WONG

                                                            Interim Decision #2355




                                MATTER OF WONG
                           In Visa Petition Proceedings
                                      A-17962992

                       Decided by Board March 18, 1975
Petitioner, a native of China and lawful permanent resident of the United States applied
  for classification of the beneficiary as his spouse under section 203(aX2) of the Immigration and Nationality Act. At the time petitioner took the beneficiary as his concubine, he
  had a wife and another concubine. After petitioner's wife died and his first concubine
  obtained a divorce, petitioner and beneficiary were married, in 1956, in Hong Kong, by
  a priest, before two witnesses. However they had obtained no marriage license nor did
  they register the marriage. 'In view of the enactment, in 1971 of the Hong Kong
  Marriage Reform Ordinance (Chapter 178 of the Laws of Hong Kong, Revised Edition
  1971), it is not necessary to look to Chinese law and custom obtaining prior to 1956 to
  determine the validity of this marriage. It was valid under section 8 of the 1971
  Marriage Reform Ordinance because it was celebrated in an open ceremony prior to
  October 7, 1971, both parties were free to marry and were over the minimum age for
  marriage. The marriage is considered valid IL saa the date of ite celebration, notwithstanding that it was not under and in accordance with the Marriage Ordinance.
  Therefore the beneficiary spouse was eligible for second preference classificiation.

ON BEHALF OF PETITIONER:                               ON BEHALF OF SERVICE: •
 Charles J. Wong, Esquire                               Charles Gordon
 755 Commercial Street                                  General Counsel
 San Francisco, California 91108
   The Service has moved for reconsideration of our decision of
November 21, 1969 in which we sustained the petitioner's appeal from
the decision of the district director, and we approved the visa petition
filed by the petitioner.
   The petitioner is a native of China and a lawful permanent resident of
the United States. He is applying to have the beneficiary classified as his
spouse under section 203(a)(2) of the Immigration and Nationality Act.
   The beneficiary was taken by the petitioner as his concubine in China
in 1945. At that time, the petitioner already had a wife and another
concubine. In 1950, the petitioner left China and entered Hong Kong
with the beneficiary. The petitioner's wife died in China in March 1953,
and the petitioner's first concubine obtained a divorce from the People's
Court of Toyshan District, Kwantung, China, in 1952.
   On May 20, 1956, the petitioner and the beneficiary were married
                                          209
Interim Decision #2355
before two witnesses in a ceremony performed 6S, a priest at St.
Teresa'sChurch, Kowloon, Hong Kong. A marriage certificate issued by
the church is contained in the record. The petitioner has stated that no
marriage license was obtained for that marriage, and that the marriage
was not registered with the civil authorities in Hong Kong.
  The district director held that the failure to obtain a marriage license
resulted in a void marriage under section 28 of the Hong Kong Marriage
Ordinance, Chapter 181 of the Laws of Hong Kong, Revised Edition,
1950. Upon appeal, we held that the beneficiary had acquired the status
of "principal wife" under Chinese law and custom in Hong Kong by
virtue of the death of the petitioner's original wife and the divorce
obtained by his first concubine. We also held that the Hong Kong
Marriage Ordinance was inapplicable because of the exception for marriages in accordance with Chinese law and custom. We found it unnecessary to pass on the validity of the 1956 church marriage because of our
conclusion that the parties were already married under Chinese law and
custom. Tile Service has requested that we reconsider our conclusions
regarding Chinese law and custom in Hong Kong. However, recent
developmenis in the law of Hong Kong have mooted the issue raised by
the Service in this motion.
   Since the time of our original decision in this case, the Hong Kong
Government has enacted the Hong Kong Marriage Reform Ordinance,
Chapter 178 of the Laws of Hong Kong, Revised Edition, 1971. Section
8 of the Marriage Reform Ordinance states:
     Subject to section 14, 1 every marriage celebrated in Hong Kong before the appointed
  day [October 7, 1971] as a modern marriage by a man and a woman each of whom, at the
  time of the marriage, was not less than sixteen years of age and was not married to any
  other person shall be a valid marriage, and shall be deemed to have been valid since the
 time of celebration, notwithstanding—
    (a) that the proper personal law and religion of the parties, or one of them, was
   Chinese kill and custom, and the marriage was prohibited by or failed to comply with
   the requirements of Chinese' law and custom;. or
    (b) that the marriage was not under and in accordance with the Marriage Ordinance.
    (Emphasis supplied.)

Section 2 of the Marriage Reform Ordinance defines the term "modern
marriage" as "a marriage celebrated in Hong Kong before the appointed
day [October 7, 1971] by open ceremony as a modern marriage and in
the presence of two or more witnesses." Section 2 also defines a "validated marriage" as "a modern marriage made valid by section 8."
   The petitioner's 1956 marriage to the beneficiary was celebrated by an
open ceremony before two witnesses prior to the "appointed day." Both
parties were free to marry and were over the minimum age for marriage.
     Section 1,1 deals with dissolution of marriages.
                                         210.
                                                 Interim Decision #2355
   The petitioner's 1956 marriage to the beneficiary qualifies as a "validated marriage," made valid by section 8 of the Hong Kong Marriage
Reform Ordinance.
Consequently, the issue as to whether the petitioner and the beneficiary
had a valid marriage under Chinese law and custom in Hong Kong prior
to 1956 has become moot in the context of this case. The issue of the
effect on the 1956 marriage of the failure to comply with the prior
Marriage Ordinance has also become moot. Regardless of the correctness of our discussion of Hong Kong law in our earlier decision, our
order sustaining the appeal from the district director's denial, and our
order approving the visa petition are clearly proper at this point in time.
Consequently, the Service motion for reconsideration will be denied.
   ORDER: The Service motion is denied, and our order staying the
execution of our November 21, 1969 order is vacated; however, our
November 21, 1969 order is corrected by the deletion of the words "for
immediate relative status."
   Louis P. Maniatis, Board Member, dissents, without opinion.
   Irving A. Appleman, Board Member, abstained from consideration of
this case.




                                  211 •