Interim Decision #1684
MATTER OF Worm
In Visa Petition Proceedings
A-13862538-9-40-41
Decided by Board January 3, 1957
Since a Chinese mutual consent cuvorce is not vaiia to terminate a marriage
celebrated in accordance with the Hong Kong Marriage Ordinance (which
marriage is terminable only in accordance with the Hong Kong Divorce
Ordinance), the 1958 agreement of divorce written by petitioner's second
wife is ineffective to terminate their 1955 registry marriage in Kong Kong
in accordance with the Hong Kong Marriage Ordinance; therefore, petitioner's subsequent registry marriage to the principal beneficiary at Hong
Kong in 1964 in accordance with the Ming Kong Marriage Ordinance is not
valid for immigration purposes, and revocation of the petition . according
beneficiaries immediate•relative status on the basis thereof is approved. Matter
of Chang, Int. Dec. No. 1665, reaffirmed.]
Os Emu= OF PETITIONER: ON BEHALF OF Simms:
Jackson Cook, Esquire Irving A. Appleman
4 East 41st Street Appellate Trial Attorney
New York, New York 10017
(Brief Sled)
The eases come forward pursuant to certification of the order of the
District Director, New York District, dated September 1, 1966 ordering that his original decision dated September 9, 1965 revoking the
approval of the visa petitions be reaffirmed for the reasons set forth
in an attached order.
The .petitioner, a native of Kwangtung, China, a citizen of the
United States by naturalization on July 2, 1951, 63 years old, filed a
visa petition on May 22, 1964 seeking nonquote. status on behalf of
the beneficiaries as his wife and children. The petitioner married the
wife by Chinese custom on September 15, 1958 and again on February 29, 1964 at Hong Kong, B.C.C., by a registry marriage. The minor
beneficiaries are a son, born September 4, 1959, and two daughters,
born May 5, 1961 and December 2, 1962, respectively.
According to the testimony of the petitioner, he first entered the
'United States in IsTovember 1942 as a seaman and was naturalized
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Interim Decision 44684
July 2, 1951. He was first married to Au Shee about 32 years ago in
China and that marriage was terminated by her death sometime during the last World War. He next married ICwok Tung Ngor on September 19, 1955 at the Registrar's Office in Victoria, Hong Kong in
accordance with the Hong Kong Marriage Ordinance. This registry
marriage was allegedly terminated in 1958 by an agreement of divorce
-written by 'the wife on the back of the marriage certificate. The parties
were married by a registry marriage pursuant to the Hong Kong Marriage Ordinance, section 22, on February 29, 1964 and this marriage
certificate bears a notation that the same parties previously were married to each other according to Chinese customary rights and ceremonies on September 15, 1958 in Hong Kong. Counsel argued that it
NM immaterial how persons were married, whether by a civil ceremony or by a Chinese custom marriage, inasmuch as it has already
been established that in Hong Kong custom divorces by written agreement between the, parties were recognized as valid. The Service assumed that when the Registrar at Hong Kong issued the marriage
certificate, he recognized the validity of the divorce, and on May 29,
1964 the visa petition was approved for nonquota status.
The American Consul at Hong Kong referred the matter of the dissolution of the second marriage of the petitioner to the Registrar of
Marriages at Hong Kong who on May 12, 1965 stated that any marriage contracted between persons of any nationality under the Hong
Kong Marriage Ordinance could only be dissolved by a decree of a
competent court and that no divorce agreement made between the
parties concerned could be accepted as a legal divorce document for
such a marriage and therefore the beneficiary was not the legal wife
of the petitioner. The matter was referred back to the Service which on
December 9, 1965 revoked the prior approval of the visa petition.
On appeal, this Board by order dater October 27, 1965, after reciting the above facts, adverted to a brief submitted by counsel challenging the authority of the Registrar of Marriages at Hong Kong to
render an opinion as to the validity of the written divorce agreement.
Counsel also claimed that the Hong Kong Marriage Ordinance does
not specify how a marriage under that ordinance may be dissolved
and contended that the divorce agreement effectively terminated the
Hong Kong civil marriage. We remanded the case for consideration
of the brief filed by counsel and for the purpose of ascertaining the
authority of the Registrar of Marriages in Hong Kong to pass upon
the validity of the Chinese custom divorce, with directions to transmit
the brief of counsel to the American Consul in Hong Kong for forwarding to the Registrar of Marriages in order to resolve the questions raised therein.
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Interim Decision #1684
The order of the District Director dated September 1, 1956 sets forth
summary of the above matters and of the information developed
upon the remand. Under date of December 8, 1965 the British Attorney
General at Hong Kong advised the Service that it is not within the
powers nor part of the duty of the Registrar of Marriages to make a
judicial finding on the validity of a divorce; that the Registrar of
Marriages was replying to a request for information and his response
should be regarded merely as an attempt to assist rather than as an
authoritative pronouncement; that he is not authorized, nor is he competent from the British Government's point of view, to deliver an
opinion on the facts outlined.
The District Director then goes on to summarize the matters bearing
on the case : (1) Regarding the purported customary dissolution agreement written by the wife "in her own handwriting in Chinese characters on the reverse side of the original Marriage Certificate," and accepting counsel's argument that the Chinese law applicable in Hong
Kong is the Tsing Code of China as it existed in 1843 when Hong
Kong was ceded to England, although the Tsing Law does not require
the signature of two witnesses, yet the divorce document (called Hsiushu) or letter of divorce must bs written in the handwriting of the
husband, signed by film alone and then delivered to the wife; divorce
under Tsing Law is a unilateral right belonging exclusively to the husband and must be exercised by him alone and not in conjunction with
the wife who has no say in the matter; under the laws of the Tsing
Dynasty, divorce is a unilateral right belonging exclusively to the husband. Authority for this statement is an opinion dated November 9,
1958• by Dr. Vernier Y. Chia, Barrister at Law, Hong Kong, former
Chief Justice of the High and District Courts of China and eight years
Professor of Chinese Law at National Kwangsi University; also "Chinese Law and Custom in Hong Kong", the report of the Governor's
Committee printed and published by the Government Printer, Hong
Kong, Appendix 9, Page 203.
(2) The second marriage of the petitioner occurred on September 19, 1955 and was celebrated at the Marriage Registry in accordance
with the "Marriage Ordinance (Chapter 181) Ordinances of Hong
Kong." A marriage celebrated before the Hong Kong Registrar of
Marriages in accordance with the Marriage Ordinance is a "Christian"
marriage or the civil equivalent of a "Christian" marriage (section 41,
Marriage Ordinance) . A declaration required of all persons celebrating
marriages before the Registrar of Marriages sets forth the understanding that the marriage cannot be dissolved except by a valid judgment
of divorce.
(3) Chapter 25 of the Strickland-Ridehaigh-McDouall Report
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Interim Decision #1684
states in part that parties married under the Marriage Ordinance•
could not be divorced except in accordance with the Divorce Ordinance.
(4) An examination of the Divorce Ordinance, Chapter 119, indicates that a registry marriage may only be terminated by a formal
divorce under the Divorce Ordinance. The Divorce Ordinance provides for the dissolution of marriage where that marriage was either
a Christian marriage or the civil equivalent (section 4(1) (a)), and
where the domicile of the parties to the marriage was in the Colony
(section 4(1) (b)).
(5) This paragraph quotes Page 118 of the Strickland Report to
the effect that while prima facie Chinese customary divorce applies.
to Chinese customary marriage, clearly English law would not permit
Chinese customs to apply to Christian marriages or the civil equivalent of Christian marriage even where the parties are Chinese domiciled in Hong Kong; that the Hammersmith Registry case is authority
for the proposition that a monogamous form of marriage cannot be
dissolved in a method appropriate only to a polygamous form. The
points and authorities referred to in the District Director's order are
contained in a latter of transmittal from the Officer in Charge at.
Hong Kong dated May 2, 1966 which contains much additional material which is not repeated in the interest of brevity.
Counsel for the petitioner has submitted a brief in which he replies
ad seriatim to the points raised in the order of the District Director..
As to point (1), counsel cites the penal provisions of the Tsing Law
concluding with the statement that a man or wife who can no longer
live together in harmony and who are willing to divorce may, however, do so without receiving punishment. This is part of the penal
provision and does not constitute a refutation of Dr. Chiu's opinion
that the divorce document (Hsiu Shu) must be in the handwriting
-
of the husband, signed by him alone and then delivered to the wife.
It is noted that the alleged divorce which was written on the back
of the registry's marriage certificate is stated to be in the first wife's
handwriting. Counsel refers to an article entitled "The Divorce Law
of China" by Robert T. Bryan, Jr. printed in the American Bar
Association Journal of 1920 (Ex. II) which refers to the provisions
of the Chinese Provisional Civil Code enacted in 1913. The article
does not set forth the provisions for the interpretation of the Tsing
Law which is urged to be applicable in Hong Kong. The case of Lee v..
Lou, 2 All England Reports 248, involves a ceremonial Chinese custom marriage in Hong Kong and not a registry marriage and the
holding in that case does not appear to be applicable.
As to point (2), counsel contends that the declaration required of all
persons celebrating marriage before the Registrar of Marriages de-
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Interim Decision #1684
dare that it is their understanding that the marriage cannot be dissolved except by a valid judgment of divorce. Counsel contends that
this provision is merely a warning or admonition and that the marriage here was dissolved by a valid divorce. He cites the case of TheAttorney General v. Reid, Privy Council Appeal No. 18 of 1964, which
involved a prosecution for bigamy arising subsequent to a marriage in
1936 under the Marriage Registration Ordinance of Ceylon, subsequently the husband and a divorced woman being converted to the
Muslim faith who were later married under the provisions of the Muslim Marriage and Divorce Act notwithstanding the earlier marriage
was subsisting and had not been dissolved. The burden of proof in a
criminal proceeding and in a civil proceeding such as a visa petition
are so disparate as to make this case a doubtful precedent when applied to the facts of the instant case.
As to point (3), counsel attacks the Strickland-Ridehaigh-McDouall
Report as merely a report of what the committee found to exist in
Hong Kong with respect to marriage, divorce, adoption and concubinage and contains certain recommendations as to what the Government should do. He asserts that none of the recommendations contained in the report were adopted by the legislature or government of
Hong Kong and that the report has no legal binding effect. Nevertheless, it is an official government report and recommendation. as to matters found to exist in Hong Kong, and is entitled to consideration.
Counsel disputes the accuracy of point (4) which cites sections
4 (1) (a) and (b) of the Divorce Ordinance of Hong Kong. These sections provide:
4. (1) Nothing herein shall authorize the court to make any decree of dissolution of marriage except—
(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 at the time when the
petition Was'presented in the Colony.
Section 4(1) (a) would appear to cover the instant case where there
was a Christian marriage or the civil equivalent of a Christian marriage
which must be dissolved by a decree of dissolution of marriage. It is
recognized that the domicile of the husband-petitioner in this case
presents a jurisdictional problem as to the Hong Kong divorce which
is a divorce by agreement, inasmuch as the petitioner was then a citizen of the United States and a resident and domiciliary of New York.
It may be that the petitioner could not obtain a court divorce in Hong
Kong. It is even more difficult to perceive how this petitioner, a United
States citizen, and a resident and domiciliary of the United States,
could obtain a Chinese custom divorce in Hong Kong.
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Interim Decision #1684
Counsel finally refers to point (5) of the District Director's order
quoting from the Strickland Report that clearly English law would
not permit them (Chinese customary marriages and divorces) to apply
to Christian marriages or the civil equivalent of Christian marriages
even where the parties are Chinese domiciled in Hong Kong; that the
Hammersmith Registry ease is authority for the proposition that a
monogamous form of marriage cannot be dissolved in a method appropriate only to a polygamous form. Counsel's argument that no
English law is being applied but Chinese law, begs the question, inasmuch as the marriage in this case was admittedly a Christian one or
its equivalent, whereas the divorce was a Chinese customary divorce.
In a visa petition proceeding the petitioner has the burden of establishing that he is entitled to immediate relative or preference status
by virtue of any of the relationships described in paragraph (1), (4)
or (5) of section 203(a) or section 201(b) of the Immigration and
Nationality Act, as amended. Section 204 of the Immigration and
Nationality Act; 8 CFR 204.2(d). The petitioner in this case, a
naturalized citizen of the United States since 1951, and a resident
and domiciliary of the State of New York, filed a visa petition on
May 22, 1964 which Was approved on December 5, 1964. The visa
petition was returned by the American Consul at Hong Kong because
of information that the petitioner's prior marriage had not been
validly terminated. The case was remanded for further evidence. The
additional evidence is set forth in an order accompanying the notice
of certification dated September 1, 1966 reaffirming the original decision dated September 9, 1965 revoking the approval of the visa petition. Admittedly, there are involved complex questions involving the
termination of the prior marriage of the petitioner including the domi-
°lie. of the United States citizen petitioner, -which have been set forth
at length in our decision. In a somewhat similar case, Matter of Chang,
Int. Dec. No. 1655, based upon information from the Library of Congress, we held that a Chinese mutual consent divorce was not valid
to terminate the Hong Kong ceremonial or registry marriage. The
decision of the District Director Confirms the conclusion reached in
that case.
After due and careful consideration, bearing in mind that the burden
.rests upon the petitioner to establish the validity of his claim to immediate relative status on behalf of the beneficiaries, we are not persuaded that the order of the District Director is incorrect. The order
of the District Director will be approved. Approval of the order of
revocation will be without prejudice to a motion to reopen supported
by fl. judgment of a 'New York court as to the validity of the existing
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Interim Decision #1684
marital status. The legitimacy of the children of the petitioner should
also be resolved in a motion to reopen.
ORDER: It is ordered that the order of the District Director, New
York, dated September 1, 1966 reaffirming the order of revocation be
and the same is hereby approved.
85
12 I. & N. Dec. 29
WONG
Decided July 1, 1967
Board of Immigration Appeals · decided 1967-07-01
Decided 1967-07-01