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Matter of Revelo – recognition of foreign divorce for immigration purposes (visa petition)

Interim Decision #2691

MATTER OF REVELO

In Visa Petition Proceedings
A-19518541
Decided by Board March 7,1979

(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreign divorce in the country where the divorce took place is required for recognition, whether the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672 (BIA 1978); Litvaitis v. Litvaitis, 162 Conn. 54.0, 295 A.2d 519 (1972); Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).

(2) A party must have a legally protected interest in order to participate in a judicial proceeding so that the legal questions are framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83 (Hl68).

(3) In a visa petition proceeding the District Director is an adjudicator, not an adversary who needs standing to participate, therefore, the term “standing” has no relevance to his role.

(4) The Immigration and Naturalization Service has the power to contest the validity of a foreign divorce in visa petition proceedings.

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case presents an appeal from the decision of the Acting District Director dated June 12,1978, denying a visa petition filed on behalf of the beneficiary as the spouse of the petitioner pursuant to section 203(a)(2) of the Immigration and Nationality Act, 8 U.S. C. 1153(a)(2). The appeal will be dismissed.

“The petitioner is a native and citizen of Ecuador who was admitted as a lawful permanent resident of the United States at New York on April 9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after each had obtained Dominican divorces from their previous spouses in 19’75.
The Acting District Director denied the visa petition concluding that the parties’ marriage subsequent to the Dominican divorces was invalid under Connecticut law, and, thus, the beneficiary was not entitled to preference immigration status through the petitioner. His conclusion was based on the Connecticut Supreme Court’s decision in Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972), where the court ruled that in order for a foreign divorce to be recognized in Connecticut, at least one of the parties must be a good faith domiciliary of the foreign country where the divorce was obtained. Since the petitioner was a lawful permanent resident of the United States when the divorce took place and there was no record of the beneficiary having been in the Dominican Republic, the Acting District Director concluded that neither party was
a Dominican domiciliary and the divorce would not be recognized under Connecticut law.

The legal validity of a marriage is generally determined by the place of celebration. Matter of Levine, 131 I & N Dec. 244 (BIA 1969); Matter of Freeman, 111 I &N. Dec. 482 (BIA 1966). In the present case, Connecticut is the place of the marriage celebration, thus, we must evaluate the marriage’s validity under Connecticut law.
In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined the law of Connecticut and concluded that a bona fide domicile by at least one of the parties to the divorce in the country where the divorce took place was required in order to recognize it. 8 C.F.R. 204.2(c)(2) specifically requires a petitioner to establish the validity of a claimed divorce. Since the petitioner has not submitted any evidence to prove that any of the parties to the two divorces was a Dominican domiciliary, the petitioner has not met his burden of proving that he is entitled to the immigration benefits sought. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. Litvaitis, supra. He points out that Litvaitis dealt with an ex parte divorce unlike the mutual consent divorce which the petitioner and beneficiary in the present case obtained.

Although we agree with the petitioner’s contention that Litvaitis w& not a mutual consent divorce, that difference does not require a different result from the Acting District Director’s conclusion. In Litvaitis the Connecticut Supreme Court was not stating a rule limited to ex parte divorces. Rather, the court in Litvaitis was restating its previous holdings in other cases involving bilateral divorces, that a bona fide domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (1948); State v. Cooke, 110 Conn. 348, 148 A. 385 (1930). The rationale for the Connecticut rule is that the divorcing court must have personal jurisdiction and also res jurisdiction over the marriage which is the res in a divorce proceeding. See Gildersleeve v. Gildersleeve, 92 A. at 685.

We also reject the petitioner’s contention that the Acting District Director lacks standing under Connecticut law to challenge the validity of the Dominican divorces. The word “standing” is a legal term intimately related to a court’s jurisdiction. The courts must ascertain that a party has a legally protected interest in order to allow him to participate in a judicial proceeding so that the legal questions will be framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. See Flast v. Cohen, 392 U.S. 83, 106 (1968).
In a visa petition proceeding the Acting District Director 1s not an adversary who needs standing to participate. 8 C.F. R. 103.1(n) grants the District Director the power to adjudicate the visa petition. Thus, the District Director’s role is that of an adjudicator and not an adversary in visa petition proceedings. The term “standing” has therefore no relevance with regards to the Acting District Director’s role in adjudicating a visa petition. We impliedly held that the Service has the power to contest the validity of a foreign divorce in visa petition proceedings. See, e.g., Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter of Darwish, 14 1. & N. Dec. 307 (BIA 1973); Matter of Atwater, 141 I&N Dec. 410 (BIA 1973). Thus, the petitioner’s contention Is without merit and the appeal will be dismissed.

ORDER: The appeal is dismissed.

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Posted by on August 10, 2010 in BIA Cases

 

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Matter of Biebl – Recognition of foreign divorces – Litvaitis v. Litvaitis

Interim Decision #2672

Matter of Biebl

In Visa Petition Proceedings
A-21041737
Decided by Board September 13, 1978

(1) Under law of Connecticut at least one of the spouses must establish a domicile in the jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce. Litvaitis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972).
(2) Under law of Connecticut, for purposes of establishing the jurisdiction of a court to grant a decree of dissolution of marriage, “domicile” is that place where a person has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home, Spaulding v. Spaulding, 177 Conn. 220, 368 A.2d 14 (1976).
(3) Where petitioner and his first spouse were domiciled in New York at the time they
obtained a divorce decree in the Dominican Republic according to the Dominican Republic law, dissolution of prior marriage not recognized for immediate relative
benefits under section 201(b) of the Act, 8 U.S.C. 1151(b); hence, a second marriage; in Connecticut, will not support a visa petition.

ON BEHALF OF PBTmONER: Joseph Abrams, Esquire
Abrams and Abrams
One Perm Plaza
New York, New York 10001
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner submitted on November 28, 1977, Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa on behalf of his stepdaughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), In his decision dated April 25, 1978, the Acting District Director denied the petition. The petitioner has appealed. The appeal will be dismissed.

The petitioner, a 57-year-old male, married the beneficiary’s mother in Connecticut on November 5, 1977. The 15-year-old beneficiary is a native and citizen of Germany, born on September 6, 1963.

In visa petition proceedings, the burden of establishing the claimed, relationship is upon the petitioner. Matter of Brantigan, 111. & N. Dec. 493 (BIA 1966). In order to qualify as a “stepchild” the beneficiary must also have qualified as the “child” of the petitioner under section 101(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1). Nazareno v. Attorney General, 512 F.2d 936 (D.C, Cir. 1975), cert,
denied, 432 U.S. 832 (1975).

The only subdivision of section 101(b)(1) which may possibly be relevant to this case is (E) which provides:
(1) The term “child” means an unmarried person under twenty-one years of age who is—
(B) a stepchild, whether or not born out of wedlock^ provided the child had not reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred; ….
The marriage between the petitioner and the beneficiary’s mother which took place in Connecticut on November 5, 1977, is the second marriage for each. The first marriage of the beneficiary’s mother was dissolved on July 11,1972, in Germany. The dissolution of that marriage is not in question.

The petitioner’s first marriage was dissolved on May 23, 1977, in the Dominican Republic. Contained in the record is a certificate of the Court of First Instance of Judicial District of Santo Dominican showing: that Guenther L. Kuehl personally appeared before that Court; that Gisela Kuehl appeared before that court by her attorney in fact; that both parties were domiciled at 507 Crotón Avenue, Peekskill, New York.
The validity Of a marriage generally is determined according to the law of the place of celebration. Matter of Gomero, 14 I. & N. Dec. 674 (BIA 1974); Matter of Levine, 131. & N. Dec. 244 (BIA 1969); Matter of P—, 4 L & N. Dee. 610 (BIA 1952, A.G. 1952). Thus, the validity of the petitioner’s present marriage to the beneficiary’s mother depends upon whether Connecticut would recognize the Dominican Republic divorce decree purportedly terminating the petitioner’s prior marriage.

The Supreme Court of Connecticut has held that at least one of the spouses must establish a domicile in the jurisdiction in which a foreign divorce decree is sought in order to give a court jurisdiction to grant a divorce; that principle has been held to apply to divorce decrees granted in foreign jurisdictions, even though a domicile is not required by the laws of the foreign jurisdiction. Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972).

Subsequently, the Supreme Court of Connecticut held, for purposes of establishing the jurisdiction of a court to grant a decree of dissolution of marriage, “domicile” is that place where a person has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. Spaulding v. Spaulding, 171 Conn. 220,
368 A.2d 14 (1976).

Inasmuch as the certified Dominican Republic divorce decree contained in the record shows that both the petitioner and his first spouse were domiciled in New York on May 23,1977, neither spouse has met the domiciliary requirement set out in Connecticut law. The petitioner’s divorce is not entitled to recognition under Connecticut law. See Litvaitis v. Litvaitis, supra; Spaulding v. Spaulding, supra.

Accordingly, as the petitioner’s prior marriage was not dissolved as a result of the decree rendered on May 23, 1977, the petitioner was not free to marry the beneficiary’s mother on November 5, 1977. Consequently, the “stepchild” relationship for immigration purposes was not established between the petitioner and the beneficiary.

The decision of the Acting District Director was correct. Accordingly,
the appeal will be dismissed.

ORDER: The appeal is dismissed.

 
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Posted by on August 10, 2010 in BIA Cases

 

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Matter of Revelo – Recognition of Foreign Divorce under CT law – Litvaitis v. Litvaitis

Matter of Revelo – Recognition of Foreign Divorce under CT law – Litvaitis v. Litvaitis

Interim Decision #2691

Matter of Revelo

In Visa Petition Proceedings
A-19518541
Decided by Board March 7,1979

(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreign divorce in the country where the divorce took place is required for recognition, whether the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672(BIA 1978); Litvatis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972); Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).
(2) A party must have a legally protected interest in order to participate in a judicial proceeding so that the legal questions are framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83(1S68).
(3) In a Visa petition proceeding the District Director Is an adjudicator, not an adversary win needs standing to participate, therefore, the term «standing” has no relevance to his role.
(4) The Immigration and Naturalization Service has the power to contest the validity of a foreign divorce in visa petition proceedings.

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Joseph N. Tauber, Esquire George I^cato
29 Hoyt Street Appellate Trial Attorney
Stamford, Connecticut 06995
BY; Milhollan, Chairman; Mariatis, Appleman, Maguire, and Farb, Board Members
This case presents an appeal from the decision of the Acting District
Director dated June 12,1978, denying a visa petition filed on behalf of the
beneficiary as the spouse of the petitioner pursuant to section 203(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal
will be dismissed.
The petitioner is a native and citizen of Ecuador who was admitted as a lawful permanent resident of the United States at New York on April 9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after each had obtained Dominican divorces from their previous spouses in 1975.

The Acting District Director denied the visa petition concluding that the parties’ marriage subsequent to the Dominican divorces was invalid under Connecticut law, and, thus, the beneficiary was not entitled to preference immigration status through the petitioner. His conclusion was based on the Connecticut Supreme Court’s decision in Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972), where the court ruled that an order for a foreign divorce to be recognized in Connecticut, at least one of the parties must be a good faith domiciliary of ťhe foreign country where the divorce was obtained. Since the petitioner was a lawful permanent resident of the United States when the divorce took place and there was no record of the beneficiary having been in the Dominican Republic, the Acting District Director concluded that neither party was a Dominican domiciliary and the divorce would not be recognized under Connecticut law.

The legal validity of a marriage is generally determined by the place of celebration. Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of Freeman, 11 I. & N. Dec. 482 (BIA 1966). In the present case, Connecticut is the place of the marriage celebration, thus, we must evaluate the marriage’s validity under Connecticut law.

In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined the law of Connecticut and concluded that a bona fide domicile by at least one of the parties to the divorce in the country where the divorce took place was required in order to recognize it. 8 C.F.E. 204.2(c)(2)specifically requires a petitioner to establish the validity of a claimed divorce. Since the petitioner has not submitted any evidence to prove that any of the parties to the two divorces was a Dominican domiciliary, the petitioner has not met his burden of proving that he is entitled to the immigration benefits sought. Matter of Brantigan, 111. & N. Dec 4S3
(EIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. LitvaitUs, supra. He points out that Litvaitis dealt with an er parte divorce unlike the mutual consent divorce which the petitioner and beneficiary in the present case obtained.

Although we agree with the petitioner’s contention that Litvaitis was not a mutual consent divorce, that difference does not require a different result from the Acting District Director’s conclusion. In Litvaitis the Connecticut Supreme Court was not stating a rule limited to ex parte divorces. Rather, the court in Litvaitis was restating its previous holdings in other cases involving bilateral divorces, that a bona fide domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gilder sleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (19483; State v.Cooke, 110 Conn. 348,148 A. 385 (1930). The rationale for the Connecticut rule is that the divorcing court must have personal jurisdiction and also res jurisdiction over the marriage which is the res in divorce proceeding: See Gildersleeve v. Gildersleeve, 92 A. at 685.

We also reject the petitioner’s contention that the Acting District Director lacks standing under Connecticut law to challenge the validity of the Dominican divorces. The word “standing” is a legal term intimately related to a court’s jurisdiction. The courts must ascertain that a party has a legally protested interest in order to allow him to participate in a judicial proceeding so that the legal questions will be framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. See Flast v. Cohen, 392 U.S. 83,106 (1968).

In a visa petition proceeding the Acting District Director is not an adversary who needs standing to participate. 8 C.F.R. 103.1(n) grants the District Director the power to adjudicate the visa petition. Thus, the District Director’s role is that of an adjudicator and not an adversary in visa petition proceedings. The term “standing” has therefore no relevance with regards to the Acting District Director’s role in adjudicating a visa petition. We impliedly held that the Service has the power to contest the validity of a foreign divorce in visa petition proceedings. See e.g. Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter of Darwish, 141. & N. Dec. 307 (BIA 1973); Matter of Atwater, 141. & N. Dec. 410 (BIA 1973). Thus, the petitioner’s contention is without merit and the appeal will be dismissed.

ORDER: The appeal is dismissed

 
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Posted by on June 13, 2010 in BIA Cases

 

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Adoption in Islamic law for Immigration and Visa Law Purposes – 14 I & N Dec. 305

Interim Decision #2190
(p. 305) (Ashree, Ahmed and Ahmed)
(March 30, 1973)
Matter of Ashree, Ahmed and Ahmed
14 I & N Dec. 305
In Visa Petition Proceedings
Volume 14 (Page 305)
Legal adoption does not exist in the Arab Republic of Yemen nor in the Peoples Republic of Southern Yemen. Both Yemens apply Islamic law in matters involving family status; adoption, as practiced in most Western societies, is not recognized by Islamic law. Hence, relationships through claimed adoptions in Yemen cannot be established by petitioners for visa petition purposes.
A-19357815; A-18943352; A-19759301
Decided by Board March 30, 1973

ON BEHALF OF PETITIONERS: (1) Kenneth L. Cooper, Esquire 778 Ellicott Square Bldg. Buffalo, New York 14203 (2) Pro se (3) Thomas Khederian, Esquire 7655 West Vernor Highway Detroit, Michigan 48209
These three cases involve a common issue. In each of the first two cases, there is before us an appeal from the District Director’s denial of a visa petition. In the third case, wherein we upheld the District Director’s denial of a visa petition by our previous decision dated July 6, 1971, there is before us a motion to reopen to hear new evidence. The three visa petitions are all on behalf of relatives whose relationship depends upon an adoption in one of the Yemens. We shall dismiss both appeals and deny the motion.
In the first case, the record relates to Abdo Yousuf Ashree, an unmarried native and citizen of the Arab Republic of Yemen, who was born on February 25, 1952. The second case relates to Mohamed Salem-Abdallah Ahmed, an unmarried native and citizen of the Arab Republic of Yemen, who was born on March 24, 1932. The third case relates to Sulaiman Obadi Ahmed, an unmarried native and citizen of the Peoples” Republic of Southern Yemen, who was born on September 15, 1952. All three are claimed by the petitioners to be relatives by virtue of adoption in one of the Yemens. Documents in support of the claims of adoption were submitted.
The Library of Congress, by a report dated March 9, 1973, regarding these cases, has advised us that legal adoption does not exist in the Arab Republic of Yemen or in the Peoples” Republic of Southern Yemen. The report advises that both Yemens apply Islamic law in matters involving family status. The report states:

Adoption in the sense in which it is understood by other nations today . . . is not recognized by Islamic law.
There is nothing in Islamic law similar to adoption as practiced in most western societies. It is not only not recognized in a Muslim society, but even if practiced by Muslims it will not carry with it any rights, especially those of inheritance.
An adopted son or daughter, of known descent, has no right to inherit from his, or her, adoptive parents and their relatives. The filiation based on adoption is neither recommended nor recognized by Islamic law. Such son or daughter is, however, entitled to what may be given under a valid deed in gift or will.
Islamic law, accordingly, does not recognize the validity of any mode of filiation where the parentage of the person adopted is known to belong to a person other than the adopting father, and an adopted child has no rights in the estate of his or her adoptive parents.
In view of the fact that there is no system for legal adoption in the two Yemens, the petitioners cannot establish that relationships by adoption arose there. All three petitions, accordingly, were properly denied.
Order:

The appeals are dismissed and the motion is denied.

 
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Posted by on January 29, 2010 in BIA Cases

 

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