Interim Decision #1682
MATTER OF LASRXnVTCH
In Visa Petition Proceedings
A-14708690
Decided by Board December 20, 1966
Where beneficiary's status is evidenced as "ainglo" by an Marini document
(Rectification of Civil Record) issued by the Government of Chile, the
country of her residence and nationality; the Chilean Consul has stated that
such document is legal proof of the civil status of beneficiary in Chile; and
this finding by the Chilean authorities has not been controverted. such document constitutes proof of the "unmarried" status of beneficiary for the purpose of according her preference classification under section 203(a) (2) of
the Immigration and Nationality Act, as amended by P.L. 89-236.
ON BEHALF Or Pannonian: Ralph L, Baker, Esquire
1217 Central Building
Oakland, California 94612
(Brief filed)
The case comes forward on appeal from the order of the District
Director, San Francisco District, dated September 19, 1966 denying
the visa petition for the reason that the divorce obtained by the beneficiary is invalid and consequently the approval of the visa petition
cm liar behalf as the unmarried child of an alien lawfully admitted to
the United States for permanent residence was erroneous, and such
approval is therefore revoked.
The petitioner, a native of Russia, a lawful permanent resident of
the United States, 70 years old, male, seeks preference status under
section 203(a) (2) of the Immigration and Nationality Act on behalf
of the beneficiary as his unmarried daughter. The visa petition, filed
June 28, 1965, states that the beneficiary was divorced.
The visa petition was supported by a certificate of identification
from the Chilean Central Office of Identification indicating that the
beneficiary was single. There was also submitted a certificate issued
by the Synod of Bishops of the Russian Orthodox Church Outside of
Russia at New York, New York certifying that by decision of the
Synod of Bishops of that organization dated March 25, 1965 and
becoming valid since May 15, 1905, the first religious marriage of
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Interim Decision #1682
Michael A. Lashkevich with Valentina N. Lashkevich is dissolved on
the request of the wife, the defendant, Michael A. Lashkevich being
found, guilty of maliciously abandoning his wife. This certificate
further states that the plaintiff, Mrs. Valentina N. Lashkevich nee
Zdanoff, according to that decision has the right to contract a new
marriage. This certificate is signed by the President of the Synod of
Bishops and the Chancellor to the Synod of Bishops and notarized.
A memorandum dated November 9, 1965 by an immigrant inspector is contained in the file and indicates that the petitioner appeared
at the office and submitted the certificate of dissolution of marriage
issued by the Synod of Bishops of the Russian Orthodox Church Outside of Russia and a certificate issued by the Secretary of the Central
Office of Identification authenticated by the Ministry of Justice of
Chile wherein it states that the civil status of the beneficiary, Valentina Idanova Schegaleva, is single. The immigrant inspector phoned
the Consulate General of Chile at San Francisco and discussed the
certificate. He was told there was no divorce in the laws of Chile but
there were laws in which annulment of marriage was permitted. He
was further informed that the certificate issued by the Central Office
of Identification was a legal document and the statement of single
civil status was legal and binding, and according to the laws of Chile,
the beneficiary is a single person.
The file reflects that a copy of the certificate of the Synod of Bishops of the Russian Orthodox Church Outside of Russia was submitted
to the Library of Congress, File and Law Section, for an opinion as
to its validity as a legal termination of the beneficiary's prior marriage but due to a lack of specific provisions on religious divorce in
the Chilean code or statutes, and despite a thorough search through
legislation, cases and other types of legal literature, no statement or
opinion was discovered which might evidence Chile's attitude toward the securing of religious divorce, whether at home or abroad.
The visa petition was approved on iuly 22, 1965 with the notation
that the validity of the beneficiary's divorce was not known. On January 17, 1966 the petitioner was informed that the American Consulate in Santiago, Chile had returned the visa petition requesting
clarification as to the validity of the divorce obtained by the beneficiary through the Synod of Bishops of the Russian Orthodox Church
Outside of Russia. The District Director stated that it had now been
determined that in accordance with the Civil Code of Chile, the divorce obtained by the beneficiary was invalid and consequently the
approval of the visa petition as the unmarried daughter of the petitioner was erroneous. The determination of the invalidity of the divorce was apparently based upon the memorandum of the Library of
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Congress which, as we have previously noted, expressed no firm resolution of the problem. However, on February 9, 1966 the petitioner
was given notice of the revocation of the visa petition on the ground
that the divorce obtained by the beneficiary was invalid and the prior
approval of the visa petition as the unmarried child of the petitioner
was erroneous.
On appeal to this Board there was submitted a document in the
Spanish language together with translation entitled "Rectification of
Civil Record" dated November 2, 1965 referring to Valentina. Idanova
Schegaleva and signed by the Substituting Director General of the
Civil Registry and Identification, Santiago, Chile. This document
requested a rectification of the beneficiary's civil record to establish
that her civil status was single and not married to Miguel Lashkevich
Kalenena as is indicated in that record; that she enclosed an authorized copy of the inquiry for perpetual memory rendered at the Second
Court of Justice in Civil Matters of High Degree of Santiago approved by that tribunal and dated June 11, 1964 which verifies that
-witnesses of the inquiry affirmed that the petitioner was never married
to Miguel Lashkevich Kalenena; that in the affiliation extract it is expressed that the bearer's civil status is that of married to Miguel Lashkevich, a civil status which is not enforced by any document, and
neither is there tiny record of the supposed marriage of the said persons; that in the affiliation extract of Miguel Lashkevich Kalenena the
latter's civil status is that of married to Valentina Idanova Schegaleva,
a civil status which is not enforced by any document and neither is there
any record of the supposed marriage of said persons; that Valentina
Idanova Schegaleva expressly recorded that she ignores the present
whereabouts of Miguel Laskevich Kelenena since he was only an immigration companion and has lost sight of him; that the married status
was not verified with the legal means of proving established by articles
305, 209 and following of the Civil Code and neither was the supposed
marriage of the said persons proven which is a previous condition to
establish the civil status of married; and that for these various reasons
the rectification according to law has been petitioned. The Chief of
the Central Bureau of Identification was ordered to proceed to rectify
the civil record corresponding to the beneficiary in the sense of establishing that the civil status of the latter is that of single and not married to Miguel Lashkevich Kalenena as it is erroneously expressed
there. The aforementioned Chief likewise ordered that an identity
document be issued to the beneficiary in accordance with the civil
status previously mentioned. This document is signed by the Substituting Director General of the Civil Registry and Identification.
In considering the appeal, this Board on March 11, 1966 took notice
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of the rectification of civil record and remanded the ease for the purpose of introducing the evidence submitted on appeal in the record for
consideration of the District Director. The document was referred
to the Library of Congress for an opinion. By letter dated May 25,
1966 the Library of Congress stated that up until 1942 the Identifies;
tion Service was a dependency of the Department of Justice, maintaining records on aliens and other investigations, from which information and identity cards were issued as required. The Civil Registry
operating as a vital statistics office, maintained records on Chilean
nationals and in 1942 the similar services were fused for administrative
purposes in a single department known as the General Bureau of Civil
Registry and Identification. The record which was ordered to be rectified in this ems WAS apparently one of information on identification
of aliens, and not one of civil status. However, the procedure for such
corrections in the absence of documentation or "best evidence," is
apparently the same in either case, through a self-serving court action
known as Information pars Perpetua illemoria or depositions a
perpetual, rei malaria. This procedure is detailed in article 909-914
of the Code of Civil Procedure. In this case the decree ordered a correction only in the petitioner's record but did not affect the same information contained in that of her presumed husband. In this case the
court found the statements in the petitioner's and her presumed husband's identification records or cards which bear consecutive numbers
not to be true insofar as concerned their status as being married to each
other. The court found that no legal evidence, as required by the Civil
Code in the form of a certificate of marriage or other documentation,
was either noted or attached to support the statements made in these
records. The witnesses offered corroborating evidence to the effect that
the man was only a "travelling or immigration companion" entering
Chile with the petitioner, but not married to her.
The District Director ordered revocation for the reason that the
divorce obtained by the beneficiary was invalid and consequently the
approval of the visa petition as the unmarried child of an alien lawfully admitted to the United States for permanent residence was
erroneous. It is noted that the notice of revocation makes no reference
to the Rectification of a Civil Record which was submitted on appeal
and was remanded for consideration by the District Director.
While we have accorded recognition to divorces which involved
persons who were neither residents nor domiciliaries of the United
States at the thus of such divorce,' we find it unnecessary to rest
our decision upon the religious divorce obtained by the beneficiary
1 Matter of B—. 1 I. & N. Dee. 677; Matter of A—, 6 I. & N. Dec. 272; Matter
of .Paruque, 10 I. & N. Dee. 561.
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Interim. Decision #1682
which involves a native of Manchuria, China, a naturalized citizen
of Chile, and which presents problems of conflicts of law so involved
as to defy resolution by the Library of Congress. We think, however,
the case may be decided upon the basis of the rectification of the
civil record showing the beneficiary's civil status to be that of single
and not married. The memorandum from the Library of Congress
dated May 15, 1966 sets forth that the court named in the rectification of civil record found no legal evidence of marriage, as required
by the Civil Code, in the form of an attached or noted certificate
of marriage or other documentation. In addition, the witnesses offered
corroborating evidence to the effect that the man was only a travelling
or immigration companion entering Chile with the petitioner but not
married to her. The memorandum by the immigrant inspector dated
November 9, 1965, contained in the file, contains information from
the Consulate General of Chile at San Francisco that the certificate
issued by the Central Office of Identification was a legal document
and that the statement of single status was legal and binding and
according to the laws of Chile the beneficiary was a single person.'
The petitioner, a permanent lawful resident, seeks preference quota
status on behalf of the beneficiary as his unmarried daughter. The
plain congressional purpose in providing preferential status for entry
of immigrants closely related to American citizens was to facilitate
and foster the maintenance of families, such as here involved. Consistent with that purpose it has been held reasonable to believe that
the Congress intended that the marriage of a citizen, valid where
contracted, be accorded validity for immigration purposes. 3 As a necessary corollary to that same purpose, the civil status of a person,
determined in accordance with the laws of the country of which she
is a. national and in which she resided, and who has no United States
residence or domicile, should, on the basis of comity, be accorded
recognition of the civil status accorded to her by the laws of such
country.
In the instant case the beneficiary has produced evidence that
Chile, the country of her nationality and residence, regards her civil
status as that of a single person. This finding by the Chilean authorities has not been controverted. Accordingly, the beneficiary is to
be regarded as an unmarried child. The appeal will be sustained.
ORDER: It is ordered that the appeal from the revocation of the
visa petition granting preference status under section 203(a) (2) of
the Immigration and Nationality Act be and the same is hereby
sustained.
'This information has been informally corroborated by the legal advisor of
the Embassy of Chile at Washington, D.O.
Matter of P , 4 1. & N. Dec. 610, 614 (Actg. A.G. 1952).
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