Spousal Petition Approvable of State of Residence Gives Full Faith and Credit to Marriage (Matter of Da Silva)

Valid marriage for immigration performed out of state, myattorneyusa.com


Introduction: Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976)

On August 23, 1976, the Board of Immigration Appeals (BIA) published an immigration precedent decision in the Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976) [PDF version]. The decision concerned a spousal immigrant visa petition filed by a petitioner who would reside in New York with his spouse but in a marriage that could not be entered into under New York law. The Board determined that the marriage was valid because (i) it was entered into in Georgia (where it was permitted), and because (ii) although the couple could not have entered into their marriage in New York, the marriage, having been legally entered into elsewhere, was not against the public policy of New York. The main precedent is that a marriage is valid for immigration purposes if it is not against the public policy of the state in which the couple will reside, even if the marriage could not have been legally entered into in the first place in that state.

In this article, we will examine the factual and procedural history of Matter of Da Silva and the Board's analysis and conclusions.

Factual and Procedural History: 15 I&N Dec. at 778-79

The petitioner, a lawful permanent resident and native and citizen of Portugal, filed an immigrant visa petition on behalf of his spouse, also a native and citizen of Portugal. The petitioner and beneficiary resided in New York, but they had married in 1975 in Georgia (the U.S. state).

At their visa interview, the petitioner and beneficiary stated that they were related as uncle and niece. They stated that they had married in Georgia because they could not legally marry in New York. The petitioner stated that they departed New York for Georgia solely to marry and that they had always intended to live and did live in New York.

The Board noted that the Supreme Court held in Loughran v. Loughran, 292 U.S. 216 (1934) [PDF version], that the legal validity of a marriage is determined by the law of the place of celebration. The Attorney General reached the same conclusion regarding the immigration laws in Matter of P-, 4 I&N Dec. 610 (A.G. 1952) [see article], and the Board held the same in Matter of Levine, 13 I&N Dec. 244 (BIA 1969) [PDF version]. However, the Board addressed an important exception to the rule in the immigration context, specifically: “[A] marriage complying with all the requirements of the State of celebration might nevertheless be deemed invalid if it is invalid under the laws of a State where one of the parties is domiciled at the time of the marriage and where both intend to make their own afterward, or if it violates a strong public policy of the State of domicile.” The Board addressed this issue clearly in Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [see article].

The district director relied on Matter of Zappia in denying the instant immigrant visa petition. The director concluded that the petitioner and beneficiary had entered into their marriage in Georgia to evade the statutory prohibitions against uncle-niece marriages in New York. Accordingly, the district director concluded that the marriage was invalid for the purpose of conferring lawful permanent resident status onto the beneficiary.

Applicable New York Statute: 15 I&N Dec. at 779

The New York Domestic Relations Law at the time Matter of Da Silva was decided stated that “[a] marriage is incestuous and void whether the relatives are legitimate and illegitimate between either: An uncle and niece or an aunt and nephew.” The statute provided that “[i]f a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void…”

Board Finds that Marriage Was Valid for Immigration Purposes: 15 I&N Dec. at 779-80

Counsel for the petitioner conceded that the New York Domestic Relations Law did prohibit marriage between an uncle and niece. However, counsel argued that this restriction applied only to marriages performed in New York.

Petitioner's counsel relied on the state court decision in Estate of May, 305 N.Y. 486 (1953) [PDF version]. In that case, the New York Court of Appeals held that a marriage between an uncle and niece who resided in New York but who had entered into their marriage in Rhode Island was legal. The New York Court of Appeals held: “We regard the law as settled that, subject to two exceptions …, and in the absence of a statute expressly regulating within the domiciliary State marriages solemnized abroad, the legality of a marriage between persons sui juris is to be determined by the law of the place where it is celebrated.” (Internal citation omitted.) The New York Court of Appeals recognized that the marriage would have been void had it been celebrated in New York, but concluded that because the marriage was celebrated outside of New York, the pertinent issue, absent any statute to the contrary, was whether the marriage was valid where it was celebrated. Although Estate of May specified that the couple was Jewish, the Board did not consider that a limitation on the decision.

Based on Estate of May and similar decisions, the Board found that the holding in Matter of Zappia was distinguishable from the instant case. In Matter of Zappia, the state law at issue explicitly covered marriages where the couple married in a different state to evade the laws of Wisconsin. New York, the Board concluded, had no similar evasion laws.

The Board thus concluded as follows: “It appears that an out-of-state marriage entered into by an uncle and niece who are residents of the State of New York does not violate the public policy of that State, and will be recognized as valid in New York.” For this reason, the Board sustained the petitioner's appeal and remanded the record to the district director for consideration of whether the marriage was bona fide.

Reference in Adjudicator's Field Manual

The United States Citizenship and Immigration Services' (USCIS's) Adjudicator's Field Manual (AFM) addresses Matter of Da Silva briefly in the context of spousal petitions involving minors. At AFM 21.3(b)(2)(D)(ii), the AFM cites to the decision for the proposition that: “A marriage involving a minor may be legal in the place of celebration but void under the state law of the minor's residence as contrary to state public policy. Conversely, state law may prohibit a marriage of a person under age 16, but may recognize as valid an out of state marriage of a resident under age 16.”

We discuss issues specific to marriages involving minors in a separate and comprehensive article [see article].


Matter of Da Silva addresses a rare situation in which an immigrant visa petition may be filed on behalf of a spouse in a state where they could not enter into the marriage in question, but where the public policy of the state recognizes the marriage provided that it was entered into elsewhere. While rare, the issue may apply in certain cases where one party to the marriage is a minor or where the parties are closely related. In these types of cases, the petitioner should consult with an experienced immigration attorney for case-specific guidance on the advisability of a spousal petition. The Board subsequently applied similar reasoning in the K visa fiancé(e) petition context in Matter of Balodis, 17 I&N Dec. 428 (BIA 1980) [see article].