Matter of Magana
| Decision Date | 27 September 1979 |
| Docket Number | A-34262770,Interim Decision Number 2729 |
| Citation | 17 I&N Dec. 111 |
| Parties | MATTER OF MAGANA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated July 8, 1977, an immigration judge found the respondent deportable as charged, denied his application for voluntary departure in the exercise of discretion, and ordered him deported. The respondent appealed. The appeal will be dismissed. We will, however, grant the respondent voluntary departure under section 244(e) of the Immigration and Nationality Act, 8 U.S.C. 1254(e).
The respondent is a 37-year-old native and citizen of Mexico who entered the United States as an immigrant on October 2, 1972. He obtained his visa based on his marriage to a United States citizen, Renee Bosch. In an Order to Show Cause dated February 11, 1975, it was alleged that at the time of his entry as a permanent resident, the respondent was not lawfully married to Renee Bosch, in that he had previously been married, and that marriage had not been terminated. It was further alleged that because of this prior marriage, the respondent had procured his visa by willfully misrepresenting a material fact. The respondent was therefore charged with deportability under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19).
The facts as set forth at a deportation hearing held on March 18, 1977, indicate that the respondent went through a civil marriage ceremony with Maria Elena Martinez-Valenzuela on June 20, 1971, in Guaymas, Mexico. The respondent alleges that he was intoxicated at the time of this marriage, and that the marriage was never consummated. He states that he left Mexico for the United States immediately after the ceremony. Approximately 1-year later, on May 15, 1972, the respondent married Renee Bosch in the State of Washington.
According to testimony taken at the hearing from the respondent's counsel, the respondent early in 1974 sought a Mexican annulment of his marriage to Maria Elena. Rather than an annulment, a divorce was decreed by a Mexican court on June 15, 1974. The respondent's counsel, "recognizing the possible consequences" of a Mexican divorce (see transcript at 8), began a proceeding in the State of Washington to have the respondent's marriage to Maria Elena declared invalid. A "Declaration of Invalidity" was issued by the Superior Court of the State of Washington, Franklin County, on October 3, 1975. This decree stated that the parties to the marriage had never consummated their union, nor lived together as man and wife, that the marriage was voidable under Mexican law for lack of consummation, that the respondent was inebriated at the time of the marriage, and hence incapable of consent to the marriage, that the parties never intended to marry, unless through a Roman Catholic religious ceremony, and, finally, that the marriage "should be declared invalid for lack of capacity to consent as of the date it was purportedly contracted and for being voidable under the laws of Mexico for lack of consummation." It was argued both at the hearing and on appeal that this Washington decree voided the respondent's marriage to Maria Elena ab initio, and that, due to the Full Faith and Credit clause of the Constitution (U.S. CONST. Art. IV, Section 1), the Washington decree of invalidity overrode the earlier Mexican divorce decree.
It is true that the judgments of a state court are entitled to full faith and credit, while those of a foreign tribunal are only given effect under principles of comity. However, even assuming that the Washington court judgment takes precedence over the prior Mexican judgment, the respondent is still deportable. This is so because we find that, for immigration purposes, the Washington decree does not relate back to cure the illegality of the respondent's entry.
In a recent precedent decision, Matter of Astorga, Interim Decision 2711 (BIA 1979), this Board analyzed a declaration of invalidity issued by a Washington state court under the applicable provisions of the Marriage Dissolution Act (Washington Revised Code Section 26.09.040). We held there that the declaration of invalidity related back for immigration purposes, but we emphasized that no fraud, misrepresentation, or manipulation of the immigration laws had been alleged in that case. Astorga involved a visa petition filed on behalf of a beneficiary spouse who allegedly had been previously married in Mexico. The Immigration and Naturalization Service argued that the previous marriage had not been terminated, and that the beneficiary's marriage to his citizen wife was therefore invalid. We held the declaration of invalidity to apply retroactively because "there is no purpose of the immigration laws that could be furthered by finding his [the beneficiary's] possible previous marriage still valid and a bar to his present marriage." We distinguished those cases where an alien's entry into the United States was dependent upon his being unmarried, where the alien was in fact married when he entered, but later had the marriage annulled ab initio and then argued that he hadn't been married at the time of his entry (see, e.g., Hendrix v. INS, 583 F.2d 1102 (9 Cir.1978); Matter of Wong, 16 I & N. Dec. 87 (BIA 1977); Matter of R---- J----, 7 I & N. Dec. 182 (BIA 1956)).
In a converse situation, as noted in Astorga, supra, in some cases we refused to relate back annulments where no immigration law fraud was noted, and where injustice would result by applying the relation back concept. Matter of Castillo-Sedano, 15 I & N. Dec. 445 (BIA 1975); Matter of B----, 3 I & N. Dec. 102 (BIA 1947). Our analysis of prior cases dealing with annulments that had been declared void ab initio led us to the conclusion that "annulment decrees may have different effects depending on the nature of the case and the purposes to be served by giving an...
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