FREEMAN

Interim Decision *1550




                           MATTER OF FREEMAN

                      In Visa, Petition Proceedings •
                                A-13498524
                  Docraod by Bpard .7carmary 24, 1966

Notwithstanding petitioner's first marriage was terminated in 1954 by an in
 absentia Mexican divorce secured by his II S. citizen wife, his second marriage in 1965 in Korea to beneficiary is valid for immigration ruirpoeeR fiance
 it is valid under the law of the place where contracted.


   This case is before us. pursuant to the motion of the Service for
reconsideration of our order of November 4, 1965 in which we
directed approval of the visa petition.
  The petitioner a native born United-States citizen, married the
beneficiary, Sue' am Sang, on March 17, 1965 in Korea. He had
been previously married to Imogene Belmming in 1946 and one
child was 'born of this marriage. They separated in 1949 and his
first wife obtained a divorce at Juarez, Chiltuahua, Mexico on
December 11, 1954. The petitioner has been employed by the Bank
of America overseas since May 31, 1952. Apparently he has been
in Korea since that date but regards the State of California as his
legal resirla npsk ' The sole issue in this ease is whether there is a
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valid marriage betWeen the petitioner and the beneficiary, and the
question further resolves itself into whether the petitioner's first
marriage has been terminated.
  Subsequent to our consideration of the case, the petitioner submitted to the Service a letter of June 11, 1965 by his first wife.
This letter is to the effect that the Mexican divorce was "arranged"
by a member of the California bar; that this petitioner "signed the
papers" and apparently paid part of the fee involved; that she
thereafter remarried; that the validity of the Mexican divorce was
recognized at that time; and that she has two children by her
second marriage. She resents the fact that a question has been
raised concerning the validity of the Mexican divorce and it appears
unlikely that she would be willing to furnish any additional information concerning the matter.
                                                      intexim Decision *1550
    In our order' of November 4, 1965, we •refeired to the•Acting
'Attorney General's decision in 'Matter of           4 I. Se N. -Dec. 610
  (1952) and his statement • therein (p. 614) that a plain Congressional
 purpose 'was to facilitate and faster the maintenance of families.
'He aLgOratidthat, it "ieemee"reasonable .tb believe that the Conorecs
 intended that thei marriage of a citizen, valid where contracted ', be
 accorded' validitY• for immigration purposes"-, and that was the
 basiwof the decision. There, the first wife was in Tijitana, Mexico,
 for days to consult a lawyer about filing the proceeding but
 neither party was in Mexico 'between the actual filing of the divorce
 proceeding and the decree of divorce and neither pally wits ever in
 the State of Tlaxcala, the divorce having been granted by a ediurt of
 that state. It is clear that the' fact that the first wife had been in
 Mexico for two days had no bearing on' the 'Acting .Attorney Gen-
•era's decision. There, the petitioner's second marriage occurred 'in
-Germany whereas here the second marriage took place in Korea.
 With that exception and the fact that we do not know whether this
 petitioner's first wife- consulted. a lawyer in Mexico, the facts in
 this petitioner's ease and in Matter of       are entirely analogous.
    The Service seeks to distinguish Matter of P— by stating that
 there 'was no impediment under German law to the recognition of
 the Mexican divorce and that there is such an impediment under
 Korean law. In this•connectian, there was attached to the motion
 a memorandum prepared by .Dr. Sung Yoon Cho of the Far .Eastern
'Law Division, Law Library, Library of Congress,'and the Service
 stated that this memorandum sets forth in greater detail the statutory
 provision quoted by its officer at Tokyo in his decision. Hence, it
 appears that the Service relies on 'Article-i.8 of Law No. 966 of
 Jain:sly 15, 1962 whiCh is as follows:
       Art. 18. Divorce than be governed by the law of the bonze country or the
    husband at the time of the occurrence of the fact forming its cause. However, the court may 'make - no adjudication of divtirCe imless the fact forming
    its cause also consiltdtes a cause of -divorcelaccording t'o Korean law.
   The first sentence of Article 18 is identical with the Korean
Statutory provision: quotedby the officer-in-:charge. Actually, there
is no statement in Article 18 as to the requirements for a -valid
marriage under the laWs of Korea, and the only citation donceinini,
a law governing marriage is the American Consular Offt feer'i xeferencC to Article 812 of the Korean Codi of Februify .22; 1951
However, that statutory provision is not part of the record before
us. We believe that Article 18 simply means that, where a suit
for divorce is filed in a Korean court and at least one of the parties
is not a national of Korea, then the divorce proceeding shall be
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  Interim Decision #1550
  governed by the law of the home country of the husband at the
  time the ground for divorce arose but that the court will not grant
  a divorce unless the ground of divorce is also a ground under Korean
  law. This is .clear from the statement on page 2 of Dr. Cho's
  memorandum concerning "the absence of specific provisions under the
 above Statute covering the question of the recognition of divorce
 effected between non-Korean nationals abroad". Dr Cho then
 stated that Professor Kim was of the opinion that divorce effected
 between aliens abroad should be recognized in Korea so far as it
 was effected according to the law of the home country" of a party,
 citing Professor Kim's book "New Private International Law".
    In view of the foregoing, there is nothing to indicate that there
   is any specific statutory provision of Korean law which would
   preclude recognition of the Mexican divorce. The most that can
   be said is that a Professor Kim, who has written a 'book entitled
   "New Private International Law", was of the opinion.that a divorce
  outside Korea by non-Korean nationals should be recognized in
  Korea if it was secured according to the law of the home country
  of a party. The home country of this petitioner and his first wife
   is the United States and there may he some question as to whether
  the State' of California can be equated to "home country". As
  against the nebulous theory of the Service, we have the fact that
  the petitioner's first wife secured the Mexican 'divorce after consult-
- ing a member of the California bar; that she has remarried and has
  children by her second marriage; that over 11 years have elapsed
  since she obtained the Mexican divorce during which period its
  validity has not been questioned heretofore; that both parties have
  considered their marriage terminated by reason of the divorce; that
  a copy of the Mexican divorce decree was exhibited at the time of
  the petitioner's marriage to the beneficiary; and that the American
   Vice Consul was apparently satisfied as ,.to the validity of the
 marriage between the petitioner and the beneficiary. We conclude
  that the -Acting Attorney General's decision in Matter of P—,
  supra,, is controlling and.thiit our previous action directing approval
  of the visa. petition was correct. Hence, the motion of the Sprvice
  will be denied and , we. shall not accede to its, request that the case
  he ,remanded to the„ Field Office for the receipt of additional
 evidence.
     (AMER: It is ordered that. the motion of .the Service for reconsideration, except as reconsidered herein, be and the same is hereby
'denied.




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