Interim Decision #1789 

MATPER or ZAPPIA 

In Visa Petition Proceedings 

A-17100396 

Decided by Board September 14,1967 

A marriage contracted in South Carolina in 1960 between first cousins, residents 

of Wisconsin, for the purpose of evading Use statutory prohibition against such 

marriages in the State of Wisconsin to which they immediately returned to 

live and in which such marriages are void and criminally incestuous, is not 

a valid marriage for the purpose of conferring immediate relative status on 

the beneficiary/wife. 

Or BREAM" or Perrnonan : 

roseph P. Balistrieri, Esquire 

211 West Wisconsin Avenue 

Milwaukee, Wisconsin 53203 

(Oral argument) 

Or BREAMS or SERVICE: 

R. A. Vielbaber 

Appellate Trial Attorney 

(Oral argument) 

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

Director, Chicago District, dated April 12, 1967 denying the visa petition for the reason that the petitioner cannot confer immediate relative status on the beneficiary since he is not lawfully married to the 

beneficiary under the laws of the State of their residence, Wisconsin. 

The petitioner, a native born citizen, 37 years old, male, seeks immediate relative status on behalf of the beneficiary as his wife. The 

beneficiary is a native and citizen of Italy, 24 years old. The parties 

were married at Columbia, South Carolina on July 8, 1966. A prior 

marriage of the petitioner was terminated by a judgment of divorce 

granted by the Circuit Court, Milwaukee County, Wisconsin on 

March 6, 1962. 

A sworn statement was taken from the petitioner on December 20, 

1966. In pertinent part the petitioner stated he knew he and the beneficiary were first cousins (their respective mothers being sisters) and 

that they could not marry in Wisconsin. He consulted a lawyer to find 

out whether they could get married somewhere else and his lawyer 

ascertained that they could get married in South Carolina, Texas and 

one other state. In a second sworn statement taken February 21, 1967 

the petitioner testified that he and his wife left Milwaukee for South 

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Interim Decision #1789 

Carolina for the purpose of marriage, arriving in South Carolina 

on July 7, 1966 and returning July 8, 1966. He testified they had no 

intention of taking up residence in South Carolina and went to South 

Carolina solely to marry because South Carolina would recognize a 

marriage between first cousins and also there was a twenty-four hour 

waiting period. 

A sworn statement from the petitioner's mother, Mary Zuppia, 

taken December 15, 1966, confirms that the petitioner's mother and 

the beneficiary's mother are sisters and that the petitioner and the 

beneficiary are first cousins. 

The notice of denial contains an attachment of even date setting out 

the statutory basis for the conclusion that the parties have contracted 

a marriage that is prohibited by Wisconsin State statutes and are, 

therefore, not legally married in the State of Wisconsin. These Wisconsin statutes are as follows: 

Chapter 245.03(1). No marriage shall be contracted while either of the parties 

has a husband or wife living, nor between persons who are nearer of kin than 

second cousins excepting that marriage may be contracted between first cousins 

where the female has attained the age of fifty-five. 

Chapter 245.04(a). . . . if any person residing and intending to continue to 

reside in this state who is disabled or prohibited from contracting marriage 

under the laws of this state goes to another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such 

marriage shall be void for all purposes in this state with the same effect as 

though it had been entered into in this state. 

Chapter 944.08 defines the crime of incest: whoever marries or has nonmarital 

sexual intercourse with a person be knows is a blood relative and such relative 

is in fact related in a degree within which the marriage of the parties is prohibited by law of this state may be imprisoned not more than ten years. 

Counsel has filed a brief. He alleges that Chapter 245.03(1) of the 

Wiscon,sin statutes does not prohibit marriages between first cousins. 

The parties herein at the time of the marriage in July 1966 were 36 

and 23 years old, respectively. Section 245.03(1) of the Wisconsin 

statutes is an absolute prohibition against marriage of those who are 

nearer of kin than second cousins except that marriage may be contracted between first cousins where the female has attained the age of 

55 years. This exception where the female has attained the age of 55 

years was motivated by the fact that the probability of child bearing 

at such advanced age was remote. The point is not material since the 

parties were married at a much earlier age. Furthermore, such a marriage comprises the crime of incest in the State of Wisconsin. 

The principal cases relied upon by counsel are Lyannes v. Lyames, 

177 N.W. 683,171 Wis. 381 (1920), and In re Estate of Campbell, 51 

N.W. 709, 260 Wis. 625 (1952). Upon close examination, the cases 

do not appear to stand for the precedent counsel has alleged. The 

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Interim Decision #1789 

Lyannee case involved a marriage which had been celebrated in another 

state without compliance with the antenuptial physical examination 

required in the State of Wisconsin and without a marriage license, and 

non-compliance with those requirements, was held not to affect the 

validity of the marriage within the provision of the predecessor marriage statute. However, the court did say that the predecessor statute 

insofar as it related to marriages solemnized without the State of Wisconsin, rendered null and void such pretended marriages only so far 

as the parties thereto were disabled or prohibited from entering into a 

marriage under any circumstances under the law of Wisconsin; in 

other words, such section makes null and void only such marriages as 

are prohibited by the predecessor statute, which likewise prohibited 

marriages between persons who were nearer of kin than second cousins. 

The case also held that a void marriage, strictly speaking, is one where 

the relationship between the parties is necessarily incestuous (such as 

the one in the present case). 

The Campbell case followed the general rule that marriages valid 

where celebrated are valid everywhere, except those contrary to the 

law of nature and those which the law has declared invalid upon the 

ground of publics policy. The marriage herein is prohibited by the law 

of Wisconsin as being against the law of nature and is punishable as 

incestuous. It is not one, as in cases cited by counsel, where there has 

been some procedural or other unimportant omission such as failure 

to have an antenuptial physical examination or a marriage license, 

or consent of the parents, or failure to have the required number of 

witnesses. First cousins marrying in another state and returning to 

Wisconsin to reside are subject to the incest provisions of criminal 

law. 19 Op. Wise. Atty. Gen. 306 (1930) . Such marriages were null 

and void. 5 Op. Atty Gen. 227 (1916). 

We do nut think it signifleant that no judicial action has been taken 

to declare the marriage void or incestuous. The burden of establishing 

eligibility for the benefit conferred by the immigration laws upon the 

basis of a, valid relationship is upon. the petitioner. Thus, we have not 

recognized Mexican "mail order" marriages, sham marriages to United 

States citizens contracted solely to obtain quota exemption 1, and marriages entered into during the existence of a prior marriage which are 

considered void despite the absence of any judicial decree. Matter of 

Hirabayaahi, 10 I. & N. Dec. 722, may be distinguished on the ground 

that there was evidence in the case that there was no intent to evade 

the prohibition of the Illinois law prohibiting marriages between first 

cousins; and in addition, cohabitation between first cousins was no 

Matter, of S I. & N. Dee. 217. 

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Interim, Decision *1789 

longer considered a crime under Illinois statutes.' In the present case 

the evidence established that the primary intent of the parties in having the marriage celebrated in the State of South Carolina was to 

knowingly evade the provisions of the Wisconsin statutes. Such marriages are regarded as incestuous and are characterized as void. 

In viewof theevidence establishing that the parties were aware of 

the prohibition of Wisconsin law against the marriage of first cousins 

and with full knowledge of that prohibition, had the marriage celebrated in South Carolina solely for the purpose of evading the laws 

of the State of Wisconsin to which they immediately returned, it must 

be concluded that the petitioner has not borne the burden of establishing eligibility for immediate preference status on. behalf of the beneficiary as his legal wife. 

In view of the recent birth of a citizen child to the couple, it is suggested that should petitioner be able to secure a judgment under the 

provisions of section 247.04 of the Wisconsin statutes, as amended, 

affirming the validity of the marriage, he may submit such judgment 

together with a motion to reopen. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

2In Matter of T—, 8 L & N. Dec. 529, a change in the law of the State of Pennsylvania made marriages within prohibited degrees of consanguinity or affinity 

voidable, rather than void. 

442