ZAMBRANO

Interim Decision #2864




                             MATTER OF ZAMBRANO
                          In Visa Petition Proceedings

                                     A-21682096
                        Decided by Board May 5, 1981

(1) A more liberal policy toward divorce, as evidenced by the Divorce Reform Act of 1971,
        Stat. Ann. 2A:34-1, is now recognized in /slew Jersey. Kazin v. Kazin, Si N.J. 85,
  405 A.2(1 360 (1979).
(2) New Jersey now appears to recognize foreign absentee divorces obtained by its residents. Matter of Guzman, 

 (131A 1976), overruled in part.
(3) Where the record in visa petition proceedings was unclear whether the Dominican
  Republic divorce, alleged to constitute proof of the legal termination of the beneficiary's previous marriage and its pronouncement, was for cause or mutual consent,
  and it was unclear whether the formalities had been complied with, the record is
  remanded for further proceedings.
ON BEHALF OF PETMONER:        Harvey A. Yanks, Esquire
                              Lewis Tower Building
                             15th and Locust Street
                             Suite 1520
                             Philadelphia, Pennsylvania 19102
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members



  In a decision dated July 18, 1980, the District Director denied a visa
petition filed by the petitioner on behalf of the beneficiary as her spouse
under 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 record
will be remanded.
  The 25-year-old lawful permanent resident female petitioner, native
of Cuba, filed a visa petition on June 8, 1979, on behalf of the 26 year old   -     -


beneficiary, a native and citizen of Colombia. The petitioner and beneficiary were married in New Jersey on May 28, 1975, where they reside.
The District Director denied the visa petition on the basis that the
beneficiary was not free to marry the petitioner inasmuch as his 1975
Dominican Republic divorce from his previous spouse, Carmen, is not
recognized in New Jersey, and hence is not recognized for immigration
purposes, since neither the beneficiary nor Carmen, both then residing
in.New Jersey, waspresent in the Dominican Republic during the divorce
proceedings.
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   In so holding, the District Director initially relied on Tonti v.
 Chadwick, 

; 

 (1949), 1 as we did in our earlier
  precedent decision, Matter of Gizman, 

 (BIA 1976), for
  the proposition that the Dominican Republic divorce was not entitled to
  recognition because the State of New Jersey does not recognize absentee divorces obta ined by its residents. Hence, that beneficiary's subsequent marriage in New Jersey was not valid to confer upon him immediate relative classification. The District Director also relied on Kazin v.
  Kazin, 

, 

 (1978), a case recognizing the
  more liberal policy toward divorce as evidenced by the Divorce Reforin
  Act of 1971, N.J. Stat. Ann. 2A: 34-1, should be the law. In Kazin, 

  the Superior Court of New Jersey, relying on Tonti v. 

  held that a Mexican divorce decree -obtained -after a 1-day appearance
  by the plaintiff, was utterly void for want of jurisdiction. However, the
  District Director failed to recognize that on appeal, the Supremp Court
  of the State of New Jersey overruled Tonti v. 

 and
  stated that "there remains little, if any, interest in encouraging the
• resurrection of deceased marriages, even if pronounced dead by other
  tribunals whose processes are not completely consistent with our own."
  Kazin v. Kazin, 

, 

 (1979). Therefore, we now find
  that the State of New Jersey does recognize absentee divorces obtained
  by its residents. Kazin v. Kazin, 

 Consequently, we recede from the
  holding in Guzman, supra, as to the applicable law in the State of New
  Jersey.
    The record contains documents alleged to constitute proof of the legal
 termination of the beneficiary's previous marriage and its pronouncement in the Dominican Republic in 1975. However, these documents
 have not been translated. Therefore, it is unclear whether the Dominican divorce terminating the beneficiary's prior marriage was for cause,
 or by mutual consent, and hence it is unclear whether the formalities .of
 the law of the Dominican Republic have been satisfied. See Matter of
 Ducero, 

 (BIA 1979). Accordingly, the record will be
 remanded to the District Director. On remand, the petitioner should
 submit a translation of the divorce documents and any additional evidence in support of her petition. If the petitioner relies on foreign law to
establish eligibility for an immigration benefit, she must prove the law
as if it were a question of fact. Matter ofAmong, 

 (BIA
1973). The petitioner still has the burden to establish eligibility for the

    Tenti v. 

 held that where a divorce decree of a foreign country
embodies all the jurisdictional prerequisites and is otherwise sufficient on its face, there is
a presumption in favor of its validity tinder the laws of the sovereignty in which it was
rendered, but extraterritorial recognition rests on the doctrine of comity controlled by
public policy of the state whose recognition is invoked, and the full faith and credit clause
has no application.

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Interim Decision #2864
benefit sought. Matter of Brantigan, 

 (BIA 1966). The
District Director will enter a new decision upon review of the translated
divorce decree, the relevant precedents and any further evidence submitted by the petitioner.
  GIRDER The record is remanded.




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