MATTER OF H—
In VISA PETITION Proceedings
A-12378722
Decided by Board May 1, 196'2
Marriage—Valid-where-performed polygamous marriage not recognized for
immigration purposes—Effect of subsequent divorce from first spouse.
The Dolvramous marriage of honofiriary and petitioner which is valid in Jordan where performed cannot be recognized as a valid marriage for immigration purposes and will not support a visa petition for nonquota status on
behalf of the beneficiary because the marriage is repugnant to United States
public policy. This invalidity is not altered by beneficiary's divorce of first
spouse subsequent to the second (polygamous) marriage.
BEFORE THE BOARD
DISCUSSION: The case comes forward on appeal from the order
of the District Director, New York District, dated March 2, 1962,
denying the visa petition for the following reasons: the documents
submitted by the petitioner in behalf of the beneficiary reflect that
they were married on July 16, 1961; however, the beneficiary's divorce certificate does not indicate that his first marriage was terminated prior to the petitioner's marriage to the beneficiary; and
in view thereof, the petitioner has not established that her marriage
is valid.
The record shows that the petitioner is a native-born citizen of
the United States, born February 5, 1945, at New York. Her birth
certificate discloses that her parents were born in Jerusalem. She
seeks nonquota status on behalf of the beneficiary, a native and
citizen of Jordan, 37 years old, male. Both parties are of the
Moslem faith. Evidence has been submitted that the parties were
married on July 16, 1961, the ceremony being performed by the legal
mazoun of the Amman Sharia Court at Jabal el .Nasr, Amman, -
Jordan. The beneficiary was at the time of the ceremony married,
the petitioner being his second wife; multiple or polygamous marriages are permitted among persons of the Moslem faith according
to the laws of the Hashemite Kingdom of Jordan. Subsequently, on
November 21, 1961, the beneficiary divorced his first wife as evidenced
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by the registration of ouch divorce at the Sharia Ts1A.min Conn, at
Amman, Jordan.
The question presented is whether the polygamous marriage of the
parties. which was valid where performed, constitutes a legal marriage for immigration purposes and whether the subsequent divorce
by the beneficiary of his first wife affects the status of the parties.
The general rule is that the validity of a marriage is determined
by the law of the place where it is contracted or celebrated if valid
there, it is valid everywhere.' An exception to the general rule,
however, is ordinarily made in the case of marriages repugnant to
the public policy of the domicile of the parties, in respect to
polygamy, incest, or miscegenation, or otherwise contrary to its
positive laws. Such cases involve marriages which are repugnant
to the public policy of the domicile of the parties or to the laws
of nature as generally recognized in Christian countries.'
The question has been asked whether a marriage contracted in conformity with the local law, in a country allowing polygamy, would
be recognized by the courts of this country. Anglo American writers
-
generally answer this question emphatically in the negative. They
say that such a marriage is not a marriage as understood among the
Christian nations and that its recognition would be opposed to sound
public policy:' Whatever the particular theory of international
law or conflict of laws followed, all recognize that effect will not
be given to "foreign" law insofar as its application would conflict
(1) with any prohibitory statute of the state In which the suit is
brought; or (2) with the public policy of such state. Questions involving polygamous marriage demand a careful consideration of the
facts of each particular case and of the conflicting policies involved,
with a view to discovering whether the recognition of the foreign
law can be brought into harmony with the legal order of the forum.*
The recognition or nonrecognition of the existence of a polygamous
marriage depends on the purpose for which such recognition is invoked.° In distinguishing between matters regarded as essential
and those of pure formality, resort must be had to a functional test,
namely, what is the reason or purpose of a particular legal system in
1 Beale, Conflict of Laws (1935 ed.), 'Vol. 2, p. 69; Ng Buoy Hi v. Weedin,
21 r.:2d 901 (CA. 9, 1927) ; Cosulich Societe Triestina di Naregazione r. Elting,
66 P.26 534, 536 (C.A. 2, 1933) ; 55 C.J.S. 811, 812; Matter of F—, 4-601
(A.G., 1952).
2 Ng Suet/ Hi v. Weedin, supral; 55 C.J.S. 813, 814; Story, Conflict of Laws
(9th ed., 1883), /1 1RS.
Minor, Conflict of. Laws (1901), sec. 75; Dicey, Conflict of Laws (3rd ed.,
1922). p. 389; Wharton, Conflict of Laws (3rd ed., 1905), secs. 130, 132; Foote,
Private international Law (6th ed., 1922), pp. 68, 69.
4 Loreezon, Conflict of Lawa (Yale University Press, 1947), pp. 394-395, 401.
Graveson, Conflict of Laws (3rd ed., 1955), p. 121.
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imposing any requirement for marriage? Applying this test, it will
be found that whether or not any requirement of marriage is an
essential or formality depends on the degree or intensity of the public
or social interest which it embodies and expresses.` There have
been exceptions from the nonrecognition of -ar2c ,:s marriages,
such as American Indian tribal marriages, which :.:een upheld
in the, absence of a federal statute rendering s , .al laws and
customs invalid. While the statement lies be English decisions to the effect that no recognition will b van to foreign
m:,rri are not a monogamous union of mean and one
WOMEt1-:,. life, nevertheless, such marriages, v- ,7 ' under the law
goverm:ig them, have at times been recognized as id in this country but such recognition does not. involve ia recognition of the right
to exercise here all the incidents usual to the marriage relationship.'
The public policy of the United States against polygamists. and
polygamy as expressed in the immigration laws has been a part of
the laws since the Act of March 3, 1891 (26 Stat. 1081), which added
polygamists to the lis of excludables wider the immigration laws.
Thereafter, every amendatory act has included polygamists among
the inadmissible classes and the present statute prohibits the admission of aliens who are polygamists or who practice polygamy or
advocate the practice of polygamy. 8 In view of this statutory expression of a strong federal public policy against polygamy, it is
concluded that the polygamous marriage in the instant case falls
within the well-recognized exception to the general rule that the
validity of a marriage is determined by the law of the place of celebration. It is concluded that this polygamous marriay cannot be
recognized as a valid marriage for immigration purposes and will
not support a visa petition for nonquota status on behalf of the
beneficiary. The fact that the prior marriage of the beneficiary was
dissolved subsequent to the second polygamous marria would not
appear to affect the nonrecognition of the polygamous marriage.
The appeal will be dismissed.
ORDER: It is ordered that the appeal from the denial of the visa
petition be and the same is hereby dismissed.
Idem, p. 125.
7 Goodrich, Conflict of Latin (3rd ed., 1949), pp. 370, 373.
'Section 212(a) (11) of the Immigration and Nationality Act (8 U.S.C.
1182(a) (11)).
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