousin marriages that were solemnized outside of the state for the purpose of evading Wisconsin's prohibition of such marriages. In this article, we will examine the factual and procedural history of the case followed by the Board's analysis and conclusions.

It is worth noting that Matter of Zappia has subsequently been distinguished in two precedent decisions. Specifically, later precedents held that where a state which prohibits a marriage under incest laws nevertheless gives full faith and credit to such marriages solemnized outside of the state, the marriage may be valid for immigration purposes. We discuss those decisions in our articles on Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976) [see article], and Matter of Balodis, 17 I&N Dec. 428 (Reg. Comm. 1980) [see article]. Matter of Zappia remains controlling where the state of residence or presumed residence has evasion laws covering prohibited marriage configurations where the marriage was solemnized outside of the state.

Factual and Procedural History: 12 I&N Dec. at 439-40

The petitioner, a 37 year old U.S. citizen, filed an immediate relative petition for his spouse, a 24 year old native and citizen of Italy. The parties were married in South Carolina in 1966, one year before the Board rendered its decision in Matter of Zappia.

The petitioner provided a statement to the former Immigration and Naturalization Service (INS) stating that he knew that he and the beneficiary spouse were first cousins. He recognized that they were not allowed to marry in Wisconsin. The petitioner asked his lawyer for advice on where they could get married. Based on this advice, the petitioner and beneficiary went to South Carolina for the purpose of entering into a marriage. The petitioner stated that he and his wife had no intention of residing in South Carolina and fully intended to reside in Wisconsin.

Denial of Petition Based on Wisconsin Law: 12 I&N Dec. at 440

The District Director denied the immigrant visa petition after reviewing the applicable statutes prohibiting marriage between first cousins in Wisconsin. First, he noted that Wisconsin law prohibited marriages being contracted in Wisconsin between first cousins except in cases where the female had attained the age of 55. Second, Wisconsin law deemed void a marriage where a person residing in Wisconsin or intending to reside in Wisconsin travels to another state to enter into such a marriage that is prohibited or deemed void in Wisconsin. Third, marriage between first cousins and sex between unmarried first cousins was punishable in Wisconsin by a term of imprisonment of up to two years.

Board Rejects Petitioner's Arguments: 12 I&N Dec. 440-42

Petitioner's counsel argued that the Wisconsin statute did not prohibit marriages between first cousins. The Board began by noting that under Wisconsin law the sole exception for the prohibition of marriages between first cousins was when the female was at least 55 years of age, and that exception did not apply in the instant case.

Petitioner's counsel relied on two Wisconsin court decisions to argue that the petitioner's marriage was valid. The Board first rejected petitioner's counsel's reliance on Lyannes v Lyannes, 171 Wis. 381 (1920). The Board explained that Lyannes concerned a predecessor statute requiring antenuptual medical examinations, and had held that a particular marriage where this requirement was not satisfied was valid in Wisconsin. However, the Board found that “the court did not say that the predecessor statute insofar as it related to marriages solemnized without the State of Wisconsin, rendered null and void such pretended marriages only so far as the parties thereto were disabled or prohibited from entering into a marriage under any circumstances under the law of Wisconsin; in other words, such section makes null and void only such marriages as are prohibited by the predecessor statute, which likewise prohibited marriages between persons who were nearer of kin than second cousins.” The Board added that Lyannes also held that a void marriage is a marriage where the relationship between the parties is necessarily incestuous under Wisconsin law.

The Board also found counsel's reliance on In re Estate of Campbell, 260 Wis. 625 (1952), to be unavailing. It concluded that “[t]he [Campbell] case followed the general rule that marriages valid where celebrated are valid everywhere, except those contrary to the law of nature and those which the law has declared invalid upon the ground of public policy.” The Board noted that marriages between first cousins were invalid in Wisconsin as a matter of public policy.

The Board relied upon an existing Wisconsin Attorney General opinion making clear that first cousins who wed in another state and then returned to Wisconsin to reside were subject to the incest provisions of Wisconsin's criminal laws.

The Board did not find it significant that no judicial action in Wisconsin had been undertaken to declare the marriage between the petitioner and beneficiary incestuous. The Board emphasized that, for immigration purposes, “[t]he burden of establishing eligibility for the benefit conferred by the immigration laws upon the basis of a valid relationship is on the petitioner.” The Board had previously held in Matter of M-, 8 I&N Dec. 217 (BIA 1958) [PDF version], that a petition based on a marriage when the petitioner had an existing prior marriage was invalid for immigration purposes notwithstanding the absence of a judicial decree. The Board also distinguished Matter of Zappia from Matter of Hirabayashi, 10 I&N Dec. 722 (BIA 1964) [PDF version]. That case also involved a first cousin marriage contracted outside of a state with evasion laws (Illinois). However, the Board concluded in that case that the marriage had not been entered into outside the state for the purposes of evading Illinois' incest laws and, furthermore, that the laws of Illinois had changed since the initial decision. In the instant case, “the evidence established that the primary intent of the parties in having the marriage celebrated in the State of South Carolina was to knowingly evade the prohibitions of the Wisconsin statutes. Such marriages are regarded as incestuous and characterized as void” by Wisconsin.

Due to the foregoing facts, the Board concluded that the petitioner failed to sustain his burden of establishing that his wife was eligible for immediate preference status. However, the Board suggested that were the petitioner able to secure a judgment from a Wisconsin court affirming the validity his marriage valid in light of the birth of a U.S. citizen child to the couple under a provision of Wisconsin law, he would be permitted to submit the judgment in conjunction with a motion to reopen the case.

Conclusion

Matter of Zappia makes clear that a marriage is not valid for immigration purposes if it would not be recognized in the state wherein the parties would reside due to the public policy of the state. This issue is most relevant in cases involving marriages between relatives or marriages involving minors which may be allowed in certain states but not in others. As we noted in the introduction, some states may prohibit a type of marriage if it is solemnized within the state but give full faith and credit to the marriage if it is legally solemnized outside of the state.

To read about a related topic, please see our full article on the current immigration policies for marriages involving minors [see article].