Interim Decision #2937
MATTER OF ZORRILLA
In Visa Petition Proceedings
A-24065035 .
Decided by Board March 11, 1983
The Board of Immigration Appeals concludes that, under Article 16, Law 1306-bis of
the Civil Code of the Dominican Republic, the 2-month period for pronouncement of a
Dominican divorce for cause begins to run upon expiration of then-month period for filing
an appeal which runs from the time the defendant is notified of the judgment of divorce.
The following decisions are modified to the extent that they are inconsistent with this
conclusion: Matter of Hawn, 18 I&N Dec. 59 (BIA 1981); Matter of Valerio, 15 I&N
Dee. 659 (BIA 1976); Matter of tionzatez, 16 1601 Dec. 178 (BIA 1977); and Matter of
Lucero,
16 I&N Dec. 674 (131A. 1979).
•
ON BEHALF OF PETITIONER: Dr. Antonio C. Martinez, Esquire
324 West 14th Street
New York, New York 10014
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacea, Board Members
In a decision dated January 11, 1982, the District Director denied a
visa petition filed by the lawful permanent resident petitioner to accord
the beneficiary preference status as her husband pursuant to section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). -
The petitioner has appealed from that decision. The appeal will be sustained and the visa petition approved.
The lawful permanent resident petitioner, a 31 year old native and
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citizen of the Dominican Republic, married the beneficiary, a 29-yearold native and citizen of the Dominican Republic, in New York on April
11, 1980.
In her visa petition, the petitioner indicated that prior to her marriage to the beneficiary, she was married to "Roberto Eulogio Rojas."
In accordance with 8 C.F.R. 204.2(c)(2), the petitioner submitted proof
of what she believed to be the termination of her prior marriage. She
explains that she sought and obtained a divorce from Roberto Eulogio
Rojas in the Dominican Republic. The record contains copies of the
judgment of divorce dated March 22, 1976, the notification to the defendant spouse of the ju dgment dated June 4, 1976, and the pronouncement
dated August 6, 1976. These documents reflect that the petitioner's
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Interim- Decision #2937
former spouse was the defendant in a divorce action for-incompatibility
of character in the Dominican Republic,' that the divorce was sentenced
on March 22, 1976, that the defendant was notified of this judgment on
June 4, 1976, and that the divorce was pronounced and registered in the
Office of the Civil Registry on August 6, 1976.
The District Director found the petitioner's Dominican divorce to be
invalid under Dominican law because it was not pronounced within 2
monk from the date the divorce was sentenced as required by Articles
171 and 192 of Law 1306-bis, Civil Code of the Dominican Republic. See -
Matter of Hann, 18 I&N Dec. 59 (BIA 1981); see also Matter of
Valerie,
15 I&N Dec. 659 (BIA 1976); Matter of Gonzalez, 16-I&N Dec.
178 (BIA 1977); and Matter of Lucero,
16 I&N Dec. 674 (BIA 1979). He
denied the visa petition based on his finding that the petitioner's marriage to the beneficiary is invalid because of the prior undissolved
marriage.
On appeal, the petitioner contends that her 1976 divorce is valid. She
submits that a divorce must be pronounced within 2 months of notifies,
tion of the judgment, rather than within 2 months of the judgment as
the District Director required. She relies on Article 16 of the Civil Code
for this, contention. Petitioner states that her prior spouse was notified
of the divorce on .Tune 4, 1976. and that the divorce was pronounced on
August 6, 1976. She contends, therefore, that her Dominican divorce is
valid under Dominican law, that her marriage to the beneficiary is valid,
and that the visa petition should be approved.
The question of the time period within which a Dominican divorce for
cause, as opposed to divorces for mutual consent, must be pronounced
lest the plaintiff lose the benefit of the divorce under Article 19 has been
presented to the Board and decided piecemeal. We have previously
held, based on an opinion from the Hispanic Law Diviiion of the United
States Library of Congress, that the 2-month period referenced in Arti-
.cle 19 for pronouncement of the divorce begins to run from the date the
Dominican divorce is sentenced.. Matter of Valerie, supra; Matter of
' Article 17, Law 1306-bis, Civil Code of the Dominican Republic proyides that:
The spouse who obtained a divorce judgment issued by . a court of last instance of a
judgment which has become final, except if an appeal on eassalun which suspends the
effects of the judgment has been -filed, is under the obligation to appear before the
Official of the Civil Registry, within two months, in order to have the divorce pronounced and the judgment registered in, the Office of Civil Registry, provided the other
party is summoned by the bailiff in order that he (she) may appear before the Official of
the Civil Registry to bear the pronouncement of the divorce.
2 Article 19, Law 1306-bis, Civil Code of the. Dominican. Republic provides that
The plaintiff who fails to act within two months shall lose the benefits granted to him by
the judgment than obtained, and he shall nnt he able to obtain a new judgment unless
his petition is based on new grounds. The previously alleged grounds may be added to
the new ones.
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Interim Decision #2937
Gonzalez, supra; Matter of Ifueero, supra. Subsequently, we held that
under Article 18, Law 1306-bis: Civil Code of the Dominican Republic,
the 2-month period does not begin to ran until after the 2-month time
period allowed for appeal from the judgment has expired. Matter of
Hann, supra. We are now called upon to consider the effect of Article 16
of the Dominican Civil Code, which has not previously been presented.
The Immigration and Naturalization Service has provided the Board
with a translation of Article 16 which supports the petitioner's contentions. It provides:
(Article 16:) NO appeal will be allowed after the legal deadline, which is two months
from the date of the notification of the judgment; the appeal should be entered within
the two months.
Therefore, we conclude that the 2-month (60-day) period for pronouncement of a Dominican divorce for cause set forth in Article 19 begins to
run upon expiration of the 2-month period for filing an appeal which
runs from the time the defendant is notified of the sentence of divorce,
and not from the date the judgment is sentenced. Matter of Hann,
supra; Matter of Valerio, supra; Matter of Gonzalez, supra; and Matter
of Lucero, supra, are hereby modified insofar as they are inconsistent
with this decision.
In this case, the petitioner's Dominican divorce was sentenced on
March 22, 1976. The defendant (petitioner's former spouse) was notified
of the judgment on June 4, 1976. 3 The 2-month (60-day) period for
appeal expired on August 3, 1976, and the 2-month time period for
pronouncement of the divorce began. The divorce was pronounced 3
days later on August 6, 1976, and well within the 2-month time period
required under Article 19.
We find that the petitioner's divorce was valid when pronounced on
August 6, 1976, and that the petitioner was free to enter into a marital
relationship with the beneficiary on April 11, 1980. From our review of
the record, we see no other reason or basis for denial of this visa petition.
Accordingly, the appeal will be sustained and the visa petition will be
approved.
ORDER: The appeal is sustained and the visa petition is approved.
' The notification was registered in Santo Darningo on June 8, 1976, before the Director
of Registry.
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