Matter of H-

In VISA PETITION Proceedings

在签证申请程序中

DISCUSSION: The case comes forward on appeal from the order of the District Director, New York District, dated March 2, 1962, denying the visa petition for the following reasons: the documents submitted by the petitioner in behalf of the beneficiary reflect that they were married on July 16, 1961; however, the beneficiary's di- vorce certificate does not indicate that his first marriage was ter- minated prior to the petitioner's marriage to the beneficiary; and in view thereof, the petitioner has not established that her marriage is valid. The record shows that the petitioner is a native-born citizen of the United States, born February 5, 1945, at New York. Her birth certificate discloses that her parents were born in Jerusalem. She seeks nonquota status on behalf of the beneficiary, a native and citizen of Jordan, 37 years old, male. Both parties are of the Moslem faith. Evidence has been submitted that the parties were married on July 16, 1961, the ceremony being performed by the legal mazoun of the Amman Sharia Court at Jabal el - .Nasr, Amman, Jordan. The beneficiary was at the time of the ceremony married, the petitioner being his second wife; multiple or polygamous mar- riages are permitted among persons of the Moslem faith according to the laws of the Hashemite Kingdom of Jordan. Subsequently, on November 21, 1961, the beneficiary divorced his first wife as evidenced

讨论：本案因纽约地区地区局长1962年3月2日的命令而上诉，该命令以以下理由拒绝签证申请：申请人代表受益人提交的文件显示他们于1961年7月16日结婚；然而，受益人的离婚证书并未表明其第一次婚姻在申请人与受益人结婚之前已终止；据此，申请人未能证明其婚姻有效。 记录显示，申请人是美国本土出生的公民，1945年2月5日出生于纽约。其出生证明显示其父母出生于耶路撒冷。她为受益人申请非配额身份，受益人系约旦本土出生公民，37岁，男性。双方均为穆斯林信仰。已提交证据表明双方于1961年7月16日结婚，仪式由安曼伊斯兰教法法院的合法mazoun在约旦安曼Jabal el-Nasr举行。仪式举行时受益人已婚，申请人为其第二任妻子；根据哈希姆约旦王国法律，穆斯林信仰者之间允许多重或多配偶制婚姻。其后，于1961年11月21日，受益人与其第一任妻子离婚，证据为

by the registration of ouch divorce at the Sharia Ts1A.min Conn, at Amman, Jordan. The question presented is whether the polygamous marriage of the parties. which was valid where performed, constitutes a legal mar- riage for immigration purposes and whether the subsequent divorce by the beneficiary of his first wife affects the status of the parties. The general rule is that the validity of a marriage is determined by the law of the place where it is contracted or celebrated if valid there, it is valid everywhere.' An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the public policy of the domicile of the parties, in respect to polygamy, incest, or miscegenation, or otherwise contrary to its positive laws. Such cases involve marriages which are repugnant to the public policy of the domicile of the parties or to the laws of nature as generally recognized in Christian countries.' The question has been asked whether a marriage contracted in con- formity with the local law, in a country allowing polygamy, would be recognized by the courts of this country. Anglo - American writers generally answer this question emphatically in the negative. They say that such a marriage is not a marriage as understood among the Christian nations and that its recognition would be opposed to sound public policy:' Whatever the particular theory of international law or conflict of laws followed, all recognize that effect will not be given to "foreign" law insofar as its application would conflict (1) with any prohibitory statute of the state In which the suit is brought; or (2) with the public policy of such state. Questions in- volving polygamous marriage demand a careful consideration of the facts of each particular case and of the conflicting policies involved, with a view to discovering whether the recognition of the foreign law can be brought into harmony with the legal order of the forum.* The recognition or nonrecognition of the existence of a polygamous marriage depends on the purpose for which such recognition is in- voked.° In distinguishing between matters regarded as essential and those of pure formality, resort must be had to a functional test, namely, what is the reason or purpose of a particular legal system in

该离婚在约旦安曼伊斯兰教法法院的登记。 所提出的问题是，双方的多配偶制婚姻在举行地有效，是否构成移民目的的法律婚姻，以及受益人其后与第一任妻子离婚是否影响双方的身份。 一般规则是，婚姻的有效性由缔结或举行地法律决定；若在该地有效，则到处有效。1 然而，一般规则的例外通常适用于违背当事人住所地公共政策的婚姻，涉及多配偶制、乱伦或异族通婚，或 otherwise 违反其实在法。此类案件涉及违背当事人住所地公共政策或基督教国家普遍承认的自然法的婚姻。2 有人问，在允许多配偶制的国家依当地法律缔结的婚姻，是否会被我国法院承认。英美学者一般对此问题明确持否定回答。他们说，此种婚姻不是基督教国家所理解的婚姻，承认它将违背健全的公共政策：3 无论遵循何种特定的国际法或冲突法理论，所有理论都承认，如果“外国”法律的适用会与（1）诉讼地州的任何禁止性法规相冲突；或（2）该州的公共政策相冲突，则不会赋予其效力。涉及多配偶制婚姻的问题要求仔细考虑每个具体案件的事实和所涉及的冲突政策，以发现对外国法律的承认能否与法院地的法律秩序相协调。4 多配偶制婚姻存在的承认或不承认取决于援引此种承认的目的。5 在区分被视为本质性的事项与纯形式性的事项时，必须采用功能检验，即某一法律体系规定任何婚姻要求的理由或目的是什么？

imposing any requirement for marriage? Applying this test, it will be found that whether or not any requirement of marriage is an essential or formality depends on the degree or intensity of the public or social interest which it embodies and expresses.` There have been exceptions from the nonrecognition of -ar2c ,:s marriages, such as American Indian tribal marriages, which :.:een upheld in the, absence of a federal statute rendering s , .al laws and customs invalid. While the statement lies be English de- cisions to the effect that no recognition will b van to foreign m:,rri are not a monogamous union of mean and one

施加任何婚姻要求？适用这一检验，将会发现任何婚姻要求是本质性的还是形式性的，取决于其所体现和表达的公共或社会利益的程度或强度。` 对不承认ar2c,:s婚姻存在例外，例如美洲印第安部落婚姻，在不存在使此类法律和习俗无效的联邦法规的情况下，曾得到支持。尽管有英国判决的陈述，大意是不会给予外国婚姻承认，如果它们不是一男一女的单配偶结合，

WOMEt1 -:,. life, nevertheless, such marriages, v- ,7 ' under the law goverm:ig them, have at times been recognized as id in this coun- try but such recognition does not. involve ia recognition of the right to exercise here all the incidents usual to the marriage relationship.' The public policy of the United States against polygamists. and polygamy as expressed in the immigration laws has been a part of the laws since the Act of March 3, 1891 (26 Stat. 1081), which added polygamists to the lis of excludables wider the immigration laws. Thereafter, every amendatory act has included polygamists among the inadmissible classes and the present statute prohibits the admis- sion of aliens who are polygamists or who practice polygamy or advocate the practice of polygamy. 8 In view of this statutory ex- pression of a strong federal public policy against polygamy, it is concluded that the polygamous marriage in the instant case falls within the well-recognized exception to the general rule that the validity of a marriage is determined by the law of the place of cele- bration. It is concluded that this polygamous marriay cannot be recognized as a valid marriage for immigration purposes and will not support a visa petition for nonquota status on behalf of the beneficiary. The fact that the prior marriage of the beneficiary was dissolved subsequent to the second polygamous marria would not appear to affect the nonrecognition of the polygamous marriage. The appeal will be dismissed. ORDER: It is ordered that the appeal from the denial of the visa petition be and the same is hereby dismissed.

WOMEt1 -:,. 生活，然而，此类婚姻，v- ,7 ' 根据管辖它们的法律，有时在我国被承认为有效，但此种承认并不涉及承认在此行使婚姻关系通常附带的所有权利。' 美国反对多配偶制者和多配偶制的公共政策，如移民法所表达，自1891年3月3日法案（26 Stat. 1081）以来一直是法律的一部分，该法案将多配偶制者加入移民法下的可排除者名单。此后，每一项修正法案都将多配偶制者列入不可入境类别，现行法规禁止多配偶制者或实行多配偶制或鼓吹实行多配偶制的外国人入境。8 鉴于这一法定表达强烈联邦公共政策反对多配偶制，结论是本案中的多配偶制婚姻属于一般规则的公认例外，即婚姻的有效性由举行地法律决定。结论是，这一多配偶制婚姻不能被承认为移民目的的有效婚姻，且不能支持为受益人申请非配额身份的签证申请。受益人的先前婚姻在第二次多配偶制婚姻之后解除的事实，似乎不影响对多配偶制婚姻的不承认。 上诉将被驳回。 命令：兹命令，对拒绝签证申请的上诉予以驳回。