Interim Decision #2267
MATTER OF HERNANDEZ
In Deportation Proceedings
A-18950852
Decided by Board March 5, 1973 and October 2, 1973
Decided by Attorney General March 7, 1974
(1) Under the Civil Code of the State of Tamaulipas, Mexico, a common-law
relationship in that State constitutes a marriage for all legal purposes,
including the legitimacy of the issue of such unions, notwithstanding the
general provisions of Article 130 of the Constitution of Mexico requiring civil
formalities.
(2) Respondent, the issue of a common-law relationship, who was born in the
State of Tamaulipas, Mexico, in 1949 to a United States citizen mother and
Mexican citizen father, and who is considered legitimate as a matter of
Mexican law, did not derive United States citizenship under the provisions of
section 201(g) of the Nationality Act of 1940, since her citizen mother had not
had the requisite 10 years' residence in the United States priur to her
(respondent's) birth.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Eduardo E. de Ases, Esquire Charles Gordon
Suite 206, Guaranty Bank Plaza General Counsel
Corpus Christi, Texas 78401 Bernabe Q. Maldonado
(Brief filed) Trial Attorney
(Brief filed)
CHARGE:
Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)1—Excludable at time
of entry under section 212(a)(20)—no immigrant visa.
BEFORE THE BOARD
(March 5, 1973)
This case is before us on certification from an order of deportation entered by the special inquiry officer on June 9, 1972. We shall
sustain the appeal and find that respondent is a citizen of the
United States.
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The record relates to a married female, 24 years of age. She is
charged with being an alien who entered the United States on
December 18, 1967 as an immigrant not in possession of a valid
unexpired immigrant visa or other valid entry document. The
respondent moves that the proceedings be terminated on the basis
that she acquired United States citizenship at birth, through her
mother, Ana Garcia, who was born in Sebastian, Texas on March
11, 1922. Ana Garcia lived in the United States until 1925 or 1926,
at which time she was taken to Mexico. She continued to live in
Mexico until 1964, when she moved back to the United States. She
lived with the respondent's father, Luciano Garcia, from 1947 to
1964 in Tamaulipas, Mexico. The respondent was born in Tamaulipas, Mexico on February 25, 1949. Ana and Luciano never went
through a marriage ceremony either civil or religious, but they did
hold themselves out to be man and wife; three children were born
of their relationship.
Whether respondent acquired United States citizenship depends
upon provisions of the Nationality Act of 1940, the law in effect at
the time of her birth:
"See. 201. The following shall be nationals and citizens of the United States
at birth ...
(g) A person born outside the United States and its outlying possessions of
parents one of whom is a citizen of the United States who, prior to the birth of
such person, has had ten years' residence in the United States or one of its
outlying poaseacione, at leapt five of which were after attaining the age of
sixteen years, the other being an alien...."
"Sec. 205. ... a child born out of wedlock ... if the mother had the
nationality of the United States at the time of the child's birth, and had
previously resided in the United States or one of its outlying possessions,
shall be held to have acquired at birth her nationality status."
If the respondent was legitimate, she did not acquire United
States citizenship, pursuant to the provisions of section 201(g),
because her citizen parent had not resided ten years in the United
States prior to her birth. If respondent was illegitimate, the
provisions of section 205 were applicable and she acquired United
States citizenship at birth through her United States citizen
mother. We therefore must determine whether the respondent
was legitimate or illegitimate.
It appears that the respondent's parents were free to marry
each other. Respondent's father, Luciano, gave a sworn statement
(Ex. 14A) in which he testified that he was married two times
ceremoniously before he started living with Ana. He testified that
his first wife died about 1918 and that his second wife and he were
divorced in Reynosa, Mexico, prior to 1947; he could not recall the
exact year. Whether the respondent's parents did marry is a
question before us.
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Validity of marriage is governed by the law of the place of the
alleged celebration; in this case the legal jurisdiction concerned is
the country of Mexico, State of Tamaulipas. The Service contends
that the sexual relationship of respondent's parents constituted an
informal marriage according to a provision of the Civil Code of the
State of Tamaulipas which was in effect during most of the time
that the respondent's parents lived together:
"Article '70: For the purposes of this law, marriage shall be considered, to be
the union, the cohabitation, and the continuous sexual relations of one man
and one woman." 1
This provision was challenged in the Mexican courts. The Supreme
Court of Mexico ultimately held it to be unconstitutional as
contrary to Article 130 of the Mexican Constitution:
"Marriage is a civil contract. This and other acts concerning the civil status
of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law...."
The Mexican Supreme Court held that Article 70 of the Civil Code
of Tamaulipas violated two principles of Article 130 of the Mexican
Constitution (1) the requirement of involvement by civil authorities in the performance of marriages, and (2) the requirement of
registration of marriages, Virginia Reyes vitcda de Hinojosa v. Jose
Hinojosa, Suprema Corte de Justicia, July 1, 1954.
In deciding whether respondent's parents were married, we
must determine whether the relationship would he considered a
marriage by the courts in Mexico if the question arose there. The
constitution of Mexico states that marriage is within the exclusive
jurisdiction of civil authorities. The supreme court of Mexico has
declared that marriage cannot be created informally because the
constitution requires involvement of civil authorities. Thus it is
clear that if the relationship before us were judicially adjudicated
in Mexico it would be determined not to be a marriage. Inasmuch
as Mexico would not hold the relationship to be a marriage, we
must find accordingly that the respondent's parents were not
married to each other.
Even absent a marriage of the parents, the Service contends
that respondent is legitimate because Articles 268 and 269 of the
Civil Code of the State of Tamaulipas provide that void marriages
produce all "civil effects" in favor of the children. The respondent
is not the issue of a void marriage; respondent is the issue of no
marriage. Therefore whatever the intended effect of Articles 268
and 269, they do not apply to her.2 Respondent is illegitimate. As
1 Article 70 was in effect 1940-1961.
2 The respondent's counsel contends that the sole purpose of these provisions
was to assure children of void marriages a right to support from their fathers.
He claims that these provisions do not relate to inheritance or any other rights.
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such she acquired United States citizenship through her mother
pursuant to section 205 of the Nationality Act of 1940.
ORDER: The appeal is sustained. The order of deportation is
withdrawn and the proceedings are terminated.
BEFORE THE BOARD
(October 2, 1973)
The Service moves us to reconsider our decision of March 5,
1973. The motion will be denied.
In support of its motion, the Service asserts two legal propositions: (1) a voidable marriage is valid until declared void, and (2)
children of void marriages are legitimate, pursuant to Mexican
law. These propositions, developed to protect the integrity of
marriage recordsl, assume that the parties have gone through the
form of marrying but that there is a legal defect or impediment to
their marriage.
The Immigration and Naturalization Service contends that the
respondent's parents were married by operation of law, pursuant
to Article 70 of the Civil Code, Tamaulipas, the state wherein they
resided. Article 70, under which there would be a marriage here, is
not dispositive, (If it were, there would be a valid marriage here,
not a voidable one.) We construe, the law of Mexico as did the
Supreme Court of Mexico and conclude that there never was any
marriage to begin with.
We recognize that the law of Mexico appears to have an internal
conflict between federal and state authorities as to whether
informal marriages can be created there. It appears that if a
relationship such as that of the respondent's parents were tested
in the state courts in Tamaulipas, it would be deemed to have been
a marriage, Matter of Villarreal, Villanueva Villarreal and Perez
Mantillas as proxy for Villanueva, 724/960, Court of First Instance
of the Fourth Judicial District of Tamaulipas, November 16, 1960,
but that if it were tested in the federal Supreme Court, it would be
deemed not to have been a marriage. Virginia Reyes viuola do
Hinojosa v. Jose Hinojosa, Suprema Corte de Justicia, July 1, 1954.
The Service argues that the federal decision should be disregarded
because, in the Mexican legal scheme, decisions of the federal
Mexican Supreme Court do not operate to repeal state legislation
nor does the doctrine of stare decisis prevail? The position of the
That purpose cannot really be furthered in the case of an unrecorded,
informal marriage, such as is claimed to be the case here.
2 A report prepared by the Library of Congress dated October 7, 1968 (Ex. 12)
so states, but it also states that precedent can become hintiing on lower courts
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interim Liecibion
Service is that the Tamaulipas state statute, left unrepealed by
the Supreme Court decision, effectively created informal marriages. These relationships would not be considered marriages,
however, by the federal Mexican Supreme Court.
It is not appropriate for the United States Government to
consider a relationship such as that of the respondent's parents to
be a marriage while the federal Mexican Supreme Court would not
do so. We deem it advisable to follow the federal interpretation of
Mexican law.
ORDER: The motion is denied.
BEFORE THE ATTORNEY GENERAL
(March 7, 1974)
This matter is before me for review pursuant to 8 GFR
§ 3.1(h)(1)(iii) upon a referral by the Board of Immigration Appeals
at the request of the Immigration and Naturalization Service. The
Board has denied a motion of the Service for reconsideration of the
Board's order sustaining an appeal from the decision of a special
inquiry officer ordering respondent deported.
Respondent was born in Tamaulipas, Mexico on February 25,
1949. Her father is a Mexican citizen but her mother, having been
born in Sebastian, Texas, is an American citizen. Respondent and
her husband entered the United States without documents on
December 18, 1967. On June 10, 1969 the Service initiated deportation proceedings against respondent and her husband, Rodolfo
Hernandez-Torres. They were found deportable, and an order for
voluntary departure was issued September 10, 1969. When they
did not depart voluntarily, the husband was arrested and was
deported on December 18, 1969, but respondent remained in the
United States. On August 28, 1970 the Service moved to reopen
respondent's case because of a question whether she had derived
United States citizenship from her mother. The Special Inquiry
Officer found that she had not, but the Board reversed.
Under the Nationality Act of 1940,* which controls in this case,
the question of respondent's citizenship depends upon whether she
is legitimate or illegitimate under Mexican law. If she is legitimate, than Section 201 of the Act applies. That section permits a
pursuant to the law of Amparo of 1936, as amended, but that adeqaute digests
and indices were not available to determine whether the Virginia Reyes case,
supra, ever became a fixed precedent. This leaves open the possibility that it did.
* Act of October 14, 1940, ch. 876, 54 Stat. 1137. 8 U.S.C_ § 605,
54 Stat. 1137
(1940) was repealed June 27, 1952, ch. 477, Title IV, § 403(a)(42),
66 Stat. 280, eff.
December 24, 1062.
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child born outside the United States to derive citizenship from one
citizen parent only if the citizen parent has had ten years'
residence in the United States prior to the birth of the child. Since
respondent's mother did not have the requisite duration of residence, respondent would not derive citizenship if Section 201 is
applicable. On the other hand, if respondent is illegitimate, then
Section 205 of the Act applies. That section permits an illegitimate
child to derive citizenship from a citizen mother regardless of the
mother's duration of residency in the United States. Accordingly,
if Section 205 applies, respondent would be a United States citizen.
On the basis of the record before me, I have concluded that
respondent is legitimate as a matter of Mexican law and cannot
therefore derive United States citizenship from her mother.
From the record before me it appears to be undisputed that
respondent's parents lived together as man and wife in Tamaulipas, Mexico from 1947 until 1964 and that respondent is the child
of that union. There is no copy of a marriage registration certificate of respondent's parents in the record and both parents have
indicated in their statements that no ceremonial marriage (civil or
religious) ever took place. At the same time, the record contains
certified copies of the birth registrations of respondent and her
two sisters. Respondent's certificate indicates that she is the
"daughter of registered matrimony." Notations on he birth registrations of both of her sisters read "civil union -presented marriage record". There is nothing in the record to explain the
inconsistency between the indication on the birth registrations
that there was a formal marriage and the absence of any record of
a marriage registration, coupled with the statements of both
parents that they were not formally married. It should be noted,
however, that the only documentation in the record suggests an
official, formal marriage.
Article 130 of the Constitution of Mexico, in force at the time of
respondent's birth, provides:
"Marriage is a civil contract. This and other acts concerning the civil status
of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law. These acts shall have the force and
validity attributed to them thereby."
Pursuant to this Article only marriages contracted in accordance
with civil formalities are recognized. Despite this Article, however,
the law of the State of Tamaulipas where respondent's parents
lived, recognized common law marriages during the period from
1947 until 1961. Article 70 of the Civil Code of Tamaulipas provided:
"Marriage shall be considered, for the purposes of this law, to be the union,
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Interim Decision #2267
cohabitation, and a continuous sexual relationship between a man and a
woman."
Thus, the law of the place where respondent's parents lived and
where she was born recognized common law marriages as legally
valid, even though the Constitution of the country required civil
formalities.
The Supreme Court of Justice of Mexico held Article 70 of the
Civil Code of Tamaulipas to be unconstitutional in 1954. 1 Virginia
Reyes viuda de Hinojosa v. Jose Hinojosa Silva, cited in Ortiz
Urquida, Raul, Matrimonio por comportamiento. Mexico, D.F.,
Editorial Stylo, 1955 (Thesis). Since Mexico does not have the
doctrine of stare decisis,2 however, this decision is binding only on
the parties before the court and does not have the effect of
automatically invalidating other marriages recognized under the
Tamaulipas Civil Code. Furthermore, in Tamaulipas, marriage
enjoys the presumption of validity until it is dissolved either by
judicial decision or, in some cases, by official administrative action.3 No such action has occurred with respect to the marriage of
respondent's parents.
The material in the record with respect to Mexican law supports
the view that the marriage of respondent's parents, while possibly
voidable, would not be considered void in Mexico, absent some
official action declaring it so.
Even if this interpretation of Mexican law is incorrect, however,
it appears that regardless of the legal state of the marriage, if the
union was entered into in good faith, the children would be treated
as legitimated under both the Federal Mexican Code and the Civil
Code of Tamaulipas. The preamble to the Civil Code of Tamaulipas
states•4
Marriage-is not defined [by the code] as a contract in the sense that the law
generally treats this latter institution. It is rather an actual situation capable
of producing consequences in the field of law regardless of formalities.
The respondent's parents' marriage pre - dates this decision. Moreover, this
decision does not invalidate marriages entered into pursuant to Article 70 of the
Code not before the Court under Article 107, Section II of the National
Constitution.
Report of Dr. Rubens Medina, Hispanic Law Division, Law Library, Library
of Congress, June 29, 1971; Report of Mr. Armando E. Gonzalez, Senior Legal
Specialist, Hispanic Law Division, Law Library, Library of Congress, October 7,
1968.
3 Codigo civil para. el Estado de Tamaulipas, Mexico, D.F., Editorial Culture,
1940. Chapter IV, Arts. 2155 to 2157. See also Art. 239 of the Mexican Civil Code
stating that "a marriage has in its favor the presumption of being valid; it shall
be considered null only when so declared by a definitive judgment."
4 Ortiz Urquidi, Raul, Mixtri -munio per comportainionto. Mexico, D.F., Editorial
Stylo, pp. 27-28, 1955 (Thesis).
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The elimination of formalities, it could be argued, puts marriage in the
category of unions advocated by supporters of so-called "free love." But
nothing could be further from the truth. It is clear that the intention of the
drafters was to level off the scale of justice recognizing de facto unions as
having the capacity to produce legal consequences formerly acknowledged to
marriages formally celebrated.
These informal unions under the Civil Code of Tamaulipas constitute a marriage for all legal purposes, including the legitimacy of
the issue of such unions.
Articles 268 and 269 of the Civil Code of Tamaulipas provide that
all the civil effects of marriage apply to the children of such a
union even if the union itself is void. As the child of such a union,
respondent should be treated as legitimate even if her parent's
marriage was void ab intitio as a matter of Mexican law.
While the only documentation in the record suggests a formally
registered marriage of respondent's parents, I cannot ignore the
statements that this, in fact, was not the case. Regardless of the
nature of the marriage, however, I conclude that respondent
should be considered legitimate as a matter of Mexican law and
that she therefore did not derive United States citizenship from
her mother. Accordingly, the order of the Board of Tmmigration
Appeals is vacated and the case remanded to the Board for
further proceedings consistent herewith.
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