MIRALDO

Interim Decision #2290




                           MATTER OF MIRALDO

                       In Visa Petition Proceedings

                                  A-20062953

                     Decided by Board May 31, 1974
Since under the law of Brazil an amicable divorce (desquite amigavel) is a legal
  separation and does not allow the parties affected to remarry, beneficiary's
  Brazilian divorce (desquite amigavel) is not valid to accord him preference
  classification under section 203(a)(2) of the Immigration and Nationality Act,
  as amended, as the unmarried son of the permanent resident petitioner.


  The permanent resident petitioner applied for preference status
for the beneficiary as her unmarried son under section 203(a)(2) of
the Immigration and Nationality Act, as amended. The District
Director denied the application in an order dated November 12,
1973. He concluded that the document submitted in support of the
petition to establish the beneficiary's status as legally divorced
was in fact a legal separation, and as a consequence, the beneficiary was ineligible for the benefits under section 203(a)(2) of the
Act. The appeal will be dismissed.
  The beneficiary is a native of Portugal and a citizen of Brazil.
The record reflects that the beneficiary obtained an amicable
divorce (desquite amigavel) on February 3, 1965 from the Court of
Family and Successions, Sao Paulo, Brazil.
  The issue presented in this appeal is whether the beneficiary's
Brazilian divorce is valid to accord him status as the unmarried
son under the provisions of section 203(a)(2) of the Act.
  The following information regarding the subject of divorce
under Brazilian law has been supplied by the Hispanic Law
Division, Law Library, Library of Congress.
  The pertinent provisions regulating divorce in Brazil are found
in the federal Constitution" and the Civil Code? Under the Brazilian Constitution marriage is indissoluble?

    Constitution of Brazil 1967 (Pan American Union, Washington, 1967).
  z Codigu Civil (C. Civ.), updated by Judge Vicente Sabine, Jr. (Ed e Distributdora Ouro Branco Ltd., Sao Paulo, 1969).
 3 Constitution, art. 167, par. 1.


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                                            Interim Decision #2290
   The conjugal society terminates (1) by the death of one of the
spouses; (2) by the annulment, or nullity of the marriage; and (3)
by divorce (desquite) either amicable or contemptuous and judicia1.4
   Article 315 of the Civil Code of Brazil provides that dissolution of
a valid marriage shall only occur by the death of one of the
spouses.
   Another form of rupture of the matrimonial bonds is the annulment which technically is not a dissolution.5
  Termination of the marital state in the language of the code
mean's the "undoing" (desfazimento) of certain marital bonds by
virtue of which the spouses physically separate themselves quo ad
thorum et habitatiortem. It legally entails the termination of the
regime of common property, the partition and adjudication thereof
as well as the assignment of the children's guardianship, if any, to
one of the spouses. It has exactly the same effect as the canon law
divorce and thus, the separated spouses are not legally allowed to
contract a subsequent marriage as long as both of them continue
to be alive.6 Furthermore, the courts have repeatedly stated that
desquite means nothing more than legal separation of the spouses
concerned and does not allow the affected parties to remarry in
Brazil.?
  Accordingly, we conclude that the beneficiary is still married
and, therefore, statutorily ineligible for classification under section
203(aX2) of the Act. The appeal will be dismissed and the following
order will be entered.
  ORDER: The appeal is dismissed.




      C. Civ. art. 315.
  5   Id. art. 207.
      P. Nunes, 0 Desquite 16 (Livraria Freitas Bastos S.A., Rio de Janeiro, 1964).
 7 V Revista Trimestral de Jurisprudencia 34/153 in L. M. Prunes, Prattea do
Desquite Amigavel 159 (Sugestoes Literarias S.A., 1970).

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