Interim Decision #2580
MATTER OF ESPINOSA
In Visa Petition Proceedings
A-20997794
A-20998610
Decided by Board April 27, 19n
(1) The United States citizen petitioner applied for immediate relative status for his wife
and stepson under section 201(b) of the Immigration and Nationality Act. Beneficiary
married her first husband in Mexico on September 7, 1957. The stepson beneficiary was
born November 18, 1958. Beneficiary married petitioner in 1967 in a ceremonial marriage in the State of Texas. On December 6, 1973, the petitioner and beneficiary adopted
beneficiary's son. In March 1975 petitioner's wife entered into a mutual consent divorce
decree terminating her first marriage before the Civil Registrar of Coahuila, Mexico.
Four months later beneficiary and petitioner filed a Declaration and Registration of
Informal Marriage under Title 1, section 1.92 of the Texas Code Annotated. The district
director denied the petitions concluding that because a child had been born to the
petitioner's wife and first husband, the mutual consent divorce decree was invalid under
Mexican law, and therefore the beneficiary's subsequent marriage to the petitioner was
invalid.
(2) Under Article 279 of the Civil Cade of Coahuila a mutual consent divorce decree may
be obtained only if the spouses have no children. The adoption of the child by petitioner
and beneficiary would have removed that child from the marriage of the natural parents
for purposes of the mutual consent divorce decree, if the adoption had been registered in
the office of the Civil Registry of the state of the child's birth which was Zacatecas. The
adoption was not registered in Zacatecas and as a result had no legal effect in the state
of Coahuila. Thus, failure by the beneficiary and her first husband to mention the child
in their mutual consent divorce decree entered into in Coahuila constituted grounds to
annul the divorce decree.
(3) Under the Civil Code of Coahuila annulment of the divorce decree will not take effect
without court action declaring the decree void, and the decree will be considered valid
until such court action. Since there was no court action declaring the mutual consent
divorce decree of beneficiary and her first husband void, that divorce is valid. Therefore, the parties' subsequent declaration of informal marriage created a valid marriage
between them under the laws of the State of Texas and is valid for immigration
purposes. The visa petitions will be granted.
ON BEHALF OF PETITIONER: W. A. Griffis, Jr., Esquire
Griffis, Griffis & Wilson
P. 0. Box 2190
San Angelo, Texas 76901
BY: Wilson, Acting Chairman; Maniatis, and Appleman, Board Members
The United States citizen petitioner has applied for immediate relative status for the beneficiaries as his wife and stepson under section
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201(b) of the Immigration and Nationality Act. In a decision dated
November 21, 1975, the District Director denied the petitions and the
petitioner has appealed from that denial. The appeals will be sustained.
The beneficiaries are natives and citizens of Mexico. In support of the
petitions, the petitioner submitted documents indicating that his stepson was born in Mexico on November 18, 1958; that on May 16, 1967, he
married his wife in the state of Texas; and that in 1973 he adopted his
stepson, also in the state of Texas. The District Director denied the
petitions on the ground that, for immigration purposes, the petitioner
-was not validly married to the beneficiary-spouse due to the fact that
her previous marriage had not been validly dissolved.
The petitioner's wife married her first husband in Mexico on September 7, 1957, with one son born to the couple the following year. In
1967, she entered into a ceremonial marriage to the petitioner, in the
state of Texas On December 6, 1973, the petitioner, joined by his wife,
adopted her son. In March of 1975, the petitioner's wife entered into a
mutual consent divorce decree before the Civil Registrar of Coahuila,
Mexico.' The decree states, in part, that the parties to the divorce were
without children and had so stated in writing. Four months later, the
petitioner and his wife, pursuant to section 1.92 of the Texas Family
Code, filed a Declaration and Registration of Informal Marriage. 2 The
District Director concluded that because a child had been born to the
petitioner's wife and her first husband, the divorce decree was invalid
and therefore that her subsequent marriage to the petitioner was also
invalid.
The legal validity of a marriage is generally determined by the law of
the place of its celebration. Loughran v. Loughran, 292 U.S. 216 (1934);
Natter of Levine,
13 I. & N. Dec. 244 (BIA 1969). The issue on appeal,
therefore, is whether the state of Texas would recognize the mutual
consult divorce as valid.
On appeal, counsel concedes that the District Director was correct in
concluding that, under the law of Coahuila, Mexico, a mutual consent
decree before a Civil Registrar cannot issue where children are involved, but reasons that since the child had been adopted by the petitioner by the time of the divorce, there were no children of the marriage.
Counsel for the petitioner alleges on appeal that the petitioner's wife was of the
opinion that she had previously divorced her first husband, but because the divorce papers
could not be located, entered into a second divorce. We note that the petitioner has not
smibmitted evidence to substantiate the existence of a prior divorce, and for purposes of
this appeal we will assume that none exists.
a Under Tex. [Fem.) Code Ann. tit. 1, §§1.91 and 1.92 (Vernon), a declaration of
tmforrnal marriage is recognized as valid in Texas. eceEsparza v. Espuizu, 082 0. W.2d
1.62 (Tex.Civ.App. 1965).
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Under the Civil Code of Coahuila, mutual consent divorce decrees
may be obtained from an official of the Civil Registry under the following conditions:
Art. 272. In the cases that both spouses agree to a divorce and are of legal age, have
no children, and by common accord have liquidated their community property, if they
contracted to marry under this regime, they shall appear in person before the official of
the Civil Registry of the place of their domicile; they shall prove with respective
certification [issued by the office of the Civil Registry] that they are married and of legal
age; and they shall express in a clear manner that they wish to divorce.
Par. three. A divorce decree thus obtained shall not produce legal effects if it is
proved that the spouses had children, are minors, or have not liquidated their community property, ire which cases they shall also be penalized pursuant to the provisions of
the Code on this matter. 3
Under Mexican law, the valid adoption of the beneficiary's son would
remove that child from the marriage of his natural parents for purposes
of the mutual consent divorce decree. However, that adoption decree
would have to be registered in the office of the Civil Registry of the
state of the child's birth, Zacatecas, in order to have legal effect. 4
Withouscregnfadoptiecr,wulnpode
legal effect in the state of Coahuila and, therefore, the failure of the
natural parents to mention that they had a child would constitute
grounds to annul the divorce decree. 5 However, under the Civil Code of
Coahuila, the annulment of the divorce decree would not take effect
until court action declaring it void, and would be considered. valid until
that time.
3 Civil Code of the State of Coahuila (Cajica, Puebla, 1967).
Article 65 of the Civil Code of the State of Zacatecas (Cajica, Puebla, 1964) states:
In order to establish the civil status of Mexicans born, acimowledged, subject to
guardianship, emancipated, married, or deceased abroad, the certifications of these aids
filed by the interested parties shall be sufficient, provided they have been issued
pursuant to the laws of the country where the acts were effected and that they were
registered in the office of the Civil Registry [of the state].
Article 228 states:
The judge that issues a decree approving an adoption shall forward copy of said
decree to the judge in charge of the Office of the Civil Registry of the plate [where the
birth is recorded] in order that he issue the corresponding act in the book of acknowleagments by literally transcribing said decree, which shall be filed under the corresponding number.
"Under Article 121 of the Mexican Constitution, the acts of the Civil Registry in
Zacatecas would have legal effect in Coahuila. Article 121 states:
Complete faith and credence shall be given in each State of the Federation to the
public acts, registries, and judicial proceedings of all the others.
IV. Acts of a civil nature done in accordance with the laws of one State shall have
validity in the others.
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Therefore, although we know of no Texas case which is factually
identical to the present case, it would appear that the Texas courts
would accept the Mexican mutual consent decree as valid. As noted
previously, the parties' subsequent declaration of marriage is valid in
Texas, and consequently it is also valid for immigration purposes.
The appeal will be sustained.
ORDER: The appeal is sustained and the visa petitions are granted.
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