In August, 2000, Vietnamese immigrant Huyen Nguyen took steps to become a permanent resident of the United States following her marriage to an American citizen, Vu Truong. Seven years later, the United States Customs and Immigration Service rejected her petition for permanent residency and ruled that she was not living here legally: Nguyen was Truong’s half-niece so officials deemed the marriage incestuous and void.
The couple appealed the decision. To an immigration judge and the Board of Immigration Appeals, the case was simple: birth records and immigration documents showed that Nguyen’s maternal grandmother is Truong’s mother, which meant their marriage was not valid and so neither was Nguyen’s residency status. The judge ordered her deportation.
But when the case reached federal appeals court, the Manhattan-based Second Circuit declared that the facts were not as straight-forward as they seemed: a closer reading of New York statute may in fact validate the marriage. Last week the Second Circuit sought help from the state’s highest court, and the New York Court of Appeals must now determine how the law defines an “incestuous” marriage.
The quandary lies in section five of New York’s Domestic Relations Law, which states:
A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:
1. An ancestor and a descendant;
2. A brother and sister of either the whole or the half blood;
3. An uncle and niece or an aunt and nephew.
Spot the problem? The law specifically notes that a marriage between “half-blood” siblings is incestuous, but it does not say the same for uncle-niece/aunt-nephew.
“The question presented, therefore, is whether subsection (3) should be read, like subsection (2), to also reach an uncle and niece ‘of either the whole or the half blood,'” the Second Circuit explains. “We conclude that although the determination that the petitioner and her husband were related as niece and husband by ‘half‐blood’ is supported by substantial evidence, the question of whether such relationships are void for incest under New York’s Domestic Relations Law warrants certification to the New York Court of Appeals.”
Past precedent shows that New York courts have interpreted that “half-blood” incest is implied in the third subsection. The Second Circuit cites two Appellate Division rulings: a 1921 decision stating that the third subsections applies to marriages “between an uncle and a niece or an aunt and nephew without regard to the percentage of their blood relationship”; and a 1953 decision stating that a half‐niece and half‐uncle “were forbidden to intermarry” under section five of New York’s Domestic Relations Law. The federal court, however, said that it was unable to find any ultimate interpretation by the state’s highest court.
“On the briefing before us, we are unable to conclude that either the plain language of the statute or its legislative history readily furnishes an answer,” the Second Circuit said.
In a 1970 decision, the Court of Appeals addressed the law’s inconclusive language, expressing confusion over the original intent of the law: “It seems reasonable to think that if the Legislature intended to prohibit marriages between uncles, nieces, aunts and nephews whose parents were related to the contracting party only by the half blood, it would have used similar language…. Its failure to do so in the light of its explicit language relating to brothers and sisters suggests it may not have intended to carry the interdiction this far.”
The Court of Appeals decision on this, of course, will determine Nguyen’s future: if marriage to her “half-blood” uncle is indeed incestuous, her green card will be rejected and she will face deportation; if the incest law does not apply, her marriage will be validated and she will proceed toward permanent resident status. The decision will also determine the law’s future, establishing how courts will interpret the language moving forward.
The Second Circuit certified the question to the Court of Appeals: “Does section 5(3) of New York’s Domestic Relations Law void as incestuous a marriage between an uncle and niece ‘of the half blood’ (that is, where the husband is the half‐brother of the wife’s
Next: the text of the federal court’s certification of the question.
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