Matter of A— (Board decision, December 13, 1971)

Plain-English summary

A permanent resident petitioned for second preference classification for her spouse. The District Director denied the petition because she had married before turning 15, below Michigan's ordinary age of consent for marriage. The Board found that a Michigan exception allowed a probate judge to perform a marriage for a person below that age with the required application and parental request. The petitioner was married by a probate judge in the presence of her parents. The Board held that her marriage was valid under Michigan law, sustained the appeal, and granted the visa petition.

Decision snapshot

• Cited authorities: Michigan Compiled Laws §§ 551.51 and 551.202.
• Outcome: Visa petition denial reversed; appeal sustained and petition granted.
• Key point: Michigan law recognized the marriage performed by a probate judge for the petitioner below the ordinary marriageable age.

Full text (BIA official public release)

Interim Decision #2112

MATTER OF A—

In Visa Petition Proceedings

A-18349097

Decided by Board December 13, 1971

Under the law of Michigan (section 551.51, Compiled Laws, 1948, and sec- tion 551.202 of the Compiled Laws, as amended June 30, 1967), the mar- riage in that State of a female under the age of consent (16) performed by a probate judge, as in the instant case, is valid where application for a marriage license was made to a probate judge, "under oath, containing a statement that she is with child, . . . or has lived with a man and has been considered as his wife, or for other good reason," and such applica- tion was accompanied by the written request of the parent or guardian of such female under marriageable age.

ON BEHALF OF PETITIONER: Arpo Yemen, Esquire 7527 Lafayette Street
Dearborn Heights, Michigan 48127

The petitioner, a native of Jordan, was admitted to the United States for permanent residence at the port of New York on March 24, 1968. She appeals from an order of the District Direc- tor at Detroit, Michigan, dated October 12, 1971, denying her pe- tition for second preference classification of the beneficiary, a na- tive of Jerusalem. Exceptions have been taken to the District Director's finding that the petitioner's marriage to the beneficiary is invalid under the laws of Michigan. The petitioner married the beneficiary at Detroit, Michigan on August 31, 1971. She attained the age of 15 years on September 12, 1971. Section 551.51, Compiled Laws of Michigan, 1948, pro- vides in substance that the marriage of a female under the age of consent, 16 years, is void; also see section 25.51, Michigan Stat- utes Annotated. Section 551.51, supra, has a proviso which per- mits a probate judge of any county of the State of Michigan to perform a marriage under the conditions set forth in section 551.202 of the Compiled Laws of Michigan, as amended June 30, 1967, Public Act No. 175, where one or both of the parties are under the age of consent.

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Section 551.202 provides in substance that a probate judge of each county in the state has authority :
. . . to issue, without publicity, a marriage license to any female making application to him, under oath, containing a statement that she is with child, which if born alive before marriage will become a bastard, or has lived with a man and has been considered as his wife, or for other good reason, ex- pressed in such application and deemed to be sufficient by the judge of pro- bate. Section 551.202 also provides the judge of probate with author- ity "to marry persons under marriageable age" under the condi- tions set forth above and the application for such license is ac- companied by the written request:
. . . of the parent or guardian of the one under marriageable age, where only one is under the marriageable age now fixed by the statute, when ac- cording to his judgement, such marriage would be a benefit to public morals. The judge of probate is also authorized "to keep the exact date of the marriage a secret, to protect the good name of [the female applicant] and the reputation of her family." The case of Evans v. Ross, 309 Mich. 149, 14 N.W. 2d 815 (1944), concerns a suit by a husband to have his marriage de- clared void on the ground that his wife was under the age of con- sent when he married her in 1943. The application for the mar- riage license falsely stated that the wife was 19 years of age at the time of the application for the license. The parties separated prior to the wife's sixteenth birthday and did not cohabit follow- ing the separation. The court said that the language used in sec- tion 551.51, supra, "strongly indicates that it was the intention of the legislature to make such marriages void, except marriages performed by the judge of probate." (Emphasis supplied.) The marriage under consideration by the court was not performed by a judge of probate. The Attorney General of Michigan has ruled that a probate judge has discretion whether to issue a marriage license under the provisions of section 551.202, supra, but if he does issue the license, it becomes his duty to perform the marriage ceremony, unless one or both of the parties desire to have a ceremony per- formed by another person competent to perform a ceremonial marriage in the State of Michigan (Opinions of Attorney General of Michigan, No. 3626, March 13, 1962). The petitioner herein was married by a judge of probate in the County of Wayne, State of Michigan, in the presence of her par- ents. The certificate of marriage is undated. Under the laws of Michigan the marriage is valid. It is alleged that there was a reli-

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gious ceremony performed by the pastor of St. Bernadette Roman Catholic Church on September 25, 1971. We conclude that the pe- titioner can legally confer second preference status upon the ben- eficiary. An appropriate order will be entered. ORDER: The appeal is hereby sustained and the visa petition filed on behalf of J—O—A— for second preference classification is hereby granted.

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