Matter of H-

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

honofiriary and petitioner which is valid in Jor-

dan where performed cannot be recognized as a valid marriage for

immi-

gration

purposes and will not support a visa petition for nonquota status on

behalf

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 di-

vorce certificate

does not indicate that his first marriage was ter-

minated

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 mar-

riages

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

640

by the registration of

ouch divorce

at the Sharia Ts1A.min Conn

Amman, Jordan.

The question presented is whether the polygamous marriage of the

parties. which was valid where performed, constitutes a legal mar-

riage 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 con-

formity 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

brought; or

(2)

with the public policy of such state. Questions in-

volving 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 in-

voked.° 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

Beale,

Conflict of Laws

(1935

ed.), 'Vol.

2, p. 69;

Ng Buoy Hi v. Weedin,

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).

Ng Suet/ Hi

v. Weedin,

supral;

55 C.J.S. 813, 814; Story,

Conflict of Laws

(9th ed., 1883),

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.

Loreezon, Conflict

of Lawa

(Yale University Press, 1947), pp. 394-395, 401.

Graveson,

Conflict of Laws

(3rd ed., 1955), p. 121.

641

fitI 7—f2-32

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

the, absence of

federal statute

rendering s



.al laws and

customs invalid. While the statement lies be



English de-

cisions 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-

' under the law

goverm:ig them, have at times been recognized as



id in this coun-

try

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

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 admis-

sion of aliens who are polygamists or who practice polygamy

advocate the practice of polygamy.

In view of this statutory ex-

pression 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 cele-

bration. 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.

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)).

642