Interim Decision #2267 

MATTER OF HERNANDEZ 

In Deportation Proceedings 

A-18950852 

Decided by Board March 5, 1973 and October 2, 1973 

Decided by Attorney General March 7, 1974 

(1) Under the Civil Code of the State of Tamaulipas, Mexico, a common-law 

relationship in that State constitutes a marriage for all legal purposes, 

including the legitimacy of the issue of such unions, notwithstanding the 

general provisions of Article 130 of the Constitution of Mexico requiring civil 

formalities. 

(2) Respondent, the issue of a common-law relationship, who was born in the 

State of Tamaulipas, Mexico, in 1949 to a United States citizen mother and 

Mexican citizen father, and who is considered legitimate as a matter of 

Mexican law, did not derive United States citizenship under the provisions of 

section 201(g) of the Nationality Act of 1940, since her citizen mother had not 

had the requisite 10 years' residence in the United States priur to her 

(respondent's) birth. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Eduardo E. de Ases, Esquire Charles Gordon 

Suite 206, Guaranty Bank Plaza General Counsel 

Corpus Christi, Texas 78401 Bernabe Q. Maldonado 

(Brief filed) Trial Attorney 

(Brief filed) 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)1—Excludable at time 

of entry under section 212(a)(20)—no immigrant visa. 

BEFORE THE BOARD 

(March 5, 1973) 

This case is before us on certification from an order of deportation entered by the special inquiry officer on June 9, 1972. We shall 

sustain the appeal and find that respondent is a citizen of the 

United States. 

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The record relates to a married female, 24 years of age. She is 

charged with being an alien who entered the United States on 

December 18, 1967 as an immigrant not in possession of a valid 

unexpired immigrant visa or other valid entry document. The 

respondent moves that the proceedings be terminated on the basis 

that she acquired United States citizenship at birth, through her 

mother, Ana Garcia, who was born in Sebastian, Texas on March 

11, 1922. Ana Garcia lived in the United States until 1925 or 1926, 

at which time she was taken to Mexico. She continued to live in 

Mexico until 1964, when she moved back to the United States. She 

lived with the respondent's father, Luciano Garcia, from 1947 to 

1964 in Tamaulipas, Mexico. The respondent was born in Tamaulipas, Mexico on February 25, 1949. Ana and Luciano never went 

through a marriage ceremony either civil or religious, but they did 

hold themselves out to be man and wife; three children were born 

of their relationship. 

Whether respondent acquired United States citizenship depends 

upon provisions of the Nationality Act of 1940, the law in effect at 

the time of her birth: 

"See. 201. The following shall be nationals and citizens of the United States 

at birth ... 

(g) A person born outside the United States and its outlying possessions of 

parents one of whom is a citizen of the United States who, prior to the birth of 

such person, has had ten years' residence in the United States or one of its 

outlying poaseacione, at leapt five of which were after attaining the age of 

sixteen years, the other being an alien...." 

"Sec. 205. ... a child born out of wedlock ... if the mother had the 

nationality of the United States at the time of the child's birth, and had 

previously resided in the United States or one of its outlying possessions, 

shall be held to have acquired at birth her nationality status." 

If the respondent was legitimate, she did not acquire United 

States citizenship, pursuant to the provisions of section 201(g), 

because her citizen parent had not resided ten years in the United 

States prior to her birth. If respondent was illegitimate, the 

provisions of section 205 were applicable and she acquired United 

States citizenship at birth through her United States citizen 

mother. We therefore must determine whether the respondent 

was legitimate or illegitimate. 

It appears that the respondent's parents were free to marry 

each other. Respondent's father, Luciano, gave a sworn statement 

(Ex. 14A) in which he testified that he was married two times 

ceremoniously before he started living with Ana. He testified that 

his first wife died about 1918 and that his second wife and he were 

divorced in Reynosa, Mexico, prior to 1947; he could not recall the 

exact year. Whether the respondent's parents did marry is a 

question before us. 

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Validity of marriage is governed by the law of the place of the 

alleged celebration; in this case the legal jurisdiction concerned is 

the country of Mexico, State of Tamaulipas. The Service contends 

that the sexual relationship of respondent's parents constituted an 

informal marriage according to a provision of the Civil Code of the 

State of Tamaulipas which was in effect during most of the time 

that the respondent's parents lived together: 

"Article '70: For the purposes of this law, marriage shall be considered, to be 

the union, the cohabitation, and the continuous sexual relations of one man 

and one woman." 1 

This provision was challenged in the Mexican courts. The Supreme 

Court of Mexico ultimately held it to be unconstitutional as 

contrary to Article 130 of the Mexican Constitution: 

"Marriage is a civil contract. This and other acts concerning the civil status 

of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law...." 

The Mexican Supreme Court held that Article 70 of the Civil Code 

of Tamaulipas violated two principles of Article 130 of the Mexican 

Constitution (1) the requirement of involvement by civil authorities in the performance of marriages, and (2) the requirement of 

registration of marriages, Virginia Reyes vitcda de Hinojosa v. Jose 

Hinojosa, Suprema Corte de Justicia, July 1, 1954. 

In deciding whether respondent's parents were married, we 

must determine whether the relationship would he considered a 

marriage by the courts in Mexico if the question arose there. The 

constitution of Mexico states that marriage is within the exclusive 

jurisdiction of civil authorities. The supreme court of Mexico has 

declared that marriage cannot be created informally because the 

constitution requires involvement of civil authorities. Thus it is 

clear that if the relationship before us were judicially adjudicated 

in Mexico it would be determined not to be a marriage. Inasmuch 

as Mexico would not hold the relationship to be a marriage, we 

must find accordingly that the respondent's parents were not 

married to each other. 

Even absent a marriage of the parents, the Service contends 

that respondent is legitimate because Articles 268 and 269 of the 

Civil Code of the State of Tamaulipas provide that void marriages 

produce all "civil effects" in favor of the children. The respondent 

is not the issue of a void marriage; respondent is the issue of no 

marriage. Therefore whatever the intended effect of Articles 268 

and 269, they do not apply to her.2Respondent is illegitimate. As 

1 Article 70 was in effect 1940-1961. 

2 The respondent's counsel contends that the sole purpose of these provisions 

was to assure children of void marriages a right to support from their fathers. 

He claims that these provisions do not relate to inheritance or any other rights. 

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interim Decision #2267 

such she acquired United States citizenship through her mother 

pursuant to section 205 of the Nationality Act of 1940. 

ORDER: The appeal is sustained. The order of deportation is 

withdrawn and the proceedings are terminated. 

BEFORE THE BOARD 

(October 2, 1973) 

The Service moves us to reconsider our decision of March 5, 

1973. The motion will be denied. 

In support of its motion, the Service asserts two legal propositions: (1) a voidable marriage is valid until declared void, and (2) 

children of void marriages are legitimate, pursuant to Mexican 

law. These propositions, developed to protect the integrity of 

marriage recordsl, assume that the parties have gone through the 

form of marrying but that there is a legal defect or impediment to 

their marriage. 

The Immigration and Naturalization Service contends that the 

respondent's parents were married by operation of law, pursuant 

to Article 70 of the Civil Code, Tamaulipas, the state wherein they 

resided. Article 70, under which there would be a marriage here, is 

not dispositive, (If it were, there would be a valid marriage here, 

not a voidable one.) We construe, the law of Mexico as did the 

Supreme Court of Mexico and conclude that there never was any 

marriage to begin with. 

We recognize that the law of Mexico appears to have an internal 

conflict between federal and state authorities as to whether 

informal marriages can be created there. It appears that if a 

relationship such as that of the respondent's parents were tested 

in the state courts in Tamaulipas, it would be deemed to have been 

a marriage, Matter of Villarreal, Villanueva Villarreal and Perez 

Mantillas as proxy for Villanueva, 724/960, Court of First Instance 

of the Fourth Judicial District of Tamaulipas, November 16, 1960, 

but that if it were tested in the federal Supreme Court, it would be 

deemed not to have been a marriage. Virginia Reyes viuola do 

Hinojosa v. Jose Hinojosa, Suprema Corte de Justicia, July 1, 1954. 

The Service argues that the federal decision should be disregarded 

because, in the Mexican legal scheme, decisions of the federal 

Mexican Supreme Court do not operate to repeal state legislation 

nor does the doctrine of stare decisis prevail? The position of the 

That purpose cannot really be furthered in the case of an unrecorded, 

informal marriage, such as is claimed to be the case here. 

2 A report prepared by the Library of Congress dated October 7, 1968 (Ex. 12) 

so states, but it also states that precedent can become hintiing on lower courts 

611 
interim Liecibion 

Service is that the Tamaulipas state statute, left unrepealed by 

the Supreme Court decision, effectively created informal marriages. These relationships would not be considered marriages, 

however, by the federal Mexican Supreme Court. 

It is not appropriate for the United States Government to 

consider a relationship such as that of the respondent's parents to 

be a marriage while the federal Mexican Supreme Court would not 

do so. We deem it advisable to follow the federal interpretation of 

Mexican law. 

ORDER: The motion is denied. 

BEFORE THE ATTORNEY GENERAL 

(March 7, 1974) 

This matter is before me for review pursuant to 8 GFR 

§ 3.1(h)(1)(iii) upon a referral by the Board of Immigration Appeals 

at the request of the Immigration and Naturalization Service. The 

Board has denied a motion of the Service for reconsideration of the 

Board's order sustaining an appeal from the decision of a special 

inquiry officer ordering respondent deported. 

Respondent was born in Tamaulipas, Mexico on February 25, 

1949. Her father is a Mexican citizen but her mother, having been 

born in Sebastian, Texas, is an American citizen. Respondent and 

her husband entered the United States without documents on 

December 18, 1967. On June 10, 1969 the Service initiated deportation proceedings against respondent and her husband, Rodolfo 

Hernandez-Torres. They were found deportable, and an order for 

voluntary departure was issued September 10, 1969. When they 

did not depart voluntarily, the husband was arrested and was 

deported on December 18, 1969, but respondent remained in the 

United States. On August 28, 1970 the Service moved to reopen 

respondent's case because of a question whether she had derived 

United States citizenship from her mother. The Special Inquiry 

Officer found that she had not, but the Board reversed. 

Under the Nationality Act of 1940,* which controls in this case, 

the question of respondent's citizenship depends upon whether she 

is legitimate or illegitimate under Mexican law. If she is legitimate, than Section 201 of the Act applies. That section permits a 

pursuant to the law of Amparo of 1936, as amended, but that adeqaute digests 

and indices were not available to determine whether the Virginia Reyes case, 

supra, ever became a fixed precedent. This leaves open the possibility that it did. 

* Act of October 14, 1940, ch. 876, 54 Stat. 1137. 8 U.S.C_ § 605, 54 Stat. 1137 

(1940) was repealed June 27, 1952, ch. 477, Title IV, § 403(a)(42), 66 Stat. 280, eff. 

December 24, 1062. 

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Interim Decision #2267 

child born outside the United States to derive citizenship from one 

citizen parent only if the citizen parent has had ten years' 

residence in the United States prior to the birth of the child. Since 

respondent's mother did not have the requisite duration of residence, respondent would not derive citizenship if Section 201 is 

applicable. On the other hand, if respondent is illegitimate, then 

Section 205 of the Act applies. That section permits an illegitimate 

child to derive citizenship from a citizen mother regardless of the 

mother's duration of residency in the United States. Accordingly, 

if Section 205 applies, respondent would be a United States citizen. 

On the basis of the record before me, I have concluded that 

respondent is legitimate as a matter of Mexican law and cannot 

therefore derive United States citizenship from her mother. 

From the record before me it appears to be undisputed that 

respondent's parents lived together as man and wife in Tamaulipas, Mexico from 1947 until 1964 and that respondent is the child 

of that union. There is no copy of a marriage registration certificate of respondent's parents in the record and both parents have 

indicated in their statements that no ceremonial marriage (civil or 

religious) ever took place. At the same time, the record contains 

certified copies of the birth registrations of respondent and her 

two sisters. Respondent's certificate indicates that she is the 

"daughter of registered matrimony." Notations on he birth registrations of both of her sisters read "civil union -presented marriage record". There is nothing in the record to explain the 

inconsistency between the indication on the birth registrations 

that there was a formal marriage and the absence of any record of 

a marriage registration, coupled with the statements of both 

parents that they were not formally married. It should be noted, 

however, that the only documentation in the record suggests an 

official, formal marriage. 

Article 130 of the Constitution of Mexico, in force at the time of 

respondent's birth, provides: 

"Marriage is a civil contract. This and other acts concerning the civil status 

of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law. These acts shall have the force and 

validity attributed to them thereby." 

Pursuant to this Article only marriages contracted in accordance 

with civil formalities are recognized. Despite this Article, however, 

the law of the State of Tamaulipas where respondent's parents 

lived, recognized common law marriages during the period from 

1947 until 1961. Article 70 of the Civil Code of Tamaulipas provided: 

"Marriage shall be considered, for the purposes of this law, to be the union, 

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Interim Decision #2267 

cohabitation, and a continuous sexual relationship between a man and a 

woman." 

Thus, the law of the place where respondent's parents lived and 

where she was born recognized common law marriages as legally 

valid, even though the Constitution of the country required civil 

formalities. 

The Supreme Court of Justice of Mexico held Article 70 of the 

Civil Code of Tamaulipas to be unconstitutional in 1954. 1 Virginia 

Reyes viuda de Hinojosa v. Jose Hinojosa Silva, cited in Ortiz 

Urquida, Raul, Matrimonio por comportamiento. Mexico, D.F., 

Editorial Stylo, 1955 (Thesis). Since Mexico does not have the 

doctrine of stare decisis,2 however, this decision is binding only on 

the parties before the court and does not have the effect of 

automatically invalidating other marriages recognized under the 

Tamaulipas Civil Code. Furthermore, in Tamaulipas, marriage 

enjoys the presumption of validity until it is dissolved either by 

judicial decision or, in some cases, by official administrative action.3No such action has occurred with respect to the marriage of 

respondent's parents. 

The material in the record with respect to Mexican law supports 

the view that the marriage of respondent's parents, while possibly 

voidable, would not be considered void in Mexico, absent some 

official action declaring it so. 

Even if this interpretation of Mexican law is incorrect, however, 

it appears that regardless of the legal state of the marriage, if the 

union was entered into in good faith, the children would be treated 

as legitimated under both the Federal Mexican Code and the Civil 

Code of Tamaulipas. The preamble to the Civil Code of Tamaulipas 

states•4 

Marriage-is not defined [by the code] as a contract in the sense that the law 

generally treats this latter institution. It is rather an actual situation capable 

of producing consequences in the field of law regardless of formalities. 

The respondent's parents' marriage pre-dates this decision. Moreover, this 

decision does not invalidate marriages entered into pursuant to Article 70 of the 

Code not before the Court under Article 107, Section II of the National 

Constitution. 

Report of Dr. Rubens Medina, Hispanic Law Division, Law Library, Library 

of Congress, June 29, 1971; Report of Mr. Armando E. Gonzalez, Senior Legal 

Specialist, Hispanic Law Division, Law Library, Library of Congress, October 7, 

1968. 

3 Codigo civil para. el Estado de Tamaulipas, Mexico, D.F., Editorial Culture, 

1940. Chapter IV, Arts. 2155 to 2157. See also Art. 239 of the Mexican Civil Code 

stating that "a marriage has in its favor the presumption of being valid; it shall 

be considered null only when so declared by a definitive judgment." 

4 Ortiz Urquidi, Raul, Mixtri-munio per comportainionto. Mexico, D.F., Editorial 

Stylo, pp. 27-28, 1955 (Thesis). 

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The elimination of formalities, it could be argued, puts marriage in the 

category of unions advocated by supporters of so-called "free love." But 

nothing could be further from the truth. It is clear that the intention of the 

drafters was to level off the scale of justice recognizing de facto unions as 

having the capacity to produce legal consequences formerly acknowledged to 

marriages formally celebrated. 

These informal unions under the Civil Code of Tamaulipas constitute a marriage for all legal purposes, including the legitimacy of 

the issue of such unions. 

Articles 268 and 269 of the Civil Code of Tamaulipas provide that 

all the civil effects of marriage apply to the children of such a 

union even if the union itself is void. As the child of such a union, 

respondent should be treated as legitimate even if her parent's 

marriage was void ab intitio as a matter of Mexican law. 

While the only documentation in the record suggests a formally 

registered marriage of respondent's parents, I cannot ignore the 

statements that this, in fact, was not the case. Regardless of the 

nature of the marriage, however, I conclude that respondent 

should be considered legitimate as a matter of Mexican law and 

that she therefore did not derive United States citizenship from 

her mother. Accordingly, the order of the Board of Tmmigration 

Appeals is vacated and the case remanded to the Board for 

further proceedings consistent herewith. 

615