Interim Decision *1477
MATTER or Kw&r
In. Visa Petition Proceedings
A-1000204C
Decided by Board May 28, 1955
Notwithstanding beneficial-en purported prior marriage in China and the existence of the alleged prior wife who is asserting the validity of that marriage, his subsequent marriage in Caracas, Venezuela in 1055 to petitioner,
a V. S. citizen, is valid for immigration purposes and serves to confer nonquota statue mince a judgment of the Cirenit Court of the State of Michigan,
pursuant to section 25.84, Michigan Statutes Annotated, affirming the validity of the 1955 marriage, is accorded recognition, even though alleged first
spouse was not served with process.
The case comes forward pursuant to motion of the General Counsel, Immigration and Naturalization Service, dated . April 19, 1965
requesting that our order of March 29, 1965 be reconsidered and,
upon reconsideration, that the appeal be dismissed.
We will briefly review the facts. The record relates to a visa
petition filed by a native of China, a citizen of the United States
through parentage,• and holder of Certificate of Citizenship AA
222222, who seeks nonquota status on behalf of her husband, a native and citizen of China. The parties were married on September 8,
1955 in Caracas, Venezuela.. The visa petition indicated that neither
of the parties was previously married. The couple has three minor
children, one of who was born in. Venezuela,- and the last two in the
United States.
The beneficiary was the subject of a report of investigation which
indicated that one Mrs. Swan Chung. Kwong nee Wong Pui Ngan
had requested the assistance of the Hong Kong office in locating tic
beneficiary who is alleged to be her husband. The beneficiary
denied that he considered himself married to this woman because
he did not sign the marriage certificate and because they never
lived together and did not consider that he was deserting her because she was not his wife, although a Chinese marriage certificate
indicated that the parties had been married. The beneficiary ex-
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Interim Decision #1177
plained that he had promised his mother a girl to serve her so that
she would not commit suicide but could not treat her as his wife
and had previously refused request for money while living in
Caracas, Venezuela because he denied liability for her support.
Apparently in an effort to lay at, rest any doubts as to the validity
of the marriage between the petitioner and the beneficiary, the petitioner obtained a judgment pursuant to section 25.84 of Michigan
Statutes Annotated which Ira entered on January 24, 1964 in the
circuit Court for the County of Wayne, Detroit, Michigan finding
no' evidence that the prior purported Marriage of the husband was
ralid and decreeing that the marriage entered into by the petitioner
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and the beneficiary on. September 8, 1955 is a. valid marriage, each
of the piaties having no impediment to enter- into such a contract
and finding that the parties are duly and legally married and that
the legal status of the plaintiff petitioner is that of the wife of the
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defendant-beneficiary. Although expressing our concern with the
procedure used to establish the validity of the instant marriage, we
, felt constrained to recognize the decree of a court of the State of
Michigan declaring the marriage to be a valid one.
The Service motion takes issue with the proceeding under section
25.84, Michigan. Statutes Annotated, contending that the beneficiary
has left open the door to a contest by his alleged first wife in China
as to the validity of his present marriage, since she was not a party
to the section 25.84 action and was not bound by the judgment therein. It is further set forth that it is a principle of general application in Anglo-American jurisprudence that one is not bound by a
judgment hi personam in a litigation in which he was not designated
as a party or to which he has not been made a party by service of
process and that a judgment rendered in such circumstances is not
entitled to the full faith and credit which the Constitution and the
statute, 28 U.S.C. 1783, prescribe, citing Hansberry v. Lee, 311 U.S.
32 and Pensoyer v. Neff,
95 U.S. 714.
The 'judgment affirmation of marriage was obtained pursuant to
section 25.84, Michigan Statutes Annotated, which provide
e;
' 'When the validity of any marriage shall be denied or doubted by either of the
parties, the other party may file a bill or petition in the manner aforesaid, for
affirming the marriage; and upon due proof of the validity thereof, it shall be
declared by a decree or sentence of the court; and such decree, unless reversed on appeal, shall be conclusive upon all persons concerned.
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The Service in its motion. contends that' section. 25.84 was never
intended for use to declare a prior marriage invailid because no
Vrovision is made to join as a party the prior spouse and that all
cases 'annotated thereunder are actions raising questions as 'to
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Interim Decision #1471
whether a common-law marriage existed between the plaintiff and
defendant and not 'whether a previous marriage of either party was
void. The motion suggests that the defendant-beneficiary .should.
have sought annulment of his first marriage under section 25.83,
Michigan Statutes Annotated which provides:
When a marriage is supposed to be void, or the validity thereof is doubted, for
any of the causes mentioned in the two preceding sections, either party, excepting b the cases where a contrary provision is hereafter made; may file a
petition or bill in the circuit court of the county where the parties or one of
them reside, or in the court of chancery for annulling the same, and such petition or bill shall be filed and proceedings shall be bad thereon, as in the ease
or a pension or bill Med in Behr court for a diyorce; and upon duo proof of
the 'nullity of the marriage, it shall be declared void by a decree or sentence
of nullity. (Emphasis supplied.) •
Section 25.83, if S.A. is entitled "Marriage of doubtful 'Validity;
procedure to annul." Section 25.84 is entitled "Same: procedure to
affirm." Section 25.83 is a procedure to annul a void marriage or a
marriage of tdoubtfal validity for any of the causes mentioned in the
two preceding sections: section 25.81, incestuous or bigamous marriages or of marriage of insane person; and section. 25.82, marriage
under age of consent, marriage by fraud, lack of cohabitation. Section 25.84 is specifically included in section 25.83 by the language
"excepting in the cases where contrary provision is hereafter made."
It is obvious that section 25.84 is a case where a contrary provision
has thereafter been made. 'While it is true that' the first three
oases sited in the motion, Judson. v. Jamison, 147 Mich_ 518, and
Lockwood v. Lockwood, 220 Afich. 124, and Pillard v. Pil2ard, 230
Mich. 575, involve commen-law marriages, the case of Young v.
Weltmeier,
369 Mich. 110, held that' in a proceeding under section
25.84, the fact which must be shown is that one of the parties to
the alleged marriage must deny or doubt such relationship and dismissed the case ;because of the failure of one of the parties to deny
or doubt the marriage relationship.
In Headen v. Pape and Pope, Inc.,
252 F.2d 739 (3d Cir. 1958),
there-was involved a 1954 proceeding under a similar South Carolina
statute, section 20-42, Code of South Carolina, which reads: "When
the validity of a marriage shall be denied or doubted by either of
the parties, the other may institute a suit for affirming, the marriage
and, upon due proof of the validity thereof, it shall be decreed to
be valid and such decree 4211 be conclusive upon all persons concerned." • The court held that the proceeding under that statute was
an ajudication, the primary purpose of which was to declare the
status of individuals,, and to 'that extent, it possesed characteristics
of a proceeding in rem. The court cited two divergent lines of
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Interim Decision #1477
eases, one holding that a declaration of status is not admissible or
-conclusive upon third •persons where the declaration was not the
ultimate decree but an in rem, finding upon which the decree was
based and a contrary holding in Permaftrania that an adjudication
in rem, will be conclusive upon the world, citing cases.. The court
stated that nothing which was said in consideration of the 1954
South Carolina decree should be interpreted as an intent to foreclose an attack upon the jurisdiction of the South Carolina court.
In the instant case we have in evidence a marriage certificate
showing that the parties married in accordance with law. In addition, there has been submitted a decree of affirmation by a state
court confirming the prior marriage of the beneficiary. The legal
presumption which favors the validity of every ceremonial marriage
is one of the strongest presumptions known to law and ordinarily
would yield only in the face of the most compelling proof: In the
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instant ease it is conceded that the alleged first wife of the defendant-beneficiary was not served with process.
There is present in this case a complex question involving the
legal effect of a decree of affirmation of a marriage rendered by the
court of a sister state before whom both parties were present but
in which the alleged prior spouse bad not been served with process.
Involved are questions of whether the state decree is a judgment
in rem or a judgment in personam. Exploration of the ramifications of the legal questions presented would. inevitably lead into
labyrinths of jurisdiction, domicile, residence and status with no
satisfactory goal and an involvement in complexities utterly foreign
to the responsibilities of administrating the immigration laws. It
would not appear to be sound administrative practice to expect immigration officers to pause in executing their exacting duties to embark upon the collateral inquiry as to whether state decrees were
,supported by proper jurisdiction and such inquiry would impede
the expeditious administration of the immigration laws. The wisest
course would be to accept at face value the marital status recognized in conformity with the laws of the state. In adopting this
policy, the requirements of the law would be adhered to, proper
effect would be given to judgments and proceedings of a sovereign
state, and reasonable safe-guards would thereby .be erected to protect a properly solemnized marital relationship; and the adoption
of such a policy would. unquestionably facilitate the administration
• of the immigration. lame
'Scheeler, Marriage, Divorce, Separation and Domestic Relations (6th Bd.,
VoL 2, p. 1477) ; WIgmore on Boldest* (3d Ed., To). 9, p. 370)
5 .1fatterafF—d3LiaLDee.25i.
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Interim Decision *1477
For the reasons set forth above, it is felt that the judgment under
section 25.84 of the Michigan State Statutes to affirm a marriage of
doubtful validity should be accorded recognition. This conclusion
does not foreclose the alleged first wife from attacking the jurisdiction of the Michigan court to render such a decree. The cases
cited by the Service, Hansberry v. Lee and Petanoyer v. Neff, do
not appear controlling, since the former deals with the effect of a
class action and the latter discusses the effect of an in rem judgment and an in personam judgment. For immigration purposes,
the 'marriage will be considered as valid. The motion will he
denied. .
ORDER:. It is ordered that the motion be and the same is hereby
denied.
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