WONG

Interim Decision 44777




                             MATTER or WONG

                      In Visa Petition Proceedings

                                 A-17172732
                   Decided by Board August 81, 1967
Petitioner's marriage in China in 1944 to his concubine, the beneficiary, is not
 valid to confer on her second preference status as his prior marriage contracted in 1925 was not legally terminated until February 7, 1967.
ON Ern AT.' OF PETZTIONEE Hiram W. Ewan, Esquire
                          1011 North Broadway
                          Los .Angeles, California 90012
                          (Brief flied)


   The case comes forward on appeal from the order of the District
Director, San Francisco District, dated May 18, 1967 denying the visa
petition for the reason that the petitioner has failed to establish the
relationship claimed, in that he was first married to So Ngan Lui on
January 2, 1925, which marriage was not terminated until February
7, 1967 by divorce in Las Vegas, Nevada. The petitioner has failed to
establish that he married the beneficiary, Wong Chau, whom he took
as his concubine on May 5, 1944, subsequent to the legal termination
of the first marriage; therefore, the petitioner is not eligible to confer
any preference status on tho beneficiary_
   The petitioner, a native and citizen of China, 58 years old, male, was
lawfully admitted for permanent residence at San Francisco, California on March 29, 1966. He seeks second preference status on behalf
of the beneficiary as his wife. The beneficiary is a native and citizen
of China, 47 years old. The visa petition alleges that the parties were
married on May 5, 1944 at Pong Wu, Kwangtung, China. A prior
marriage of the petitioner was terminated by a divorce decree obtained
by the petitioner from his first wife, So Ngan Lui Young, in the
Eighth Judicial District Court of the State of Nevada in and for the
County of Clark on February 7, 1967. The visa petition is supported
by a statutory declaration executed by Wong Chow, the beneficiary,
on November 29, 1966, at Hong Kong declaring that she was married
to the petitioner on May 5, 1944 in Pong Wu, Swong Tung Province,


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 China, and naming five sons and a, daughter as the issue of the
 marriage.
   In his brief submitted in connection with the appeal, counsel admits
 that the petitioner was married to his first wife on January 2, 1925 and
 that the marriage was not terminated until February 7, 1967. He alleges
 a marriage to the beneficiary on May 5, 1944. Counsel points out that
both marriages were contracted and entered into in China in accordance with Chinese customary law or the Ching Dynasty law which was
in effect at that time. 1 Further, under Chinese customary law, it was
common for a man to take an additional wife or concubine and such
additional wife had the status of a secondary wife. Counsel further
alleges that according to the same custom, a man could also promote a
concubine or secondary wife to be his principal wife by merely observing certain formalities, principally designed to show the world that
he was lifting or promoting his second wife to the principal wife.
Counsel cites as his authority Dr. Vernier Y. Chiu, "Marriage Laws
and Customs of China."
  The alleged marriage between the petitioner and the beneficiary is
stated to have occurred on May 5, 1944 in 'Tong Wu, Kwangtung,
China. At the time of the celebration of the marriage, there was in effect
the Civil Code of the Republic of Chilli. Article 982 of the Chinese
Civil Code provides that a marriage must be celebrated by open ceremony and in the presence of two or more witnesses. Article 985 provides
that a person who has a spouse may not contract another marriage. The
introduction to the Civil Code of the Republic of China states that the
enfranchisement of the woman, who is now placed on the same footing
as the man, involves the disappearance of concubinage. 1 The present
Chinese Civil Code does not recognize the system of concubinage'
  It is therefore established that under the provisions of the Chinese
Civil Code, which governed the alleged marriage of the petitioner and
the beneficiary in 1944, a marriage must be celebrated by open ceremony
in the presence of two or more witnesses and that a person who has a
spouse may not contract another marriage. Furthermore, it appears
that the system of concubinage was abolished with the introduction in
1930 of the Chinese Civil Code.° Inasmuch as the petitioner was married to his first wife from January 1925 until his divorce in February
1967, it follows that the so-called marriage to the beneficiary in 1944
was illegal and void. If the petitioner desires to prosecute a visa peticounael may have reference to the Imperial Code of the Taing     Dynasty, the
Ta Taing lu li, which was In effect prior to the Civil Code of China.
   2 Civil Code of the Republic of China (1931 Edition) by Hon. Foo Ping-Sheung,
p. xxvii.
  3 Yuan, No. 785 (1082) ; Shang, No. 172 (2932).



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Interim Decision #1777
tion on behalf of the beneficiary as his spouse, it would appear necessary for him to go through a. marriage ceremony with her and then
submit a new petition. The appeal will be dismissed.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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