Interim Decision #2520 

MATTER OF DA SILVA 

In Visa Petition Proceedings 

A-20809233 

Decided by Board August 23, 1976 

(1) Petitioner and beneficiary were natives of Portugal and residents of New York. Since 

they were related as uncle and niece they could not validly marry in New York because 

New York law (Domestic Relations Law, § 5, subd. 3 (MclUnney's, 1964), provides that 

marriages contracted between uncle and niece are incestuous and void. Petitioner and 

beneficiary contracted a marriage in the State of Georgia where marriages between 

uncle and niece are valid (Ga. Code Ann. § 53-105). 

(2) While New York law declares marriages between uncle and niece to be incestuous and 

void if solemrized within New York, the New York statute does not expressly regulate 

a marriage sclemnized in annther state where it is legal. 

(3) Since the marriage was legally contracted in Georgia and is thus not regulated by New 

York law nor violative of New York public policy, the marriage will be recognized as 

valid in New York and is valid for immigration purposes. 

ON BEHALF OP PETITIONER: Francisco R. Garcia, Esquire 

225 Broadway 

New York, N. Y. 10007 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his spouse under section 203(a)(2) of the 

Immigration and Nationality Act. In a decision dated May 27, 1976, the 

district director denied the petition on the ground that the petitioner 

and the beneficiary were not lawfully married under the laws of the 

State of tiler residence, New York. The petitioner's appeal will be 

sustained and the record remanded to the district director. 

Both the petitioner and the beneficiary are natives and citizens of 

Portugal with their home address in Rocky Point, New York. The 

petitioner was admitted as a lawful permanent resident on January 12, 

1964. On August 13, 1975, the parties were married at Augusta, Georgi. a.1 

In an interview conducted by the Service on May 13, 1976, the parties 

' It appears that the parties had previously attempted to marry in Montreal, Canada in 

August 1973. This marriage was prior to the beneficiary's lawful divorce from her first 

husband which was ultimately secured in Nevada on July 2, 1975. 

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stated that they were related as uncle and niece and that because of 

their relationship they could not marry in the State of New York. They 

consulted a lawyer to ascertain whether they could legally marry 

elsewhere in the United States and were :directed to the State of 

Georgia. 2The petitioner stated that he and his wife departed New York 

for Georgia solely to marry because Georgia would recognize a marriage 

between an uncle and a niece, and that they had always intended to 

return to New York to live. 

The legal validity of a marriage is generally determined by the law of 

the place of the celebration. Loughran v. Loughran, 292 U.S. 216 

(1934); Matter of Levine, 13 L & N. Dec. 244 (BIA 1969); Matter of 

4 L & N. Dec. 610 (A.G. 1952). There are, however, exceptions to this 

general rule. Thus, a marriage complying with all the requirements of 

the State of celebration might nevertheless be deemed invalid if it is 

invalid under the laws of a State where one of the parties is domiciled at 

the time of the marriage and where both intend to make their home 

afterward, or if it violates a strong public policy of the State of domicile. 

See Matter of Zappia, 12 I. & N. Dec. 439 (BIA 1967). 

Citing Matter of Zappia, supra, the district director found that the 

marriage was contracted in Georgia solely to evade statutory prohibitions in New York and that, therefore, the marriage was not valid for 

the purpose of conferring immediate relative status on the beneficiary. 

The applicable New York statute, Domestic Relations Law, §5, subd. 

3 (Mcrinney's 1964), provides, in part: 

§ 5. Incestuous and void marriages 

A marriage is incestuous and void whether the relatives are legitimate or illegitimate 

between either: 

- • • 

3. An uncle and niece or an aunt and nephew. 

If a marriage prohibited by the foregoing provisions of this section be solemnized it 

shall be void . . . . 

Counsel for the petitioner contends that while subdivision 3 of section 

5 does indeed prohibit marriage between an uncle and niece, such is 

applicable only to a marriage performed within the State of New York. 

The principal ease relied upon by counsel is In re Estate of May, 305 

N.Y. 486, 107 N.Y.S.2d 170 (1953). There, the New York Court of 

Appeals held valid a marriaga between an uncle and niece of the Jewish 

faith, both residents of New York, celebrated in Rhode Island where 

such a marriage was legal. The court stated: 

We regard the law as settled that, subject to two exceptions . . . , and in the absence 

of a statute expressly regulating within the domiciliary State marriages soleintilycl• 

2 Under Ga. Code Ann. §53-105, a marriage between an uncle and niece is valid. 

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abroad, the legality of a marriage between persons sui juris is to be determined by the 

law of the place where it is celebrated. 305 N.Y. at 490. 3 

In interpreting subdivision 3 of section 5, the court noted that, although 

the statute declares a marriage between' an uncle and niece to be 

incestuous and void, the statute by its express terms did not regulate a 

marriage solemnized in another State where it was legal. 305 N.Y. at 

491. While it is true that the marriage in May involved an uncle and 

niece of the Jewish faith, the New York courts have not so limited the 

decision, and we are of the opinion that its reasoning applies equally 

well to the present case. See Inc re Estate of Suffer, 39 A.D.2d 691, 241 

N.Y.S.2d 681 •(1963); Campion v. Campione, 201 Misc.' 590, 107 

N.Y. S.2d 170 (1951); 1933 Op. N.Y. A.G. 83. Matter of Zappia, supra, 

relied upon IT the district director, may be distinguished on the ground 

that -there the statute in question expressly declared incestuous a marriage between residents of Wisconsin contracted in another State for the 

purpose of evading statutory prohibitions. 

',It appears that an out-of-state marriage entered into by an uncle and 

niece who are residents of the State of New York does not violate the 

public policy of that State, and will be recognized as valid in New York. 

We therefore disagree with the district director's interpretation of the 

applicable New York law. 

The appeal will be sustained and the record will be remanded in order 

that the district director may determine if the marriage between the 

petitioner and the beneficiary is bona Me. See Matter of Phillis, 15 I. & 

N. Dee. 385 1976). 

ORDER: The appeal is sustained and the record is remanded to the 

district clirec;or for further proceedings consistent with the above opinion. 

3 The court ncted that the two exceptions—cases within the prohibition of positive law; 

and eases involving polygamy Or incest in a degree regarded generally as within the 

prohibition of natural law—were not applicable. 305 N.Y. at 492-93. 

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