Epstratios Karayannis v. Herbert Brownell, Jr., Attorney General of the United States

BASTIAN, Circuit Judge

(dissenting).

I think the judgment in this case should be affirmed.

Briefly, the facts are that appellant came to this country in May 1946 as an alien seaman on a visitor’s visa. He over-stayed his time. In November 1946 he married an American citizen, Mary Karayannis, and was permitted voluntary departure and re-entry on a. non-quota visa issued to him solely by reason of his marriage.1

In 1950 Mary Karayannis filed complaint against appellant in the Supreme Court of New York for annulment of the marriage because of the fraud of appellant.

The complaint in that case alleged, and the testimony taken at the hearing of the annulment action established, that prior to the marriage defendant there (appellant here) had represented to his wife that he was in love with her and that he was entering into a bona fide marriage with her, and not one for the purpose of adjusting his alien status as the husband of an American wife. It was further alleged that immediately after the marriage he refused to enter into matrimonial relations with her, refused to support her, refused to provide a home for her, and threatened her with a dangerous instrument in order to make her execute documents to adjust his unlawful entry into the United States.

Karayannis did not appear or contest the annulment proceedings, although he knew of its pendency and was served with process as provided by the State of New York. He knew that Mary Karayannis obtained the judgment of annulment, and made no effort to have that judgment Set aside or vacated. The decree of the New York court which annulled the marriage specifically sustained the allegations set forth in the complaint.

Thereafter deportation proceedings were instituted against appellant under the so-called “gigolo bill,” which reads in part as follows:

“ * * * any alien who at any time after entering the United States is found to have secured either non-quota or preference-quota visa through fraud, by contracting a marriage which, subsequent to entry into the United States, has been judicially annulled retroactively to date of marriage, shall be taken into custody and deported * * *.”2

A hearing was held before a Hearing Officer of the Immigration and Naturalization Service at which Karayannis appeared and admitted that he had known of the pendency of the annulment proceedings, and knew that Mary Karayannis had obtained an annulment decree. He denied the allegations made by her and said he did not obtain a lawyer “because at that time I didn’t have any money to engage a lawyer and I had to *886keep on working where I was employed.” (Emphasis supplied.) Appearing also before the Hearing Officer was Mary Karayannis’ attorney in the annulment proceedings, who testified that the transcript of the record presented to the Hearing Officer was a true and correct transcript of the testimony at the annulment proceedings on which the New York court sustained the allegations of the annulment complaint. Thereafter the Hearing Officer entered findings of fact and conclusions of law holding that, under the above quoted Act, Karayannis was deportable. Karayannis duly appealed to the Board of Immigration Appeals, which in due course ruled against him.

Karayannis thereupon filed the instant proceeding against the Attorney General to enjoin his deportation. On cross motions for summary judgment, appellant’s motion was denied, appellee’s motion was granted, and the complaint was dismissed. This appeal followed.

In my opinion, the statute is entirely clear and means exactly what it says, namely, that any alien who has secured his passport by the fraud of contracting a marriage which, subsequent to entry into the United States, has been judicially annulled retroactively to the date of the marriage, shall be taken into custody and deported. If this language is not clear enough (and I think it is), a reading of the legislative history of § 3 of the Act makes it as clear as crystal. In the House Report on the bill (H.R. 28) it was stated, H.R.Rep. No. 65, 75th Cong., 1st Sess. (1937): 3

“The primary purpose of this bill is an effort to protect American citizens from the embarrassments resulting from marriages to aliens who fraudulently scheme to enter into such marriages solely to secure for themselves, as the spouse of an American citizen, either a nonquota visa or a preference-quota visa and thereby expedite the admission of such alien spouse to the United States. It is hoped that the deportation penalty contained in this bill will serve as an effective deterrent to such fraudulent visa practices.
“This bill does not bring within its purview cases in which divorce, separation, or abandonment is the action by which such marriages between alien and citizens are terminated. Only the judicial annulment of such marriages by an American court, retroactively to the date on which such, marriages were contracted, justifies deportation of the alien spouse under the provisions of this bill.
* » * * *
“Within the above-cited limitation, relating to the annulment of the marriage, section 3 of this bill provides mandatory deportation of any alien found in the United States in whose case admission to this country was secured through a marriage to a citizen and the issuance of nonquota or preference-quota visa whenever the marriage is annulled, thereby voiding the marriage as of date it was originally contracted and removing from the alien spouse any validity for the application for or issuance of the nonquota or preference-quota visa; and such deportation is directed pursuant to the provisions of section 14 of the Immigration Act of 1924.”

In the debate in the .House of Representatives, Representative Eberharter spoke as follows:

“The third section of the bill * * * states that .any marriage which is judicially annulled retroactively to date of marriage shall be evidence of fraud and cause for deportation.” 81 Cong.Rec. 648. (Emphasis supplied.)

After further consideration by the Committee on Immigration, and Naturalization, Chairman Dickstein explained in the House of Representatives:

*887“Any decree of divorce based on fraud will automatically take such alien and send him back to his native land.”4 81 Cong.Rec. 2350.

That the marriage of this appellant to Mary Karayannis was judicially annulled retroactively to the date of marriage is made clear by the case of Matter of Moncrief’s Will, 1921, 235 N.Y. 390, 139 N.E. 550, 551, 27 A.L.R. 1117. The court there pointed out the difference between a void marriage and a voidable marriage. It pointed out that a void marriage at no time and under no circumstances has any effect; it is a nullity and may be attacked directly or collaterally. The court then pointed out that a voidable marriage is valid unless it is attacked by the parties seeking to void it and, until this is done, it is binding but, when declared void by a decree of court, is “void from the beginning.” The court added:

“These provisions resolved any doubt as to whether a marriage induced by fraud was void or voidable. But was it the intention also to alter the rule that when the decree was pronounced the marriage was void ab initio? We fail to find evidence of such intent. The marriage shall be void from the time its nullity shall be declared by a court. Consent is essential to the contract. No consent; no marriage. The court finds no consent. It therefore nullifies the marriage. It declares there was no marriage. From that moment the marriage is void. As we have seen, a void marriage is void for all purposes from its inception. All that was meant was that no longer might husband and wife upon their own responsibility determine that they were free from the contract. Such a determination required the concurrence of the court. Only when that was obtained did the marriage become void. But when it was obtained the marriage was nullifted, and all the consequences of a void marriage then followed.” At page 394 of 235 N.Y., at page 551 of 139 N.E. (Emphasis supplied.)

That opinion was followed and cited with approval in the case of Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502, in an opinion by then Chief Judge Cardozo, from which the following is quoted:

“A marriage procured by fraud is voidable, not void. Even so, annulment when decreed, puts an end to it from the beginning Matter of Moncrief’s Will, 235 N.Y. 390, 139 N.E. 550, 27 A.L.R. 1117 * * * It is not dissolved as upon divorce. It is effaced as if it had never been. From then on, payments to either spouse may be demanded and must be made on the footing of its nullity. This is true, according to the holding of some courts, where bequests of income are to be paid until remarriage. * * * It is true and for like reasons where installments of alimony are to be paid under a judgment. A marriage is unreal if procured by force or fraud.”5 (Emphasis supplied.)

I cannot see how, in the face of the plain language of the statute, its legislative history, and the decisions of the State of New York, it can be said that appellant is not deportable. Such a ruling allows a man who would otherwise not be eligible for legal entry into this country to fraudulently avoid the quota provisions of the law and stay here, whereas others must wait until their turn is reached.

It is argued that the fraud, if any, was not in obtaining the nonquota visa but in the marriage. However, as pointed out by Circuit Judge Prettyman when he dissented from the order staying the deportation of this man:

“But he obtained the visa solely on the basis of the marriage. The *888marriage was a fraud; that is, the basis for the visa was a fraud. He obtained the visa through a fraud in contracting a marriage. That is precisely what the statute, in mandatory language, says requires deportation.”6

Every element necessary to authorize deportation under the statute is present here. The fact that the annulment was granted on the ground of fraud cannot be. denied. We should not permit a collateral attack on a valid judgment of a sister state. Appellant was given the benefit of due process; the findings in the deportation proceedings are supported beyond any doubt by the evidence. No reason exists why this man should not be deported.

. Immigration Act of 1924, 43 Stat. 155.

. § 3, Act of May 14, 1937, 50 Stat. 165.

. Identical language appears in S.Rep. No. 426, 75th Cong., 1st Sess. (1937) on thsame bill, and in -tjie House Report on the same bill in the 74th Congress.

. Obviously, annulment was meant.

. The construction placed by the New York courts as to the effect of a decree of annulment making the marriage void ab initio is followed by many other courts, e. g., New Jersey, Wigder v. Wigder, 188 A. 235, 14 N.J.Misc. 880.

. 101 U.S.App.D.C. 221, 248 F.2d 81.