Interim Decision #2358
MATTER OF ASSAN
In Visa Petition Proceedings
A-20121202
Decided by Board March 21, 1975
Where the beneficiary of a petition under section 201(b) of the Immigration and Nationality Act and his former spouse were apparently both natives and citizens of
Ecuador, the fact that neither the beneficiary nor his former Ecuadorian spouse appeared personally at their divorce proceedings in Ecuador does not preclude it from
being recognized as valid in New York, the place of beneficiary's subsequent marriage
to petitioner. The record is remanded to the District Director in order that the petitioner may have the opportunity to establish the validity of the Ecuadorian divorce.
ON BEHALF OF PEILLIONER: Bertrand D. Gerber, Esquire
119 West 57th Street
New York, New York 10019
The petitioner applied for immediate relative classification for the
beneficiary under section 201(b) of the Immigration and Nationality
Act. In a decision dated January 23, 1974, the district director denied
the petition. The petitioner has appealed from that decision. The appeal
will be sustained, and the record will be remanded to the district
director.
The beneficiary; a native and citizen of Ecuador ; was married previously in Ecuador, evidently to another native and citizen of that country. The beneficiary allegedly was divorced from his first wife in
Ecuador in 1972. The translation of that divorce decree contained in the
record indicates that neither the beneficiary nor his first wife appeared
personally in Ecuadorian action.
The district director found that the beneficiary's Ecuadorian divorce
was not based on domicile. He concluded that under Williams v. North
Carolina, 325 U.S. 226 (1945), a foreign divorce decree not based on
domicile would not be recognized in New York, the place of celebration
of the beneficiary's subsequent marriage to the petitioner. We disagree
with the district director's reasoning.
Williams v. North
Carolina, supra, dealt with the full faith and credit
clause of the United States Constitution. Since 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 will
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Interim Decision #2358
recognize divorce decrees rendered in foreign countries when such
recognition does not offend any public policy of New York. 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); Rosenbaum v. Rosenbaum,
309 N.Y. 371,
130 N.E.2d 902 (1955); Matter of Moncayo,
14 I. & N. Dec. 472 (BIA
1973).
In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not
domiciled in Mexico at the time of the divorce. The court held that
where one party was physically present within the jurisdiction of the
Mexician court, and the other party appeared by attorney and submitted.to the jurisdiction of the Mexican court, the Mexican divorce decree
was entitled to recognition in New York. See also Ramm v. Ramm, 34
App. Div. 2d 667,
310 N.Y.S.2d 111 (1970), aff'd,
28 N.Y.2d 892,
271
N.E.2d 558,
322 N.Y.S.2d 726 (1971).
A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican
consulate in New York was at issue in De Pena v. De Pena, 31 App.
Div. 2d 415, 298 N.Y. S.2d 188 (1969). Neither party appeared in person
in the Dominican action, and process was not personally served on the
wife. The court refused to recognize the divorce. In doing so, it pointed
out that the wife was a domiciliary of New York, and the husband's only
existing contact with the Dominican Republic was his continued
Dominican citizenship. The court distinguished Rosenstiel on the
ground that in De Pena there was no physical presence by either party
and the Dominican court had not acquired jurisdiction over the wife.
In Matter of Moncayo, supra, we had occasion to interpret the policy
statements made by the New York courts in Rosenstiel and De Pena.
We held that New York would not recognize an Ecuadorian divorce
obtained by an Ecuadorian citizen residing in the United States, where
neither party appeared in person before the Ecuadorian court and the
beneficiary's first wife was not personally served and did not submit to
the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13
I. & N. Dec. 152 (BIA 1969).
The foregoing cases indicate that where jurisdiction of the foreign
court is not based on domicile, New York policy generally requires some
physical presence on the part of at least one party within the jurisdiction
rendering the divorce, combined with some type of appearance or submission to jurisdiction by the other party. In the past we have concluded
that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present
within the jurisdiction of the foreign court granting the divorce. Such
recognition has been extended where the parties involved were nationals of the foreign country rendering the divorce, were married in
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Interim Decision #2358
that country ; lived in that country as husband and wife, consented to
the jurisdiction of the foreign court, and appeared in the foreign action
through their authorized representatives. Matter of Koehne, 10 I. & N.
Dec. 264 (BI.A 1963); cf. Matter of Ma,
15 I. & N. Dec. 70 (BIA 1974);
Matter of Kurtin,
12 I. & N. Dec. 284 (BIA 1967).
The record indicates that the beneficiary's first wife may have been
domiciled in Ecuador at the time of the divorce. It also indicates that the
first wife may have been personally served with the complaint in the
Ecuadorian action.' If the preceding facts are true, we believe that any
policy objections to the recognition of the divorce based on the parties'
failure to appear personally before the Ecuadorian court would be
overcome.
The burden of establishing the validity of the Ecuadorian divorce is
upon the petitioner. See Matter of Brantigan,
11 I. & N. Dec. 493 (BIA
1966). Nevertheless, since there was confusion concerning the law to be
applied in this case, we shall remand the record to give the petitioner an
opportunity to establish the facts surrounding the Ecuadorian divorce.
The district director should then enter a new decision.
ORDER:. The appeal is sustained, and the record is remanded to the
district director for further proceedings in accordance with the above
opinion.
'On appeal, counsel claimed that the wife personally appeared in the Ecuadorian action
and offered to submit proof of such appearance. However, no such proof has been
received.
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