VP-449729.
Decided by Board October 14, 1954.
Marriage — Between uncle and niece — Void in Pennsylvania although valid in Italy where performed. Alien spouse not eligible for nonquota status under section 101(a)(27)(A) of Immigration and Nationality Act — Child of such marriage eligible for nonquota status under section 101 (a) (27) (A).
(1) Under the law of Pennsylvania, marriage between uncle and niece, regardless of where performed and consummated, is void and the parties thereto are liable to criminal prosecution for incest if they cohabit therein. Therefore, a visa petition filed by a United States citizen resident of that state, who intends to continue to reside therein, for the purpose of obtaining nonquota status for his wife under section 101 (a) (27 (A) of the Immigration and Nationality Act, must be denied.
(2) The child of a marriage between uncle and niece valid in Italy where the child resides is legitimate and is entitled to nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act. Although the father is a resident of Pennsylvania where such marriages are void, under the law of that state children of marriages contracted between parties within the prohibited degree of affinity have all the rights and privileges of children born in wedlock.
BEFORE THE BOARD
Discussion: The matter comes forward for consideration and final decision pursuant to certification by the Assistant Commissioner on the authority contained in 8 C.F.R. 6.1 (c).
On May 25, 1951, the Commissioner approved the visa petition for nonquota status submitted by the citizen petitioner on behalf of his alleged wife and son, subject to proof of the petitioner's claimed relationship to the beneficiaries. The visa petition indicated that the petitioner had married the beneficiary on February 10, 1934, at Lugo, Italy, and that a son was born to the couple at Lugo, Italy, on February 3, 1935. On October 27, 1952, the Department of State requested advice as to whether the Immigration and Naturalization Service wished to reconsider the approval of the visa petition on the basis of a communication dated September 30, 1952, from the American Consulate General at Genoa, Italy, with regard to the matter. This communication indicated that the petitioner and the alleged wife were uncle and niece and that a special dispensation for the celebration of the marriage, in spite of the existing impediment, was obtained from the church on November 14, 1933, and that on the basis of such special dispensation the marriage of the parties was legal in Italy. However, a question arose because of the fact that the parties herein intended to reside in the State of Pennsylvania where the petitioner resided inasmuch as the statutes of the Commonwealth of Pennsylvania define incestuous fornication between an uncle and a niece as a crime, and provide severe penalties therefor. In a letter from the Governor's Office of the Commonwealth of Pennsylvania dated November 14, 1951, the following information was given:
The statutes of the Commonwealth of Pennsylvania define incestuous fornication between an uncle and his niece as a crime, and provide severe penalties therefor. They further declare all marriages within such degree to be void to all intents and purposes. These statutes have been construed by the Courts of Pennsylvania and the Federal Courts as prohibiting residents of this Commonwealth from going into a foreign country and entering into such marriage contracts and have held that the marriage would not be recognized in this State. The decisions are based upon the proposition that such marriage contract is against good morals and public policy and contrary to God's law. Furthermore, that if the relationship entered into elsewhere, although lawful in the foreign country, is stigmatized as incestuous by the laws of Pennsylvania, no rule of comity requires the Court sitting in this State to recognize the foreign marriage as valid and that Pennsylvania will not tolerate the incestuous union of foreigners settling within its limits.
The Attorney General further advises me that the cohabitation, as man and wife, between parties to such marriage in Pennsylvania could result in criminal prosecution. A conviction of such offense has been sustained in at least one instance in the Commonwealth.
From the foregoing advice of the Attorney General it appears clear that the Commonwealth of Pennsylvania would not recognize a marriage between uncle and niece, regardless of where the marriage contract was entered into and of the residence of the parties at the time of its consummation, and that the cohabitation of the parties to such marriage in Pennsylvania could result in conviction of the crime of incest.
The Immigration and Naturalization Service advised the Department of State that in view of the decision of this Board in Matter of C----, VP-446985, A-7283133, 4 IN Dec. 632 (April 23, 1952), no action would be taken to disturb approval of the visa petition under consideration. Matter of C---- involved a marriage between an uncle and niece of the Hebrew faith celebrated in Rhode Island which was lawful in that state, but which was unlawful in the State of Pennsylvania where the parties intended to reside. After noting that such a marriage was considered voidable rather than void ab initio in Pennsylvania, the Board concluded that absent any authority to the contrary, the assumption is unwarranted that it was the intention of the legislature of the State of Pennsylvania to criminally prosecute persons lawfully married in Rhode Island because they cohabit in Pennsylvania where the celebration of such marriage is unlawful, and under the circumstances it would hardly seem reasonable that the State of Pennsylvania would criminally prosecute the parties to such marriage prior to the litigation of its validity. Subsequently, the Department of State transmitted a letter dated March 10, 1953, from the Governor of Pennsylvania. The letter from the Governor of Pennsylvania reads in part as follows:
The Act of June 24, 1939, P.L. 872, Section 507, 18 P.S. Section 4507, which codifies the previous Act of March 31, 1860, P.L. 382, Section 39, defines marriage within the degrees of consanguinity or affinity as incest, a felony, and provides for the imposition of a fine not exceeding $2,000, or imprisonment not exceeding 5 years, or both. Said Act declares such marriages to be void. The Act further, in specifying the degrees of consanguinity, provides that a woman may not marry her father's brother or her mother's brother. The language of this Act is so clear that no further discussion would seem to be necessary. However, your attention is called to two decisions involving this question.
In the case of United States ex rel. Devine et al. v. Rogers, Commissioner of Immigration, et al., 109 Federal Reporter 886, the District Court for the Eastern District of Pennsylvania, held that a marriage of a United States citizen to his niece in Russia, though lawful in Russia, will not be recognized as valid in Pennsylvania, where a continuance of the marriage would expose the parties to indictment in the criminal courts. In that case the wife and her daughter were ordered to be deported. The court concludes its opinion in the following language:
`In view of this exception to the general rule, it seems to me to be impossible to recognize this marriage as valid in Pennsylvania, since a continuance of the relationship here would at once expose the parties to indictment in the criminal courts, and to punishment by fine and imprisonment in the penitentiary. In other words, this court would be declaring the relation lawful, while the court of quarter sessions of Philadelphia county would be obliged to declare it unlawful. Whatever may be the standard of conduct in another country, the moral sense of this community would undoubtedly be shocked at the spectacle of an uncle and niece living together as husband and wife; and I am, of course, bound to regard the standard that prevails here, and to see that such an objectionable example is not presented to the public. A review of the Pennsylvania legislation affecting the marriage of uncle and niece will be found in Parker's Appeal, 44 Pa. 309. It is accordingly ordered that Rosa and William Devine be remanded.'
In the case of Commonwealth v. Grove, 40 D. C. 139 (1940), an application for support filed by an aunt who had married her nephew was denied by reason of the fact that under the Pennsylvania law, said relation was void. In that case the court stated:
`It is contended by counsel for prosecutrix that a marriage as alleged by prosecutrix is not void, but voidable, and that defendant, before he can defend on the question of an illegal marriage, must have the marriage annulled by the proper authorities. In our opinion, there is no merit to this contention.'
The Attorney General calls attention to the fact that the letter of Deputy Attorney General Elmer Bolla dated April 14, 1952, to which you refer, dealt with the Act of March 3, 1815, P.L. 150, 6 Sm. L. 286, Section 5, 48 P.S. Section 163, which is a civil act defining the status of incestuous marriage. Said Act declares such marriages to be void and provides for their dissolution by divorce. It provides further that when said marriages have not been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into after the death of either the husband or the wife.
The case of Parker's Appeal, 44 Pa. 309, cited in said letter, refers specifically to the situation where the validity of the marriage was challenged after the death of one of the parties. The concluding statement of the court in said decision at page 312 is significant.
`We cannot, however, refrain from stating that such connections are destructive of good morals, and should not only be frowned upon by the community, but be very severely punished; and this unquestionably was the view of the revisers of our Criminal Code. By the 39th section of the Act of the 31st March 1860, if any person shall intermarry within the degrees of consanguinity or affinity, he or she shall, on conviction, be sentenced to pay a fine not exceeding $500, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years, and all such marriages shall be declared void. * * *'
The conclusion of the Office of the Governor and the Office of the Attorney General of the State of Pennsylvania, although not having the binding effect of a decision of a court, is entitled to respect, particularly since the opinion is buttressed by legal citations. It appears from the most recent information furnished to us by the highest authorities of the State of Pennsylvania that the marriage between uncle and niece, no matter where contracted, would be regarded as void in the State of Pennsylvania and that the cohabitation of the parties to such marriage in Pennsylvania could result in conviction of the crime of incest. The situation presented differs from that existing in Matter of C----, 4 IN Dec. 632, where the parties, an uncle and niece, were married in Rhode Island where such marriages were permissible, and thereafter resided in Pennsylvania and there was no authority presented that it was the intention of the legislature of the State of Pennsylvania to criminally prosecute the persons in such a situation. In view of the additional evidence presented to us regarding the law of the State of Pennsylvania respecting the instant marriage, it must be concluded that the visa petition must be denied because the marriage would be regarded as void in the state of intended residence and the parties would be liable to criminal prosecution therein for incest.
In 37 Opinions of Attorney General 102 involving a marriage between a citizen of the United States and a resident of the State of Virginia to a niece in Poland, the Attorney General of the State of Virginia expressed the opinion that if the marriage were lawful where contracted, he might lawfully reside in Virginia with his wife since the Virginia statute applied only to persons living within the State of Virginia who went out of the state for the purpose of marrying and with the intention of returning.
There remains for consideration the visa petition for nonquota status on behalf of A---- G----, the minor child of the petitioner, born February 3, 1935, in Italy. The marriage of the parents of this beneficiary was legal in Italy and there is no doubt that he is considered as their legitimate child under the laws of Italy, the law of his domicile. At the time of the child's birth the petitioner appears to have been a citizen and domiciliary of the United States. The father appears to have been a resident of the State of Pennsylvania, and under the laws of that state it appears that the children of marriages contracted between parties within the prohibited degrees of affinity have all the rights and privileges of children born in wedlock. Accordingly, there appears to be no obstacle to the recognition of the legitimacy of the child and the visa petition will be approved solely as to the child.
Purdon's Pennsylvania Statutes Annotated (Perm. ed.), Title 48, section 164.
Order: It is ordered that the prior approval dated May 25, 1951, of the visa petition on behalf of the wife, C---- G----, be and the same is hereby revoked and that the visa petition be denied.
It is further ordered that the approval dated May 25, 1951, of the visa petition on behalf of the child, A---- G----, be and the same is hereby affirmed.