Interim Decision #1408 

MATIDR OF DORAN-MONTOYA 

In SECTION 245 Proceedings 

A-12354681 

Decided by Regional Commissioner September 16, 1963 . 

Adjustment of status under section 245, Immigration and Nationality Act, as 

amended, is denied, in the exercise of discretion, where applicant made no 

effort to legally terminate his first marriage entered into in Colombia by religious ceremony which, while not civilly recorded, is regarded as a valid 

marriage, prior to entering into a second marriage in the United States in 1960 

with a third party with whom he has since lived in a husband-wife relationship. 

This matter has been certified to the Regional Commissioner for 

review of the decision of the District Director denying the application 

for adjustment of status. 

The applicant is a 29-year-old married male native and citizen of 

Colombia who last entered the 'United States at Miami, Florida on 

October 15, 1961 as a nonimmigrant visitor for pleasure. On November 1, 1961 he submitted the instant application for status as a 

permanent resident under section 245 of the Immigration and Nationality Act. The application reflects that the alien has been married 

only once and that he has no children. He bases his eligibility for 

nonquota status on his birth in Colombia. 

Subsequent to the filing of the application it was determined that 

the alien had married Flor Angela Cortes in accordance with Catholic 

rites at Bogota, Coloinbia on February 5, 1952. He later married M. 

Xiomara Cuervo, a permanent resident alien, in Miami, Florida on 

October 20, 1960. The District Director found that the applicant 

was living in a husband and wife relationship with his second spouse 

although his first marriage had never been legally terminated. It was 

concluded, therefore, that the application did not merit favorable 

discretionary action and it was denied on April 19, 1962. 

An appeal was taken from this denial in which it was argued that 

the applicant's religious marriage in Bogota, Colombia was not legally binding since it was not registered civilly. In support of this 

position there was submitted a statement from a Bogota attorney 

which stated in effect that in the absence of civil registry there is 

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insufficient evidence of the legality of an ecclesiastical marriage. The 

case was thereupon remanded to the District Director for further 

resolution of this issue. Additional inquiries elicited the following 

information from the Hispanic Law Division of the Library of 

Congress. 

The Civil Code of Colombia in force at the present time was originally adopted in 1887, and has been amended over the years. Article 

19 of Law 57 states: "For all civil and political effects, marriages 

celebrated according to the Catholic rites are valid." Similarly, 

Article 50 of Law 153 reads: "Marriages celebrated in the Republic 

at any time, in accord with the Catholic rites, are legitimate and from 

the moment of administering the sacrament, will be civilly and politically effective." 

Article 17 of Law 35 of 1888 and Article 2 of Law 95 of 1890 are 

concerned with the appointment of a civil official to attend the religious ceremony for the purpose of verifying the recording of the 

marriage in the civil register. The Resolution of the Minister of 

Government, No. 8011, of 1890 states: "The lack of intervention by 

the Notary or Municipal Secretary at the celebration of the Catholic 

weddings does not void them; and they shall have civil effects." 

It was not until the enactment of Law 92 of 1938 that there was 

created a system of civil registry in Colombia independent of ecclesiastical registration. The provisions of Article 8 and Article 12 

of Law 92 of 1938 are repeated in more detail in the regulation to 

this law, adopted as Decree 1003 of 1939. In both pieces of legislation, it is reflected that the entry in the civil register shall constitute 

prima facie proof of the proceedings recorded and of the civil status. 

Article 19 of Law 92 of 1938 further provides that in absence of 

civil registration there are four types of secondary proof : (1) Certified documents; (2) Church records; (3) Declaration of witnesses 

who were present at the proceedings where the civil status was acquired; (4) Notorious possession of said civil status. 

Inquiries directed to the American Consul at Bogota, Colombia 

and the. Consulate General of Colombia at New York further substantiated that there is no provision under Colombian Law for invalidation of a religious marriage on the ground of lack of civil 

registration. 

It has been established that the applicant married Flor Angela 

Cortes in accordance with Catholic rites in the Parish of Nuestra 

Senora de Las Aguas of Bogota, Colombia on February 5, 1952 as 

evidenced by a certified copy of the entry in the marriage records of 

the parish. The applicant has advised that he married Flor Angela 

Cortes, seven years his senior, in a religious ceremony because he 

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believed her to be pregnant as a result of premarital relations. He 

claims, however, that he never introduced her to anyone as his wife. 

The record reveals that the alien stated in his application for a 

,nonimmigrant visa before the American Consul at Barranquilla, 

Colombia on September 2, 1960 that he was married to Flor Angela 

Cortes. Further, two children were born of this marriage, one on 

May 1, 1953 and the other in 1954 or 1955. The marital relationship 

was maintained until shortly before the birth of the second child, 

at which time they separated_ The applicant has admitted that he 

contributed to the support of their two children on an intermittent 

basis until January of 1963. 

The alien made no effort to legally terminate his first marriage 

prior to marrying M. Xiomara Cuervo on October 20, 1960. He has 

since lived with the latter in a husband and wife relationship and 

they have a child who is now about one year old. 

After careful consideration of all of the foregoing factors we find 

that the District Director properly concluded that the instant application for adjustment of status does not merit the favorable exercise 

of discretion authorized by section 245 of the Act. Accordingly, 

his decisiOn will be affirmed. 

It is ordered that the District Director's decision denying the application as a matter of discretion be and same is hereby affirmed. 

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