Interim Decision #1572 

arpsu or Cora= 

In Deportation Proceedings 

, A-13241835 

Decided by Board April 11, 1965 

Where respondent was married in Italy by religions ceremony -in 1962, a 

child was born of this union, and respondent Ilved with Isla wita in a 

husband-wife relationship until his entry into the United States on July 6, 

1963, with a preference immigrant visa obtained under the then existing 

provisions of section 203(a) (3), Immigration and Nationality Act, as the 

unmarried eon of a U. O. resident alien, he was not entitled to sueli status 

as he was not "unmarried" within the meaningof the immigration laws 

even though at the time of entry his religious marriage lacked formal perfection, it having no civil effect until recorded on October 28, 1963, upon 

his return visit to Italy. 

CiLIAGEO 

Order: Act of 1952—Section 241(a) (1) (8 17.8.43. 1251(a) (1)1—Excludable 

at entry—Not of proper status under quota—Section 2.11(a) (4) US 118.0. 1181(a) (4)). 

Lodged: Act of 1952—Section 241(a) (1) (B U.S.C. 1251(a) (1)1—Excludable 

at entry—Immigrant, no valid• entry document—

Section 212(a) (20) (8 U.S.C. 1182(a) (20)). 

The case comes fOrward on appeal by the trial attorney from a 

decision of the special inquiry officer dated December 8, 1965 ordering that the proceedings be terminated. 

The record relates to a native and citizen of Italy, male, who was 

issued by the United States .Consulate in Genoa, Italy on April 2, 

1963 a preference immigrant visa under the then existing provisions 

of section 203(a) (8) of the ImMigration. and 'Nationality Act as the 

unmarried son of a United States resident alien. He was admitted to 

the United States on July 6, 1963 upon. presentation of this visa. On 

October 12, 1963 the respondent departed from the United States and 

reentered on November 3, 1963, presenting his alien registration receipt card issued to him as an alien previously lawfully admitted to 

the United States for permanent residence. It. has been established 

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Interim Decision #1572 

that the respondent was married under the rites of the Catholic 

Church by a religious ceremony on December 27, 1962 to Anna Maria 

Salomon at Belluno, Italy. This religious marriage preceded the 

first admission of the respondent to the United States on truly 6, 

• 1963. Upon his return to Italy the respondent's religious marriage 

was civilly recorded on October 28, 1963 'and he has now petitioned 

for preference immigration classification for his wife to come to the 

United States. . - 

Section 203 (a) (3) of the Immigration and Nationality Act provides for the issuance of preference quota immigrant visas to aliens 

who ate the unmarried sons of aliens lawfully admitted for permanent residence. Section 101(a) (39) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (39)) defines the term "unmarried," 

• when used in reference to any individual as of any time, to mean an 

individual who at ouch time is not married, whethei• or not pre-, 

viously married. The issue in the case is whether the respondent is 

to be considered as "unmarried" at the time he entered the United 

States as the "unmarried" son. of a lawfully resident alien as required by the-terms of his section 203(2•(3) visa. 

There have been introduced into the record the Concordat of 1929 

between the Italian-Government and Holy See, copies of the Italian 

marriage laws and the testimony of Dr. Enrico L. Pavia, an expert 

on Italian law. Article 5 of Italian Law No. 847 of May 27, 1929, 

'Provisions for application of the part concerning marriage in the • 

Concordat of February 11, 1929 bettmen the HOly Sad and Italy" 

(Ex. 8) provides as follows: 

A marriage performed by a minister• of the Catholic religion in accordance 

with the rules of canon law shall, from the day on which it is celebrated, prodnee■ the same effects as a civil marriage when it has been recorded in the 

registers of vital statistics in accordance with the provisions of arts. 9 et seq.. 

The expert witness testified that it is the recording which makea 

the marriage exist for civil law; and -that the reporting-is not merely 

a ministerial act but that the transcription has a constitutive effect. 

Based upon the totality of the extensive exhibits and from the Ustirirony .of 'the expert witness, the special inquiry *racer has been un- 

• able to find anything to contradict the opinion of the expert witness 

to the-effect that the respondent was unmarried under Italian law 

• when lie first entered the United Stites. Conceding that it might 

well be that the congressional intent with reference to the term "unmarried son" of. a. lawfully resident alien as contained in section 

203(a) (3). Ofthe Inimigration and Nationality Act was being Circimilienred. in the'instant 'case, the special inquiry officer felt he was 

not free to here endeavor to determine tongressionitl intention be-. 

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Interim Decision #157.q 

cause of the lack of ambiguity in that section of the law and he was 

restrained from attempting to decide whether our public policy is 

being circumvented by the factual situation here presented. He 

concluded that the Government had not established by the required 

reasonable, substantial and probative evidence that when respond; 

ent procured his preference immigrant visa and first entered the 

United States he was other than "unmarried" and accordingly he 

is not deportable on the charge in the order to show cause nor upon 

the lodged charge. 'The special inquiry officer therefore •terminated 

the proceedings. 

We are not persuaded that the conclusion of the special inquiry 

officer is correct. The respondent, when he executed his' mmigrant 

visa application on April 2, 1963, submitted a certificate that he was 

"celibe" or single dated. March 3, 1962 and was aware of the contents of Form 1r5-548 which warned the applicant that he would lose 

his quota preference status if he should marry prior to his application for admission at a, port of entry into the United States and that 

he would then be subject to exclusion therefrom (Er. 2). The respondent and his wife are both of the Catholic faith. The respondent testified that he had known his wife for five or six years before 

he married; that they had been ezig,aged for two or three years previosuly; and that at the time he applied for his visa on April 2, 

1963 he had already been married in church on December 27, 1962 at 

a time when his wife was pregnant. He admitted that subsequent, to 

his marriage on Dee-amber 27, 1962 he lived together with his wife 

as husband and wife, that their child was born June 5, 1963 and that 

he departed to the United. States on July 6, 1963. He was aware that 

if he were to be married civilly he could not come . to the United 

States. • However, he prevailed upon the ordinary or bishop to de-. 

lay the recording of -the marriage, based upon his understanding that 

the marriage would have no civil or legal effect until it. was so recorde4. Therefore, we have a situation where the respondent was: 

fully aware that he would .be unable to come to the United States if' 

he,was married, that he underwent 'a religious marriage and lived together with his 'wife as husband. and wife-and had a..chrld before 

,he came to the United States. 

When section 203(a) (3) of the Itamigration and Nationality Act 

was "amended-by section 2 of the Act of September 22, 1959, 73 Stmt. 

644; by striking the word "children" and adding the phrase "unmarried sons or daughters," the recognized purpose of the amend: 

ing bill (H.R. 5896).wIts "to reclassify close relatives of United 

States citizens and aliens admitted for perman'eht residence' so as. to_ 

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Interim Decision #1572 

expedite•the reuniting of certain famitics.rn It was explained that 

section 2 of the bill would grant thircypreference status to the ,unmarried sons and daughters, over 21 years of age, of lawfully residing aliens, a proposal based upon the belief that such unmarried children, althOugh not minors, still belonged to the family unit.' 

Thus, it is clear that Congress, in its amendment to Section 203 

•a) (3), intended to benefit a primary family group,,consisthig of 

the mother, father and the unmarried sons and daughters. It seems 

equally clear that Congress did not intend to benefit one who, by 

entering into a marriage relationship while still in the foreign 

country, has voluntarily removed himself from that primary group. 

Congress did not intend that the benefits of third preference status 

extended to unmarried sons or daughters. who were regarded as part 

of the primary family unit, were to be easily circumvented by an 

alien who entered into a marriage relationship which because of 

some technicality of foreign law did not become formally final until 

after the alien had been admitted as the unmarried son or daughter 

Of a citizen or permanent resident alien. Thus, in passing on the 

question of whether an alien was entitled to a nonquota immigrant 

- visa under Section 4 of the Immigration Act of 1924, as amended 

by the Act of May 29, 1928, which provided that the term "nonquota immigrant" included the wife or husband of a citizen of the 

United States, the Department of State concluded that in the absence of evidence of fraud or bad faith there would appear to be no 

. reason for questioning the validity of a religious marriage when it 

Is shown that ah American citizen and alien woman have agreed to 

become man and wife; that the religious ceremony had been publicly performed in the celebration of such a contract, and that the 

parties have regarded themselves as married and thereafter assumed 

the duties and obligations of the marital status.' 

Until 1929 there was only one type of Marriage recognized for 

purposes of Italian civil law, namely, a civil marriage performed 

in accordance with the Italian law. In 1929 a treaty was concluded 

between the Vatican and the Italian State, known as the Lateran 

Pacts, the net effect of which was to bring the canon law into conformity with the requirements imposed by Title 6 Of Book 1 of 

the Civil Code regarding marriages. From the provisions of Italian law it is a fair conclusion that until the religious ceremony is 

recorded the marriage is not, civilly speaking, complete. However, 

IBM. 682, 80th Conga, ist Seas. 

'86 Cong. Rec. nne (1m). 

' See Opinion of the Secretary of State under date of September 22, 1032 

as the ease of Lore, Gloom shay darpetta. 

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. Interim Decision. #1572. 

, it is also clear that the tranOcription into' the register of vital statistics will, always produce the civil effects .from the day on which the 

marriage was performed (Ex, 7 & Ex. 8); 'It is apparent, and has 

been conceded by the' expertwitness except for certain -cases not 

here relevant, that the recording of the religious marriage has a retroactive or Moto pro buns effect as of the date of the religious 

marriage. 

However, the Italian law nowhere provides that a religious marriage is invalid until it is recorded. Even though -the marriage is 

not recorded, in order to he dissolved, it must be annulled. Article 

14 of Law 847 provides that the marriage certificate may be recorded 

at any time by - any interested poison, even after the death of one 

of the parties, It is equally apparent that after the religious ceremony has been performed the parties are not regarded as living in 

sin. Thus, the marriage has betivieligious and civil effects, particularly in a religious country like Italy. - 

With regard to marriages and the effect to be given to them for 

immigration purposes, We have adopted a Federal policy of examining the marriage notwithstanding that such marriage is considered 

valid under the domestic law of the jurisdiction where performed. 

So, where an alien's -marriage to - a United States citizen feinale 

spouse was contracted solely tai facilitate his admission to the United 

States, it .did not entitle him. to the -issuance of a noliqueta visa 

where no bona fide husband and wife relationship was intended and 

such marriage is deemed invalid for immigration purposes.' In the 

ease of United States v. Diogo, 320 F.2d 898 (2d Cir. 1963) although 

the court refused to convict on a charge of false representation in 

violation of 18 U.S.C.A.. "871, 1001 and 1546, the court -nevertheless 

staled that Congress might adopt Federal standards of bona fides of 

marriage for the limited purpose of denying immigration priorities 

to persons whose marriages dwnot meet the standard; and that that ' 

'standard embodied in .congressional understanding of the terms 

"marriage" or "spouse" as they 'appear in immigration statutes is 

a relevant standard .to apply in exclusion or deportation proceedings.' Thus, the'courti have not been hesitant in applying a Federal 

standard for determining the validity of a marriage for immigration 

purposes even though under the domestic law of the jurisdiction 

where the marriage was 'performed such marriage was valid. 

'Matter of M—, 8 L & N. Dec. 217; Lumen V. United States, 344 U.S. 604; 

Giannoulfas v, Landon, 228 F.2d 356 (9th Cir. 1955) ; United States v. Rubenstein, 151 F.28 915 (2d Cir., 1945), cert. den. 326 U.S. 766. 

See Toliantis v. Immigration and Naturalization Service, 352 F.2d 763% 

(9th Cir., 1965). 

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Interim Decision #1572 

The question of the validity -of religious marriages, in countries 

where recordation or registration is essential to their validity, has 

previously received consideration and they have been held to be valid 

in certain cases and invalid in. others. Thus, where the evidence of 

record indicates that the foreign religious marriages were entered 

into in good faith and recognized by the parties thereto, the validity 

of the marriage was presumed in the absence of-evidence to the contrary, reliance being had on the presumption in favor of the valid- - 

ity of a marriage and that the formalities of law have been complied with. Conversely, where the evidence of record indicated that 

the foreign religious marriage was not entered into in good.faith 

or was not recognized by the parties thereto, the usual legal presumption was deemed to have been rebutted by such evidence of . 

lack of good faith or nonrecognition and the marriage was deemed 

invalid. The philosophy underlying these holdings appears to stem 

from an opinion of the Solicitor of Labor of September 14, 1933, 

dealing with cases involving applications for certificates of derivative citizenship where it was stated that if the person has always 

believed that his parents were lawfully married and that he was a, 

legitimate child, no public advantage would be gained from making 

a search of the laws of some foreign state in order to prove that his 

parents were living in sin and that he was a bastard. Generally, 

where parties have held themselves out to be man and wife, have 

lived together over a period of time and have considered themselves 

married, where there have been children born to the union, particularly where there has been the color of a. marriage cei-emony, for . 

immigration purposes this is a good marriage, even though proof 

of its formal perfection may be lacking.° 

In summary, the religious marriage of the respondent had no 

civil effect until recorded but such recordation made the marriage 

effective as of the date of the celebration. of the religious marriage 

which was prior to the entry of the respondent into the United 

States. The intent of Congress in according third preference status 

to the "unmarried" son of a citizen or lawful resident alien makes it 

clear that Congress set up a Federal standard with regard to the 

term "unmarried," and that reference to foreign law cannot be used 

to defeat the clearly expressed congressional intent. The respondent 

wax not, under Italian law, "unmarried" in the true sense of the 

word for immigration. purposes When he applied for admission to the 

°Matter of X—, 7 L & N. Dec. 492 (Italy); Matter of Duran-Montoya, 

10 I. & N. Dec. 767 (Colombia); also see unreported Matter of Santorelli, 

A-11476957 (August 24, 1902) (Italy); and unreported Matter of Santoro, 

A.-12219024 (April 29, 1903), (Italy). ° 

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Interim Decision. #1572, 

United States. He was fully aware that he was required to remain 

"unmarried" to 'continue to qualify for third preference status. The 

absence of a. formal perfection of the marriage, under the circumstances present herein, will not be permitted to evade the intent of 

Congress. It is concluded that the respondent is subject to deportation upon the charge contained in•the order to show cause and upon 

the- lodged charge. 

ORDER: It is ordered that the appeal of the trial attorney he 

sustained and that the respondent be deported to Italy pursuant to 

law upon the charge contained in the order to show cause and upon 

the lodged charge. 

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