Interim Decision #2672
MATTER OF BIEBL
In Visa Petition Proceedings
A-21041737
Decided by Board September 18, 1978
(1) Under law of Connecticut at least one of the spouses must establish a domicile in the
jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce. Litvaitis v. Litvaitis, 162 Conn. 540,
295 A.2d 519 (1972).
(2) Under law of Connecticut, for purposes of establishing the jurisdiction of a court to
grant a decree of dissolution of marriage, "domicile" is that place where a person has
voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a
present intention of making it his home, unless or until something which is uncertain or
unexpected shall happen to induce him to adopt some other permanent home, Spaulding
v. Spaulding,
177 Conn. 220,
368 A.2d 14 (1976).
(a) Where petitioner and his first spouse were domiciled in New York at the time they
obtained a divorce decree in the Dominican Republic according to the Dominican
Republic law, dissolution of prior marriage not recognized for immediate relative
benefits under section 201(b) of the Act, 8 U.S.C. 1151(b); hence, a second marriage, in
Connecticut, will not support a visa petition.
ON BEHALF OF PETITIONER: Joseph Abrams, Esquire
Abrams and Abrams
One Penn Plaza
New York, New York 10001
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members
The United States citizen petitioner submitted on November 28, 1977,
Petition to Classify Status of Alien Relative for Issuance of Immigrant
Visa on behalf of his stepdaughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), In his decision dated April
25, 1978, the Acting District Director denied the petition. The petitioner
has appealed. The appeal will be dismissed.
The petitioner, a 57-year-old male, married the beneficiary's mother
in- Connecticut on November 5, 1977. The 15-year-old beneficiary is a
native and citizen of Germany, born on September 6, 1963.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec.
493 (BIA 1966). In order to qualify as a "stepchild" the beneficiary must
orace have qualified as the "child" of the petitioner under ocetion
1 01(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1).
604
Interim Decision #2672
Nazareno v. Attorney General, 512 F.2d 936 (D.C. Cir. 1975), cert.
denied,
432 U.S. 832 (1975).
The only subdivision of section 101(b)(1) which may possibly be relevant to this case is (B) which provides:
(1) The term "child" means an unmarried person under twenty-one years of age who is—
(1) a stepchild, whether or not born out of wedlock, provided the child had riot
reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred; . . . .
The marriage between the petitioner and the beneficiary's mother
which took place in Connecticut on November 5, 1977, is the second
marriage for each. The first marriage of the beneficiary's mother was
dissolved on July 11, 1972, in Germany. The dissolution of that marriage
is not in question.
The petitioner's first marriage was dissolved on May 23, 1977, in the
Dominican Republic. Contained in the record is a certificate of the Court
of First Instance of Judicial District of Santo Dominican showing: that
Guenther L. Kuehl personally appeared before that Court; that Gisela
Kuehl appeared before that court by her attorney in fact; that both
parties were domiciled at 507 Croton Avenue, Peekskill, New York.
The validity of a marriage generally is determined according to the
law of the place of celebration. Matter of Gamero, 14 I. & N. Dec. 674
(BIA 1974); Matter of Levine,
13 I. & N. Dec. 244 (BIA 1969); Matter of
P , 4 L & N. Dee. 610 (BIA 1952, A_G. 1952) Thus, the validity of the
—
petitioner's present marriage to the beneficiary's mother depends upon
whether Connecticut would recognize the Dominican Republic divorce
decree purportedly terminating the petitioner's prior marriage.
The Supreme Court of Connecticut has held that at least one of the
spouses must establish a domicile in the jurisdiction in which a foreign
divorce decree is sought in order to give a court jurisdiction to grant a
divorce; that principle has been held to apply to divorce decrees granted
in foreign jurisdictions, even though a domicile is not required by the
laws of the foreign jurisdiction. Litvaitis v. Litvaitis,
162 Conn. 540,
295
A.2d 519 (1972).
Subsequently, the Supreme Court of Connecticut held, for purposes
of establishing the jurisdiction of a court to grant a decree of dissolution
of marriage, "domicile" is that place where a person has voluntarily
fixed his habitation, not for a mere temporary or special purpose, but
with a present intention of making it his home, unless or until something
which is uncertain or unexpected shall happen to induce him to adopt
some other permanent home. Spaulding v. Spaulding,
171 Conn. 220,
368 A.2d 14 (1976).
Inasmuch as the certified Dominican Republic divorce decree contained in the record shows that both the petitioner and his first spouse
were domiciled in New York on May 23, 1977, neither spouse has met
605
Interim Decision #2672
the domiciliary requirement set out in Connecticut law. The petitioner's
divorce is not entitled to recognition under Connecticut law. See Litvaitis v. Litvaitis, supra; Spaulding v. Spaulding, supra.
Accordingly, as the petitioner's prior marriage was not dissolved as a
result of the decree rendered on May 23, 1977, the petitioner was not
free to marry the beneficiary's mother on November 5, 1977. Consequently, the "stepchild" relationship for immigration purposes was
not established between the petitioner and the beneficiary.
The decision of the Acting District Director was correct. Accordingly,
the appeal will be dismissed.
ORDER: The appeal is dismissed.
606
