VP 16-5039.
Decided by Board August 25, 1954.
Marriage — Section 101 (a) (35) of Immigration and Nationality Act — Validity of "absentee" marriage in Japan.
A marriage registered in accordance with Article 739 of the Japanese Civil Code on August 1, 1953, when the husband was in the United States and the wife in Japan, which was preceded by a civil or religious Japanese or Christian ceremony and cohabitation is regarded as a valid and subsisting marriage and does not fall within the proscription of section 101 (a) (35) of the Immigration and Nationality Act.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, Los Angeles District, dated May 24, 1954, revoking the prior approval on November 20, 1953, of the visa petition according the beneficiary nonquota classification under section 101 (a) (27) (A) of the Immigration and Nationality Act as the wife of an American citizen. The revocation is predicated on a memorandum from the American Consulate at Nagoya, Japan, to the effect that the marriage between the petitioner and the beneficiary was of an absentee nature and hence not valid for immigration purposes.
Section 101 (a) (35) of the Immigration and Nationality Act provides:
The term "spouse," "wife," or "husband" do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.
The record indicates that the parties hereto were present together in Japan and underwent a civil marriage or "sake" ceremony according to Japanese custom on May 28, 1948. They lived together as husband and wife until the departure of the husband for the United States on June 4, 1948. The marriage was registered in accordance with Article 739 of the Japanese Civil Code on August 1, 1953, the husband then being in the United States.
It has previously been held that the registration of a marriage in Japan under this section of the law constitutes a valid marriage for immigration purposes when it has been preceded by a Japanese or Christian ceremony or where the parties had previously lived together as husband and wife prior to the notification and registration of the marriage pursuant to Article 739 of the Japanese Civil Code. Under Article 739 of the Japanese Civil Code, the notification and registration of marriage constitute a legal marriage in Japan. It appears that such a marriage may be registered by either party to the marriage. In Matter of R----, VP 16-603, 4 IN Dec. 650, information contained in an Operations Memorandum dated November 8, 1950, from the Supervising Consul General, Tokyo, Japan, is to the effect that there was no objection to assisting a couple upon the notarized request of the American citizen spouse in registering their marriage, which registration, it is understood, may be accomplished under Japanese law even though one party to the marriage contract be abroad.
Matter of S----, VP 04-92, 4 IN Dec. 622; Matter of R----, VP 16-603, 4 IN Dec. 650; Matter of L----, VP 5-7802, 4 IN Dec. 699; Matter of S----, VP 07-852 (B.I.A., Dec. 1, 1952 and July 15, 1953).
Previously, this type of marriage under Japanese law, which was characterized as an "absentee" marriage, was regarded as not falling within the proscription of a proxy marriage. The elements of a civil or religious Japanese or Christian ceremony, cohabition and notification and registration were considered factors peculiar to Japanese marriages and were regarded as valid marriages under the immigration laws. The provisions of section 101 (a) (35) of the Immigration and Nationality Act merely codifies and defines the term spouse, wife, or husband so as not to include parties to a proxy marriage unless such marriage shall have been subsequently consummated. In the instant case, the parties were physically present in the presence of each other when they underwent a "sake" or civil marriage ceremony in Japan, and the absentee registration constituted compliance with a formal requirement of Japanese law. Under the circumstances, it appears that the marriage does not fall within the proscription of section 101 (a) (35) and should be regarded as a valid and subsisting marriage.
Order: It is ordered that the visa petition be approved for nonquota status on behalf of the beneficiary.