56121/47
Decided by the Board December 4, 1943.
Suspension of deportation — Validity of marriage.
When an alien married his citizen wife in Missouri within 6 months after she had obtained a decree of divorce in Oklahoma, such marriage was valid, notwithstanding that under Oklahoma law (12 Okla. Stat. Ann., secs. 1280, 1282) the divorce decree did not become final until 6 months had elapsed and the divorced person could not remarry within such period, since under Oklahoma law the remarriage was only voidable, not void, and was valid in Missouri, the Oklahoma law not having extraterritorial effect. Such alien is therefore eligible for suspension of deportation under section 19 (c) (2), Immigration Act of 1917, as amended.
CHARGE:
Warrant: Act of 1924 — Immigrant without immigration visa.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: After a hearing the presiding inspector found the respondent deportable on the warrant charge, but recommended that his deportation be suspended. The Central Office of the Immigration and Naturalization Service concurs in this recommendation.
DISCUSSION: The respondent is a 33-year-old native and citizen of Canada, who last entered the United States at Rochester, N.Y., on October 1, 1928, as a seaman. At that time he intended to reside permanently in this country and was not in possession of an immigration visa.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States on October 1, 1928, at Rochester, N.Y.;
(3) That the respondent entered the United States for permanent residence;
(4) That at the time of his entry the respondent did not have an immigration visa.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation on the ground that at the time of his last entry he was an immigrant, not in possession of an immigration visa;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Canada at Government expense.
SUSPENSION OF DEPORTATION — FACTORS: This alien is of the white race and is thus racially eligible to naturalization. On April 9, 1939, he was married in Missouri to a native-born citizen, and they have no children. His wife has been previously married and divorced on three occasions. Her first marriage occurred in 1925, and she was divorced in Oklahoma on October 6, 1926. She remarried in Kansas on December 13, 1926, and was again divorced in Oklahoma on August 6, 1932. She remarried for the third time on an unstated date and in an unstated place, and was again divorced in Oklahoma on December 3, 1938. His wife's second and present marriages, it should be noted, took place within 6 months after the entry of the Oklahoma divorce decrees. Section 1280, 12 Okla. Stat. Ann. provides:
A party desiring to appeal from a judgment granting a divorce, must within 10 days after such judgment is rendered file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment. If notice be filed as aforesaid, the party filing the same may commence proceedings in error for the reversal or modification of such judgment at any time within 4 months from the date of the decree appealed from and not thereafter. And it shall be unlawful for any person who has a living husband or wife to marry another person in any other State within 6 months from date of decree of divorcement granted in this State and cohabit with such second husband or wife in this State during said period. It shall be unlawful in any event for either party to such divorce suit to marry any other person within 6 months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of 30 days from the day on which final judgment shall be rendered pursuant to such appeal. Any person marrying or otherwise violating the provisions of this section shall be deemed guilty of bigamy.
Section 1282 of said code reads as follows:
Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of 6 months from said time, or as provided in case of appeal.
In construing these statutes the Supreme Court of Oklahoma has held that the remarriage of parties within 6 months after the decree in violation of section 1280 makes the marriage only voidable and not void ( Plummer v. Davis, 169 Okla. 374 (1934)). The court in its decision referred to a similar Kansas statute, the origin of the Oklahoma statute now being considered, under which statute the Supreme Court of the State of Kansas had held that the first marriage was absolutely dissolved by a decree of divorce except that the parties were prohibited from remarrying within 6 months ( Durland v. Durland, 67 Kan. 734). Neither the Kansas nor Oklahoma statutes makes the parties incapable of entering into a marital relation within the prescribed period. Nor do they declare as void marriages entered into in violation of the prohibition in the statute ( Conn v. Conn (Kan.App.) 42 P. 1006; Plummer v. Davis, supra).
It should be further noted that, "The weight of authority is to the effect that, where a statute or decree of divorce prohibits remarriage within a prescribed time, and, within that period, the parties remarry in another State, if that marriage is not prohibited within the State where the marriage is performed, it will be upheld as a legal marriage in that State at least. The matter is peculiarly one of statutory regulation" ( Wheelock v. Freiwald, 66 F. 2d 694, 700). In that case a wife was divorced in Kansas in April 1924 and was remarried in Missouri July 14, 1924. Her husband was thereafter killed in an accident in 1929, and the issue presented was whether she had any rights as a surviving widow under the Federal Employers' Liability Act. The court said:
The statute with reference to remarriage could, of course, have no extraterritorial effect, and, as the bonds of matrimony had been absolutely dissolved by the Kansas decree, there was no impediment to the parties remarrying in the State of Missouri.
We therefore conclude that the alien's present marriage is a valid and subsisting marriage. He is employed as a truck driver and earns $40 weekly. His wife has one child as the issue of her second marriage. Both this child and the alien's wife are entirely dependent upon him for support. It is therefore concluded that his deportation would result in a serious economic detriment to his wife.
The Federal Bureau of Investigation has no criminal record of the alien. An independent investigation by the Immigration and Naturalization Service satisfactorily establishes that the alien bears a good reputation. This is further supported by sworn statements of persons personally acquainted with the alien.
The lack of any criminal record, together with the favorable character evidence, may be considered as sufficient to establish the alien's good moral character for the required 5-year statutory period. Careful inquiry has developed no evidence indicating that he is deportable on any of the grounds set forth in section 19 (d) of the Act of February 5, 1917, as amended.
SUSPENSION OF DEPORTATION — FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is of the white race;
(2) That the respondent has been a person of good moral character for the past 5 years;
(3) That deportation of the respondent would result in serious economic detriment to his citizen wife;
(4) That after full inquiry no facts have been developed that establish that the respondent is deportable under any of the provisions of section 19 (d) of the Immigration Act of 1917, as amended.
SUSPENSION OF DEPORTATION — CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That the respondent is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
ORDER: It is ordered that the deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.