Interim Decision #1910
MATTER OF ADAMO
In Visa Petition Proceedings
A-11819345
Decided by Board October 17, 1968
Since petitioner's marriage to beneficiary in Nevada, following a Mexican
"mail order" divorce obtained by beneficiary (in connection with which he
was physically present in Mexico only briefly to obtain a lawyer and neither he nor his wife appeared before the divorce court), is not valid under
the laws of Nevada as the matter of domicile was not satisfied for acceptance of jurisdiction of the foreign court over the parties and for recognition of the foreign divorce decree, such marriage is not valid to confer
second preference status on beneficiary.
ON BEHALF Or PETITIONER: Robert D. Barbagelata, Esquire
109 Geary Street
San Francisco, California 94108
This case comes up from a denial of a visa petition to accord
the beneficiary preference status as a spouse of a ]awful permanent resident under section 208 (a) (2) of the Immigration and
Nationality Act, as amended.
The beneficiary is a native of Italy, citizen of Canada, who last
entered the United States on December 27, 1958. On December
27, 1958, the beneficiary obtained a divorce from his first wife,
Maria Cainardi, from the Court of Yautepec, Fifth Judicial District, State of Morelos, Mexico whereupon the beneficiary on January 29, 1959, married the petitioner in a ceremony performed in
Reno, Nevada. A child of this marriage was born in San Francisco on June 10, 1959.
In a sworn statement dated February 2, 1968, before an officer
of the Immigration Service the ben,eficiary testified that he obtained his Mexican divorce through a lawyer he had hired in Tiajuana, Mexico and that neither he nor his wife personally appeared before the court in the divorce proceedings. The record
indicates that the beneficiary went to Tiajuana to make the arrangements •with the lawyer fur the divorce. The District Direc-
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Interim Decision #1910
for denied the visa petition of February 8, 1968 on the ground
that the previous marriage of the beneficiary was not terminated
and that the divorce obtained was invalid under the laws of the
State of Nevada.
It must be noted in passing that the record indicates that while
the beneficiary and the petitioner were married in the State of
Nevada, their matrimonial domicile from the time of the marriage to the present was in the State of California. 1 Counsel for
the petitioner in his appeal asserts that physical presence of the
beneficiary in Mexico at the time he applied for his divorce is sufficient to give the court in Morelos jurisdiction over the parties
and that therefore the State of Nevada will accept the divorce
rendered in Mexico as a lawful termination of the prior existing
marriage of the beneficiary. At the outset the type of divorce obtained by the beneficiary appears from all respects to be a Mexican mail order divorce_ (A mail order divorce is one in which the
plaintiff (in this case the beneficiary) not ever being a resident of
Mexico corresponds with an attorney to prepare the necessary papers and the plaintiff signs them and secures the decree without
being present in Mexico.) The variation of this presented by the
instant case is that the beneficiary was present in Mexico briefly
to obtain a lawyer.
The question to be decided in this appeal is whether Nevada
will accept mere physical presence in Mexico as being sufficient to
confer jurisdiction on the foreign court to render a divorce which
Nevada will recognize for the purpose of determining the validity
of a marriage celebrated in Nevada.
A review of the Nevada laws and decisions does not clearly indicate what the Nevada Court position is with regard to the validity of Mexican mail order divorces. It therefore becomes necessary to determine what the State of Nevada requires before it
will accept the jurisdiction of a foreign court to render a decree
binding on Nevada.
The rule that is generally followed in the United States is that
domicile of at least one of the spouses is essential to give the
court jurisdiction to grant the divorce. The rule applies to decrees
of foreign nations as well as decrees within the United States
even though domicile is not required by the laws of the jurisdicThe matrimonial domicile of the parties in the State of California
suggests that perhaps the law of Nevada would not be controlling since California has substantial interest in the matter. However, section 63 of the
California Civil Code states that the validity of marriages celebrated outside
the State of California le governed by the law of place of celebration, and
therefore we need only concern ourselves with the applicable Nevada law.
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Interim Decision #1910
tion which grants the divorce (24 Am JUR 2d Sec. 965). As a result, Mexican mail order divorces are not recognized in the
United States. Insofar as the State of Nevada is concerned, it appears from the reading of the case law that Nevada also imposes
the requirement of domicile in determining whether a foreign divorce was rendered by a court having jurisdiction over the parties. In Aspinwall v. Aspinwall, 40 Nevada 56,
(1916),
the court stated the following rule:
Where neither party has a domicile within the State where the action is
instituted, the courts of that State are without jurisdiction of the subject
matter of the action. A State may empower its courts to dissolve the marital
relation where only one of the partiei has a domicile within the State and
its statutes may make it immaterial whether it be the domicile of the plaintiff or the defendant. Such we think is the law of Nevada.
While counsel for the petitioner alleges that the beneficiary was
physically present in Mexico, it appears that under the laws of
Nevada mere physical presence as opposed to actual domicile will
not suffice to confer jurisdiction of the court over the subject
matter in a divorce proceeding, thereby inducing Nevada to recognize a foreign divorce. In Bates v. Bates, 53 Nevada 77,
(1930), the question arose as to whether or not Nevada
should give extraterritorial operation to a decree of judicial separation granted by a court in England. In that case the wife, as
party plaintiff, sought a decree of judicial separation from her
husband who at the time of the institution of the action was residing in Canada. Six years later the husband filed for a divorce
in Nevada on the grounds of cruelty. In -deciding the question of
what effect the prior decree of judicial separation had over the
husband's subsequent action for divorce, the court took notice of
whether or not jurisdiction existed in the first cause. The court
held that as a matter of comity the judgment for judicial separation operated as a bar to the husband's action for divorce. The
court ruled a decree for judicial separation was pronounced by a
court of the domicile and as such was to be accorded extraterritorial operation and effect so long as one of the spouses remained in
the jurisdiction which granted the separation. Thus the finding
that the court in England had jurisdiction over the parties was
grounded on the finding that there was domicile by one of the
parties in the action.
As a consequence we find that the State of Nevada demands
that the requirement of domicile be satisfied before it will accept
the jurisdiction of a foreign court over the parties to a divorce
action and it will not recognize a foreign divorce decree in which
the requirement of domicile is lacking. It follows then that Nevada
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Interini Decision #1910
would not recognize this divorce as legally terminating the prior
marriage of the beneficiary and it would rule that as a consequence the marriage performed there was invalid. We therefore
affirm the decision of the District Director denying the visa petition for preference under section 203 (a) (2).
ORDER; It is ordered that the appeal be and the same is
hereby dismissed.
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