Matter of Carrubba

The case comes forward on appeal from the order of the District Director, Cleveland District, dated, August 4, 1966 for the reason that the petitioner's marriage to the beneficiary, Alfredo Carrubba, on August 15, 1964 is not valid because she was not then free to marry as she was the legal spouse of George Henry Huff with whom she entered into a common-law marriage on or about November 1962 and continued this relationship for approximately one year; com- mon-law marriages are -valid in the State of Ohio; the petitioner has failed to submit evidence that her marriage to Huff has been terminated. The petitioner, a native born citizen of the United States, 32 years old, female, seeks immediate relative status on behalf of the benefi- ciary as her husband. The beneficiary is a. native and citizen of Italy 42 years old. The parties were married at Cleveland, Ohio on August 15,1961. The visa petition indicates no prior marriages for the petitioner. The beneficiary had two prior marriages which were terminated by divorce on April 25, 1955 and August 8, 1964 in Cleve- land, Ohio. The visa petition was previously denied by the District Director on February 8, 1966 on the same grounds. However, on June 8, 1966 the District Director realizing that the decision had been entered without the petitioner being advised in 'writing that the evidence was available for her review and without being afforded an opportu- nity to rebut it as provided in 8 OFIt 108.2(b) (2), withdrew his denial order of February 8, 1966 and reopened the proceedings to permit review of the evidence and record of proceedings by the pad-

本案因克利夫兰地区主任于1966年8月4日发布的命令而上诉，理由为申请人于1964年8月15日与受益人Alfredo Carrubba的婚姻无效，因为当时她无权结婚，她是George Henry Huff的合法配偶，她于1962年11月前后与其缔结普通法婚姻并持续该关系约一年；普通法婚姻在俄亥俄州有效；申请人未能提交其与Huff的婚姻已终止的证据。 申请人，美国本土出生公民，32岁，女性，寻求以受益人丈夫的身份为其取得近亲属身份。受益人为意大利本土出生公民，42岁。双方于1961年8月15日在俄亥俄州克利夫兰结婚。签证申请表明申请人此前无婚姻。受益人此前有两次婚姻，分别于1955年4月25日和1964年8月8日在俄亥俄州克利夫兰经离婚终止。 该签证申请此前曾由地区主任于1966年2月8日以相同理由拒绝。然而，1966年6月8日，地区主任意识到该决定是在未书面告知申请人可供其审查的证据且未按8 OFIt 108.2(b) (2)规定给予其反驳机会的情况下作出的，遂撤回其1966年2月8日的拒绝令并重新启动程序，以允许申请人审查证据和程序记录并

tioner 1171C1 to afford her an opportunity to rebut such evidence and submit any new evidence pertinent to the application. The Service case for denial of the visa petition rests upon a s find- ing that the petitioner entered into a common-law marriage in Ohio with one George Henry Huff on or about November 1962 and contin- ued this relationship for approximately one year and inasmuch as this marriage was not legally terminated, her subsequent marriage to the beneficiary is invalid: The record contains a report of inves- tigation dated January 14, 1965.. A sworn statement was taken from the petitioner on November 18, 1964. The petitioner testified that she had met Huff at Parma Hospital whore they were both employed. The petitioner had had a daughter born out of 'wedlock Huff told her he would make a home for her and her daughter and they moved into an apartment with Huff. The petitioner denied any sexual re- lationship with Huff, claimed he always was drunk and would sleep in bars or on the ground, and after about six months she could not stand it any longer and became hospitalized. Her mother had been taking oars of the child until he was placed in a foster home and she wee rushed into the hospital and lost contact with Huff. Accord- ing to the petitioner's testimony, the situation with Huff began. in March 1963 and terminated in November 1963. She testified that Huff actually rented the place but that she paid the rent and they had no joint charge accounts, bank accounts or checking accounts. She testified she introduced Huff to her parents as her boyfriend. Although the petitioner testified that she did not introduce Huff as her husband to her landlady, Mary Tytko, investigation disclosed that the eviction notice was served against George and Doris Huff. However, if the petitioner introduced Huff as George, it would be natural for the landlady to assume they were married. A review of Catholic Charities' files on December 28; 1964 indica- ted that the petitioner and George Huff told the agency they were married in Angola, Indiana, November 22, 1962, but at a later date, after the perties,had separated, she told Catholic Charities that the statement about the marriage was a lie. Marriage records for An- gola, Indiana were checked on December 29, 1961 and no record of a marriage between the petitioner and Huff was located. Other evi- dence contained in the investigation discloses that the petitioner and Huff were listed. on some records, such as Catholic Charities' records and payroll records from Parma Hospital, as married. A sworn statement was taken from George Huff on January 11, 1965. He stated that he and the petitioner had been working together at Parma Hospital, they dated and he had a sex act with her and that he asked her to move in with him at his apartment,

第1171C1条给予她机会反驳此类证据并提交与申请相关的任何新证据。 驳回签证申请的服务局案件依据是一项认定：申请人于1962年11月前后在俄亥俄州与一名叫George Henry Huff的人缔结了普通法婚姻，并持续该关系约一年，且由于该婚姻未合法终止，其随后与受益人的婚姻无效：案卷包含一份日期为1965年1月14日的调查报告。1964年11月18日取得了申请人的宣誓陈述。申请人作证称，她在Parma Hospital结识Huff，两人均在该处工作。申请人有一名非婚生女儿，Huff告诉她他会为她和她女儿安家，他们便搬入一套公寓与Huff同住。申请人否认与Huff有任何性关系，称他总是喝醉，睡在酒吧或地上，约六个月后她再也无法忍受并住院。她的母亲一直照顾孩子，直到孩子被安置在寄养家庭，她被匆忙送进医院并与Huff失去联系。根据申请人的证词，与Huff的情况始于1963年3月，终止于1963年11月。她作证称，Huff实际租下该处，但由她支付租金，他们没有联名赊购账户、银行账户或支票账户。她作证称，她将Huff作为男友介绍给她的父母。尽管申请人作证称她未将Huff作为丈夫介绍给她的女房东Mary Tytko，但调查披露，驱逐通知是针对George和Doris Huff送达的。然而，如果申请人将Huff介绍为George，女房东自然会假定他们已婚。 1964年12月28日对Catholic Charities档案的审查表明，申请人和George Huff告诉该机构他们于1962年11月22日在印第安纳州Angola结婚，但在较晚日期，即双方分居后，她告诉Catholic Charities关于婚姻的陈述是谎言。1961年12月29日核查了印第安纳州Angola的婚姻记录，未找到申请人与Huff之间婚姻的任何记录。调查中包含的其他证据披露，申请人和Huff在一些记录中被列为已婚，例如Catholic Charities的记录和Parma Hospital的工资记录。 1965年1月11日取得了George Huff的宣誓陈述。他称他和申请人一直在Parma Hospital一起工作，他们约会过，他与她发生过性行为，并且他让她搬进他的公寓与他同住，

- which she didin November 1962. Huff claimed they had a joint charge account at Sears Roebuck, a claim which. could -not be sub- stantiated by Service investigation. Huff stated that the petitioner represented herself to people as his wife and that oho fully under- stciod they were living together as man and wife, that he told people she was his wife and they lived together this way about one year. He further testified that he bought the petitioner an engagement ring and a wedding ring to make the situation look, right. Huff testified to four marriages, the first in 1937 and the last in 1951, all of these marriages being terminated by divorce' decrees which are part of the record. - The issue, therefore, is whether the evidence regarding the rela- tionship between the petitioner and George Henry Huff amounts to ' a common-law marriage. Common-law marriages are recognized in the State of Ohio, which is the law applicable to the situation. The petitioner has denied that a common-law marriage was ever intended . or entered into, has denied consummation although admitting living together with Huff. Huff has testified that they lived together as man and wife and were so known. At the reopened hearings the petitioner submitted an affidavit of Sophie Klingbeil executed July 14, 1966, her own affidavit executed Ally 20, 1966 as well as state- ments of two other persons. The affidavit of Sophie Klingbeil is to the effect that she met the petitioner in the winter. of 1962; that the petitioner was brought thereby George Huff; that they told them they had gone away to'get married; that a month or two later, the petitioner told the affiant and her husband that she was not really married to George and said that they were living together and pre- tended to be married so they could. get her baby back from the Catholic Charities; that about the same time George Huff told them he had felt sorry for her because of her home life and because she wanted her baby back,-which is why he pretended to be married to her. George was drinking a lot and fell asleep at the bar. He claimed that the petitioner had no reason to object to his drinking because they were not married and every time he got drunk he said they were pretending to be married because he felt sorry for her. George Huff, who appears to have gotten drunk quite frequently, stated that another reason he was staying with the petitioner was because she was paying for the rent and he was able to take money from her purse to pay for his drinking. A signed statement by Rosalind Basista is to. the effect that she met the petitioner in the fall of 1962 at a dinner and the latter was . introduced to her as George Huff's girl friend; that she had heard that the petitioner and George Fluff were only pretending to be mar-

她于1962年11月照做。Huff声称他们在Sears Roebuck有共同赊账账户，该声称无法经移民局调查证实。Huff称申请人向人们表示自己是其妻子，且她完全理解他们以夫妻名义同居，他告诉人们她是其妻子，他们以此方式同居约一年。他进一步作证称他为申请人购买了订婚戒指和结婚戒指以使情况看起来正当。Huff作证称有四次婚姻，第一次在1937年，最后一次在1951年，所有这些婚姻均经离婚判决终止，判决为记录的一部分。 因此，问题在于关于申请人与George Henry Huff之间关系的证据是否构成普通法婚姻。普通法婚姻在俄亥俄州得到承认，该州法律适用于此情况。申请人否认曾有意缔结或缔结普通法婚姻，否认圆房，尽管承认与Huff同住。Huff作证称他们以夫妻名义同居并如此为人所知。在重新举行的听证中，申请人提交了Sophie Klingbeil于1966年7月14日签署的宣誓书、其本人于1966年7月20日签署的宣誓书以及另外两人的陈述。Sophie Klingbeil的宣誓书大意称她于1962年冬天结识申请人；申请人由George Huff带至其处；他们告诉她他们已外出结婚；一两个月后，申请人告诉宣誓人及其丈夫她并未真正与George结婚，并称他们同住并假装结婚以便从Catholic Charities要回她的孩子；大约同时George Huff告诉他们他因她的家庭生活而同情她，且因她想 要回孩子，这就是他假装与她结婚的原因。George大量饮酒并在酒吧睡着。他声称申请人没有理由反对他饮酒，因为他们并未结婚，每次他喝醉时他都说他们假装结婚是因为他同情她。George Huff似乎相当频繁地醉酒，他称他与申请人同住的另一个原因是她支付租金，他能够从她的钱包拿钱支付饮酒费用。 Rosalind Basista签署的陈述大意称她于1962年秋天在一次晚餐上结识申请人，后者被介绍给她为George Huff的女友；她听说申请人和George Huff只是假装结婚

ried so she could get her daughter back from Catholic Charities and that the petitioner stated that she did not wish to marry George because he drank too much. The hearsay nature of some of the• in 'contained in the statement of Rosalind tesista is recog- nized. The record contains a statement signed by Mary Tytko, the land- lady at the premises rented by the petitioner and George Huff, to the effect that she did not know they were married but just knew that they were living in the apartment. She knew Doris wanted to keep her baby and Catholic Charities kept checking on her. The petitioner eroented st. sworn statement on :rub? 20, 1966 to the effect that the sole purpose in living with George Huff was so that she could regain custody of her daughter, that she could dd this only by representing she was married and that she gave her name as Doris Huff solely for this purpose, and that at no thus did she ever intend to be presently married to George Huff. Common-law marriages are valid in Ohio.' As a matter of public policy, such marriages are not favored. In re Speeler , 6 0.0.. 529. The case of Alter Van Aseh,en, 11 0.0. 2d 195, gives a good summary of law relating to common-law marriages in Ohio. The essential requirements for a common-law marriage in Ohio are stated to be: "An agreement of marriage in praesenti when made by parties com- petent to contract, accompanied and folloived by .cohabitation as husband and wife, they being so treated and reputed, in. the com- munity and circle in which they move, establishes a valid marriage at common law." , So-called common-law marriages contravene public policy and shOuld not be accorded any favor; indeed, they are quite generally 'condemned. It is well settled in Ohio that to establish a common law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence.' In the case of Brastein v. Sedimy, 78 Ohio Law Abstract, 481, it was held in order to establish a common-law marriage, all essential elements to such a relationship must be shown by clear and convinc- ing evidence. Clear and convincing proof has been defined as that degree of proof though not necessarily conclusive, which will pro- duce in the mind of the court a firm belief or conviction, or, as that degree of proof which is more than a preponderance but less than beyond a reasonable doubt. Preponderance in turn, is not deter- mined by the number of witnesses, but by the weight of the evidence

以便她能从Catholic Charities要回女儿，且申请人称她不想与George结婚因为他饮酒过多。Rosalind Basista陈述中所含部分信息的传闻性质已予确认。 记录中包含Mary Tytko签署的陈述，她是申请人和George Huff所租房屋的房东，大意称她不知道他们已婚，只知道他们住在公寓里。她知道Doris想要回孩子，Catholic Charities一直核查她。申请人于1966年7月20日提交宣誓陈述，大意称与George Huff同住的唯一目的是使她能够重新获得女儿的监护权，她只有通过表示自己已婚才能做到这一点，她仅为此目的使用Doris Huff的名字，且她从未有意与George Huff成为现时婚姻关系。 普通法婚姻在俄亥俄州有效。作为公共政策问题，此类婚姻不受青睐。 In re Speeler, 6 0.0.. 529. Alter Van Aseh,en, 11 0.0. 2d 195一案对俄亥俄州普通法婚姻相关法律作了良好总结。俄亥俄州普通法婚姻的基本要求被表述为： “由有缔约能力的当事人作出的现时婚姻合意，伴随并随后以夫妻名义同居，他们在所生活和交往的社区和圈子中被如此对待和公认，即确立有效的普通法婚姻。”所谓的普通法婚姻违反公共政策，不应给予任何青睐；事实上，它们普遍受到谴责。俄亥俄州已明确确立，要确立普通法婚姻，此类关系的所有基本要素必须由明确且令人信服的证据证明。 在Brastein v. Sedimy, 78 Ohio Law Abstract, 481一案中，法院裁定，为确立普通法婚姻，此类关系的所有基本要素必须由明确且令人信服的证据证明。明确且令人信服的证明被定义为该程度的证明，尽管不一定是决定性的，但将在法院心中产生坚定的信念或确信，或者，该程度的证明高于优势证据但低于排除合理怀疑。优势证据反过来不是由证人数量决定，而是由证据的分量决定

which is determined by the witnesses' opportunity for knowledge, the information actually possessed and related, and the manner in which the testimony is given. . In the instant ease, the evidence as to a common-law marriage falls far short of the standard set forth by the .Ohio courts to es- tablish such a marriage—Le., dear and convincing evidence. At most, the evidence establishes that the petitioner and Huff lived to- gether for about one year and that certain records .show them to he man and wife. The record is wholly devoid of any proof that the parties agreed in verba praesenti to become man and wife. The -wife has denied cohabitation, or that they were treated and reputed to be husband and wife in. the community and the circle in which they moved. Her testimony has been corroborated. Upon a full con- sideration of the record, it is concluded that the standard of clear and convincing proof of a common law marriage of Huff has not . been met in this case. Accordingly, the petitioner's present marri- age to the beneficiary is regarded as valid. The appeal will be sustained. ORDER: It is ordered that the appeal be sustained. and that the visa petition be approved for immediate relative status.

这取决于证人获得了解的机会、实际掌握并陈述的信息以及提供证言的方式。 在本案中，关于普通法婚姻的证据远未达到俄亥俄州法院为确立此种婚姻所规定的标准——即明确而令人信服的证据。证据至多证明申请人（petitioner）与Huff共同生活了约一年，且某些记录显示他们为夫妻。记录中完全没有任何证据证明双方以现在时言辞（in verba praesenti）同意结为夫妻。妻子否认同居，也否认他们在其所在社区和交往圈子中被对待并声称为夫妻。她的证言得到了佐证。经全面审议记录，本庭认定，本案中未能达到证明Huff存在普通法婚姻的明确而令人信服的证据标准。因此，申请人（petitioner）目前与受益人（beneficiary）的婚姻被视为有效。上诉将获支持。 命令：兹命令上诉获支持，并批准该签证申请为直系亲属身份。