CHANG

                                                 Interim Decision 4E1655




                           MATTER OF CHANG

                     In Visa Petition Proceedings
                               A-15861046

                 Decided by Board October 4, 196'6
Where benetleiary'e Snot marriage in Shanghai, China in 3934, by Chinese
  custom, was followed by a remarriage to the same person in Hong Kong in
  1962 by civil ceremony celebrated under the law of Hong Kong, the
  Chinese mutual consent divorce entered into by the parties in 1964 is
  not valid to terminate the Hong Hong ceremonial marriage (terminable
  only by a valid judgment of divorce) ; therefore, a visa petition to accord
  beneficiary immediate relative status on the basis of his marriage to a
  United States citizen In 1965 is denied.

  The case comes forward on appeal from the order of the District
Director, New York District, dated June 7, 1966 denying the visa
petition since the beneficiary failed to submit valid evidence to
terminate his prior marriage.
  The petitioner, a native of Puerto Rico, a citizen of the United
States, 55 years old, seeks nonquota (now immediate relative) status
on behalf of the beneficiary as her husband. Her husband is a
native and citizen of China, 50 years old. The parties were married
at New York, New York on June 17, 1965. The petitioner's prior
marriage was terminated by the death, of her first husband on. November 3, 1961 at New York, New York.
  The notice of denial contains an attachment from which it appears
that the beneficiary was previously married to Chang Kiang A.
Chuen by a Chinese custom marriage and not according - to any
Christian rite in Shanghai, China in 1934. He remarried this same
person at the Registrar's Office in Hong Kong on August 24, 1962
and a certificate of this marriage was issued under Hong Kong Marriage Ordinance, section 22. As evidence of the.terrnination of this
prior marriage there was submitted a deed made December 21, 1964
between the beneficiary, then residing in New York, and the first
wife, then residing in Hong Kong, reciting that whereas the parties

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were married in 1981 in Shanghai and the marriage was solemnized
according to Chinese custom and not according to any Christian
rite, and the spouses are domiciled in Hong Kong, and whereas
unhappy differences have arisen between the spouses by reason whereof they have agreed to dissolve their marriage, such marriage was
dissolved by virture of a mutual divorce agreement. This instrument was signed by the husband, the beneficiary, in the presence of
a notary public in New York, and was signed by the wife in the
presence of a solicitor in Hong Kong. Thereafter,, the beneficiary
married the present petitioner on June17, 1965.
  The District Director held that since the beneficiary and his first
wife were remarried at the Registrar's Mee at Hong Kong, the
mutual consent divorce was not valid to terminate the marriage and
that only a valid judgment of divorce could terminate the same.
The attachment sets forth the Marriage Ordinance (Chapter 181),
Ordinances of Hong Kong, which provides that:
  All parties appearing before the Registrar of Marriages shall sign a written
declaration before the Registrar which he shall witness in the prescribed
form. This declaration states, in part, that the parties thereto understand
that the effect of publicly taking the other party as husband or wife creates
between them a marriage which cannot be dissolved "during our joint lives
except by a valid judgment of divorce, and that if either of us, during lifetime of the other, shall contract another marriage, while this one remains
-Undissolved, he or she will be guilty of bigamy and will be liable to the
punishment for that offense."

   The regulations dealing with a petition to classify an alien as an
immediate relative of a -United States citizen are set forth in 8 (..AVR
Part 801. 8 CFA 204.2(d) (2) sets forth that if a, petition is submitted on behalf of a wife or husband, it must be accompanied by
a. certificate of marriage to the beneficiary and proof of the legal
termination of all previous marriages of both husband and wife.
The determination of what constitutes a legal termination of a previous marriage is in the first instance for the Service, and upon
appeal, to this Board. Thus, in many instances, marriages purported to have been terminated by a Mexican "mail order" decree
have been administratively found to have been not properly terminated.
  It is noted that the deed of divorce by mutual consent recites that
the parties were married in 1934 in China and omits any reference
to the subsequent civil marriage of the parties 'in Hong Kong in
1962. The instrument also recites that the spouses are domiciled
in Hong Kong.

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   Information on the situation herein was requested of the Far
Eastern Law Division of the Library of Congress. The memorandum dated October 4, 1966 1 sets forth that under section 4(1) of
the Divorce Ordinance of Hong Kong, the jurisdiction of the Court,
is contingent•upoit the presence of the following conditions:
     (a) where the marriage was either a Christian marriage or the civil
         equivalent of a Christian marriage; and
     (b) where the domicile of the parties to the marriage . . . was in the
         Colony.
   The use of the word "and" in place of "or" implies the absolute
fulfillment of the two conditions which are not severable. This
means that the Hong Kong courts may grant- a divorce only where
the marriage, at its inception, falls within the definition of a monogmanna marriage in section 2 of the Marriage Ordinance. Clearly,
 a Chinese 'customary marriage will not be covered by this provision
 as a "Christian marriage" or its "civil equivalent".
   While section 39(1) of the Marriage Ordinance of Hong Kong
 preserves customary marriages, there is room for arguing that once
 a "Christian marriage" or -its "civil equivalent" is contracted, it is
 caught in the web of the Ordinance as a "marriage under this
 Ordinance. As such, it can be dissolved only under the Divorce
 Ordinance providing for dissolution upon the existence of certain
 grounds and jurisdictional basis. It is doubtful whether a customary form of divorce procedure, e.g., mutual agreement, is legally
effective to dissolve a civil or Christian marriage.
   Under the Marriage Ordinance (Chapter 181), section 22 provides
for the prescribed form in which the parties "understand the effect"
of the civil marriage which cannot be dissolved during their joint
lives "except by a valid judgment of divorce." A "valid judgment
of divorce" here must refer to a judicial decree since marriages
celebrated under the Ordinance can be dissolved only according to
the provisions of the Divorce Ordinance providing for judicial relief. Hence, a divorce by mutual -agreement would definitely not
have sufficient standing to dissolve a civil marriage under the Marriage Ordinance. In view of the above, customary marriages do
not Come within section 2 of the Marriage Ordinance and sections
4 and 5 of the Divorce Ordinance, providing for the jurisdictional
bases of the court.
 The provision that "only a valid judgment of divorce could terminate the marriage" does not state specifically which marriage is
  ' Prepared by Ivy ohm, Legal Assistant, Far Eastern Law Division, Library
of Congress.                                                      •
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Interim. Decision #1655 ,
being referred to. Presumably, it refers to the Civil marriage celebrated under the Marriage Ordinance. If sections 39(1) and (2)
could be read together to mean:that the first marriage is deemed to
be submerged in the second, then consequently there can be only one
marriage, and since the second "must not be deemed to prejudice"
the first, then possibly the subsisting marriage could still be terminated by its original prodedure, i.e., by mutal agreement. While
tenable, it is submitted that a better view seems to be that since
the parties have voluntarily undergone a second marriage procedure
under the Ordinance, then it could be terminated only as provided
fur by the. Ordinance. In any event, the customary marriage is not
sufficient to establish the jurisdictional bases of the court.
  The memorandum from the Library of Congress, which has been
set forth in part, confirms the decision of the District Director, New
York District, that the mutual consent divorce is not valid to terminate the ceremonial marriage and that only, a valid judgment of
divorce could terminate the same. Absent a showing that a Hong
Kong court would recognize this mutual divorce agreement as effective to terminate the first marriage, it is concluded that the beneficiary's first marriage was not validly terminated and that he is not
eligible for immediate relative status•as the legal husband of a
United States citizen. The appeal will be dismissed.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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