Interim Decision #2239
MATTER OF MONCAYO
In Visa Petition Proceedings
.A-19521225
Decided by Board October 26, 1973
Since beneficiary was not physically present within the jurisdiction of the
Ecuadorian court which rendered the divorce decree dissolving his prior marriage, there was no personal service of process upon the spouse and she did not
appear or otherwise submit to the jurisdiction of the Ecuadorian court, the
divorce is not recognized as valid in the State of New York where his subsequent marriage to petitioner was contracted; therefore, his subsequent marriage to the U.S. citizen petitioner is not recognized as valid for the purpose of
conferring upon him immediate relative status.
ON BEHALF OF PETTrIONER: Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019
The United States citizen petitioner applied for immediate
relative status for the beneficiary as her spouse under section
201(b) of the Immigration and Nationality Act. The District Director, in an order dated October 10, 1972, denied the petitioner's
application on the ground that a prior marriage of the beneficiary
was never legally terminated. The petitioner has appealed from
that denial. The appeal will be dismissed.
The beneficiary is a native and citizen of Ecuador. The petitioner married the beneficiary on June 20, 1970 in New York.
Pursuant to 8 CFR 204.2(c)(2), the petitioner submitted a decree of
divorce rendered by an Ecuadorian court, dated March 16, 1970, as
proof of the legal termination of the beneficiary's previous marriage.
The District Director refused to accept that decree as establishing the legal termination of the prior marriage, on the ground that
neither the beneficiary nor his wife was personally present at the
divorce hearing. The visa petition indicates that the beneficiary
has not been outside the United States since April 20, 196'7. The
divorce decree states that his wife was served by publication, her
whereabouts being unknown, and that she did not appear at the
hearing.
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Interim Decision #2239
Usually, the validity of a marriage is governed by the law of the
place where the marriage was celebrated. Matter of P , 4 I. & N. —
Dec. 610 (A.G. 1952); Matter of Levine, 13 I. & N. Dec. 244 (BIA
1969). Therefore, the beneficiary's present marriage is valid only if
his Ecuadorian divorce is recognized by New York, where his
marriage to the petitioner took place.
Since the full faith and credit clause of the Constitution does not
apply to judgments rendered by courts of foreign countries, the
question of recognition is solely one of comity. New York courts
have held that divorce decrees rendered in foreign countries are
entitled to recognition and effect in New York only when such
recognition is consistent with that state's public policy. Gould v.
Gould, 235 N.Y. 14,
138 N.E. 490 (1923); Rosenbaum v. Rosenbaum,
309 N.Y. 371,
130 N.E.2d 902 (1955).
The leading New York case on the recognition of foreign divorce
decrees is Rosenstiel v. Rosenstiel,
16 N.Y.2d 64,
209 N.E.2d 709,
262 N.Y.S.2d 86 (1965), cert. denied
384 U.S. 971 (1966), which dealt
with a bilateral Mexican divorce based on ephemeral contact with
Mexico. In that case the court summarized New York law as
follows:
In eases where a divorce has been obtained without any personal contact
with the jurisdiction by either party or by physical submission to the
jurisdiction by one, with no personal service of process within the foreign
jurisdiction upon, and no appearance or submission by, the other, decision has
been against the validity of the foreign decree (Caldwell v. Caldwell,
298 N.Y.
146 [1948]; Rosenbaum v. Rosenbaum,
309 N.Y. 371 [1955]). 1
A fact situation somewhat analagous to the one before us now
was considered in De Pena v. De Pena, 31 App. Div. 2d 415,
298
N.Y.S.2d 188 (1969). That case involved two nationals and citizens
of the Dominican Republic who were married in the Dominican
consulate in New York. The husband obtained a divorce from a
court in the Dominican Republic. Neither party ever left the
United States and the wife was not personally served and did not
appear in the action. The court noted that except for the husband's continued Dominican citizenship, "he does not claim any
present contacts with that country and he did not even personally
return there to prosecute the divorce proceedings." 2 The court
held that the policy of New York required that the Dominican
decree not be given recognition.
In the present case, the record indicates that the beneficiary
was not physically present within the jurisdiction of the Ecuadorian court. There was no personal service of process upon his wife
1
16 N.Y.2d at 72.
2 31 App. Div. 2d 419.
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Interim Decision #2239
and she did not appear or otherwise submit to the jurisdiction of
the Ecuadorian court. In light of the statements of New York
policy contained in Rosenetiel and De Pena, we fmd that New York
would not recognize the Ecuadorian decree.
In visa petition proceedings, the burden of proof to establish
eligibility for the benfit conferred by the immigration laws rests
upon the petitioner. Matter of Brantigan, 11 I. & N. Dec. 493 ()MA
1966). In the present case, the petitioner has failed to show that a
prior marriage of the beneficiary was legally terminated. Therefore, the petitioner has failed to establish that her marriage to the
beneficiary is valid under New York law. Accordingly, the appeal
will be dismissed.
ORDER: The appeal is dismissed.
474
