MATTER OF S--
In VISA PETITION Proceedings
A-12084150
Decided by Board September 6, 1961
Nonquota status—Spouse of U.S. citizen—Presumption of validity of marriage
negatived by proof of prior existing marriage.
Presumption of validity of second marriage is rebutted, and visa petition to
accord nonquota status is denied, where the record discloses that beneficiary enntrneted a first marriage seven months prior to his marriage to
petitioner, that he made no efforts to obtain a dissolution of his first marriage, and there is no evidence other than own statements that his first
wife deserted him and that he has been unable to locate her.
BEFORE THE BOARD
DISCUSSION: This is an appeal from the denial of a petition for
the issuance of a nonquota immigrant visa. The District Director
found that the beneficiary has been previously married, has not presented proof of the termination of his prior marriage, and, therefore, the marriage of the petitioner to the beneficiary is not valid.
Petitioner appeals to this Board.
Petitioner is 28 years of age, a native of Greece who acquired
United States citizenship through naturalization in the United States
District Court at New York on August 15, 1960. The beneficiary is
26 years of age, born in Greece. He entered the United States on or
about December 22, 1959, at Detroit, Michigan, as a visitor in possession of a British passport to visit relatives or friends in. Chicago.
The beneficiary immediately became employed by a friend as a "grill
man" in a restaurant. Immigration records show that beneficiary
was a landed immigrant in Canada and was residing in Toronto
prior to his 19159 entry. Following hie December 1959 entry, hensficiary was apprehended by immigration authorities and was given
voluntary departure either in February or April 1960. He remained
in Canada two weeks and again returned to the United States.
The petitioner Married beneficiary in New York in a civil ceremony
on September 16, 1960, and in a religious ceremony on October 16,
1960. Counsel and petitioner's husband allege that petitioner is now
pregnant; that the parties are living together; that petitioner is
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not. employed and is entirely dependent upon the beneficiary for
her support. The beneficiary, in a sworn statement before an immigrant inspector at New York on April 13, 1961, denied at first that
he had been married prior to his marriage to the petitioner. Upon
being warned again of the penalties of perjury, he stated that he
was married in Chicago in a civil ceremony at or neat the end of
March 1960; that the girl he married was named Cathy ; that he
could not remember her last name and that she stayed with him only
one day and then disappeared. After being shown his "Affidavit for
a Marriage License," application executed in Chicago on February
16, 1960, and Exhibit A, a sworn statement taken in Chicago on
January 26, 1960, he then admitted that he knew Katherine for two
months and had been dating her before they were married. He said
that he married her becauSe he loved her; that he knew she was a
United States citizen; that they lived together in a hotel "as man
and wife" for about one week. He then denied that the marriage
was ever consummated. He stated that the last time he saw Katherine was around April 15th, which means they were together after
their marriage for at least two months. He continued to deny that
the marriage was consummated, stating that he feared sexual relations because he had no money and no job and did not want a family. This testimony is in conflict with his sworn affidavit, Exhibit A,
wherein he stated that, he was working fnr "Nick's Snacks," owned
by his friend, N—H—, for $90 a week.
Beneficiary applied for section 245 adjustment of status in New
York in February 1961. (See file, memorandum to District Director,
Chicago, February 24, 1961, from Acting Chief, Applications Section.) Beneficiary admits that his marriage to Katherine was never
legally terminated; that he made no effort to terminate his marriage
because he does not consider "in his thoughts" that he is married to
Katherine. He says that he could not find her after she left him,
and that he knew it would cost money to obtain a divorce through
an attorney. His "Affidavit," application for a marriage license,
executed on March 28, 1961, prior to his marriage to petitioner, states
that he had not previously been married. It is alleged that petitioner
did not know the beneficiary had been married.
Counsel rests his appeaLentirely on the presumption of the validity of a ceremonial marriage in the State of New York. Counsel
relies on cases where a prior spouse had disappeared and been long
gone, or was believed to be dead, or cites oases where the second
ceremonial marriage is attacked by outside parties (e.g., wills and
estate matters). There was an_ obligation on beneficiary to inform
his first wife as to his whereabouts, and to use all possible diligence
to ascertain the facts as to the existence or death of his first wife
before entering into a second marriage. In the State of New York
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there is a procedure under the Domestic Relations Law for obtaining
a ruling of dissolution of marriage against the deserting spouse. The
law indulges in presumptions from the necessities of the case in the
absence of sufficient evidence to establish a fact to be proved. in
re Meehin's Estate, 135 N.Y.S. 723 (1912).
The prior decisions of the Board cited by counsel in his oral argument do not constitute precedent in the instant case. Matter of F—,
E-163 (B.I.A., 1953), concerns an alien who had been living in the
United States for 28 years in what was found to be a valid, commonlaw relationship. The Board found further that he had made serious
efforts on two occasions to locate his first wife in England. We
ordered that deportation of the alien be suspended on the basis of
his long-standing, well-established domestic relationship with his
second wife.
In the second case cited by counsel, Matters of S—, 7 169 (B.I.A.,
1957), we refused to give the alien the benefit of the presumption
of the validity of the second marriage, because the facts clearly showed
lack of good faith on his part. Although that case arose in California, and we rested primarily on California cases, the same rule
would control in the instant case.
The visa petition is a request for a privilege, and the petitioner
must establish that the relationship exists upon which she relies. The
presumption of the validity of the second marriage can be negatived
by proper proof that the prior marriage exists and has not been
terminated. There is no question but that beneficiary was married to
a United States citizen named K—W— in Chicago on February 16,
1960. There is no evidence in this record that beneficiary's first wife
deserted him, or that his first marriage was not consummated, or that
he has been unable to locate his first wife and does not know her
whereabouts, except his own statements. His testimony is full of
inconsistencies, and he has shown himself to be an unreliable witness
in every aspect of his sworn testimony, including his affidavit for
a marriage license in New York.
A—S-- admitted, after being confronted with the record, that he
made no effort to obtain a dissolution of his first marriage. We find
that his marriage seven months later to petitioner was not entered
into in good faith. A visa petition will not be issued on the basis of
this clearly bigamous marriage. The appeal will be dismissed.
ORDER : It is ordered that the appeal be and is hereby dismissed.
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