Interim Decision #2178 

MATTER OF ALVAREZQUINTANA 

In Deportation Proceedings 

A49825726 

Decided by Board January 12, 1973 

(1) Under the laws of Mexico, a religious marriage is not legally recognized in 

that country; civil authorities have exclusive jurisdiction to perform legal 

marriages. 

(2) For recognition in Texas of a common law marriage the parties to which are 

nondomiciliaries of the State, the parties must enter into a new agreement in 

that State to consider themselves as man and wife. A temporary sojourn in 

Texas by the nondomiciliary parties to a common law marriage does,not result 

in the recognition in that State of the common law marriage where such a 

visit was without the intention of acquiring residence in Texas. 

CHARGE: 

Order: Act of 1952—Section 241(aX2) (8 U.S.C. 1251(a)(2))—Entered without 

inspection. 

ON BEHALF OF RESPONDENT: George A. McAlmon, Esquire 

508 Southwest National Bank Bldg. 

El Paso, Texas 79901 

(Brief filed) 

This is an appeal from an order of deportation entered by the 

special inquiry officer finding that respondent was an alien, not a 

citizen of the United States. From this finding, respondent appeals. The appeal will be dismissed. 

The record relates to a married male born, September 4, 1945 in 

Fronteras, Chihuahua, Mexico to Genaro Alvarez and Ana Maria 

Quintana. Genaro Alvarez, the father, has always been a citizen of 

the United States. Ana Maria Quintana, the mother, now deceased, was never a citizen of the United States. A certificate 

evidencing a religious marriage between Genaro Alvarez and Ana 

Maria Quintana, dated September 11, 1947, is part of the record. 

The document states that according to the records of the parish of 

San Ignacio, diocese of Ciudad Juarez, an ecclesiastical marriage 

was celebrated in San Ignaein nn September 11, 1947 with a priest 

officiating. Religious marriages, however, are not legally recog2 55 
Interim Decision #2178 

nized in Mexico because the Mexican Constitution provides that 

civil authorities have exclusive jurisdiction to perform legal marriages. Therefore the religious ceremony was not sufficient to 

create the legal relationship between respondent and his father 

which would enable respondent to acquire United States citizenship through his United States citizen father. 

Respondent does not base his claim on the religious marriage, 

however, but claims that his parents entered into a valid common 

law marriage in Texas, and that by this marriage he was legitimated. 

Texas is a state which recognizes common law marriages. In order to establish 

such a marriage there must be proof that the parties . . . (1) entered into an 

agreement to become man and wife, (2) that such agreement was followed by 

cohabitation as man and wife, (3) that they held each other out professedly and 

publicly as their respective spouses, Smith v. Smith, 257 S.W.2d 335 (Court of 

Civil Appeals, 1953). 

The religious marriage certificate establishes an agreement between the parties to consider themselves as man and wife. However, the record contains no evidence except the present testimony 

of respondent's father that respondent's mother was ever in 

Texas. No supporting evidence was presented to substantiate this 

statement, and the father claimed that none was available although respondent's mother allegedly was employed in the United 

States on numerous occasions for one or two months at a time (Tr. 

of hearing, p. 25, line 2). The record also contains no evidence 

except the present testimony of respondent's father that he and 

respondent's mother ever held theniselves out as husband and 

wife in Texas. No witnesses were presented who knew them as 

such in Texas. 

In respect to what has to be established to prove that a common 

law marriage existed in Texas the decisions differentiate between 

domiciliaries and nondomiciliaries. For Texas domiciliaries, they 

have held that continued cohabitation may show the agreement. 

For people from out of state whose relationship was meretricious 

outside the State of Texas, it continues to be meretricious in Texas 

unless a new agreement within Texas is shown, Tatum v. Tatum, 

241 F.2d 401 (C.A. 9, 1957). In this case, the record is bare of any 

evidence of a new agreement to marry during the periods that 

both were allegedly present in Texas. 

It has also been held that a temporary sojourn in Texas by 

nondomiciliaries does not result in a common law marriage where 

such a visit was without the intention of acquiring residence in 

Texas, Merck v. Flemming, 192 F. Supp. 528 (S.D. Tex., 1961). The 

case before us concerns a couple whose domicile was in Mexico, 

who allegedly entered Texas together for brief periods to take 

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temporary jobs, but who had no intention to acquire residence in 

Texas. 

For these reasons we hold that a common law marriage in Texas 

has not been established in this case. 

ORDER: The appeal is dismissed. 

It is further ordered that the respondent be permitted to depart 

from the United States voluntarily within 30 days following the 

date of this order and any extension beyond that time as may be 

granted by the District Director; and that, in the event of failure 

so to depart, the respondent shall be deported as provided in the 

special inquiry officer's order. 

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