1301-17007
Decided by Board January 31, 1956
Marriage — Validity of mixed racial marriage, Maryland and California — Adultery.
(1) The general rule is that the validity of a marriage is determined by the law of the place where contracted; if valid there, it will be held valid everywhere, unless a statute expressly provides to the contrary.
(2) Although marriage between persons of the white and Malay races is prohibited and declared void in Maryland, where such marriage is contracted by residents of Maryland in the District of Columbia and is valid under the laws of the District of Columbia, it will be recognized as a valid marriage in Maryland in the absence of any statutory provision in Maryland expressly providing for the invalidity of such marriage.
(3) A marriage between persons of the white and Malay races, valid in the District of Columbia where contracted, will be recognized as valid in California although California statutes prohibit the performance of marriages of mixed races in that jurisdiction. Hence, adultery is committed by a party to such marriage if he subsequently marries in California without having obtained a lawful termination of his first marriage.
CHARGE:
Warrant: Act of 1952 — Failed to comply with conditions of seaman status.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the special inquiry officer on October 4, 1955, directing deportation.
The respondent is a 44-year-old male, native and citizen of the Philippine Islands, who last entered the United States on May 18, 1949, and was admitted as a seaman. He has remained in the United States without authority. Counsel does not contest the finding of deportability, the appeal being directed solely to obtaining voluntary departure and preexamination.
The special inquiry officer held that the respondent was precluded from establishing good moral character under section 101 (f) (2) of the Immigration and Nationality Act because he had committed adultery during the period from June 20, 1952, until August 13, 1954. The respondent was married on March 30, 1947, to H---- H----. They lived together at Baltimore, Maryland, until 1949 when she deserted him. He married his present wife on June 20, 1952, in California. His first wife secured a divorce in Maryland on August 13, 1954, and the respondent remarried his present wife in California on September 10, 1954.
Counsel's position is that the respondent's original marriage to his present wife on June 20, 1952, was valid and that adultery, therefore, was not committed. This is predicated on counsel's contention that the respondent's first marriage was void because of the following circumstances. At that time the respondent was a seaman but he testified that he was a resident of Baltimore, Maryland, as was also his first wife. He is of the Malay race and his first wife was a white woman. Since marriages between persons of these races were prohibited in Maryland, they went to Washington, D.C., and were married on March 30, 1947. They immediately returned to Baltimore where they lived together for about one and one-half years until the separation mentioned above.
In 55 C.J.S., Marriage, section 4, the following statement appears: "The general rule is that the validity of a marriage is determined by the law of the place where it was contracted; if valid there it will be held valid everywhere, * * *. The fact that the parties to the marriage left their domicile for the purpose of evading its laws which would have rendered the marriage invalid does not alter the general rule, unless a statute expressly provides to the contrary." Counsel has not brought to our attention any statutory provision of Maryland expressly providing for the invalidity of marriages of its residents in another state even though their purpose was to evade the laws of Maryland. The respondent's first marriage was valid under the laws of the District of Columbia and, therefore, must be recognized as valid in every other jurisdiction unless it comes within any exception to the general rule.
There is included in the record as part of exhibit 3 an extract submitted by counsel from Restatement of the Law on the subject of Conflict of Laws, namely, section 132 thereof, which is to the effect that a marriage which is against the law of the state of domicile of either party will be invalid everywhere in certain cases, including (b) incestuous marriages and (c) marriages "between persons of different races where such marriages are at the domicile regarded as odious." However, the judicial authority which counsel has cited for this proposition is not persuasive. Some of the cases cited have little applicability to the situation existing in the respondent's case. For example, the case of Jackson v. Jackson, 82 Md. 17, 33 A. 317 (1895), cited by counsel, did not involve a marriage between persons of different races although the court made an obiter dictum reference to the Maryland statute forbidding the marriage of a white person and a Negro, and we consider Harrison et al. v. State of Maryland, 22 Md. 468 (1864), to be opposed to counsel's position. That case involved an uncle and niece who were residents of Maryland and who were married in the District of Columbia. Although the act of 1777 had provided that such marriages were void and had provided a penalty for persons who went out of the state to violate the provision, the court held that the marriage was not void ab initio but that it was void only from the time its nullity was pronounced by a court of competent jurisdiction. The respondent's first marriage was not annulled but was terminated by divorce.
Another case cited by counsel is Fensterwald v. Burk, 129 Md. 131, 98 A. 358 (1916). That case involved an uncle and niece who were domiciled in Maryland, where their marriage was prohibited. They were married in Rhode Island where an uncle and niece of the Jewish faith may contract marriage. Immediately after the marriage ceremony they returned to Baltimore where they continued to reside until the male's death. The court held that the marriage, being valid in Rhode Island, was also valid in Maryland. This case, therefore, not only fails to support the proposition mentioned above that a marriage against the law of the state of domicile will be invalid everywhere, but it indicates that even the state of domicile (Maryland) recognized the validity of the marriage. Similarly, the Court of Appeals of New York upheld the validity of a marriage between uncle and niece in Rhode Island even though the New York statute declared such marriages to be incestuous and void, the parties were domiciled in New York, went to Rhode Island for the sole purpose of being married, and immediately returned to New York where they continued to reside thereafter ( In re May's Estate, 305 N.Y. 486, 114 N.E. (2d) 4 (1953)).
Section 466 of Article 27 of the Annotated Code of Maryland (1951), which is identical with section 445 of the 1939 Code, provides, in part, as follows:
All marriages between a white person and a Negro, * * * or between a white person and a member of the Malay race, * * * are forever prohibited, and shall be void; and any person violating the provisions of this section shall be deemed guilty of an infamous crime, and punished by imprisonment in the penitentiary not less than eighteen months nor more than ten years: * * *.
It is clear that under section 466 the respondent and his first wife were prohibited from contracting a marriage in the State of Maryland and, had they done so, the marriage would have been void and they could have been prosecuted. The statute does not make any specific reference to the validity or invalidity of such marriages as may have occurred in states where these races may intermarry, nor does it in express terms make void the marriage of persons domiciled in Maryland who attempt to evade this statutory provision by marriage in another state. Section 466 does not penalize the cohabitation of members of different races, nor is there any other statutory provision prohibiting the cohabitation of members of the white and Malay races.
Counsel has not cited any court decision in Maryland in which a marriage was held void under circumstances analogous to those in the respondent's case, and Fensterwald v. Burk, supra, although it involved incest instead of miscegenation, appears to be contrary to counsel's position that the respondent's first marriage was void in Maryland. Regardless of whether the respondent's first marriage would or would not be considered valid in Maryland, we are unable to perceive anything in the judicial authority cited by counsel which would indicate that the marriage was invalid in the District of Columbia, where the marriage was performed, or in California, where the adultery is alleged to have been committed.
As we have previously indicated, the adultery, if any, results from the respondent's cohabitation with his second wife from the date of their marriage on June 20, 1952, until August 13, 1954, when his first wife obtained a divorce. This cohabitation occurred in California and we think it is obvious that the question of whether adultery was committed depends upon whether California would regard the respondent's ceremonial marriage to his first wife in Washington, D.C., as being a valid marriage. California itself had a statute which provided that all marriages of white persons with members of the Malay race "are illegal and void" but this was held unconstitutional in Perez v. Lippold, 198 P. (2d) 17 (Sup.Ct. of Calif., 1948). That case is not controlling as to this respondent but it indicates the improbability that his first marriage, valid where performed, would be held invalid in California.
The only California case which counsel has cited in support of his contention is In re Morgan's Estate, 265 P. 241 (1928). That case involved the question of whether a white man had married a mulatto woman in Mississippi or Louisiana. The laws of those states were presumed to be the same as those of California which prohibited such a marriage. There was no actual evidence of a marriage. The court refused to indulge in the presumption that, since the parties acted as husband and wife, they had entered into a lawful contract of marriage. Obviously this does not support counsel's contention.
We believe that the judicial authority in California is contrary to counsel's position and that the matter has been settled since 1875 when Pearson v. Pearson, 51 Cal. 120, 125, was decided. That case involved the marriage of a white man to his female slave who was of African descent. The court held that such a marriage contracted outside the state, which was valid where entered into, was also valid in California when the parties subsequently moved there even though the marriage would have been invalid by the laws of California if contracted there. Hence, the respondent's first marriage, which was valid where contracted, would be recognized as valid in California.
Counsel asserts that this Board has held a marriage invalid under circumstances analogous to those in the respondent's case, citing Matter of D----, A-1605003, 3 IN Dec. 480 (1949). Actually, this Board merely dismissed, without comment, an appeal from the decision of the Commissioner in that case. It involved a white man and a Negress who were married in Canada to circumvent the laws of North Dakota where they resided before and after the marriage. The State's Attorney of North Dakota had advised that such a marriage was void and the Service, apparently acting in reliance upon that opinion, also concluded that the marriage was void under the laws of North Dakota. There was a specific statutory provision prohibiting the cohabitation of white persons and Negroes which the alien violated by his cohabitation in North Dakota regardless of whether the marriage was valid or invalid. In addition, the validity of the marriage was not directly at issue in that case since the question to be decided was whether the alien should be granted discretionary relief and there were factors other than the question of the validity of the marriage which justified the denial of discretionary relief.
The case of the respondent is not analogous to Matter of D----, supra, because there the validity of the marriage was dependent upon the laws of North Dakota in which state the two parties lived before and after their marriage. Furthermore, the laws of that state prohited their cohabitation which was not the situation in Maryland. In respondent's case, we have pointed out that it is immaterial whether the State of Maryland would consider the marriage valid because the question of whether adultery was committed is dependent upon the laws of California.
Counsel referred to a statement of the Service in Matter of D----, supra, that it was constrained to follow the rulings in Pace v. Alabama, 106 U.S. 583 (1882) and Stevens v. United States, 146 F. (2d) 120 (C.C.A. 10, 1944). In the D---- case, the contention of the alien's counsel had been that the North Dakota miscegenation statute was unconstitutional and the Pace and Stevens cases were cited as authority for the constitutionality of such statutes. In respondent's case, counsel's position is that the Maryland statute is constitutional and we do not question its constitutionality. In other words, if the respondent's marriage had been contracted in Maryland, it would have been void. The Maryland statute is not expressly made applicable to marriages performed in other states between residents of Maryland and, in any event, the actual question in the respondent's case is whether his first marriage is considered valid in California. For the reasons mentioned above, we hold that the respondent's first marriage was valid in California.
The respondent testified that his first wife deserted him in 1949 and that, prior to his second marriage on June 20, 1952, a friend informed him that his first wife had obtained a divorce. We do not believe that the record in this case establishes good faith on the part of the respondent in contracting the second marriage. In any event, on the basis of our decision in Matter of N----, A-2752014, Int. Dec. No. 764, decided January 18, 1956, we hold that the respondent's cohabitation with his second wife prior to the termination of the first marriage on August 13, 1954, constituted adultery. Consequently, he is precluded from establishing good moral character by the provisions of section 101 (f) (2) of the Immigration and Nationality Act and voluntary departure and preexamination cannot be authorized. Accordingly, the respondent's appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.