HANN

Interim Decision #2895




                                  MATTER OF HANN
                           In Visa Petition Proceedings
                                      A-21504220
                      Decided by Board February 3, 1982

(1) The law of the Dominican Republic does not preclude a nonresident from obtaining a
  divorce for cause in the Dominican Republic.
(2) Article 17 of the Law on Divorce 1306-bis, Civil Code of the Dominican Republic,
  does not require the party who obtains a divorce for cause to appear             person" to
  have the divorce pronounced and registered. Matter (If Valerie, 15 I&N Dee. 659 (BIA
  1976); Matter of Go)P7alez, 16 I&N Doc. 178 (BIA 1977); and Matter of Luccro i 16 UN
  Dec. 679 (BIA 1979), modified.
(3) The visa petition was properly denied on the ground that the petitioner's marriage to
  the beneficiary is invalid, i.e., at the time it was entered into, the petitioner's divorce
  had not vet become final and he was not free to contract another marriage.
ON BEHALF OF PETITIONER:      George C. Lange, Esquire
                              Ragan & Mason
                              The Farragut Building
                              900 Seventeenth Street, NM.
                              Washington, D.C. 20006
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vines, Board Members


  In a decision dated March 27, 1981, the Officer-in-Charge, Hong Kong,
on his own motion reversed his prior decision dated May 5, 1980, and
approved a visa petition filed to accord the beneficiary immediate rela
tive status as the spouse of a United States citizen under section 201(b)
of the Immigration and Nationality Act, 8 U.S.C. 1151(b). The Officer-in-Charge certified his decision to the Board for review. In an order
dated May 19, 1981, we remanded the case to the Officer in Charge for     -   -


further proceedings. Cn September 23, 1981, the Officer-iri-Charge
entered a new decision denying the petition and certified it to the Board
for review. This latest decision of the Officer-in-Charge will be affirmed.
  The petitioner is an 80-year-old native and citizen.of the United States,
currently residing in Japan. The beneficiary is a 58-year-old native and
citizen of Japan. The petitioner married the beneficiary in Japan on
January 25, 1980. That same day he filed a visa petition in her behalf. In
support of his petition, the petitioner submitted a copy of a divorce

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judgment entered on December 7, 1979, at San Cristobal, Dominican
Republic, purporting to dissolve the petitioner's prior marriage to Ellen
Jane Hann on the ground of incompatibility of character. The divorce
was pronounced by an official of the Civil ItegiStry on February 9, 1980.
   In our prior order in this case, Matter of Hann, 

(RIA 1981), we remanded the ease to the Officer-in-Charge for resolution of three issues:
  (1) Whether Dominican law allows nonresidents to obtain divorces for cause in the
      Dominican Reopublic;
  MI Whether Article 17, Law 1306-bis, Civil Code of the-Dominican Republic, requires
      ti party who obtains a divorce for cause to apppear "in person" before an official of
      the Civil Registry to have the divorce pronounced and registered; and
  (3) Whether Japan, the country of the petitioner's residence at the time of his divorce
      and the place of celebration of his marriage to the beneficiary, would recognize his
      Dominican divorce.


   In addressing these issues, the Officer-in-Charge relied upon a report
provided him by the Hispanic Law Division of the Library of Congress.
With :::Tract to the first issue, the report concludes: "(W)hen a foreigner obtains a divorce on any of the grounds authorized by Article 2 of
Law 1306-bis (for cause) . . . there is no doubt that such a divorce decree
would be valid in the Dominican Republic."
   With respect to the second issue, the Library of Uongress report
states: "(A)n examination of the Spanish text of the provision of Article
17 of the Law on Divorce 1306-bis of 1937, shows. that the personal
appearance of the party in question is not required. Therefore, the
translation of Article 17 quoted in the letter of inquiry should be corrected by eliminating the words "in person."
   With respect to the third issue, the report from the Library of Congress states that there are no court decisions relating to the validity of
foreign divorces under the law of Japan and that scholarly opinion on the
subject is divided. However, the report notes that if the petitioner and
beneficiary registered their marriage in Japan on January 25, 1980,
before the petitioner's divorce became final on February 9, 1980, that
the marriage would be bigamous. The report fiuther states that Article •
732 of the Civil Code of Japan provides that "a person who has a spouse
may not effect an additional marriage." The report also notes that biga -
mous marriages are prohibited under Article 184 of the Penal Code of
Japan.
  The Officer-in-Charge entered his decision adopting the conclusions of
the Library of Congress with respect to the first two issues. He denied
the visa petition on the ground that the petitioner was not free to marry
the beneficiary on January 25, 1980, because the divorce terminating his
prior marriage did not become final until February 9, 1080. By Notice of
Certification dated September 23, 1981, the Officer-in-Charge provided

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counsel for the petitioner a copy of his decision and advised him that the
decision had been certified to the Board for review. The Notice of Certification also advised the petitioner that he had 10 days within which tosubmit a brief or other -written statement for consideration by the Board.
He was also advised that if he wished to present oral argument before
the Board, he should promptly request oral argument by a letter to the
Board. The petitioner (lid not request oral argument before the Board
and the record file does not contain a brief or other statement in response
to the decision of the Officer-in-Charge or the Notice of Certification
   In visa petition proceedings, the burden is upon the petitioner to
establish eligibility for the benefits sought. Matter of Brantigan, 

 (BIA 1966). A. petitioner who relies on foreign law to
establish eligibility for an immigration benefit must prove that taw as if
it were a question of fact. Matter of Annang, 14 I&N Dee. 502 (BIA
1973).
   The only evidence of record regarding the issues of foreign law critical
to the decision in this case is the report prepared by the Library of
Congress, Although he has had ample opportunity to do so, the petitioner has not submitted any evidence regarding these issues. Neither
has he in any manner disputed the report submitted by the Library of
Congress. Therefore, on the basis of the evidence before us we'conclude:
 (1) That the law of the Dominican Republic does not preclude a nonresident from
     obtaining a divorce for calm in the Dominican Republic.
 (2) That Article 17 of the Law on Divorce 1306-bis, Civil Code of the Dominican Republic,
     does not require the party who obtains a divorce for cause to appear "in person" to
     have the divorce pronounced and registered. Therefore, as the translation of Article
     17 which we relied upon in Matter ofValerio,151SeN Dec. 659 (BIA 1976); Matter of
     Gonzalez, 16 I&N Dee. 178 (BIA 1977), and Matter of Lacer°, 

     (BIA 1979), was an erroneous translation, these cases are hereby modified insofar as
     they hold that one who obtains a divorce decree for cause in the Dominican Republic
     must appear "in person" in order to have the divorce decree pronounced.
 (3) That the visa petition in this case was properly denied on the ground that the
     petitioner's marriage to the beneficiary is invalid because at the time entered into,
     the petitioner's divorce had not yet become final and he was not free to contract
     another marriage. Matter of Valerio, supra.
Accordingly, the following order will be entered.
  .ORDER: The decision of the Officer in Charge is affirmed and the
                                                  -   -


visa petition is denied.




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