Interim Decision #2475
MATTER OF LI GANOZA
In Visa Petition Proceedings
A-21773131
Decided by Board March 2, 1976
Since Mexican divorce decrees are not recognized in the State of New York unless the
petitioning spouse has appeared in person and the answering spouse in person or by
attorney, and petitioner, a resident of New York, has stated under oath that he
personally appeared in court in Mexico and initiated divorce proceedings against his
first wife, the case, on appeal in visa petition proceedings, is remanded so that petitioner may offer additional corroborative evidence to establish compliance with the
personal appearance requirement; so that the Mexican decree may be incorporated into
the record file; and so that ,all letters which pertain to this case may be located and
similarly incorporated, a new de-eision thereafter to be entered by the district director
and appropriately served on interested parties.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Stephen Singer, Esquire George Indelicato
Barst & Mukamal. Appellate Trial Attorney
127 John Street
New York, New York 10038
The United States citizen petitioner applied for immediate relative
status for the beneficiary as his spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated September 9,
1975, the district director denied the petition. The petitioner has appealed. The record will be remanded to the district director.
The petitioner, a New York resident, has filed a visa petition on
behalf of his second wife. The issue on appeal is whether the petitioner's
Mexican divorce from his first wife was validly obtained.
In New York, Mexican decrees are not recognized unless the petitioning spouse has appeared in person and the answering spouse in person
or by attorney. Rosenstiel v. Rosenstiel,
(1965).
The petitioner has stated under oath that he personally appeared in
the Second Civil Court of Chihuahua, Mexico and initiated divorce
proceedings on January 25, 1966. We have concluded that additional
corroborative evidence is required, however, to establish compliance
with the personal appearance requirement of Rosenstiel.
593
Interim Decision #2475
We shall remand the record so that (1) the petitioner may offer such
evidence and (2) the Mexican decree which the petitioner apparently
submitted to the district director may be incorporated into the record
file and (3) all letters which pertain to this case may be located and
similarly incorporated.
We note in passing that the answering spouse's appearance in this
divorce action satisfies the Rosenstiel requirement. The record contains
a power of attorney executed by the spouse approximately eighteen
months after the final judgement of divorce was rendered in Mexico.
She thereby authorized a Mexican attorney, Amadeo Saroldi, to make a
belated appearancefor her in the Chihuahua action and to state that she
"agrees expressly with said judgement and that she waives her right of
appeal of said judgement."
Mr. Saroldi duly made the appearance and on August 25, 1967, the
Mexican court appended to its January 28, 1966 judgement a decision
accepting the defendant's appearance and submission.
In a parallel factual situation, the New York Court of Appeals held
that although the plantiff's Mexican divorce judgement was defective
under New York law when rendered, it qualified for recognition as of
the date of the defendant's submission to the Court and her consent to
the decree. Ramm v. Ramm,
(1971).
See also, Hytell v. Hytell, 2M N.Y.S.2d 851 (Sup. Ut., Special Term)
(1964).
We shall remand the record for the reasons indicated. Before returning the record to the Board, the district director should enter a new
decision, stating his reasons, and make appropriate service on the
interested parties in accordance with Matter of To,
