A

Interim Decision #2112




                             MATTER OF A—

                      In Visa Petition Proceedings

                               A-18349097

                Decided by Board December 13, 1971

Under the law of Michigan (section 551.51, Compiled Laws, 1948, and section 551.202 of the Compiled Laws, as amended June 30, 1967), the marriage in that State of a female under the age of consent (16) performed
 by a probate judge, as in the instant case, is valid where application for a
 marriage license was made to a probate judge, "under oath, containing a
 statement that she is with child, . . . or has lived with a man and has
 been considered as his wife, or for other good reason," and such application was accompanied by the written request of the parent or guardian of
 such female under marriageable age.

ON BEHALF OF PETITIONER: Arpo Yemen, Esquire
                        7527 Lafayette Street
                        Dearborn Heights, Michigan 48127


    The petitioner, a native of Jordan, was admitted to the United
 States for permanent residence at the port of New York on
 March 24, 1968. She appeals from an order of the District Director at Detroit, Michigan, dated October 12, 1971, denying her petition for second preference classification of the beneficiary, a native of Jerusalem. Exceptions have been taken to the District
Director's finding that the petitioner's marriage to the beneficiary
is invalid under the laws of Michigan.
   The petitioner married the beneficiary at Detroit, Michigan on
August 31, 1971. She attained the age of 15 years on September
12, 1971. Section 551.51, Compiled Laws of Michigan, 1948, provides in substance that.the marriage of a female under the age of
consent, 16 years, is void; also see section 25.51, Michigan Statutes Annotated. Section 551.51, supra, has a proviso which permits a probate judge of any county of the State of Michigan to
perform a marriage under the conditions set forth in section
551.202 of the Compiled Laws of Michigan, as amended June 30,
 1967, Public Act No. 175, where one or both of the parties are
under the age of consent.

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  Section 551.202 provides in substance that a probate judge of
each county in the state has authority :
  . . . to issue, without publicity, a marriage license to any female making
application to him, under oath, containing a statement that she is with child,
which if born alive before marriage will become a bastard, or has lived with
a man and has been considered as his wife, or for other good reason, expressed in such application and deemed to be sufficient by the judge of probate.
   Section 551.202 also provides the judge of probate with authority "to marry persons under marriageable age" under the conditions set forth above and the application for such license is accompanied by the written request:
  . . . of the parent or guardian of the one under marriageable age, where
only one is under the marriageable age now fixed by the statute, when according to his judgement, such marriage would be a benefit to public morals.
The judge of probate is also authorized "to keep the exact date of
the marriage a secret, to protect the good name of [the female
applicant] and the reputation of her family."
   The case of Evans v. Ross, 

, 

 (1944), concerns a suit by a husband to have his marriage declared void on the ground that his wife was under the age of consent when he married her in 1943. The application for the marriage license falsely stated that the wife was 19 years of age at
the time of the application for the license. The parties separated
prior to the wife's sixteenth birthday and did not cohabit following the separation. The court said that the language used in section 551.51, supra, "strongly indicates that it was the intention of
the legislature to make such marriages void, except marriages
performed by the judge of probate." (Emphasis supplied.) The
marriage under consideration by the court was not performed by
a judge of probate.
   The Attorney General of Michigan has ruled that a probate
judge has discretion whether to issue a marriage license under
the provisions of section 551.202, supra, but if he does issue the
license, it becomes his duty to perform the marriage ceremony,
unless one or both of the parties desire to have a ceremony performed by another person competent to perform a ceremonial
marriage in the State of Michigan (Opinions of Attorney General
of Michigan, No. 3626, March 13, 1962).
   The petitioner herein was married by a judge of probate in the
County of Wayne, State of Michigan, in the presence of her parents. The certificate of marriage is undated. Under the laws of
Michigan the marriage is valid. It is alleged that there was a reli-

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gious ceremony performed by the pastor of St. Bernadette Roman
Catholic Church on September 25, 1971. We conclude that the petitioner can legally confer second preference status upon the beneficiary. An appropriate order will be entered.
   ORDER: The appeal is hereby sustained and the visa petition
filed on behalf of J-0---A— for second preference classification
is hereby granted.




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