PALSANG

 Interim Decision #2504




                              MATTER OF PALSANG

                           In Visa Petition Proceedings
                                      A-20752907
                          Decided by Board July 9, 1976
(1) United States citizen petitioner sought to classify beneficiary as an immediate relative
  spouse under saction201(b) of the Immigration and Nationality Act based on a marriage
  according to Tibetan custom and tradition contracted in India on July 10, 1974. As
  evidence of dissolution of beneficiary's prior marriage, she submitted an agreement
  sworn and executed by herself and her first husband dated November 28, 1974—four
  months after the date of the marriage which supports this petition. Beneficiary claims
  her first manic ge was terminated under Tibetan custom and tradition in July 1973 when
  she and her first husband ceased to live together as husband and wife.
(2) Under seetiors 2 and 29 of the Hindu Marriage Act, 1955, No. 25, which is controlling
  in this case, a :3uddhist marriage in India may be dissolved in accordance with custom
  without the intervention of a onurt gertion 3 of that At requires that the (matron he
  certain; not un:•asonable, nor contrary to public policy. However, in order to claim the
  benefits of the custom, the party must prove the prevalence of the custom and its
  applicability to him.
(3)Where beneficiary did not substantiate the existence of the custom, or its applicability
  to her, there • was no evidence that the dissolution of the marriage met the stated
  requirements, and the subsequent customary marriage was not valid for immigration
  purposes.
ON BEHALF OF PETITIONER: Thomas J. Watson, III, Esq.
                                  Watson, Snow & Bartlett
                                  225 Franklin Street
                                  Boston, Massachusetts 02110


  The United States citizen petitioner applied to have the beneficiary
classified as an immediate relative spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated June 24, 1975, the
district director denied the petition on the ground that the beneficiary
had a prior existing undissolved marriage. The petitioner has appealed.
The appeal will be dismissed.
  The petitioner and the beneficiary are both Buddhists, natives of
Tibet; the beneficiary is a refugee in India. They were married according to Tibetan custom and tradition in India on July 10, 1974, and the
marriage was attested by them in the Court of the Southern District
Judicial Magistrate at Darjeeling, India, on July 13, 1974. However, the
                                           706
                                                           Interim Decision #2504

beneficiary was previously married, apparently under Tibetan custom
and tradition; a daughter was born of that union on July 6, 1970 in India.
  An agreement dissolving the prior marriage was submitted. This
agreement was sworn and executed by the beneficiary and her first
husband before officials of The Darjeeling Tibetan Refugee Cooperative Collective Farming Society, Ltd. It, however, was dated
November 28, 1974; this is four months after the date of the marriage
which supports the visa petition.
   On appeal counsel contends that the effective date of the dissolution of
the beneficiary's first marriage is not November 28, 1974 the date of the
agreement, but rather in July, 1973, when the parties ceased to live
together as man and wife. He argues that under Tibetan tradition and
custom, such cessation of cohabitation constitutes a lawful divorce between the parties.
   In support of his contention counsel submitted a letter dated July 9,
1975, from the New York Office of the Representative of His Holiness of
the Dalai Lama in New Delhi. In that letter it is stated in reference to
the agreement dissolving the marriage dated November 28, 1974:
  The statement is not a formal decree, effective upon signing, since according to Tibetan
  custom, the divorce was legally effective when the couple ceased to reside as man and
  wife in July of 1973.
   Inasmuch as the parties, at the time of the divorce, were domiciled in
India, the legal provisions in India would govern such a divorce. Section
2 of the Hindu Marriage Act, 1955, No. 25, states in pertinent part:
  2. (1) This Act applies—
       (b) to any person who is a Buddhist . . . .

   A Buddhist marriage in India may be dissolved under section 29 of the
Hindu Marriage Act, 1955, No. 25, in accordance with custom without
the intervention of a court. Additionally, under section 3 of the Act, the
custom must be certain; not unreasonable, nor opposed to public policy.
However, a party that desires to have the benefit of the custom must
prove not only the prevalence of that custom, but also its applicability to
him.
   The existence of the custom, and its applicability to the beneficiary
have not been substantiated. Absent evidence that a dissolution of the
marriage meets the stated requirements, a subsequent customary marriage will not be recognized for immigration purposes.
   The decision of the District Director was correct. Accordingly, the
appeal will be dismissed.
   Should the petitioner succeed in obtaining the proper decree establishing that the dissolution of the beneficiary's marriage occurred prior
to his marriage to her, or if the petitioner remarries the beneficiary
subsequent to a dissolution of her earlier marriage, he may submit a
                                          707
Interim Decision #2504

new visa petition. In the alternative, the petitioner may seek her admission as a nonimmigrant fiancee of a citizen of the United States under
section 101(a)(15)(K).
   ORDER: The appeal is dismissed.




                                  708