ATWATER

 Interim Decision #2220




                          MATTER OF ATWATER
                       In Visa Petition Proceedings

                                 A-20559162

                    Decided by Board August 17, .1973
(1) Under the law of the Dominican Republic, divorce of nonresident foreigners is
   permissible provided that, while at least one of the parties is present at the
   hearing and the other represented by the holder of a special power of
   attorney, they expressly agree to attribute jurisdiction to the Dominican
   court.
(2) Notwithstanding beneficiary in the instant case, a native and citizen of the
   Philippines, presented a Dominican divorce decree purporting to terminate
   her prior marriage which decree recites that she appeared before the Dominican court and that an attorney appeared to represent the husband, in the light
   of evidence of record strongly suggesting that the husband's power of attorney
   was a forgery, she has failed to meet the burden of establishing the legal
   termination of her prior marriage and, hence, the validity of her subsequent
   marriage to the United States citizen petitioner for immigration purposes.
ON BEHALF OF PETITIONER: Joe Reid, Esquire
                        1204 Tower Life Building
                        San Antonio, Texas 78205
                        (Brief filed)


   This is an appeal from the District Director's decision to deny
the petition filed on behalf of the beneficiary to accord her status
as an immediate relative, pursuant to section 201(b), as the spouse
of a citizen of the United States, for visa issuance purposes. The
petitioner was born in the United States and is a citizen thereof.
The beneficiary is a native and citizen of the Philippines.
  A petition submitted on behalf of a spouse must be accompanied
by a certificate of marriage to the beneficiary and proof of the
legal termination of all previous marriages of both wife and
husband, 8 CFR 204.2(c)(2). The record contains a Texas certificate
of marriage of the parties, dated April 7, 1972. A Massachusetts
divorce decree was submitted which indicates that the petitioner's
prior marriage was legally terminated in 1953. A Dominican
divorce decree purporting to terminate the beneficiary's prior
marriage, to Guerrero Silvestre, was also submitted, but its validity was questioned by the District Director. We agree with the
District Director and shall dismiss the appeal.
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                                          Interim Decision #2220
 The Dominican decree recites that the beneficiary, who was the
laintiff, personally appeared before the court, while her husband,
uerrero Silvestre, was represented, and appeared, by his attorey in fact, by virtue of a power of attorney, signed the twentyrst of February 1972 before a notary public in the Republic of the
hilippines. A photocopy of the power of attorney by Mr. Silvestre,
ated February 24, 1972, is in the record. Whether the signature
iereon is actually Mr. Silvestre's, however, is questionable. He
as sworn in an affidavit, dated November 2, 1972, that he had no
Ake or knowledge of his wife's divorce from him until October 10,
372, when questioned by the United States Immigration and
aturalization Service. The record also contains a photocopy of a
tter from the beneficiary's father, in which he advises her to
,ick to her story that her husband signed the instrument in
.iestion. Notwithstanding a letter from the notary stating that
le signature of Mr. Silvestre was authentic, the evidence strongly
iggests that Mr. Silvestre's signature on the power of attorney
as a forgery.
 A copy of the Dominican law under which the divorce was
2rportedly issued has been submitted by the petitioner. Article I,
iragragh (5), permits divorce of nonresident foreigners "provided
tat, while at least one of them is present at the hearing and the
,her represented by the holder of a special power-of-attorney,
Ley expressly agree to attribute jurisdiction" to the Dominican
curt by an instrument executed by a notary public. If Mr.
lvestre, the absent spouse, did not expressly agree to submit
mself to the jurisdiction of the Dominican court, then the
.oceedings were not in conformity with the requirements of
aminican law, were a fraud upon the Dominican court, and were
valid. The fact that an attorney actually appeared to "represent"
Le husband does not meet with the requirement that the absent
louse authorize an attorney to appear on his behalf, or that the
)sent spouse expressly agree to submit to the jurisdiction of the
urt.
 In visa petition actions, the burden to establish eligibility lies
ith the petitioner, Matter of Brantigan, 

, 495
,1A,1966); Matter of Soo Hoo, 

, 152 (BIA,1965);
after of Yee, 

 (BIA,1964); Matter of B—, 9 I. &
  Dec. 521, 523 (BIA,1961). The petitioner has not met this
irden. It appears from the evidence submitted that the benefieiy's divorce from her prior spouse was invalid, and that consetently she is still legally married to him. Thus, she cannot be
emed the spouse of the petitioner for immigration benefits.
ORDER: The appeal is dismissed.

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