VP 15-631.
Decided by Board August 5, 1954.
Marriage — Mexican divorce obtained by non-residents of the United States valid — Nonquota status under section 101 (a) (27) (A) of Immigration and Nationality Act.
A Mexican divorce decree which does not involve residents of the United States but involves a resident of Mexico and a citizen and resident of Lebanon is held to be valid for immigration purposes based on the doctrine of comity as between nations, there being no showing that the divorce decree was not valid in Mexico or did violence to the public policy or public morals of the State of Arizona where the subsequent marriage of the resident of Mexico and a United States citizen took place. Therefore, the beneficiary of a visa petition who obtained such a divorce and subsequently married a citizen of the United States is entitled to nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, El Paso, Texas, dated December 8, 1953, denying the visa petition on the ground that the petitioner has failed to establish a valid marriage existing between herself and the beneficiary.
The petitioner, a naturalized citizen of the United States, seeks nonquota status on behalf of the beneficiary whom she married at Nogales, Arizona, on September 4, 1953. The petitioner was previously married and her prior marriage was terminated by death of her first husband. The beneficiary was also previously married and the question presented is whether there has been a valid termination of his prior marriage.
The beneficiary is a native and citizen of Lebanon and has resided in Nogales, Sonora, Mexico, since May 20, 1952. He was first married in 1925 at Beirut, Lebanon, to one Z---- S----. He secured a Mexican divorce from his first wife in Juarez, Chihuahua, Mexico, on August 3, 1953. At the time he secured a divorce the beneficiary resided in Nogales, Sonora, Mexico, while his first wife resided in Lepanon. There has been submitted a consent signed by the wife on July 14, 1953, at Beirut, Lebanon, consenting to representation by an attorney in fact in the divorce proceeding instituted by her husband in the Civil Court of Juarez, Chihuahua, Mexico. The husband was likewise represented by a special attorney in fact.
It is to be noted in the instant case the Mexican divorce decree does not involve residents or domiciliaries of the United States, but involves a resident of Mexico and a citizen and resident of Lebanon. In this regard the situation is different from that presented by the ordinary Mexican mail order divorce decree involving residents of the United States which generally have been regarded with disfavor. It has been held that the termination of a prior marriage by a Mexican divorce procured by a resident of Eire against a nonresident of Mexico, where the evidence failed to show jurisdiction there as to either party or as to their matrimonial domicile, may be conceded under rules of comity if the foreign judgment of divorce was valid where granted; that the rules of comity would not be departed from except in certain cases for the purpose of necessary protection of our citizens or in enforcing some paramount rule of public policy; and there has been no avoidance of the laws of any United States domicile.
Matter of McG----, A-6308586, 2 IN Dec. 883 (1947).
In construing the validity of a visa petition filed under section 9 of the Immigration Act of 1924 (the predecessor to section 205 of the Immigration and Nationality Act) the Attorney General held that the validity of divorces affecting cases arising thereunder shall hereafter be determined in accordance with the prevailing law of the country in which the subject was domiciled and physically present at the time the divorce was obtained; and that no divorce obtained in absentia should be valid for immigration purposes if such divorce was obtained while either party thereto was domiciled or physically present in the United States. The restriction on recognition of validity of divorces in absentia obtained while either party was domiciled or physically present in the United States was modified to permit recognition where the law of the place of subsequent marriage recognized such in absentia divorces.
Matter of O----, A-6345409, 3 IN Dec. 33 (Act. Atty. Gen., 1949).
Matter of P----, 56324/762, 4 IN Dec. 610 (1952).
It is noted that the file contains a letter from the Attorney General, Phoenix, Arizona, expressing the opinion that the Court of Chihuahua had no jurisdiction to grant a divorce. Inasmuch as neither party to the divorce was resident or domiciled in the State of Arizona, the opinion would seem to be purely gratuitous. In cases involving foreign divorces obtained by parties not domiciled in the United States, the doctrine of comity as between nations controls. There is no showing that this divorce was not valid in Mexico, or that it did violence to the public policy or public morals of the State of Arizona where the parties were subsequently married. The existence of a civil ceremonial marriage in Arizona is in itself a strong presumption of the validity of such marriage until judicially set aside.
Petition of B----, V-317053 (1945) cited in Matter of McG----, (supra).
It is accordingly concluded that there is no persuasive reason why this Mexican divorce decree, dealing with a prior marriage performed in Lebanon, granted to nonresidents of the United States should not be regarded upon familiar principles of comity as constituting a valid termination of the beneficiary's prior marriage.
Order: It is ordered that the petition be approved for nonquota status on behalf of the beneficiary.