Matter of F----

• Decision Date: 05 May 1961
• Docket Number: A-12027843.
• Citation: 9 I&N Dec. 275
• Parties: MATTER OF F----. In VISA PETITION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 275

MATTER OF F----.

In VISA PETITION Proceedings.

A-12027843.

Board of Immigration Appeals.

Decided by Board May 5, 1961.

Marriage — Effect of annulment — Validity of marriage contracted in Belgium prior to annulment of preexisting marriage — Adopted child — Adoption proceedings by wife in maiden name without participation of husband.

(1) Where beneficiary did not obtain annulment of preexisting marriage until three years after ceremonial marriage to petitioner in Belgium in 1955, general rules relating to effect of nullity decrees will be applied, absent evidence that the law of Belgium is otherwise, to uphold validity of beneficiary's marriage to petitioner.

(2) Notwithstanding that adoption proceedings under Belgian law were solely by wife in her maiden name, minor beneficiary qualifies as "adopted child" of petitioner/husband upon showing made that bona fide family relationship has existed since adoption and that requirements as to custody and residence have been satisfied.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order of the District Director, Newark District, dated December 9, 1960, denying the visa petition filed in behalf of the adult beneficiary as the wife of the petitioner for the reason that the validity of the petitioner's marriage on September 22, 1958 (sic) at Liege, Belgium, has not been satisfactorily established, although not established as invalid by the Belgian authorities, inasmuch as the wife's prior marriage on June 3, 1946, to M----S---- was not terminated until the annulment granted June 6, 1958, at Aachen, Germany; and as to the minor beneficiary, for the reason that the legal relationship of A----R----Z---- to petitioner of either adopted child or stepchild has also not been satisfactorily established as her adoption February 3, 1956, at Liege, Belgium, was solely by the wife under her maiden name, although shown to be the petitioner's wife, and the petitioner was not a party to the adoption proceedings inasmuch as he was under the age required by Belgian law. This confusing statement of the grounds for denial is not clarified by any supporting memorandum, although it is obvious that complex legal questions are involved.

The petitioner, a native of the Union of Soviet Socialist Republics, 39 years old, male, is a lawful permanent resident alien, having been admitted for permanent residence in the United States on March 23, 1960. He seeks preference status under section 203(a)(3) of the Immigration and Nationality Act on behalf of his wife, a native and last a citizen of the U.S.S.R., 44 years of age. He also seeks third preference status on behalf of the minor beneficiary, who is a native and citizen of Belgium, six years of age, as his adopted daughter.

We shall deal first with the case of the wife. The petitioner has established a ceremonial marriage to the beneficiary on September 22, 1955, at Liege, Belgium. The petitioner was married but one time and his wife was married twice prior to her marriage to the petitioner. The beneficiary was first married in Germany on June 3, 1946, and this marriage was annulled by the decree of the District Court at Aachen, Germany, on June 6, 1958. The circumstances surrounding this marriage are set forth in the brief filed in behalf of the petitioner. It is alleged that the beneficiary's family was persecuted by the Soviets and that she was taken as an "Ostarbeiter" to Germany. In 1946, when forced repatriation was still the general practice in Germany, she was under the threat of being forcibly returned to the U.S.S.R. She was given to understand by an UNRRA worker that her only salvation would be to marry a non-Russian person and for this reason she married an old man named S---- of Latvian nationality. The beneficiary never lived with her first husband and has never heard of him since their wedding, but by so marrying this person she escaped repatriation. It is alleged that the beneficiary considered her marriage fictitious and that it would never be considered a legal, binding marriage. Subsequently, she went to Belgium where she married on June 15, 1948, this marriage being terminated on October 15, 1954, by a divorce granted pursuant to Article 230 of the Civil Code of Belgium in the Court of Justice at Liege, Belgium. Her marriage to the petitioner took place in Belgium on September 22, 1955, after the termination of her second marriage but prior to the annulment of the beneficiary's 1946 marriage.

No consideration appears to have been given below to the circumstances surrounding the first marriage or to the legal consequence of a dissolution by an annulment (rather than a divorce) of the first marriage despite the fact that a letter has been submitted under the seal and signature of the Royal Public Prosecutor at Liege, Belgium, dated October 21, 1959, to the effect that the marriage contracted by the parties on ...