F

MATTER OF F— .

In VISA PETITION Proceedings

A-12027843

Decided by Board May 6, 1961
Marriage—Effect of annulment—Validity of marriage contracted in Belgium
prior to annulment of preexisting marriage--Adopted child—Adoption pro-
ceedings by wife in maiden name without participation of husband.
(1) Where beneficiary did not obtain annulment of preexisting marriage un-
til three years after ceremonial marriage to petitioner in Belgium in 1955,
general rules relating to effect of nullity aecrees will be applied, absent
evidence that the law of Belgium is otherwise, to uphold validity of bene-
ficiary's marriage to petitioner.
(2) Notwithstanding that adoption proceedings under Belgian law were solely
by wife in her maiden name. minor beneficiary qualifies as "adopted child"
of petitioner/husband upon showing made that bona fide family relationship
has existed since adoption and that requirements as to custody and residence
have been satisfied.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Newark District, dated December 9, 1960,
denying the visa petition filed in behalf of the adult beneficiary
as the wife of the petitioner for the reason that the validity of
the petitioner's marriage on September 22, 1958 (sic) at Liege, Bel-
gium, has not been satisfactorily established, although not established
as invalid by the Belgian authorities, inasmuch as the wife's prior
marriage on June 3, 1946, to M—S— was not terminated until
the annulment granted June 6, 1958, at Aachen, Germany ; and as
to the minor beneficiary, for the reason that the legal relationship
of A—R—Z— to petitioner of either adopted child or stepchild has
also nut been satisfactorily established as hor. adoption February 3,
1956, at Liege, Belgium, was solely by the wife under her maiden
name, although shown to be the petitioner's wife, and the petitioner
was not a party to the adoption proceedings inasmuch as he was
under the age required by Belgian law. This confusing statement
of the grounds for denial is not clarified by any supporting memo-
randum, although it is obvious that complex legal questions are
involved.

275
 The petitioner, a native of the L'ition of Soviet Socialist Republics,
39 years old, male, is a lawful permanent resident alien, having been
admitted for permanent residence. in the United States on March 23,
1960. He seeks preference status under section 203(a) (3) of the
Immigration and Nationality Act on behalf of his wife, a native
and lust a citizen of the U.S.S.R., 44 years of age. He also seeks
third preference status on behalf of the minor beneficiary, who is a
native and citizen of Belgium, six years of age, as his adopted
daughter.
We shall deal first with the case of the wife. The petitioner has
established a ceremonial marriage to the beneficiary on September 22,
1955, at Liege, Belgium. The petitioner was married but one time
and his wife was married twice prior to her marriage to the peti-
tioner. The beneficiary was first married in Germany on June 3,
1946, and this marriage was annulled by the decree of the District
Court at Aachen, Germany, on June 0, 1958. The eireiuustatices
surrounding this marriage are set forth in the brief filed in behalf
of the petitioner. It is alleged that the beneficiary's family was
persecuted by the Soviets and that she was taken as an "Ostar-
beiter" to Germany. In 1946, when forced repatriation was still
the general practice in Germany, she was under the threat of being
forcibly returned to the U.S.S.R. She was given to understand by
an UNRRA worker that her only salvation would be to marry a
non-Russian person and for this reason she married an old man
named S of Latvian nationality. The beneficiary never lived with
her first husband and has never heard of him since their wedding,
but -by so marrying this person she escaped repatriation. It is alleged
that the beneficiary considered her marriage fictitious and that it
,would never be considered a legal, binding marriage. Subsequently,
she went to Belgium where she married on June 1 5, 1948, this mar-
riage being terminated on October 15, 1954, by a divorce granted
pursuant to Article 230 of the Civil Code of Belgium in the Court
of Justice at Liege, Belgium. Her marriage to the petitioner took
place in Belgium on September 22, 1955, after the termination of her
second marriage but prior to the annulment of the beneficiary's 1946
marriage.
No consideration appears to have been given below to the circum-
stances surrounding the first marriage or to the legal consequence
of a dissolution by an annulment (rather than a divorce) of the
first marriage despite the fact that a letter has been submitted
under the seal and signature of the Royal Public Prosecutor at
Liege, Belgium, dated October 21, 1959, to the effect that the mar-
riage contracted by the parties on September 22, 19bb, was regarded
as valid and that no proceedings were ever instituted or contem-
plated against the beneficiary. It is to be noted that the petitioner

276
 did not come to the United States until March 23, 1960, and presum-
ably relied upon this letter to establish the validity of his marriage
to the beneficiary for it would have been no problem for the peti-
tioner to have remarried after the decree of annulment had they
been so advised since both parties were then residing in Belgium.
The record contains no indication that the petitioner was questioned
about the marriage.
There is an important difference between divorce and annulment.
A decree of divorce dissolves the marriage and relieves the parties
of their obligations as husband and wife; but it recognizes that
the relation had a lawful existence, of which the consequences con-
tinue, even though the relationship has terminated. This a nullity
decree does not do. It is granted for causes antedating the mar-
riage and its legal effect is to say that the marriage never existed.'
A statute may make an annulment operative from the time of the
decree, so that the action becomes practically the same in effect as
that for divorce. However, since no specific foreign statute in this
regard has been cited, it will he assumed that the general rule set
forth above prevailing in this country applies. The second letter
from the Royal Public Prosecutor at Liege, dated September 30,
1960, confirms this assumption, because he comments that the annul-
ment of the first marriage by the tribunal at Aix-la-Chapelle
(Aachen) makes inopportune any further comment on the in-
validity of the marriage of September 22, 1955.
In view of the circumstances surrounding the beneficiary's first
marriage, i.e., that it was a fictitious marriage entered into for
the purpose of escaping repatriation, the allegation that the bene-
ficiary has never lived with the person she married and has never
heard of him since the time of the so-called wedding, together with
the presumption of validity attached to the present ceremonial
marriage and the effect of the decree of nullity entered as to the
first marriage, it is concluded that the petitioner has satisfactorily
established the validity of his present marriage to the beneficiary.
Accordingly, the visa petition will be approved for third preference
quota on behalf of the adult beneficiary as the wife of the peti-
tioner.
The petition for third preference status on behalf of the second
beneficiary has been denied by the District Director on the ground
that the legal relationship of the minor beneficiary to the peti-
tioner as either his adopted child or stepchild has also not been
satisfactorily established as her adoption on February 3, 1956, at
Liege, Belgium, was solely by his wife under her maiden name
(although she was shown to be his wife) and he was not a party to

'Goodrich, Conflict of Laws (1949), p. 417; Madden, On Persons and Do-
mestic Relations (1931 ) , v. 203.

277
the adoption proceeding inasmuch as he was under the age required
by Belgian law. Petitioner's brief points out that the letter of
Joseph Selma, an attorney at Liege, Belgium, dated September 1,
1960, and certified under the seal of the Lower Court, recites the
judgment confirming the actual adoption rendered by the 4th
Chamber of the Lower Court at Liege on December 24, 1955, upon
petition of the wife; the child to bear the surname of the wife's
maiden name; and that only the wife could adopt the child because
at the time of adoption her husband had not yet reached the a of
35 years according to Article 344 of the Belgian Civil Code (law
of March 22, 1940) and could not adopt the child; and that in accord-
ance with Article 347 of the Code, only the name of the young woman
adopting the child could be conferred on the adopted child. Accord-
ing to the letter of the Royal Public Prosecutor at Liege dated
October 21, 1959, the actual adoption of the child by the wife of
the petitioner is regarded as valid by the Royal Public Prosecutor.
The child has resided with her adoptive mother and the latter's
husband, the petitioner, since the date of adoption on December 24,
1955, when the child was a little over one year of age. The adop-
tion appears to comply with the requirements of section 101(b)
(1) (E) of the Tmmigration and Nationality Act, in that, the adop-
tion occurred when the child was under 14 years of age and she has
been in the legal custody of, and has resided with, the adoptive
parent or ,parents for more than two years. The petitioner de-
scribed the beneficiary as his adopted daughter and the brief de-
scribes him as a loving and devoted father. There is no evidence
challenging the bona fides of the family relationship involved.
It is believed that the case falls within the scope of the Attorney
General's decision in Matter of Y—K—W—, 9-176 (Feb. 28, 1961),
which specifically overrules Matter of U—F—L—, 8- 151, upon
which the District Director's denial appears to be based. The
child beneficiary in this ease was adopted by the wife during the
marriage; the husband who was prevented from participating in the
adoption by a technicality has consented to the adoption and sup-
ported the child who has resided with both the adoptive mother
and her husband, the petitioner, and has been in the legal custody
of both for more than two years past.
The following pertinent extracts from the Attorney General's de-
cision in Matter of Y—K—W—, eupra, reveal the present adminis-
trative view in a bona *le adoptive family situation such as exists
in this case:
Once the remedial purpose of preserving, rather than interrupting, bona fide
family relationships ... is recognized, the reasoning in Ng Fun Yin v. Esperdy
[187 F. Supp. 51] appears to be compelling....
... In this case there has been no challenge to the bona fides of the family
relationships Involved. The validity of the marriage of the parents and the

27B
adoption of llie child are unquestioned. Nor is any question raised as to
whether the child was in the legal custody of and resided with the wife for
the required period. There is, therefore, no evidence of fraud. ..
This latest Attorney General decision stresses the remedial and
humanitarian purposes of section 101(b) (1) (E). Under the cir-
cumstances present in the instant case, the beneficiary qualifies as
an adopted child.
ORDER: It is ordered that the appeal be sustained and that both
beneficiaries be found eligbile for third preference quota status.

29.