HAll

Interim Decision #1563




                             MATTER or HALL

                      In Visa Petition Proceedings

                                A-11594745
                   Decided by Board Mara& 8,         1986

Since under the law of New York, section 6, Domestic Relations Law, and the
  judicial decisions relating thereto, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living"
  and it is void from its inception without any decree of the court and for
  all purposes, there is no necessity of the presentation in visa petition proceedings of evidence of the termination of beneficiary's second marriage,
  contracted in 1956 while his wife by a prior undissolved marriage (1941)
  was still living; and as his first marriage was terminated by the death of
  his first wife in 1963, his third marriage in New York State in 1965 to
  petitioner, a United States citizen, is valid for immigration purposes and
  will sustain petition of the litter to accord him immediate relative status.


  The case comes forward on appeal from the caer of the District
Director, New York District, dated November 18, 1965 denying the
visa petition for the following reasons: it has been established that
the •beneficiary married Mae Agnes Lawrence July 26, 1941, Hazel
D. White December 29, 1956 and the petitioner, Thelma Dtvins,
February 7, 1965; the first marriage was terminated by the death
of the first wife in January 1963; however, there is no evidence that
the marriage to the second wife was in any way terminated; in view
of this, the marriage to the beneficiary is not recognized for immigration purposes; the beneficiary is not entitled to any benefit under
the Immigration and Nationality Act.
  The petitioner, a native-born citizen of the United States, 31
yeais old, female, filed a visa petition on February 25, 1965 seeking
nonquota status as a spouse on behalf of the beneficiary, a native
and citizen of jalnaica, West Indies, 55 years old, male. The
parties were .married on February 7, 1965 at Corona, New York.
The visa petition indicates that this marriage is the first for the
petitioner. The beneficiary stated to have been married onec
previously and the death certificate of his first wife on January 28.
1963 has been submitted.
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                                             Interim Decision #1563
   The file contains a decision of a special inquiry officer entered
 November 9, 1964 relating to deportation proceedings against the
 alien. The respondent (beneficiary) was admitted to the United
 States on May 8, 1959 as a nonquota, immigrant based upon his
 marriage on December 29, 1956 in Jamaica, West Indies to Hazel
Daphne White, a United States citizen. However, at the time of
 that marriage the respondent's prior marriage to Mae Agnes Lawrence in Jamaica, West Indies on July 26, 1941 had not been
 legally terminated either when he married the second wife or when
he obtained a nonquota visa as the spouse of the second wife. Ac-
.cordingly, the respondent was found deportable under section 241
 (a) (1) on the ground that he was excludable at the ,time of entry
for the reason that he was not nonquota as specified in his immigrant
visa,.   •
    In his decision the special inquiry officer observed that the marriage to the second wife was not a lawful marriage because he then
 had a spouse living and he did not diselose his prior marriage to
 the American Consul because he felt he would not be able to obtain
 a visa with which to enter the United States at that .time. The
 special inquiry officer noted that after respondent came to Uri United
 States in 1959 he learned his first wife was anvil and after separating from his second wife in November 1960, he commenced again
 living with his first wife. - She filed a visa petition on 'his behalf
 to accord him nonquota status which was approved June 6, 1962 but
 the attorney to whom the notice was sent was advised not only of
 the fact that the petition was approved but that no notice to a
 United States Consulate or port of entry was required, in spite of
 the indication on the visa petition that application for a visa would
 be made at the American Consulate at Montreal, Canada. The
respondent testified in this connection that he was told by employees
of the Immigration and Naturalization Service that it would not
be necessary for him to depart from the 'United States even though
he was, willing and ready to do so at that time. As an appropriate
disposition of the case, the first wife having died, the respondent
was granted voluntary departure together with the automatic order
of deportation if departure Was not effected as required.
   Counsel has filed a brief in which he takes issue with the holding
that evidence of the termination of the marriage to the second wife
is required, citing section 6 of the New York Domestic Relations.-
Law which provides: "A marriage is absolutely void if contracted ,
by a. person whose husband or wife by a former marriage is living."
Counsel cites New 'York decisional law which holds that if a spouse
at the time of a marriage had another prior spOuse living the mar-
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Interim Decision *1568
riage is void, even. though no judgment declaring its nullity is entered as well as other decisions holding that a marriage is absolutely
void if contracted by a person whose husband or wife by a former
undissolved marriage is living; that .where a party to a ceremonial
marriage his an undivorced living spouse, the relationship is illegal;
and a marriage by one who has a living spouse is void as distinguished from voidable; where a marriage is void,' although the legislature has authorized the court in.the interest of the public-to enter
a decree declaring it to be such, it is void from its inception .without
any decree of tlai court for all.purposes? ' •
  We have (+Raked the question involved here atni in view- of the
provisions of New York Domestic Relations Law, section 6 and the ,
judicial decisions relating thereto, we are convinced that the position
of counsel for the petitioner is cornet. We note that the special inquiry officer in deportation proceedings against this sums 'beneficiary
came to the same conclusion. .The appeal will be sustained.
  ORDER: It is ordered that the appeal be sustained and the visa
petition .approved.
 1 Gonzales v. Sionzatea, 

;Aloke V. Hoke, 142 N.Y.S. id 906;
Wenner v. Wehner, 

, which cites New- York Domestic BelaDons Law, section 6; Stein v. Dunne, 103 N.Y:S. 894, ard 

,

, 3/caution v. lito0ullen, 

; Kaufman v. Kaufman,

; Cave v. Cave, 

; In re -Haffner's Estate,
                                                      ,


172 N.E.- 489; Johnson N. Johnson, 59 N.T.S. 2d 698, appeal denied 

 849, ard 68 N.D. 2d 499. 'N




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