SENA

Interim Decision #2692




                                 MATTER OF SENA

                           In Visa Petition Proceedings

                                      A-21685633

                        Decided by Board March 8, 1979
(1) Under the provisions of Decree Law 261/75 of May 27, 1975, corrected June 21, 1975,
  which amended the Civil Code, divorce by Catholics in Portugal is allowed as of May 27,
  1975; prior thereto it was forbidden. Matter of Ferreira, 141. & N. Dec. 723 (BIA 1975),
  qualified.
(2) In a case involving an immediate relative visa petition, the record will be remanded to
  the District Director for clarification of the petitioner's domicile, at the time of her
  divorce where the petitioner and her ex-husband were both citizens of Portugal, were
  divorced while living in Rhode Island, and where the petitioner later remarried in New
  Jersey, to determine whether or not New Jersey would recognize the petitioner's
  divorce.
One BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


   The United States citizen petitioner applied for immediate relative
status for the beneficiary as his wife under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision dated May
24, 1978, the District Director denied the petition on the ground that the
petitioner had previously been married and that this marriage had not
been dissolved. The petitioner appeals from this decision. The record
will be remanded.
   The petitioner is a 43-year-old native of Portugal and a naturalized
citizen of the United States. The beneficiary is a 42-year-old native and
citizen of Portugal, who married the petitioner on June 8, 1977, at
Newark, New Jersey.
   The District Director based his denial of the petition on two grounds.
He found that neither the petitioner nor his first wife had been present
at the divorce hearing in Portugal on November 17, 1976, and that the
State of New Jersey would not therefore recognize such a "mail order'"
divorce. He also found that the parties were not able to divorce, as they
had entered into a Catholic marriage in Portugal after August 1, 1940,
and that Portuguese law forbids divorce in such cases.
   It is true that divorce in Portugal, by Catholics, was formerly forbi

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den by Portuguese law, as held by this Board in Matter of Ferreira, 

 (BIA 1974). Recent revisions in Portuguese law, however, have changed this situation. The Library of Congress has
informed the Board that the Decree Law 261/75 of May 27, 1975,
corrected June 21, 1975, amended the Civil Code to allow divorce by
Catholics. According to the new law:
 The value and effectiveness of Catholic marriages continues to be acknowledged in
 accordance with the provisions of article 1587 of the Civil Code so that Catholics, as
 heretofore, may opt between the two forms of marriage [civil and religious]. Hereafter,
 simply, once the marriage has been celebrated through either civil or Catholic-religious
 ceremony, its effects shall be governed by the laws of the State [civil] only, regardless of
 the form of celebration chosen. . .. Catholic marriages may therefore be dissolved by
 civil tribunals on the same terms and for the same reasons that civil marriages may be
 dissolved. (Preliminary statement at page 539.) 1
  We therefore hold that Catholics in Portugal have been free to obtain
divorces under this new provision of law, since it went into effect on
May 27, 1975. The petitioner here was divorced on November 17, 1976,
and thus comes under this provision. His divorce was consequently valid
under Portuguese law_
  On the second point of appeal, we agree with the District Director
that New Jersey does not recognize "mail order" divorces. The situation
here is not quite so simple, however. The divorce in question occurred
when the petitioner was living in _Rhode Island. The issue therefore is
whether or not Rhode Island would recognize the Portuguese divorce,
and whether New Jersey would in turn consider it valid if Rhode Island
does.
  But before this question can be resolved, it is necessary to establish
what law was applicable when the divorce occurred. The divorce decree
indicates that both parties were "resident in" Rhode Island at the time
of the divorce action. It is not clear what this statement means. Since
recognition of the divorce by Rhode Island may hinge on the domicile of
the parties at the time of the divorce action, further evidence in this
regard is necessary. The record will accordingly be remanded to the
District Director so that further information concerning the parties'
domicile at the time of the divorce may be provided.
  ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.




    Boletin do Ministerio da Justice, No. 247, June, 1975.

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