Interim Decision #1563 

MATTER or HALL 

In Visa Petition Proceedings 

A-11594745 

Decided by Board Mara& 8, 1986 

Since under the law of New York, section 6, Domestic Relations Law, and the 

judicial decisions relating thereto, "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living" 

and it is void from its inception without any decree of the court and for 

all purposes, there is no necessity of the presentation in visa petition proceedings of evidence of the termination of beneficiary's second marriage, 

contracted in 1956 while his wife by a prior undissolved marriage (1941) 

was still living; and as his first marriage was terminated by the death of 

his first wife in 1963, his third marriage in New York State in 1965 to 

petitioner, a United States citizen, is valid for immigration purposes and 

will sustain petition of the litter to accord him immediate relative status. 

The case comes forward on appeal from the caer of the District 

Director, New York District, dated November 18, 1965 denying the 

visa petition for the following reasons: it has been established that 

the •beneficiary married Mae Agnes Lawrence July 26, 1941, Hazel 

D. White December 29, 1956 and the petitioner, Thelma Dtvins, 

February 7, 1965; the first marriage was terminated by the death 

of the first wife in January 1963; however, there is no evidence that 

the marriage to the second wife was in any way terminated; in view 

of this, the marriage to the beneficiary is not recognized for immigration purposes; the beneficiary is not entitled to any benefit under 

the Immigration and Nationality Act. 

The petitioner, a native-born citizen of the United States, 31 

yeais old, female, filed a visa petition on February 25, 1965 seeking 

nonquota status as a spouse on behalf of the beneficiary, a native 

and citizen of jalnaica, West Indies, 55 years old, male. The 

parties were .married on February 7, 1965 at Corona, New York. 

The visa petition indicates that this marriage is the first for the 

petitioner. The beneficiary stated to have been married onec 

previously and the death certificate of his first wife on January 28. 

1963 has been submitted. 

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Interim Decision #1563 

The file contains a decision of a special inquiry officer entered 

November 9, 1964 relating to deportation proceedings against the 

alien. The respondent (beneficiary) was admitted to the United 

States on May 8, 1959 as a nonquota, immigrant based upon his 

marriage on December 29, 1956 in Jamaica, West Indies to Hazel 

Daphne White, a United States citizen. However, at the time of 

that marriage the respondent's prior marriage to Mae Agnes Lawrence in Jamaica, West Indies on July 26, 1941 had not been 

legally terminated either when he married the second wife or when 

he obtained a nonquota visa as the spouse of the second wife. Ac-

.cordingly, the respondent was found deportable under section 241 

(a) (1) on the ground that he was excludable at the ,time of entry 

for the reason that he was not nonquota as specified in his immigrant 

visa,. • 

In his decision the special inquiry officer observed that the marriage to the second wife was not a lawful marriage because he then 

had a spouse living and he did not diselose his prior marriage to 

the American Consul because he felt he would not be able to obtain 

a visa with which to enter the United States at that .time. The 

special inquiry officer noted that after respondent came to Uri United 

States in 1959 he learned his first wife was anvil and after separating from his second wife in November 1960, he commenced again 

living with his first wife. - She filed a visa petition on 'his behalf 

to accord him nonquota status which was approved June 6, 1962 but 

the attorney to whom the notice was sent was advised not only of 

the fact that the petition was approved but that no notice to a 

United States Consulate or port of entry was required, in spite of 

the indication on the visa petition that application for a visa would 

be made at the American Consulate at Montreal, Canada. The 

respondent testified in this connection that he was told by employees 

of the Immigration and Naturalization Service that it would not 

be necessary for him to depart from the 'United States even though 

he was, willing and ready to do so at that time. As an appropriate 

disposition of the case, the first wife having died, the respondent 

was granted voluntary departure together with the automatic order 

of deportation if departure Was not effected as required. 

Counsel has filed a brief in which he takes issue with the holding 

that evidence of the termination of the marriage to the second wife 

is required, citing section 6 of the New York Domestic Relations.- 

Law which provides: "A marriage is absolutely void if contracted , 

by a. person whose husband or wife by a former marriage is living." 

Counsel cites New 'York decisional law which holds that if a spouse 

at the time of a marriage had another prior spOuse living the mar- 

, 

527. 
Interim Decision *1568 

riage is void, even. though no judgment declaring its nullity is entered as well as other decisions holding that a marriage is absolutely 

void if contracted by a person whose husband or wife by a former 

undissolved marriage is living; that .where a party to a ceremonial 

marriage his an undivorced living spouse, the relationship is illegal; 

and a marriage by one who has a living spouse is void as distinguished from voidable; where a marriage is void,' although the legislature has authorized the court in.the interest of the public-to enter 

a decree declaring it to be such, it is void from its inception .without 

any decree of tlai court for all.purposes? ' • 

We have (+Raked the question involved here atni in view-of the 

provisions of New York Domestic Relations Law, section 6 and the , 

judicial decisions relating thereto, we are convinced that the position 

of counsel for the petitioner is cornet. We note that the special inquiry officer in deportation proceedings against this sums 'beneficiary 

came to the same conclusion. .The appeal will be sustained. 

ORDER: It is ordered that the appeal be sustained and the visa 

petition .approved. 

1 Gonzales v. Sionzatea, 228 N.Y.S. 2d 4;Aloke V. Hoke, 142 N.Y.S. id 906; 

Wenner v. Wehner, 66 N.Y.S. 2d 703, which cites New-York Domestic BelaDons Law, section 6; Stein v. Dunne, 103 N.Y:S. 894, ard 190 N.Y. 524, 

83 N.E. 1132, 3/caution v. lito0ullen, 147 N.Y.S. 1069; Kaufman v. Kaufman, 

163 N.Y.S. 566; Cave v. Cave, 137 N.Y.S. 2d 857; In , re -Haffner's Estate, 

172 N.E.-489; Johnson N. Johnson, 59 N.T.S. 2d 698, appeal denied 66 N.D. 

26 849, ard 68 N.D. 2d 499. 'N 

528