MATTER OF S-- 

In VISA PETITION Proceedings 

A-12084150 

Decided by Board September 6, 1961 

Nonquota status—Spouse of U.S. citizen—Presumption of validity of marriage 

negatived by proof of prior existing marriage. 

Presumption of validity of second marriage is rebutted, and visa petition to 

accord nonquota status is denied, where the record discloses that beneficiary enntrneted a first marriage seven months prior to his marriage to 

petitioner, that he made no efforts to obtain a dissolution of his first marriage, and there is no evidence other than own statements that his first 

wife deserted him and that he has been unable to locate her. 

BEFORE THE BOARD 

DISCUSSION: This is an appeal from the denial of a petition for 

the issuance of a nonquota immigrant visa. The District Director 

found that the beneficiary has been previously married, has not presented proof of the termination of his prior marriage, and, therefore, the marriage of the petitioner to the beneficiary is not valid. 

Petitioner appeals to this Board. 

Petitioner is 28 years of age, a native of Greece who acquired 

United States citizenship through naturalization in the United States 

District Court at New York on August 15, 1960. The beneficiary is 

26 years of age, born in Greece. He entered the United States on or 

about December 22, 1959, at Detroit, Michigan, as a visitor in possession of a British passport to visit relatives or friends in. Chicago. 

The beneficiary immediately became employed by a friend as a "grill 

man" in a restaurant. Immigration records show that beneficiary 

was a landed immigrant in Canada and was residing in Toronto 

prior to his 19159 entry. Following hie December 1959 entry, hensficiary was apprehended by immigration authorities and was given 

voluntary departure either in February or April 1960. He remained 

in Canada two weeks and again returned to the United States. 

The petitioner Married beneficiary in New York in a civil ceremony 

on September 16, 1960, and in a religious ceremony on October 16, 

1960. Counsel and petitioner's husband allege that petitioner is now 

pregnant; that the parties are living together; that petitioner is 

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not. employed and is entirely dependent upon the beneficiary for 

her support. The beneficiary, in a sworn statement before an immigrant inspector at New York on April 13, 1961, denied at first that 

he had been married prior to his marriage to the petitioner. Upon 

being warned again of the penalties of perjury, he stated that he 

was married in Chicago in a civil ceremony at or neat the end of 

March 1960; that the girl he married was named Cathy ; that he 

could not remember her last name and that she stayed with him only 

one day and then disappeared. After being shown his "Affidavit for 

a Marriage License," application executed in Chicago on February 

16, 1960, and Exhibit A, a sworn statement taken in Chicago on 

January 26, 1960, he then admitted that he knew Katherine for two 

months and had been dating her before they were married. He said 

that he married her becauSe he loved her; that he knew she was a 

United States citizen; that they lived together in a hotel "as man 

and wife" for about one week. He then denied that the marriage 

was ever consummated. He stated that the last time he saw Katherine was around April 15th, which means they were together after 

their marriage for at least two months. He continued to deny that 

the marriage was consummated, stating that he feared sexual relations because he had no money and no job and did not want a family. This testimony is in conflict with his sworn affidavit, Exhibit A, 

wherein he stated that, he was working fnr "Nick's Snacks," owned 

by his friend, N—H—, for $90 a week. 

Beneficiary applied for section 245 adjustment of status in New 

York in February 1961. (See file, memorandum to District Director, 

Chicago, February 24, 1961, from Acting Chief, Applications Section.) Beneficiary admits that his marriage to Katherine was never 

legally terminated; that he made no effort to terminate his marriage 

because he does not consider "in his thoughts" that he is married to 

Katherine. He says that he could not find her after she left him, 

and that he knew it would cost money to obtain a divorce through 

an attorney. His "Affidavit," application for a marriage license, 

executed on March 28, 1961, prior to his marriage to petitioner, states 

that he had not previously been married. It is alleged that petitioner 

did not know the beneficiary had been married. 

Counsel rests his appeaLentirely on the presumption of the validity of a ceremonial marriage in the State of New York. Counsel 

relies on cases where a prior spouse had disappeared and been long 

gone, or was believed to be dead, or cites oases where the second 

ceremonial marriage is attacked by outside parties (e.g., wills and 

estate matters). There was an_ obligation on beneficiary to inform 

his first wife as to his whereabouts, and to use all possible diligence 

to ascertain the facts as to the existence or death of his first wife 

before entering into a second marriage. In the State of New York 

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there is a procedure under the Domestic Relations Law for obtaining 

a ruling of dissolution of marriage against the deserting spouse. The 

law indulges in presumptions from the necessities of the case in the 

absence of sufficient evidence to establish a fact to be proved. in 

re Meehin's Estate, 135 N.Y.S. 723 (1912). 

The prior decisions of the Board cited by counsel in his oral argument do not constitute precedent in the instant case. Matter of F—, 

E-163 (B.I.A., 1953), concerns an alien who had been living in the 

United States for 28 years in what was found to be a valid, commonlaw relationship. The Board found further that he had made serious 

efforts on two occasions to locate his first wife in England. We 

ordered that deportation of the alien be suspended on the basis of 

his long-standing, well-established domestic relationship with his 

second wife. 

In the second case cited by counsel, Matters of S—, 7 169 (B.I.A., 

1957), we refused to give the alien the benefit of the presumption 

of the validity of the second marriage, because the facts clearly showed 

lack of good faith on his part. Although that case arose in California, and we rested primarily on California cases, the same rule 

would control in the instant case. 

The visa petition is a request for a privilege, and the petitioner 

must establish that the relationship exists upon which she relies. The 

presumption of the validity of the second marriage can be negatived 

by proper proof that the prior marriage exists and has not been 

terminated. There is no question but that beneficiary was married to 

a United States citizen named K—W— in Chicago on February 16, 

1960. There is no evidence in this record that beneficiary's first wife 

deserted him, or that his first marriage was not consummated, or that 

he has been unable to locate his first wife and does not know her 

whereabouts, except his own statements. His testimony is full of 

inconsistencies, and he has shown himself to be an unreliable witness 

in every aspect of his sworn testimony, including his affidavit for 

a marriage license in New York. 

A—S-- admitted, after being confronted with the record, that he 

made no effort to obtain a dissolution of his first marriage. We find 

that his marriage seven months later to petitioner was not entered 

into in good faith. A visa petition will not be issued on the basis of 

this clearly bigamous marriage. The appeal will be dismissed. 

ORDER : It is ordered that the appeal be and is hereby dismissed. 

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