(dissenting).
I think this stay should be denied.
There is no dispute as to the facts. Appellant came to this country in May, 1946, as an alien seaman on a visitor’s visa. He overstayed the allowed time. In November, 1946, he married an American. Thereupon he was permitted a voluntary departure and a reentry on a non-quota visa issued to him solely by reason of his marriage.1 Later, in 1951, upon a complaint by his wife, a New York court of competent jurisdiction annulled the marriage “because of the fraud of the defendant”. The quoted words are in the decree of the court. Appellant did not contest the annulment.
The pertinent provision of the statute is:
“That 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
The marriage of this appellant was judicially annulled retroactively to the date of the marriage. And the annulment was upon the specific finding of fraud. We cannot go back of the New York decree; we are required to give it full faith and credit. Thus, as I see it, appellant falls squarely within the precise words of the statute. I see no substantial question in the case.
Appellant argues that after some ten months of happy married life unhappy differences developed and the couple separated. But that is not what the New York court found. It found fraud in the marriage itself and annulled it, making it void from its inception.
Appellant argues that the fraud, if any, was not in obtaining the non-quota visa but was in the marriage. But he obtained the visa solely on the basis of the marriage. The marriage 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.
. See. 4(a), Immigration Act of 1924, 43 Stat. 155.
. Sec. 3, Act of May 14, 1937, 50 Stat. 165.