HASSAN

Interim Decision #2531

MATTER OF HASSAN

In Visa Petition Proceedings

A4258751

Decided by Board September 9, 1976

(1) In order for a child to confer immediate relative status upon a parent under the

provisions of section 201(b) of the Immigration and Nationality Act, the petitioning child

must be a United States citizen at least 21 years of age, and qualify as a "child" as

defined in section 101(b) of the Act.

(2) Beneficiary, the natural father of a United States citizen petitioner, obtained a divorce

in 1950 at the Royal Egyptian Consulate located in New York. Notwithstanding the fact

that the divorce occurred in a foreign consulate in the United States, it was not a foreign

divorce. Therefore, the principle of international comity is not involved, and the divorce

is subject to the requirements of full faith and credit. Since this divorce was not

obtained in accordance with applicable New York statutory provisions it was invalid in

the State of New York, was not entitled to full faith and credit in any other jurisdiction,

and was invalid for immigration purposes.

(3) Since the beneficiary's divorce was invalid in the United States (notwithstanding the

fact it was valid in Egypt). beneficiary was not free to contract a valid marriage with

petitioner's mother in the United States so as to legitimate the petitioner and enable

him to confer immediate relative status on his father. Under the circumstances revoca-

tion of the approval of the visa petition was proper.

(4) Matter of 6 I. & N. Dec. 470 (BIA 1954) reaffirmed.

ON BEHALF Or PlartiONER: ON BEHALF OF SERVICE:

Arlene Tuck Ulman, Esquire George Indelicato

3730 Rhode Island Avenue N.W. Appellate Trial Attorney

'Washington, D.C. 20036

The United States citizen petitioner applied for immediate relative

status for the beneficiary as his father under section 201(b) of the

Immigration and Nationality Act. The petition was initially approved;

however, after due notice to the petitioner, the approval was revoked

by' the District Director in a decision dated January 15, 1975. The

petitioner has appealed. The appeal will be dismissed.

The issue in this case is whether the beneficiary, the natural father of

th e petitioner, is entitled to immediate relative status under section

2001(b) of the Act, as the "parent" of an adult United States citizen.

Counsel has offered two alternative arguments in support of the peti-

tion.

In the first argument, counsel assumes that the petitioner must once

have been the "child" of the beneficiary within the statutory definition,

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Interim Decision #2531

in order to confer immediate relative status, under section 201(b), upon

the beneficiary as a "parent." See sections 101(b)(1) and (2). She con-

tends that the petitioner, although born out of wedlock, was legitimated

according to the requirements of section 101(b)(1)(C). Counsel's alterna-

tive argument is that even if the petitioner was not legitimated, there is

no congressional directive that the petitioner must have qualified as the

"child" of the beneficiary in order to confer benefits, as an adult, upon

his parent. Moreover, counsel contends that the intent of Congress to

unite families would be subverted if that requirement is read into

section 201(b). We turn first to counsel's contention that the petitioner is

the legitimated son of the beneficiary.

The beneficiary, Mr. Hassan, is a native and citizen of Egypt. He

entered the United States in 1948 as the servant of an official assigned to

the Egyptian Embassy in Washington, D.C. The beneficiary's wife,

whom he had married in 1946 in Cairo, Egypt, did not accompany him to

the United States.

On December 4, 1950, the beneficiary went to the. Royal Egyptian

Consulate in New York City and obtained an irrevocable divorce from

his Egyptian wife. One year later, he married a United States citizen in

the State of Maryland. A petition to accord him immediate relative

status was filed by his American wife in 1952. It was denied by the

District Director on the ground that the beneficiary's consular divorce

was not valid for immigration purposes and that he was not free,

therefore, to marry in the United States. The petitioner appealed that

decision to this Board; we affirmed the District Director's decision in

Matter of H—, 6 I. & N. Dec. 470 (BIA 1954).

In the present appeal, taken some 20 years after our decision in

Matter of H—, supra, we are once again concerned with Mr. Hassan's

consular divorce. In the present context, the petitioner's claim to

legitimated status must be evaluated in ligh.t of our holding in Matter of

supra. The registration of the petitioner's birth indicates that he

was officially acknowledged by the beneficiary shortly after his birth on

January lo, 1953. It is counsel's contention that the petitioner was

legitimated under the laws of his residence; the District of Columbia,

when his father, Mr. Hassan, entered into a. common-law marriage with

his mother in the District in the mid - 1950's_ Quite obviously, unless we

now find that Mr. Hassan was free to enter into the alleged common-law

marriage, we cannot accept counsel's theory. In short, we are urged to

overturn Matter of H—, supra, and to extend belated recognition to the

beneficiary's consular divorce for the following two reasons.

First, counsel contends that the Board's characterization of the ben-

efieiary's divorce as a "consular divorce" (a decree granted at a foreign

For a succinct discussion of the reasons underlying the invalidity of the "consular

divorce" in this country, see Puente, The Foreign Consul and His Juridical Status in the

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Interim Decision #2531

consulate within the United States) is inaccurate. According to counsel,

although the proceeding was commenced in New York City, it was

concluded, some three years later, in Egypt. Moreover, it was a pro-

ceeding in which both parties participated and over which the rendering

authorities in Egypt had competent jurisdiction. Thus, it is more pre-

cisely characterized as a foreign divorce. As such, recognition of its

validity becomes a matter of international comity. If recognized by the

jurisdiction most concerned with the effect of the decree, namely, the

beneficiary's residence at the time of the proceeding, it must be recog-

nized for immigration purposes.

Second, counsel contends that the Board erred in holding that the

beneficiary was a resident of New York, and that, as a consequence,

New York law governed the validity of the divorce. Counsel maintains

that the beneficiary's residence was the District of Columbia. Therefore,

as a corollary to the first argument, counsel contends that recognition

of the foreign divorce must be assessed in light of the laws and policies

of the District of Columbia.

We observe, at the outset, that unless we find that the beneficiary's

divorce was a foreign judgment, and not a consular divorce, as counsel

contends, we need not discuss the choice of law issue. For if the divorce

is, as we held in Matter of H—, supra, a consular divorce, granted in

usurpation of New York's traditional and exclusive authority in mat-

rimonial matters over persons within her borders, it cannot be recog-

nized by the District of Columbia. It is axiomatic, under the principle of

full faith and credit, that no jurisdiction can adopt, as valid, a divorce

decree which is void in the jurisdiction where rendered.

Therefore, the pivotal issue in counsel's first argument is whether the

beneficiary's divorce was a "New York" divorce, obtained in a consulate

in New York or whether New York was only coincidentally the site of

the institution of divorce proceedings which eventually culminated in a

filial decree of divorce issued by an Egyptian court in Egypt.

To assist us in answering this question, we have asked the Library of

Congress to provide us with information on the Egyptian law of divorce.

From a memorandum submitted, we have learned that in Egypt, mar-

riage and divorce are performed by a government official called al-

Dia'zun. According to Article 31 of the "Ordinance for the Ma'zuns,"

(Egyptian Official Gazette, No. 25 of February 27, 1915):

The Ma'zun must register the divorce exactly as the divorcer has pronounced it

without any change in its wording.

In situations which involve the marriage or divorce of Egyptian

United States (Burdette J. Smith and Company, Publishers, 1926). For pertinent com-

maentary from the United States Department of State, see Whiteman, Digest of Interna-

tiemat Law, Vol. VII, pp. 621-625.

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Interim Decision #2531

nationals abroad, the Egyptian consuls are empowered to perform the

same functions which the Ma'zuns are assigned in Egypt. Under Article

16 of the "Consular Law" (Egyptian Official Gazette, No. 78 of August

13, 1925), the consul is authorized "to draw the pronouncements of

divorce and attest their authenticity . . ." (subsection 3).

The record indicates that Mr. Hassan went to the Royal Egyptian

Consulate in New York on December 4, 1950, and pronounced himself

irrevocably divorced from his Egyptian wife before the presiding con-

sul. Two years later, in connection with a visa petition filed on his

behalf, he presented as evidence of the termination of his first marriage,

a certificate issued by the Egyptian Consulate. In this certificate, which

was issued on November 5, 1952, the Egyptian Consul attested to the

validity, under Egyptian law, of the divorce which had been concluded

two years earlier. Reference to the "Consular Law," mentioned above,

indicates that this attestation by the consul, acting in his capacity as

Ma'zun, was clearly authorized. The substance of this certificate is set

out below.

This is to certify that Mr. A 0 H was married on December 5th, 1946

at Cairo, EGYPT. to Miss E I A and was divorced from said wife on

December 4th, 1950_ This divorce was concluded at the office of the Royal Consulate

General of Egypt in New York, U.S.A., in conformity with stipulations of the Egyptian

Law and entered in the Divorce Records under No. 20 {Emphasis added.)

Despite the fact that the certificate recites December 4, 1950, as the

date on which the divorce was "concluded" according to Egyptian la-w,

counsel maintains that the divorce was not finalized until 1953. In

support of this assertion, she had provided a document in Arabic with

two English translations. This document, issued by the Shari'a court of

Abdeen in Egypt under the seal of the Ministry of Justice, records the

remarriage of the beneficiary's first wife by a Ma'zun on February 25,

1953. Both translations state that the bride "was divorced from Mx.

Ahmed Osman Hassan on December 4, 1950, in the presence of 1VIr.

Ahmed Abdul Aziz Sherif, Consul, at the Consulate General in New

York." 2 The translations further state that this divorce was certified or

approved by the Egyptian Ministry of Justice on February 24, 1953, the

day before the remarriage.

On the basis of this document, counsel argues that the divorce was not

final and binding upon the beneficiary until it was certified in 1953. More

importantly, she argues that when it was certified, it constituted. a

2 In commenting upon the original Arabic version of this document, the author of the

Library of Congress memorandum noted that the divorce which was pronounced by the

beneficiary in New York City was an irrevocable divorce (Ba'in in Arabic). Unlike the

revocable divorce (Rail in Arabic), the marital status of the parties Lu su irrevocable

divorce is terminated instantly.

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Interim Decision #2531

"foreign" decree of divorce, recognizable in United States courts under

the doctrine of international comity. We cannot agree.

Our materials on Egyptian law indicate that the document which

counsel has submitted is in the nature of an administrative record. It

registers the remarriage of the beneficiary's ex-wife; it also reflects

compliance on the part of the Egyptian wife, upon remarriage, with

registration requirements contained in the "Ordinance of the Ma'zuns."

It does not refer to a certification of the divorce, in the sense of "give

effect to"; it simply refers to the registration in the Shari'a court of a

divorce obtained abroad.

Specifically, the law of Egypt requires the recording or registering of

a divorce with a Ma'zun or in a Shari'a court. Article 33 of the "Ordi-

nance of the Ma'zuns" reads:

If the separation [between the couple] reached the Ma'zun who performed the

marriage and he has the register of marriage in his possession, he shall enter the divorce

at the bottom of the marriage folio. But if this Ma'zun did not perform [originally] the

marriage and the marriage registeris not in his possession, he must im this case notify the

Shari'a court or the Ma'run [who performed the marriagelin order to note the divorce in

the proper register.

This provision is not operative if the marriage resulting in separation did not take

place either in Egypt or in the Sudan. [Emphasis added.]

Therefore, although the "Consular Law" empowers the consul to

register the divorce when pronounced in a foreign country, the divorce

must also be registered with the Ma'zun who performed the marriage or

in the appropriate Shari'a court. Moreover, if the divorcee wishes to

remarry, Article 28 of the "Ordinance of the Ma'zuns" requires her to

prove to the Ma'zun who presides over the marriage ceremony that her

divorce from a previous husband has been duly recorded.

The Ma'zun is not allowed to perform a marriage contract of a divorcee with another

husband unless he sees the document (folio) of her divorce, or the final judgment in it .

But if anything of that sort has not been presented to the Ma'zun, he must refer the

matter to the Shari'a judge and follow whatever orderhe receives. The judge may allow

the conclusion of the marriage if, according to the investigation he effected, it has been

proven that there were no objections to it. Then the Ma'zun should specify in the

marriage contract, the date, number and the place where the divorce has taken place, or

the date of the permission given [by the judge] to perform the marriage. [Article 28.]

The document which counsel has provided indicates that the Ma'zun

who remarried the beneficiary's first wife was satisfied that her divorce

had been properly recorded with the Shari'a court, on the day before he

performed the ceremony. As a consequence, there were no instructions

from the Shari'a judge indicating that the divorce's validity had been

questioned. As Article 28 directs, the Ma'zun noted in the marriage

contract, the date and place of the party's divorce. The date given was

December 4, 1950; the place, New York.

Therefore, after reassessment, we have concluded that the reasoning

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Interim Decision #2531

in Matter of H , supra, remains sound. Although the document pro-

—

vided by counsel removes all doubt that the divorce was recognized as

valid in Egypt, it does not alter our conclusion that "the doctrine of

comity would appear to have no application, since, notwithstanding the

fact that the divorce occurred in a foreign consulate in the United

States, it was not a foreign divorce, and insofar as its recognition by the

State of Maryland with respect to the subsequent marriage, is subject

only to the requirement of full faith and credit . . . ," Matter of H , —

supra, at 472.

Hence, while counsel has presented persuasive evidence that the

Board erroneously assumed, in Matter of H , supra, that Mr. Hassan

—

was a resident of New York when he obtained his divorce, we cannot

conclude that this evidence impacts on the outcome of the decision.

Even if the beneficiary has been a resident of the District of Columbia at

all times, the divorce must still be denied recognition. For just as the

District must extend its recognition to a decree validly rendered in a

sister state, under the doctrine of full faith and credit, so too must it

deny recognition to a decree which is void under the law of the jurisdic-

tion where it was issued. 3

In an alternative argument, counsel contends that the petitioner need

not qualify as a "child" within the statutory definition in order to confer

immediate relative status upon his father under section 231(b) of the

Act. We cannot agree_

Section 101(b) of the Immigration and Nationality Act of 1952 pro-

vided interrelated definitions of the terms "child" and "parent" which

would govern their use in Titles I and II of the statute. In Title II of that

Act, parents were merely accorded preference status under section

203(a)(2). Moreover, section 203(a)(2) referred only to parents of United

States citizens "at least twenty-one years of age,"

It was not until the term "parent" arose in another context, without

the age restrictions, that the Board had an occasion to determine pre-

cisely the nature of the interrelationship between the two definitions—

parent and child. Matter of G , 8 I. & N. Dee. 355 (BIA 1959),

—

concerned the use of "parent" within section 7 of the Act of September

11, 1957 (P.L. 85-316). Section 14 of the same Act directed that the

definitional provisions contained in subsections (a) and (b) of section 101

of the 1952 Act apply to section 7 of the 1957 law. Therefore, the Board

had squarely before it the question of what "circumstances" within

section 101(b)(1) lead to the creation of the status of "parent." (See

definition of parent in section 101(b)(2).) In light of the steadily liberaliz-

ing policy of the Congress to unite and preserve the immigrant's family

3 In light of our holding that the beneficiary's first marriage was not validly terminated,

we need not address counsel's contention that the beneficiary's second marriage in 1951 to

a United States citizen was void, ab initio.

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Interim Decision #2531

unit, the Board held that the "circumstances" referred to in section

101(b)(2) referred only to the events in subsections (A) through (E)

which create a child-parent relationship. Those circumstances include: a

legitimate birth, the creation of a steprelationship, legitimation, il-

legitimate birth in relation to the mother, and an adoption. The term

"circumstances" does not refer to the words "unmarried" or "under

twenty-one years of age." Therefore, "While for immigration purposes a

`child' ceases to be a child even if it fits into the various categories when

it reaches the age of twenty - one or becomes married, the parent, once

the required relationship has been established, always remains a par-

ent." Matter of G—, supra, at 359. (Emphasis added.)

In dicta, the Board also notcd that if the age and marital restrictions

in the definition of child were read into the definition of parent, the

provisions in the 1952 Act giving parents a preference would also have

to be restricted to the parents of adult unmarried citizens since section

203(a)(2) refers to parents of citizens over 21 but makes no mention of

marital status. In light of Congress' clear intent to unite the families of

immigrants, such a restriction appeared unwarranted. In keeping with

these observations, the Board held in Matter of Schaad, 10 L & N. Dec.

555 (BIA 1964), that a 32-year-old married petitioner could not confer

preference status under section 203(a)(2) on her stepfather, because the

steprelationship had not been created before the petitioner reached the

age of 18, as section 101(b)(1)(B) requires. The petitioner's age and

marital status were dearly not relevant to the denial.

In 1965, Congress created the provision which the present petitioner

invokes to confer immigration benefits upon his father. This provision,

section 201(b),4 in effect, reaffirmed the terms of section 203(a)(2) of the

1952 Act while elevating the parents of citizens over 21 from "preferred"

to "nonquota" status. Thus, the new amendment enables the parents of

adult United States citizens, as well as the spouses and children, to

enter this country as "immediate relatives," without numerical limita-

tion. As part of Title II of the Act, the new provision's use of the terms

"child" and "parent" is governed by the definitions set out In sections

101(b)(1) and (2). 5 Hence, in discussing the applicability of the term

4 "The 'immediate relatives' referred to in subsection (a) of this section shall mean the

children, spouses, and parents of a citizen of the United States: Provided, That in the case

of parents, such citizen must be at least twenty-one years of age. The immediate relatives

specified in this subsection who are otherwise qualified for admission as immigrants shall

be admitted as such, without regard to the numerical limitations in this Act"

Counsel points out that while section 14 of the 1957 Act expressly directed that the

definitions of section 101(a) and (b) of the 1952 Act apply to section 7 (the provision at issue

in Matter of G—, supra), there is no provision which preserves those definitions with

reference to section 201(b), as amended. A careful look at section 14, however, indicates

that the definitions were only applied to those sections of the new law which were not

incorporated into Titles I and II of the 1952 Act. Congress apparently saw no reason to

22

Interim Decision #2531

"parent" to the new provision, the Board concluded in Matter of Citino,

12 I. & N. Dec. 427 (BIA 1967), that the decision was governed by our

earlier decision construing the interrelationship between the terms

"parent" and "child," e.g., Matter of supra. Applying the holding in

Matter of G — , supra, to the issue in Citino, we held that the petitioner,

a 33-year-old married woman, could confer 201(b) status on her step-

mother since the steprelationship had been created within the require-

ments of section 101(b)(1)(B). The opposite result was reached in cases

involving the same issue when the parent-child relationships were not

created in accordance with (A) through (E) of section 101 of the statute.

See Matter of Polidoro, 12 L & N. Dec. 353 (BIA 1967), and Matter of

Huerta-Leon, Interim Decision 2367 (BIA 1975).

We find no support within the statute nor in our decisions for counsel's

contention that section 201(b) in Title II of the Act need not be read in

conjunction with the definitions in Title I. Inasmuch as the petitioner, in

this ease, has never qualified as a "child" for immigration purposes, he

cannot bestow immediate relative status, as an adult, upon the ben-

eficiary.

Accordingly, the appeal will he dismissed .

ORDER: The appeal is dismissed.

Irving A. Appleman, Member, Concurring

I concur in that portion of the majority decision which finds that the

parent-child relationship under section 201(b) of the Immigration and

Nationality Act is governed by the same definition as in the case of an

adopted child, Matter of Caramanzana, 12 I. & N. Dec. 47 (BIA 1967),

stepchild, Matter of Schaal, 10 I. & N. Dec. 555 (BIA 1964), or son or

daughter, Nazarene v. Attorney General of the United States, 512 F.2d

936 (C_A_D_ C. 1975).

I also agree that so far as this record is concerned we are confronted

with a purely "consular divorce" in the United States, invalid under the

law of the State of New York, and one to which full faith and credit could

not be given by the District of Columbia.' The Board recognized in the

reiterate the fact that the section 101 definitions were automatically applicable to the parts

of the new Act which were incorporated into the existing framework of Titles I and II. For

ion applying the defini -

the name reason, there was no need to include en express provision

tions of parent and child to section 201(b), as amended, in 1965, since, the definitions

themselves are prefaced with the sentence—"As used in Titles I and II." In short, the

absence of a preserving clause cannot be seen as an indication that Congress severed the

existing connection between the two provisions.

' Contrary to the contention of counsel, there is substantial evidence that Hassan Sr,

was domiciled in New York at the apartment of his wife, although working in the District

of Columbia at the time the divorce was obtained. However, The domicile is unimportant,

and the divorce would gain no stature even if Hassan had been residing in the District of

Columbia at the time.

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Interim Decision #2531

original Hassan decision (Matter of H—, 6 I. & N. Dec. 470) that the

consular decree might well be recognized as valid in Egypt. Petitioner

has submitted two widely divergent translations of an Egyptian docu-

ment. The net effect of a reading of the translations is that the Egyptian

authorities did indeed recognize as valid the divorce obtained in the

New York consulate. There is a dirth of any evidence that the parties to

the divorce, or their representatives, secured a foreign divorce in a

manner which can be recognized here under principles of comity.

That should end the inquiry so far as this Board is concerned. The

further majority discussion of E gyptian divorce law, is both confusing,

and unnecessary, in my opinion- Foreign law is a matter of fact, to be

proved as evidence. Here the Board has, on its own, obtained a

memorandum of law from the Library of Congress, which it has then

proceeded to rely on heavily, adversely to the petitioner—and without

showing it to the parties prior to decision. One can recognize the neces-

sity for the Board requesting such a memorandum in some cir-

cumstances not present here 2 but the practice of rendering an opinion

based on the memorandum, without the parties seeing it and having a

chance to comment, is most questionable.

In addition, it will be noted that the present claim is based on an

alleged common-law marriage between Hassan Sr. (the beneficiary) and

one Frances Mae, beginning sometime prior to the birth of the peti-

tioner in 1953 and allegedly continuing until 1959. Frances Mae Hen-

dricks (the petitioner's mother according to his birth certificate) and

Frances Robinson (referred to as the petitioner's mother by Hassan Sr.)

presumably are one and the same person. However, the record indicates

that Frances also had .a prior existing marriage and there is no proof

whatsoever of the termination of that marriage. Thus, even assuming

the impediment to a common-law marriage ceased as to Hassan Sr., it

has not been shown to have ceased as to his claimed, common-law,

"wife." Nor has any evidence been submitted to prove a true common-

law marriage even assuming no impediment as to either party.

With the record in this state, the majority discussion of esoteric

Egyptian and Islamic divorce law is a needless exercise, and, since it is

based on a Library of Congress memorandum received into evidence at

the Board level, without briefing or scrutiny by the parties, it may quite

possibly be an erroneous one as well.

The case has appealing aspects. The petitioner is a United States

Marine Corps veteran who enlisted at the age of 18. It is alleged that the

beneficiary supported and raised the petitioner from infancy, and that

Hassan, Sr. has been in the United States since 1948. The visa petition

was filed as a preliminary to an application for adjustment of status.

2 An obvious example is for an indigent alien.

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Interim Decision #2531

While the file before us does not purport to examine the good moral

character of the beneficiary, so far as known he may be able to qualify

for suspension of deportation, and that avenue of relief may be open to

him. For the reasons stated, I agree with the majority, that the present

petition cannot be approved, but would deny solely because petitioner

has failed to sustain his burden under Matter of Brantigan, 11 I. & N.

Dec. 493 (BIA 1966).

25