VP 16-603
Decided by Central Office May 9, 1952. Decided by Board October 2, 1952.
Visa petition — Marriage, validity of proxy marriage in Japan which is followed by consummation.
(1) The registration of a marriage on January 25, 1952, in Japan, when the United States citizen veteran husband was in the United States and wife in Japan, which marriage had not been preceded by a Japanese or Christian ceremony, but which registration was followed by consummation of the marriage in the summer of 1952, is deemed to be a valid marriage as of the date of registration within the contemplation of the act of August 19, 1950 (Public Law 717 81st Cong.), as amended by the act of March 19, 1951 (Public Law 6, 82d Cong.), so as to establish the wife's eligibility for a visa pursuant to section 4 (a) of the Immigration Act of 1924.
BEFORE THE CENTRAL OFFICE
( May 9, 1952)
Discussion: The petition was executed on February 9, 1952, pursuant to the provisions of section 9 of the Immigration Act of 1924, as amended, and Public Law 717, approved August 19, 1950, 81st Congress, as amended and extended by Public Law 6, 82d Congress, approved March 19, 1951, for the purpose of establishing that the beneficiary, K---- K---- R----, is entitled to a nonquota status under the provisions of section 4 (a) of the Immigration Act of 1924, as amended, as the wife of the petitioner by marriage on January 25, 1952.
The question presented is whether the petitioner has established that he was lawfully married to the beneficiary as alleged in the petition, within the contemplation of section 4 (a) of the Immigration Act of 1924, as amended.
As evidence of the alleged marriage the petitioner has submitted an authenticated copy of notification of marriage, dated January 25, 1952. The notification of marriage is signed by the petitioner and the beneficiary, and contains a résumé of the parties' family history, marital status, dates and places of birth of the parties, their respective legal domiciles, occupations, and educational attainments. The notification of marriage also contains a provision for listing the place and date of marriage ceremony (religious), and whether or not the requisite medical certificate was exchanged by the parties prior to the marriage ceremony. The consular certificate attached to the notification of marriage recites, in part, that:
I * * * do herby certify that the annexed copy of the notification of marriage of M---- R---- and K---- K---- is a true and faithful copy of the original, a duplicate of which is on file in this office, * * *. I further certify that the original of the said notification of marriage, was submitted in accordance with article 739 of the Japanese Civil Code and is attested by receipt No. 3365, dated January 25, 1952, retained in the archives of the Nihombashi Branch of the Chuo Ward Office, Tokyo, Japan.
I further certify that the acceptance by the ward office of the said notification of marriage constituted the lawful registration of the marriage between M---- R---- and K---- K----, in accordance with the provisions of article 739 of the Japanese Civil Code.
It is noted that the foregoing notification of marriage contemplates that a prior marriage ceremony had been performed. In this connection, Service file no. 56323/921 contains a copy of an operations memorandum dated November 8, 1950, from the supervising consul general, USPOLAD, Tokyo, which reads in part as follows:
It has come to the attention of USPOLAD that in certain visa cases based on approved petitions the marriages in question were not registered by the appropriate above Japanese authorities prior to the departure of the American-citizen spouse for the United States. It appears from the petitions that the marriages were performed by Japanese or christian ceremony and it is believed that most if not all of them were contracted in good faith without intent of fraud.
In view of the fact that the approval of these petitions is based upon the enactment by Congress of laws which waive racial restrictions in the cases of the beneficiaries, and in view of the fact that in instant cases the American-citizen spouse is no longer connected with the occupation, this office perceives no objection to assisting the couple concerned upon the notarized request of the American-citizen spouse, in registering their marriage, which registration, it is understood, may be accomplished under Japanese law even though one party to the marriage contract be abroad.
The quoted operations memorandum also recites the type of affidavits which may be submitted to have a marriage registered, and indicates the action to be taken by consular officers. It must be borne in mind that this procedure was designed for the purpose of obtaining the registration of a prior marriage ceremony, in order to effect legalization of the previous marriage.
In the instant case the notification of marriage expressly recites that no prior marriage ceremony had been entered into by the parties. In a letter addressed to the district director of this Service at Los Angeles, Calif., dated March 5, 1952, the petitioner stated that he was "rotated to the United States from Japan before I could get married." After his return to the United States, the petitioner made inquiry about returning to Japan for the purpose of being married before the expiration date of Public Law 717, 81st Congress, as extended by said Public Law 6. Under date of December 21, 1951, petitioner was advised by a consular officer, in part, as follows:
It may be possible for this office to register your marriage with the appropriate Japanese authorities without your returning to Japan. I am therefore inviting your fiancee to call at this office at her earliest convenience to obtain for forwarding to you, the documents required for an "absentee" marriage.
Thereafter the beneficiary furnished the petitioner with the necessary forms for the purpose of effecting their marriage, which the petitioner filled out and returned to her. Such documents included an affidavit of nonimpediment to marriage, a marriage data sheet, and notification of marriage. The record shows that the petitioner stated to a representative of this Service, on March 17, 1952, that he was not married by ceremony prior to the absentee marriage.
Under the circumstances recited above, the notification of marriage filed by the petitioner and the beneficiary did not constitute confirmation of a prior ceremonial marriage as contemplated by the proceedings. Such notification did not legalize a prior marriage of the parties. It assumed the character of a proxy marriage, which has not been consummated by cohabitation of the parties, and, therefore, may not be recognized for purposes of the Immigration Act of 1924, as amended.
On the record, it is concluded that the petitioner has failed to establish that he was lawfully married to the beneficiary as alleged in the petition, within the contemplation of section 4 (a) of the Immigration Act of 1924, as amended. Therefore, the petition should be denied.
Order: It is ordered that the petition of M---- R---- for issuance of an immigration visa to K---- K---- R---- under the provisions of Section 4 (a) of the Immigration Act of 1924, as amended, be denied.
Discussion: This case presents an appeal from an order entered by the Assistant Commissioner on May 9, 1952, directing that the petition of M---- R---- for issuance of an immigration visa to K---- K---- R---- under the provisions of section 4 (a) of the Immigration Act of 1924, as amended, be denied.
The petitioner, Sergeant M---- R----, in a letter written in Tokyo, Japan, on August 26, 1952, advised this Board that he and his wife, K---- K---- R---- (beneficiary of the aforementioned petition) had been living together as man and wife since his return to Japan during the summer of 1952. The petitioner advised that he only had 4 weeks remaining before he must return to his organization in the United States and he requested that his wife's visa petition be given immediate approval so that she will be able to return to the United States with him.
Attached to the petitioner's letter is a self-explanatory affidavit executed and sworn to before the United States vice consul in Tokyo, Japan, by the petitioner and the proposed beneficiary on August 26, 1952. In addition to the foregoing, the petitioner submitted a copy of his orders issued on July 26, 1952, at headquarters of the United States Army Hospital, Camp Cooke, Calif., the contents of which are self-explanatory and need not be discussed in this opinion. In view of the foregoing, we will sustain the appeal and enter the following order.
Order: It is ordered that the appeal be sustained and the visa petition be approved.