2/20/2014 9:38:00 AM,
Jeff D. Gorman
(CN) - New York's highest court must explain whether its incest laws require the deportation of a Vietnamese woman married to her half-uncle, the 2nd Circuit ruled.
Huyen Nguyen, a citizen of Vietnam, had been a conditional permanent resident of the United States since August 2000 based on her marriage to Vu Truong, a U.S. citizen.
She tried to remove the conditions on her residency in 2002, but her petition was denied five years later after the U.S. Customs and Immigration Service discovered that she was not only Truong's wife, but also his half-niece.
The agency ruled that Nguyen's marriage was incestuous under New York law and therefore void, and an immigration judge ordered her removal from the country.
The Board of Immigration Appeals dismissed her challenge after finding that Nguyen's grandmother was also Truong's mother.
Though the Manhattan-based 2nd Circuit agreed Tuesday that "substantial evidence" supports the finding that Nguyen and Truong are related by "half-blood," it reserved decision as to whether such relationships are void for incest under New York's Domestic Relations Law.
That statute voids a marriage between "a brother and sister either of the whole or the half blood; and an uncle and niece or aunt and nephew" without the "half blood" language, the three-judge panel noted.
"The parties have not identified, nor have we discovered, any reported decision of the New York Court of Appeals that squarely holds that section 5(3) of New York's Domestic Relations Law prohibits marriages between half-blooded nieces and uncles," Chief Judge Robert Katzmann wrote for the court.
As such, the panel certified a question to the New York 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 mother)," the question states.