Interim Decision #2871
MAll.•R OF RODRIGUEZ-CRUZ
In Visa Petition Proceedings
A 23050125
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Decided by Board June 10, 1981
(1) Pursuant to Article 130 of the Constitution of Mexico, only marriages contracted in
accordance with civil formalities are recognized in Mexico.
(2) A religious marriage ceremony in Mexico does not result in a valid marriage, despite
the parties' intention that it be such. Matter of A-E-, 4 I&N Dec. 405 (BIA 1951),
reaffirmed; Molter of K-, 7 l&N Dec. 492 (BIA 1957), overruled.
(3) Since the petitioner and the beneficiary's mother did not enter into a civil marriage
ceremony in Mexico until the beneficiary had already reached the age of 22, be cannot
meet the 18-year age requirement for legitimation in accordance with section 101(b)(1)(C)
of the Immigration and. Nationality. Act, 8 1101(b)(1XC).
ON DriNALL' Or Psurtorien: William. Stahl, Esquire
Stahl & Gardner
4040 Moorpark Avenue
San Jose, California 95117
BY: Affihollan, Chairman; Maniatis, Maguire, and Morris, Board Members
This is an appeal from the March 5, 1979, decision of the District
Director. denying the visa petition fled by the United States citizen
petitioner on behalf of the beneficiary as his son under section 203(a)(1)
of the Immigration and Nationality Act, 8 U.S. C. 1153(a)(1). The appeal
will be dismissed.
The United States citizen petitioner was born on February 4, 1927, in
Garland, Texas. The beneficiary is a 30 year old native and citizen of
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Mexico. The District Director denied the visa petition based on his
finding that the beneficiary was born illegitimate and had been legitimated, by the marriage of his parents after he had reached the age of
18. He concluded therefore that the beneficiary could not qualify as the
child of the petitioner under section 101(b)(1)(C) of the Act, 8 U.S.C.
1101(bX1)(C), and consequently Could not be conferred visa preference
status as the son of the petitioner.
In order for a United States citizen to confer visa-preference status
upon the beneficiiry he must once have qualified as a "child" under
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Interim Decision #2871
section 101(6) of the Act, 8 U.S.C. 1101(b). Section101(b)(1)(C) of the
Act provides that:
The term "child" means an unmarried person under twenty-one years of age who is --
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the Unitedi States, if
such legitimation takes place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents at the time of such
legitimation.
On appeal, the petitioner argues that the beneficiary qualifies as his
child since he entered into a religious marriage with the beneficiary's
mother on March 13, 1949, more than a year prior to the beneficiary's
birth. Contained in the record is a marriage certificate issued by. the
Vicaria Fija de San Miguel Arcangel in Uriangato, Guanajuato, Mexico,
verifying, the 1949 religious marriage of the p etitioner and the beneficiary's
mother. Also included in the record- is a marriage certificate issued by
the Guanajuato Civil Registrar which indichtes that the beneficiary's
parents entered into a civil marriage ceremony on November, , 1972
Counsel for the petitioner contends that the question of the validity of
religious marriages, particularly in Mexico, is governed by the intent of
the parties. He cites Matter of K-, 7 I&N Dec. 492 (BIA 1957), for the
proposition that where the evidence of record indicates that the foreign
religious marriage was entered into in good faith and recognized by
the parties thereto, the validity of the marriage was presumed in the
absence of evidence to the contrary, reliance being had on the presumption in favor of the validity of a marriage and that the formalities of law
had been complied with.
The petitioner's reliance on Matter of K-, supra, is misplaced. The
generally accepted rule is that the validity of a marriage is governed by
the law of the place of celebration. See Matter of P-, 4 I&N Dee. 610
(A.G. 1952; BIA 1952); Matter of Freeman,
11 I&N Dec. 482 (BIA
1966). Article 130 of the Constitution of Mexico, in force at the time of
the 1949 religious marriage of the beneficiary's parents, 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.
In Matter of A-E-,
4 I&N Dec. 405 (BIA 1951), we held that a religious marriage ceremony in Mexico does not result in a valid marriage,
notwithstanding the parties' intention that it be such. See also Matter of
Magana, 17 1&N Dec. 111 (BIA 1979). To the extent that Matter of
K-, supra, is inconsistent with Matter of 4-E-, supra, it is expressly
overruled. Since the religious marriage in question here was not performed in accordance with civil formalities, it did not result in a valid
marriage under Mexican law, despite any intent on the part of the
petitioner and the beneficiary's mother that it be such.
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Interim Decision #2871
In visa petition proceedings, the burden of proving eligibility for the
benefit sought rests with the petitioner. Matter of Brantigan, 11 LAN
Dec. 493 (BIA 1966). The law of a foreign country is a question of fact
that must be proven by the petitioner if he wishes to rely on it. Matter of
DMllon, 16 I&N Dec. 373 BIA 1977); Matter of Annang,
14 I&N Dec.
502 (BIA 1973). The petitioner has not presented any evidence to establish that the 1949 religious marriage would be recognized as valid under
the law of Mexico or the State of Guanajuato in effect at the time of the
marriage. Since the petitioner and the beneficiary's mother did not
enter into a civil marriage ceremony until 1972 when the beneficiarzhad
already reached the age of 22, the beneficiary cannot meet the 18-year
age requirement for legitimation in accordance with section 101(b)(1)(C)
of the Act. Consequently, the petitioner cannot confer visa-preference
status on the beneficiary as his son. The appeal, accordingly, will be
dismissed.
ORDER The appeal is dismissed.
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