MATTER OE W
In SECTION 245 Proceedings
A-10465765
A-10469442
A-10465763
Decided by Regional Commissioner February 18, 1958
Approved by Assistant Commissioner November 8, 1958
Nonquota status—Eligibility as spouse of United States citizen—Mexican
"mail order" divorce not recognized in California.
Applicant for adjustment of status under section 245 of the 1952 act has not
established claim to nommota status through California marriage to United
States citizen spouse where applicant's prior marriage was terminated by
Mexican "mail order" divorce not ordinarily recognized as valid by California
courts. (Matter of B—, 5 I. & N. Dec. 659, and Matter of P—,
4 I. & N.
Dec. 610. distinguished.)
BEFORE THE REGIONAL COMMISSIONER
Discussion: This matter comes forward on appeal from an order
of the District Director, San Francisco, dated November 1, 1957,
denying subjects' applications for adjustment of status from nonimmigrants to that of persons lawfully admitted for permanent residence, as provided for under section 245 of the Immigration and
Nationality Act. The denial was predicated on a finding that the
appellants were not entitled to classification as nonquota immigrants and that quota immigrant visas were not immediately available to the appellants at the time the applications were filed, as the
quota of the Philippines to which they were chargeable was then
oversubscribed.
The facts are not in dispute. The appellants are a 35-year-old
female, hereinafter called "the applicant," and her 2 minor sons, 12
and 16 years of age. All are natives and citizens of the Philippines.
They last entered the United States at Honolulu, T.H., on June 10,
1955, at which time they were admitted as nonimmigrant visitors under section 101(a)(15) (B) for a period expiring on September 30,
1955. On September 15, 1955, they applied under section 248 for
changes in their nonimmigrant classification, and on October 6,
1955, they were reclassified as nonimmigrant students under section
101(a) (15) (F). Until the filing of the current applications they
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have maintained their nonimmigrant status, having been granted
several extensions, the last expiring on September 30, 1957.
On October 5, 1941, the applicant married S—D--- in Manila.
Her 2 minor sons are the issue of this marriage. While residing
in California the applicant filed an action for divorce in the First
Civil Court of the Bravos District, State of Chihuahua, Mexico, on
the grounds of separation and incompatibility. The decree, dated
September 6, 1956, purports to grant an absolute divorce, but neither
the petitioner nor her husband had ever been in Mexico. She thus
obtained a "mail order" divorce. On December 19, 1956, the applicant purported to marry I) L—W— , a. ritiren of the
United States, in a marriage ceremony performed in San Francisco,
California.
In the instant proceeding the applicant claims eligibility for
nonquota status under section 101(a ) (27) (A) as the spouse of a
United States citizen and her sons claim eligibility under the same
section as stepchildren. If it is determined that the marriage on
which these applications are predicated is valid, the subjects would
appear to qualify for nonquota status as they had all been in the
United States for a year prior to acquiring that alleged status. A
finding that the quota of the Philippines u-a.s ovea,ubacribed at the
time the current applications were filed is not contested.
If it is determined that the "mail order" divorce obtained in
Mexico was void in law, such impediment of this prior existing
marital status would invalidate the principal applicant's subsequent
marriage to D—W---. Such is the issue to be resolved in connection with this appeal. In these proceedings the burden is upon
the applicants to establish the eligibility for the benefits sought or
the status claimed.
The record establishes that neither the parties to the first marriage nor the marital res of that marriage were ever in Mexico.
Whether such in absentia divorce precludes, for immigration purposes at least, the validity of a subsequent marriage, depends on
the recognition accorded it by the jurisdiction wherein the subsequent marriage was performed (Matter of P—, 56324/762, 4 I &
N. Dec. 610, which modified a prior holding in Matter of 0—,
A-6345409, VP-374571, 3 I. & N. Dec. 33, that no divorce decree
obtained in absentia would be valid for immigration purposes).
The Courts of California, the State in which the subsequent marriage woe performed, have generally refused to recognize in absentia
Mexican divorces where the facts were as in the instant case (Ryder
v. Ryder,
37 P.2d 1069; Muir v. United States,
93 F. Supp. 939
(1950)).
Matter of B—, VP 13-3521,
5 I. & N. Dec. 659, and Matter of
P , 56324/762,
4 I. & N. Dec. 610, cited by counsel in support of
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his position, are readily distinguishable. In the former, the plaintiff-wife was physically in Mexico, the defendant-husband consented to
the divorce proceedings and was represented by counsel. In the
latter, the parties mutually agreed to the institution of the divorce
proceedings, the defendant-husband signed a nolo contendere, and
the plaintiff-wife was physically in Mexico and there signed the
necessary judicial papers for the institution of the divorce proceedings.
The applicant for adjustment under section 215 has the burden
of establishing he eligibility. Since the California courts deny
recognition to Mexican in absentia divorces such as that present here,
it follows that the applicant has failed and is unable to sustain her
burden of proving the validity of her marriage. to a United States
citizen husband. Similarly, applicant's sons cannot establish that
they are the stepsons of a United States citizen.
Order: It is ordered that the appeal from the district director's
decision denying adjustment under section 245 of the Immigration
and Nationality Act be and the same is hereby dismissed.
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