Matter of V-L-

Cite as 3 I&N Dec. 10

IN THE MATTER OF V-

IN EXCLUSION PROCEEDINGS

A-6446545

Decided by Central Office August 29, 1947

Decided by Board November 17, 1947

Crime involving moral turpitude-Bigamy in Mexico-Definition.

(1) A Mexican, who first married in Colorado in 1924, who returned to Mexico where he married a second time ( 1935) , without the first marriage being dissolved or annuled, has committed bigamy within the meaning of the pertinent Mexican penal statute, notwithstanding that the previous marriage was not registered in Mexico.

(2) As to the sufficiency of the definition of the offense which the alien admits committing, see requirements set forth in Matter of J., 2, I. & N. Dec. 285.

(3) As to standards used in determining whether the foreign crime involves moral turpitude, those prevailing in the United States control, and as to bigamy in the United States see Matter of E., 2, I. & N. Dec. 328. EXCLUDED BY BOARD OF SPECIAL INQUIRY :

Executive Order 8766-No passport. Act of 1940-No passport visa or any other nonimmigrant visa or border crossing identification card or reentry permit. Act of 1917-Admits the commission of crime involving moral turpitude prior to entry, to wit : Bigamy in Mexico.

BEFORE THE CENTRAL OFFICE

Discussion : On October 25, 1946, the appellant applied for admission into the United States at Brownsville, Tex. and was ordered excluded on the above-stated grounds by a Board of Special Inquiry, except for the passport charge. He appealed from that decision and on December 11, 1946, the Board of Immigration Appeals ordered the hearing reopened to adduce additional evidence relating to the admission of the commission of the crime of bigamy in Mexico. A reopened hearing was conducted on July 28, 1947 and the Board of Special Inquiry found the appellant subject to exclusion on the abovestated grounds. He has appealed from this decision. The appellant is a 46-year-old male, an alien, a native and citizen of Mexico, who claims that he was in the United States from 1921 to 1931, and has resided in Mexico since 1931. He desires to come to the United States temporarily from time to time. When he first applied for admission into the United States on October 25, 1946, he

10

Cite as 3 I&N Dec. 10

was in possession of a Mexican Immigration Form 5-C issued on April 25, 1946. At the time of the reopened hearing he did not pre- sent this Mexican Immigration Form 5-C. He has not presented a passport visa or any other nonimmigrant visa or border crossing identification card or reentry permit. He is subject to exclusion on the above-stated documentary grounds. The appellant testified that he married his first wife in Colorado in 1924; that he had two American born children of his first marriage prior to his departure from the United States to live in Mexico, in 1931. He stated he separated from his first wife in Mexico and remained separated from her for about 2 years, when he married his present wife in 1935, in Mexico, by civil process. He states that his first wife would not give him a divorce. The appellant has admitted the commission of bigamy in Mexico in 1935, after he was furnished with what was considered to be a determination as to what constituted a bigamous marriage under the law of Mexico, in a situation similar to this, which determination was made by the Federal Attorney General of the Republic of Mexico.¹ A copy of the translation of this determination made by the Federal Attorney General of Mexico was utilized in the present proceedings and after it was explained to the appellant he admitted the commission of bigamy in Mexico, as stated above. It is concluded that a sufficient definition of bigamy in Mexico was given to the appellant and that he has unequivocally admitted the 1 In connection with the issue of what constituted the offense of bigamy in Mexico, our records show that the information available to this Service in 1945 indicated that bigamy in Mexico was a matter to be determined by the courts in Mexico, whereupon action looking to prosecution was instituted by the appropriate prosecution authority ; that where a person had contracted a marriage outside of Mexico and had not recorded a record of such marriage with the proper civil registrar in Mexico, that no cognizance would be taken by the Mexican authorities, insofar as the question of bigamy was concerned, were the married person to enter into a new marriage in Mexico, with a person other than the spouse, the marriage to whom had not been terminated. This was found to be the situation when the caseof GG was considered by this Service on January 9, 1946 ( 56158/763) . Thereafter the United States Embassy was able to procure a definitive holding by the Federal Attorney General of Mexico, a copy of which is now attached the file of G G— ( 56158/763) . The Federal Attorney General of Mexico stated : (1) that a marriage contracted in Mexico was considered bigamous when either or both of the contracting parties had been previously married in the United States and such marriage contract was not dissolved prior to contracting a new marriage in Mexico ; ( 2) that there is a requirement under Mexican law for Mexican nationals to register marriages contracted in the United States or anywhere outside the Republic of Mexico ; and

(3) that there is no special time to register such record but that a failure to record such document does not imply that the contract is not obligatory upon both contracting parties.

11

Cite as 3 I&N Dec. 10

commission of the crime of bigamy in Mexico, in 1935. (Howes v. Tozer, 3 F. (2d) 849 (C. C. A. 1, 1925) ; 38 Op. Atty. Gen. 128 (1934) ; Op. Sol. Labor (September 5, 1929 ) .) Whether a crime under the laws of a foreign country involves moral turpitude is determined by standards prevailing in the United States, 37 Op. Atty. Gen. 293 ( 1933 ) ; 39 Op. Atty. Gen. 95 (1937) . It has been determined that the crime of bigamy, under United States standards is considered to be one involving moral turpitude (Matter of E , 56107/653, Atty. Gen. (July 11, 1945) ). It is, therefore, concluded that the appellant is subject to exclusion on the above-stated criminal ground. Findings of Fact: Upon the basis of all the evidence, it is found :

(1) That the appellant is a 46-year-old alien, a native and citizen of Mexico, who has resided in Mexico continuously since 1931 ;

(2) That the appellant seeks admission into the United States for border crossing privileges ;

(3) That the appellant did not present a passport or other official document in the nature of a passport issued by the government of the country to which he owes allegiance showing his origin and identity.

(4) That the appellant did not present a passport visa or any other nonimmigrant visa or any immigration visa or border crossing identification card or reentry permit ;

(5) That the appellant was married in Jonesburg, Colo., in 1924 and that such marriage had not been terminated ;

(6) That the appellant went through a civil ceremony with a woman not his wife in Monterrey, Nuevo Leon, Mexico, in 1935 ;

(7) That the appellant admits the commission of bigamy in Mexico, in 1935.

Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded :

(1) That under section 3 of the act of February 5, 1917, the appellant is subject to exclusion on the ground that he admitted the commission of a crime involving moral turpitude prior to entry, to wit : Bigamy in Mexico, in 1935;

(2) That under Executive Order No. 8766, the appellant is subject to exclusion, in that, at the time of entry, he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by said Executive order in effect at time of entry;

12

Cite as 3 I&N Dec. 10

(3) That under section 30 of the act of June 28, 1940, the appellant is subject to exclusion on the ground that he is not in possession of a passport visa, reentry permit, or border-crossing identification card, and not exempt from such requirement as an emergency case as defined by the Secretary of State. Other Factors : The appellant continues to live with his "second wife." There appears to be no urgency for his coming to the United States. Since he has failed to adjust his marital status his temporary admission under the ninth proviso to section 3 of the act of February 5, 1917, is not indicated. Recommended: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed. So ordered.

BEFORE THE BOARD

Discussion : The alien in this case has appealed from the order of the Acting Commissioner dated August 29, 1947, affirming the decision of a Board of Special Inquiry held at Brownsville, Tex. , excluding him on the above-stated grounds. We first considered this record on December 11, 1946, at which time the hearing was ordered reopened to adduce additional evidence in accordance with the following : During the hearing the applicant did admit the conclusion that he had committed the crime of bigamy in Mexico. However, the board of special inquiry did not advise applicant of the essential elements of this crime. While the alleged crime was committed in a foreign country, because of the proximity of Mexico, it would have been feasible for the immigration authorities to obtain an accurate definition of the crime. We think that the hearing should be reopened so that the alien may be advised as to the essential elements of bigamy in Mexico in order to lay a proper foundation for an admission. The facts disclose that the appellant is a native and citizen of Mexico, 46 years of age. He claims residence here from 1921 to 1931, since which latter year he has made his home in Mexico. He now desires to enter the United States temporarily from time to time. When he first applied for admission on October 25, 1946, he was in possession of Mexican Immigration Form 5-C, issued on April 25, 1946. At the reopened hearing he did not present said form ; nor did he present a passport, visa or any other nonimmigrant visa or bordercrossing identification card. Appellant testified that he was first married in Colorado during 1924, the ceremony being performed by a justice of the peace. Of said union there are two children, which appellant states he supports. He states that he and his wife became estranged and he returned to Mexico; and that neither secured a dissolution of said marriage, but that

13

Cite as 3 I&N Dec. 10

his wife informed him he was free to do as he chose, although she would not consent to a divorce. In this situation he remarried a second time in Mexico during 1935. Of this second union there are three children.

During the original hearing appellant was asked whether it was not a fact that it was illegal to be married to two women in Mexico without securing a divorce from one, to which he replied, "Yes, it is illegal, but in my case there were compelling reasons why I did this." He was then asked whether he confessed the commission of a crime involving moral turpitude, to wit : bigamy, in that you are married to two women without first securing a divorce from one of them, to which he replied, "Yes, that is true, but I would like to point out that I was separated from my first wife for over 2 years before I married my second wife." The original hearing, as stated, was reopened for additional evidence because of the deficiency in said record, as set forth above. At the reopened hearing, appellant was informed as to the reason for such action, namely, in order that he could be advised of the essential elements of the offense of bigamy as understood in Mexico. After indicating he understood bigamy to mean marriage to two persons at the same time, the following questions and answers appear :

may be advised of the essential elements of the offense of bigamy as understood in Mexico. On page 3 of the original hearing you stated that you admitted the commission of a crime involving moral turpitude, to wit: bigamy. Do you understand what bigamy is ? A. Yes ; I understand that it is to be married one time and then get married with another woman, that is, to be married to two women at the same time.

regarding the offense of bigamy given by the Auxiliary Office of the Federal Public Ministry and approved by the Attorney General of the Republic of Mexico. This is to be found in circular letter dated May 8, 1947, San Antonio file 2000/51, Brownsville file 641/0 part 2, as follows : "Judgment I. A marriage contracted in Mexico is considered bigamous when either or both the contracting parties have been previously married in the United States and the marriage contract was not dissolved through a divorce or an annulment prior to contracting a new marriage in Mexico ; in the event of an unmarried individual, he will be considered guilty only if he was cognizant of the fact before contracting marriage. II. The Civil Code of the District and Federal Territories provides that in order to establish the civil status acquired by Mexican nationals outside the Republic, the submission of the documents of the acts entered upon shall be considered sufficient evidence, if recorded in the corresponding office of the District or Federal Territories ; from such a disposition can be deduced that a Mexican national who changes his civil status abroad is obliged to present for registration in the Civil Registry the documents of contracts entered upon. III . The Civil Code does not set a special time limit for the recording of such contracts in the respective offices of the District or

14

Cite as 3 I&N Dec. 10

Federal Territories, but failure to record such a document does not imply that such a contract is not obligatory to both contracting parties. Respectively yours, Mexico, D. F., October 4, 1946. The Auxiliary Office of the Federal Public Ministry. (Sgd.) HUMBERTO TRUEBA ROVIRA. Accorded: In conformity-Luis F. Canudas Orezza-Chief of the Department. Approved : Jose Aguilar y Maya, Attorney General of the Republic." Do you understand ? A. Yes.

of a crime involving moral turpitude, to wit : bigamy, in that you are married to two women without first having secured a divorce from one of them ?

I separated from my first wife.

We are not entirely satisfied with the manner in which this record has been developed on the point under discussion, and which was the reason for reopening the hearing in the first instance. In addition, the whole question of bigamy under Mexican law requires clarification because of past confusion on the point, which resulted from conflicting opinions on the question expressed by competent Mexican officials. It is hoped that this may result in consistent holdings in connection with future cases involving the identical issue. Article 279 of the Penal Code of Mexico, 1931,¹ provides : Five years' imprisonment and fine up to 500 pesos will be imposed on a person who, being united in matrimony to another person which has not been dissolved nor declared void, contracts another marriage with legal formalities.

1

Prior to the 1931 amendment, bigamy was covered in the Penal Code of Mexico by the following articles : Art. 831. A person who, having been united in legal matrimony with another person which has not been dissolved, contracts a new marriage under legal formalities commits the crime of bigamy. Art. 832. The crime of bigamy is committed at the moment the record of marriage is signed by the contracting parties. Ifthe record is made but not signed the offense is then reduced to an attempt and punished as such. Art. 833. A bigamist will be punished by 5 years' imprisonment and a secondclass fine when the person with whom the new marriage is contracted is an unmarried individual and does not know the other party is married. If the other party does have knowledge of the former marriage the punishment of 3 years' imprisonment and a second-class fine will be imposed on both. Art. 834. Extenuating circumstances of the fourth class are the following : 1. If the criminal has had genuine cause in the opinion of judge to believe the former marriage dissolved. 2. If there have been no children born of the former marriage. Art. 835. An aggravating circumstance of the fourth class is when the bigamist has had intercourse with the new spouse.

15

Cite as 3 I&N Dec. 10

Article 1952 of the Civil Code of Mexico (New Compendium of the Laws of Mexico, Revised Edition, 1933) , provides : Marriage abroad. Registration. In the case of Mexicans married in a foreign country, the certificate of marriage must be recorded in the civil register of the domicile of the spouses within 3 months after returning to Mexico ; if recorded within that time, its civil effects retroact to the date of marriage; if recorded afterwards, it is effective only from the date of registration (Art. 161) . Thus, the question is whether a Mexican who married in the United States and returned to Mexico and remarried a second time without the first marriage being dissolved or annulled has committed bigamy within the meaning of the pertinent Mexican penal statute, where he did not, upon his return to Mexico, register the first marriage as required by the pertinent Mexican civil statute referred to above. As to the immediate foregoing, the Department of State with its communication of August 8, 1947, VD811.111 G —, J M. G., transmitted copy of one from the American Ambassador to Mexico, which in turn enclosed copy of an opinion approved by the Attorney General of Mexico, to the effect that a marriage contracted in Mexico is considered bigamous when either or both the contracting parties have been previously married in the United States and the marriage contract was not dissolved through a divorce or an annulment prior to contracting a new marriage in Mexico, notwithstanding that the pre- vious marriage was not registered in Mexico.

2 This article is a reenactment of article 179, in effect until 1933, which provided that marriages abroad entered into by Mexicans were to be registered in Mexico within 3 months ; but want of such registration did not invalidate the second marriage, Art. 180. Article 61 of the Civil Code merely covers the civil effects attaching in cases of registration, such as recognition of illegitimate children, adoption, tutelage, emancipation, etc. Such civil effects did not attach, of course, until there was compliance with the requirement of registration. In 1945, an informal opinion was expressed by the Attorney General of the State of Nuevo Leon, Mexico, to the effect that because of article 161 of the Mexican Civil Code, requiring the registration of marriages entered into by Mexicans abroad upon their return to Mexico, that a second marriage entered into in Mexico by said parties to another person did not constitute bigamy unless the marriage celebrated abroad had been registered as required by said article. (See Consular despatch No. 27142, dated November 9, 1945, contained in file of G , J- M. G.; State Department file No. 811.111) . In a number of cases decided by the Supreme Court of Mexico, that court held that as to marriage abroad by Mexicans, failure to register them in Mexico upon their return does not invalidate said marriage ; and that remarriage without dissolution of the first marriage constitutes bigamy. ( Case Jesus R. Pesqueira, Semanario Judicial, 5 Epoca, 1930; and others. Compare case of Urrutia Aureliano, Semanario Judicial, 5 Epoca, 1933. Adjudicated cases of the Supreme Court of Mexico, Tomo IX, 1936) .

16

Cite as 3 I&N Dec. 10

The foregoing opinion by the Attorney General of Mexico was the result of three questions transmitted by our Department of State, and are as follows : 1. Does a marriage contracted in Mexico constitute bigamy when either or both parties had contracted a prior marriage in the United States and the previous marriage was not dissolved by means of a divorce or an annulment prior to the marriage in Mexico ? 2. Is there any Mexican law which requires or stipulates that a marriage contracted in the United States must be registered in Mexico ? 3. In case the answer to the previous question is in the affirmative, does this law set a definite time limit for the registration of a marriage contracted outside of the Republic of Mexico in order to make it valid and legally recognized to Mexico, and, in case such a registration is not effected, would such a marriage contracted abroad not be considered obligatory in accordance with Mexican law ? In his discussion of said questions, the Mexican Attorney General said in pertinent part : (a) The crime of bigamy consists in that a person joined by a matrimonial tie to another person, contracts matrimony anew when the matrimonial tie has neither been dissolved nor declared null. Its establishment in juridical-penal statutes tends to protect the monogamour family regime. This crime is, generally, bilateral, in the sense that both parties are active subjects thereto ; the one who is civilly married, whose marriage has not been dissolved or declared null, and who contracts matrimony anew with a third party, and as well the third party, when the latter is cognizant of the previous marriage of the other party. The Ministry for Foreign Relations must, consequently, be advised, in answer to its first interrogatory, that a marriage effected in Mexico in which one or both of the parties were previously married in the United States and whose marriage was not previously dissolved through divorce or annulment before a new marriage is contracted in Mexico, does constitute bigamy, although the single party entering into a marriage contract with a previously married person is at fault only in the event he was aware of the existing marriage ties, in conformity with fraction VI of article 15 of the Federal Penal Code, under the terms of which to perform an act which is not criminal, except by reason of the circumstances in which the offended finds himself, is excludable from penal responsibility, by analogy of majority of reasons, if the accused at the time of the act innocently was ignorant of (the circumstances) . This analogous application does not violate article 14 of the General Constitution of the Republic, as, far from applying a sanction through the integrating operation of rights a person is exempt from punitive responsibility. If it is believed that the innocent party suffered through this erime, the fraction under reference is exactly applicable and in that case, it will not be necessary to recur to analogy or to the majority of reasons. (b) Regarding the second question made by the Ministry for Foreign Relations to this office, it must be said that article 51 of the Civil Code of the District and Federal Territories states that : " To establish the civil status acquired by Mexican citizens outside the Republic of Mexico, the documents corresponding to the relative acts entered upon shall be considered sufficient proof, when these are re corded in the corresponding office of the District of Federal Territories." Therefore, Mexican citizens who change their civil status abroad, which may befall when contracting marriage as this affects the civil status of an unmarried person,

17

Cite as 3 I&N Dec. 10

must register this fact in the corresponding office of the District of Federal Territories, for which purpose it will be sufficient to present the documents relative to these acts . The ruling implicitly transcribed establishes that a Mexican national who finds himself in the situation described therein has the obligation to register the civil status acquired outside the Republic in the offices of the Civil Registry of the Federal District of the Federal Territories . (c) With respect to the third question that has been transcribed in the corresponding part of this judgment, the Ministry for Foreign Relations is advised that the civil ruling referred to in the preceding paragraph does not establish a fixed time limit in which to register the documents issued abroad and by which a new civil status is established. Furthermore, the lack of compliance thereto, can only establish the conclusion that the Civil Registry of the District of Federal Territories cannot establish or deduce the status acquired by a Mexican national abroad ; this does not mean that the new status does not impose obligations and prerogatives, as the registration does not have constitutional effects, as in marriage, but simply declarative effects, as is the case in recognition of illegitimate children, adoption, tutelage, emancipation, etc. The omission will only mean that the new status acquired abroad by a Mexican national cannot be determined by the civil registry ; the which, on occasions will lead to inconveniences for the remiss person as when married in Mexico and divorced abroad he does not register the document which certifies said divorce, therefore in Mexico so long as he does not register said document, he cannot contract marriage anew, as he already appears as married. Therefore, in relation to the first question, a Mexican national who is married in the United States and contracts marriage in Mexico, without having dissolved or annulled his previous marriage, notwithstanding that this previous marriage was not registered in Mexico, commits bigamy. Otherwise, this omission might constitute a means to evade the corresponding penalty, a procedure which would permit a person guilty of such an act to go unpunished.

Thus, it appears that appellant committed bigamy when he married the second time in Mexico. But the question remains whether he has admitted the commission thereof, as required by the pertinent immigration statute, and ancillary thereto, whether the record, even as presently constituted, affords sufficient basis upon which to predicate the required direct admission. The Acting Commissioner, we note, concluded that a sufficient definition of bigamy in Mexico was given to appellant and that he has unequivocally admitted the commission thereof, when he remarried in Mexico in 1935 (citing Howes v. Tozer, 3 F. (2d) 849 ; 38 Op. Atty. Gen. 128 (1934) ; Op. Sol. Labor (September 5, 1929) . The appellant was not given a definition of bigamy as contained in the pertinent Mexican statute. What was placed before him in the form of a question, set above heretofore, was the summary of an opinion approved by the Attorney General of Mexico on the point. We cannot, therefore, consider the answer as responsive. The definition should be given in a clear manner as to the essential elements of the crime of bigamy as denounced by the pertinent Mexican statute, and thereafter the appellant must clearly admit conduct constituting

18

Cite as 3 I&N Dec. 10

the essential elements of the crime and must make a direct and voluntary admission of the commission of the offense. (Matter of J , 56038/559, 2, I. & N. Dec. 285, January 18, 1945.) We, therefore, feel that the hearing should again be reopened in order that the record may be properly developed on the bigamy charge as a ground of exclusion. Order : The hearing is reopened for further proceedings in accordance with the foregoing. Editor's note. At the reopened hearing on December 17, 1947, the alien unequivocally admitted the offense of bigamy as defined to him by reading to him the provisions of articles 279 and 195 of the Penal Code of Mexico relating to the crime of bigamy. The Central Office ordered his exclusion on January 7, 1948. The Board of Immigration Appeals granted temporary admission as border crosser under the ninth proviso to section 3 of the Immigration Act of 1917, "if otherwise admissible than as one who admits the commission of bigamy in Mexico in 1935."

19