F

                              MATilm OF F—

                   In VISA PETITION Proceedings
                               VP 3-1-126943
                      Decided by Board January 29, 1959

Nonquota status—Spouse of United States citizen—Divorce decree granted by
 State court not subject to collateral attack In visa petition proceedin g.
(1) For the purposes of administering the immigration laws, a divorce decree granted by a State court will not be open to collateral attack on jurisdictional grounds to inquire into questions of residence and domicile, pro-
  -vided one of the parties to the divorce was actually present within        the
  court's jurisdiction.
(2) Visa petition filed by United  States citizen wife to confer nonquota  status
  upon alien husband will be approved whore tho record elvers that the hone.
  ficiary's divorce from his first wife in Italy was granted by a Florida court
  before whom the beneficiary was physically present and was followed by a
  ceremonial marriage in New York to his present spouse.

                           BEFORE THE BOARD
   Discussion: The case comes forward on appeal from the order
of the District Director, New York District, dated August 11, 1958,
denying the visa petition for the reason that petitioner's marriage
to the beneficiary/husband is not legal on tthe ground that he did
not have the necessary residence in the State of Florida before he
obtained his divorce there; that consequently his prior marriage
had not been legally terminated and the petitioner's present marriage to the beneficiary is invalid.
   The petitioner's acquisition of United States citizenship through
her father is conceded. She seeks nonquota status on behalf of
the beneficiary whom she married at New York on January 25,
1958. This is the first marriage for the petitioner. The beneficiary
was previously married on March 6, 1950, and as evidence of the
termination of his prior marriage he submitted a final decree of
divorce obtained in the Circuit C,ourt of the Eleventh Judicial
District in and for Dade County, Miami, Florida, on January 16,
1958. Examination of the divorce decree indicates that a decree
pro confes8o was entered against the defendant's wife and provided
for the payment of $10 per month by the plaintiff-husband for the
support of the minor child of the parties, the wife and child then
residing in Italy.
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      A sworn statement was taken from the beneficiary, who is an
   applicant for preexamination, by a Service officer on May 26, 1958,
   and May 20, .W55. In the course of the first statement the beneficiary stated that he had lived in Miami Beach, Florida, continually from April 1957 to September 1957, returned to Miami after
   15 days in New York, next returned to New York Christmas 1057,
  back to Miami about the fifteenth of January 1958 to obtain his
   divorce decree, thereafter returning to New York where he has since
  resided.
     The beneficiary appeared voluntarily for a second statement to
  reveal that he had not disclosed the whole truth about his Florida
  residence. He stated that he first went to Florida in April 1957
  and remained 4 days in order to sign some papers before a notary
  public; that he next went to Florida in June or July 1957, also for
  the purpose of signing papers before a notary public, and returned
  the same day; that he finally returned to Florida on January 15,
  1958, and appeared in court and was granted a divorce the next day.
  He admitted that he had never actually resided in Florida but had
  alwaye lived in New York. He did not recall being ached under
  oath whether he was a resident of Florida and claimed that he did
 not know the residential requirements for divorce in Florida but
  simply did what his lawyer told him to do that the lawyer had told
 him that he could go back and forth 3 times and that it was the
 same as if he had resided there. He stated he had been advised by a
 friend to testify that he had resided in Florida and that he was
 scared when he appeared before an official of the law for a sworn
 statement on May 26, 1958. He further testified that he retained a
 New York lawyer to handle the divorce matter and that the latter
 refereed him to the Florida attorney. He tut [her e.xplained that he
 and his wife did not actually consummate the marriage and live
 together until the religious ceremony in April 1958, and that they
had lived together since that time. The beneficiary stated that his
first wife was never in the United States but that she had been
notified of the divorce action by letter.
    In the instant case we have in evidence a marriage certificate
showing that the parties married in accordance with all the prescribed formalities of law. In addition, there has been submitted
a divorce decree of a State court purporting to dissolve the prior
marriage of the beneficiary. There is of course the legal presumption which favors the validity of every ceremonial marriage which
is one of the strongest presumptions known to the law and which
ordinarily will yield only in the face of the most compelling
proof.' In addition, the divorce decree in Florida was rendered by

    Schouler. Marriage, Divorce, Separation and Domestic Relations (Cth ed.),
vol. II, p. 1477; IV/Donne on Evidence (3rd ed.), vol. IX. p. 370.

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a legally constituted court. Not only the full faith and credit
clause of the Federal Constitution, but familiar principles of law
require the acceptance at face value of a judgment regularly granted
by a competent    court, unless a fatal defect is evident upon the
judgment's face. However, the presumption of regularity and of
jurisdiction may be overcome by extrinsic evidence or by the record itself.' That presumption may be overcome and is open to
attack where the other spouse in the divorce proceeding had neither
appeared nor been served with process in the State. , The burden
of undermining the decree of a sister State is a heavy one and is
not overcome by a record which contains merely a statement by the
court below that the findings do not show that the defendant has
appeared or been served with process in the divorce State, where
the record does not contain the decree nor any stipulation concerning
it.'
   In the instant case the first wife of the beneficiary had neither
appeared nor been served with process in the State. The Service
representative has cited a number of Florida cases which indicate
that the residence of a plaintiff in a divorce action in Florida
may he attacked to show lack of jurisdiction and where jurisdiction is shown to be vulnerable, generally, under such circumstances,
a collateral attack may be made on the decree of the court. Here,
the beneficiary who was the plaintiff in the court action did make
a personal appearance within the jurisdiction of the Florida court.
The question we are confronted with is, whether, for immigration
purposes, and under circumstances such as are present in this case,
in the face of a divorce decree granted by a court of competent
jurisdiction, followed by a ceremonial marriage which complies with
the formalities of law, and evidence showing that the plaintiff in
the court action wee present within the jurisslietinn of the enurt, we
should inquire into the question of bona fide residence which purported to give the court jurisdiction.
  This problem has previously been the subject of administrative
scrutiny.' Questions involving the validity and recognition of
divorces have concerned the courts for many years and unquestionably will continue to cause difficulty in the future; however, the
Service can hardly undertake to become a disputant in the divorce
arena since immigration officers are not equipped to adjudicate
  • Adam v. Soe,9,,, 2C1? L`- C_ as Mat )
  3 iriniaM8 V. North CarOlintl, 

 (1945).

    Cook v. Cook, 

 (1951).
    Hernorandunt of the General Counsel, Immigration and Naturalization
Service, File 56013—B (7/2/47), approved by the Commissioner 7/5/47, The
General Counsel's memorandum involved a Nevada divorce decree but the
arguments would appear to apply with equal cogency to a Florida divorce
decree.

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 troublesome legal questions of this character; and for the purpose
 of the immigration laws a divorce decree regularly granted by a
 court in the fruited States should be accepted at face value and
 should be deemed to have terminated the prim - marriage for immigration purposes. There is no Federal policy which enjoins the
 nullification of State divorce decrees. On the other hand, a sound
 policy would require the avoidance, if possible, of a disruption of
 stable family relationships, and as a Federal administrative agency
 enforcing Federal statutes there is no justification in disregarding
 a divorce decree legally granted by a State court.
   The assumption of authority to pass upon the validity of divorce
 decrees would place an excessive burden upon those charged with
 administration of the immigration laws. Exploration of the ramifications of divorce law in each case would inevitably lead into
 labyrinths of jurisdiction, domicile, residence and status with no
 satisfactory goal and an involvement in complexities utterly foreign
 to the responsibilities of administering the immigration laws. It
 would not appear to be sound administrative practice to expect
 immigration officers to pause in executing their own exacting duties
 in order to embark upon the collateral inquiry so to whether State
 divorce decrees were supported by proper jurisdiction and such an
inquiry would impede the expeditious administration of the immigration laws. The wisest emir.e would be to accept at face value
the marital status regularized in conformity with the laws of the
 State. In conclusion, for the purpose of the immigration laws,
the Service should regard as valid a divorce regularly granted by
a State court and a subsequent remarriage formalized in conformity with the laws of that State or of any other State.             In
adopting this policy the requirements of the law would be adhered
to, proper effect would be given to judgment, and proce e dings of a
sovereign State, and reasonable safeguards would thereby be erected
to protect a properly solemnized marital relationship. Finally, the
adoption of such a policy would unquestionably facilitate the administration of the immigration laws.
   These views received endorsement in Metter of B—, 

, where the residential requirements of jurisdiction of a
Mexican divorce obtained by the petitioner were brought into question. It appeared that the petitioner had gone to Mexico for a few
days, was granted a divorce, then returned to live in Florida and
later remarried the beneficiary. In that case we disapproved as
improper the view that immigration authorities must inquire into
the validity of every divorce, whether obtained within the United
States or elsewhere, and satisfy itself that the petitioner in a divorce
action in every instance was domiciled within the jurisdiction of the
court granting the decree before a subsequent marriage would be

                                  2y4
recognized. We expressed the view that an administrative agency
is going far beyond its legislative sphere when it attempts to inquire into the issue of whether the petitioner for a divorce was
domiciled within the jurisdiction of the court granting the divorce
and, therefore, whether the decree ought to be recognized. We set
forth the principle that inquiry into the jurisdiction of a court
should stop when it is ascertained that a party to the proceeding
was tietually within the court's jurisdiction.
   In Matter of B—, 

, we recognized as valid
a marriage in California subsequent to a Mexican divorce obtained
by a wife, the wife having made a trip to Mexico to secure the
divorce and the defendant-husband having given his written consent to the divorce and having been represented by counsel in the
divorce proceedings, applying the principle that the validity of a
marriage is governed by the law of the place of celebrations Of
course, this type of case differs from the pure Mexican "mailorder" divorce decree where neither party was ever physically present within the jurisdiction of the court or within the jurisdiction
of the state. However, if recognition under rules of comity is
grained iv a Mexican divorce decree in which one of the parties was
physically present within the jurisdiction, it would follow that
recognition under the full faith and credit clause of the Constitution would pragent a stronger argument for recognition of a divorce
decree granted by a sister State in which one of the parties was
actually present within the court's jurisdiction. Under such circumstances, it having been established that one of the parties was
physically present within the court's jurisdiction, for immigration
purposes the inquiry as to jurisdiction should end.
   In the present case it appears that the beneficiary was actually
present within the jurisdiction of the Florida court and appeared
in court when he obtained the divorce decree terminating his first
marriage. He has presented evidence of a subsequent ceremonial
civil marriage, as well as a religious marriage with the petitioner in
the State of New York. There is no indication of any attempt by
the first wife to contest the Florida divorce decree. Under these
circumstances, the visa petition will be approved.
   Order: It is ordered that the visa petition be and the same is
hereby approved for nonquota status on behalf of the beneficiary.

  Matter of P---, 4 I. & N. Dec. ecu.




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