Block on Trump's Asylum Ban Upheld by Supreme Court
What is incest, really? Back in February, we mentioned that the Second Circuit had certified that question to the New York Court of Appeals. Huyen Nguyen became a conditional permanent resident of the United States in 2000 thanks to her marriage to Vu Truong, a U.S. citizen. Nguyen petitioned to have the conditions removed.
USCIS did some investigating and found out that Troung was Nguyen's half-uncle. It declared the marriage incestuous and void. On appeal, the Second Circuit wasn't so sure.
A Certified Question
The Second Circuit submitted a certified question to the New York Court of Appeals asking whether a marriage "of the half blood" between an uncle and a niece was incestuous under state law. The court found that a marriage between a half-uncle and half-niece was not void as incestuous. The court answered the question in a single paragraph, but two judges felt the need to concur.
2 Concurring Opinions
Judge Robert Smith offered a more substantive reason for the court's decision. The terms "half-uncle" and "half-niece" aren't very common, he said, but clearly the issue of half-relatives was important to the legislature, which made special note of them when prohibiting marriages between siblings. On the other hand, it may have been important only in sibling marriages; as to half-uncles and half-nieces, the legislature "gave no particular thought" to the issue. Case law, Smith explained, doesn't really offer any guidance.
Consequently, he suggested that the purpose of the incest prohibitions between siblings is both moral and medical. But there is no "comparably strong objection to uncle-niece marriages," Smith said, noting that those marriages were permissible in New York until 1893. Nor does the issue of genetic disorders seem particularly problematic: The parties agreed that "the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins," which is permitted in New York.
While noting that the statute seems clear that half-uncles and half-nieces can marry, Judge Victoria Graffeo wrote separately to suggest that "the Legislature may see fit to revisit this provision," as the genetic consequences aren't clear. There may also be issues of exploitation of children by older family members.
The end result of the case may be that Nguyen is allowed to remain in the United States, as her marriage isn't void, after all. After U.S. v. Windsor, USCIS can't have very much to say on the issue, as Justice Kennedy said, more or less, that the definition of marriage is wholly up to the state.
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