Interim Decision #2476
MATTER OF TAGLE
In Visa Petition Proceedings
A-20800319
Decided by Board March 3, 1976
Since the Civil Code of the Dominican Republic, as amended by Law 142 in 1971, does not
require a waiting period for pronouncement of a mutual consent divorce obtained by
foreigners, the mutual consent divorce terminating the marriage between beneficiary
and his first wife (both Ecuadorians), which was obtained in the Dominican Republic and
pronounced on the day the judgment was rendered, is valid under the law of the
Dominican Republic and, hence, is entitled to recognition in New York, the place of
cubccquent marriage of beneficiary and the United States citizen petitioner.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
John J. Barry, Esquire Paul C. Vincent
Barry, Barry & Barry Appellate Trial
One Hunter Street Attorney
Long Island City, N. Y. 11101
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. In a decision dated August 27, 1975,
the District Director denied the petition. The petitioner has appealed
from that decision. The appeal will be sustained and, the record remanded to the District Director.
The marriage between the petitioner and the beneficiary which took
place in New York is the second marriage for the beneficiary, a native
and citizen of Ecuador. His first wife, also an Ecuadorian, appeared
before a court in the Dominican Republic on June 14, 1974 and obtained
a mutual consent divorce from the beneficiary. The beneficiary appeared,
by an attorney duly authorized to act for him. The beneficiary's divorce.
is entitled to recognition under New York law if the divorce is valid
under the law of The Dominican Republic. Rosenstiel v. Rosenstiel, 262
N.Y.S.2d 186,
209 N.E. 709 (1965), cert. denied
384 U.S. 971 (1966). See
also Matte. of Assan,
15 I. & N. Dec. 218 (BIA 1975).
The petitioner has submitted a copy of the beneficiary's divorce decree and the copy of the Pronouncement of the Divorce issued by an
official of the Civil Registry on the day the divorce was deCreed. How-,
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Interim Dea.sion #2476
ever, the district director, relying on certain quotations from a Library
of Congress report in our decision inMatter of Darwish, 14 I. & N. Dec.
307 (BIA 19i3), denied the petition on the ground that the divorce was
invalid in the Dominican Republic because the pronouncement was
made sooner than eight days after the divorce was decreed.
Subsequent to our decision in Matter of Darwish, supra, we received
a more complete translation of the Dominican law on divorce 'from the
Library of Congress. Under that law separate procedures are set forth
for mutual consent divorces and divorces sought for cause. Chapter 4 of
the Dominicans law on divorce, which contains Articles 26 through 33,
pertains to p-socedures to be followed in mutual consent divorces. Article 31 states:
The spouse:, or the More diligent of them, are responsible for registering the divorce
judgment in the Office of the Civil Registry; the judgment shall be pronounced [by the
official of the Civil Registry] no less than eight working days after the judgment was
issued.
It would appear then that the parties must wait seven business days
before having the decree pronounced at the Civil Registry.
However, in 1971, Law 142 added a further paragraph to Article 31.
That paragraph reads, in pertinent part:
"In the case E rovided for In paragraph 5 of Article 28 of this law [relating to mutual
consent divorces obtained by foreigners], once the judgment has been rendered, the
divorce shall be pronounced by any official of the Civil Registry of the jurisdiction of the
court where the ease was tried, upon presentation of a certified copy of the judgment,
previously transcribed in the Office of the Civil Registry." (Emphasis supplied.)
This amendment clearly eliininates the waiting period for foreigners.
The divorce in ,the present ease was obtained by foreigners and
pronOmiced 'ori the day the judgment was rendered. We conclude that
the divorce decree is valid in the Dominicin Republic and, as indicated,
it is consequEiiit13i entitled to recognition in New York.
We note that the district director, in denying the petition, refers to
Axtieie 19 in his decision. In Matter of Darwish, supra, we also made a
reference to Article 19. However, Ave have learned that the translation
of-Article 19 ' provided us by the Library of Congress in connection with
Matter of Darwish, supra, is erroneous. The time limitations set out
therein should not be relied on. The correct translation of Article 19
folloWs:
The plaintiff who fails to act within the term of two months as set forth in Article 17
shall lose the benefits granted to him by thi judgment thus obtained, and he shall not be
able to obtair, a new judgment, unless his petition is based on new grounds. The
previously alle red grounds may be added to the new ones.
Civil Code bi' The Dominican Republic, Law 1306-bis (1937), as amended by Law 142
(1971).
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Interim Decision #2476
From the more complete translation of the Dominican divorce law now
before us, it is evident that Article 17, which provides that the divorce
decree must be pronounced within two months, and Article 19 set forth
the pronouncement requirement and the consequences of a failure to
fulfill the requirement in divorces obtained for cause. Article 19 makes
no reference to mutual consent divorces nor does any other provision of
the statute specifically penalize the parties in a mutual consent divorce
for failure to have the divorce pronounced.
The district director's decision with respect to the Dominican law was
incorrect. The appeal will therefore be sustained. We shall, however,
remand the record in order that the district director may determine if
the marriage between the petitioner and the beneficiary is bona fide.
ORDER: The appeal is sustained; the record is remanded to the
district director.
597
