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Interim Decision #3606

Matter of Francis KODWO, Beneficiary of a visa petition

filed by Idelle Monique Hamilton, Petitioner

File A99 245 589 - Fairfax, Virginia

Decided March 26, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

While a court order remains the preferred method of establishing the dissolution of a

customary tribal marriage under Ghanaian law, affidavits executed by the heads of

household, i.e., the fathers of the couple, that meet specified evidentiary requirements may

be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec.

290 (BIA 1985), modified.

FOR PETITIONER: Charles Okyere, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason Raphael, Associate

Regional Counsel

BEFORE: Board Panel: PAULEY, Board Member; MANN and GUENDELSBERGER,

Temporary Board Members.

MANN, Temporary Board Member:

In a decision dated May 15, 2007, the Acting District Director (“Director”)

of the U.S. Citizenship and Immigration Services (“USCIS”) denied the visa

petition filed by the petitioner on behalf of the beneficiary to accord him

immediate relative status as the spouse of a United States citizen under section

201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (2000).

The Director found that the petitioner failed to demonstrate that her marriage

to the beneficiary was valid, concluding that the beneficiary was not eligible

to legally marry at the time of their marriage. The petitioner has appealed

from that decision. The appeal will be sustained and the record will be

remanded for further proceedings.

The record reflects that the petitioner and the beneficiary were married on

November 22, 2004, in the State of Virginia. On January 21, 2005, the

petitioner filed a Petition for Alien Relative (Form I-130) on the beneficiary’s

behalf. In order to establish eligibility for a spousal visa petition, the petitioner

must prove, by a preponderance of the evidence, that any previous marriages

of both the petitioner and the beneficiary have been legally terminated.

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Interim Decision #3606

8 C.F.R. § 204.2(a)(2) (2007). The beneficiary, a Ghanaian citizen, was

previously married in Ghana according to local tribal custom. As evidence of

the termination of the beneficiary’s prior marriage, the petitioner submitted a

statutory declaration before the Superior Court of Judicature, of the High Court

of Justice in Accra, executed on October 29, 2004, by the fathers of both the

bride and the groom. The fathers declared that the customary marriage

contracted between the couple on June 20, 1998, was dissolved on January 23,

2004, in the presence of elders of both parties.

On May 16, 2006, the USCIS issued a Notice of Intent to Deny the visa

petition based on the petitioner’s failure to provide acceptable evidence of the

dissolution of the beneficiary’s prior customary marriage. The notice stated

the following:

Proper documentation of the dissolution of a customary marriage is a decree, issued

by a high court, circuit court or district court under the Matrimonial Causes Act of

1971 (Act 367), Section 41(2), stating that the marriage in question was dissolved in

accordance with customary law. Affidavits or “statutory declarations” attesting to a

divorce under customary law, even when duly sworn, do not constitute proper

documentation of the dissolution of a Ghanaian customary marriage. See Matter of

Kumah, 19 I&N Dec. 290 (BIA 1985).

It further noted that the divorce decree submitted by the petitioner from the

High Court of Justice in Accra, Ghana, was “under the Statutory Declaration

Act [No. 389 of 1971] and is therefore not acceptable as evidence that [the

beneficiary’s] former marriage had been terminated when [the marriage of the

petitioner and the beneficiary] was contracted.”

In response to the notice, the petitioner submitted a new divorce decree

issued by the District Magistrate Court in Koforidua, Ghana, under section

41(2) of the Matrimonial Causes Act of 1971 (Acts 367), indicating that the

marriage was dissolved based on the joint affidavit submitted by the fathers of

the beneficiary and his former spouse. The decree, which was executed on

June 26, 2006, confirmed that the marriage had been dissolved on January 23,

2004, at Kumasi “and since that time any of the parties had the liberty to

re-marry anybody anywhere and at anytime in the world and that such

customary marriage and divorce are recognized under the laws of Ghana.”

In her decision, the Director considered the new divorce decree but

concluded that the attempt in the new decree to backdate the divorce to

January 23, 2004, would not be recognized. Therefore, the Director

determined that since the valid date of the divorce was June 26, 2006, the

beneficiary was not legally free to marry the petitioner on November 22, 2004.

On appeal, the petitioner contends that the Board recognizes customary

Ghanaian divorces, even when a court decree is unavailable, and that statutory

declarations of the dissolution of a customary marriage, and a decree from the

district magistrate court confirming that dissolution, should be sufficient proof

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Interim Decision #3606

of the termination of the beneficiary’s prior marriage. In addition, the

petitioner states that the decree she submitted does not attempt to backdate the

divorce but rather confirms the nonjudicial divorce of January 23, 2004, in

conformity with the rulings in Matter of Akinola, 15 I&N Dec. 359 (BIA

1975), and Matter of DaBaase, 16 I&N Dec. 39 (BIA 1976).

In Matter of Kumah, supra, we modified our previous holdings in Matter of

Akinola and Matter of DaBaase and concluded that a Ghanaian court decree

that either grants or confirms a Ghanaian customary divorce is an essential

element of proof in substantiating a claimed customary divorce under the

immigration laws of the United States. We relied on changes in the Foreign

Affairs Manual, which instructed that

the preferred documentation for the dissolution of a customary marriage is an

application by the parties concerned to the appropriate Ghanaian court under the

Matrimonial Causes Act of 1971(Act 367), section 41(2), for a decree of divorce, and

that the affidavits attesting to a divorce under customary law provided by the heads

of the respective families are of minimal reliability.

Matter of Kumah, supra, at 294.

In this case, counsel for the USCIS takes the position on appeal that Matter

of Kumah, supra, was superseded by amendments to statutory Ghanaian

divorce law and that the law no longer requires Ghanaians to register divorce

affidavits with a court. As evidence of the new Ghanaian law, USCIS counsel

submitted a letter from a Foreign Law Specialist of the Library of Congress.1

The letter explains the following in regard to Ghanaian law:

The Ghanaian customary marriage and divorce registration law consists of the

Customary Marriage and Divorce (Registration) Law of 1985 (P.N.D.C.L.112) and

the Customary Marriage and Divorce (Registration) (Amendment) Law of 1991

(P.N.D.C.L. 263).

One important change that the 1991 amendment introduced was making

registration of customary marriage and divorce, which was mandatory under the 1985

law, optional.

The Customary Marriage and Divorce Law of 1985 required Ghanaians to

register customary marriages. The 1991 amendment, however, made it no

1

The letter from the Library of Congress included copies of several pages from a book

entitled Family Law in Ghana, which included an analysis highlighting the changes

effectuated by the 1991 amendments. William E. Offei, Family Law in Ghana 35-42 (1998).

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Interim Decision #3606

longer compulsory to register a marriage contracted under customary law.

Counsel for the USCIS therefore asserts as follows:

The 1991 amendment . . . does not require Ghanaians to register the divorce affidavits

with the court in order for the divorce to be valid. The amendment allows for the

heads of the families (fathers of the husband and wife) to declare the divorce final

following the customary tribal divorce proceeding. The declaration must confirm the

date, place, and time of the divorce, such as customary tribal. See UK Border &

Immigration Agency § 2: General Information Section, Section 30.42 on Divorce,

subsection on Ghanaian divorce (3.3.2).

In visa petition proceedings, the petitioner bears the burden of establishing

eligibility for the immigration benefit sought. Matter of Brantigan, 11 I&N

Dec. 493 (BIA 1966). When the petitioner relies on a foreign law to establish

eligibility for the beneficiary, the application of the foreign law is a question

of fact, which must be proved by the petitioner. Matter of Fakalata, 18 I&N

Dec. 213 (BIA 1982); Matter of Annang, 14 I&N Dec. 502 (BIA 1973). We

note that we have relied on expert opinions by foreign law specialists from the

Library of Congress to establish foreign law when appropriate. Matter of

Rowe, 23 I&N Dec. 962 (BIA 2006); Matter of Khatoon, 19 I&N Dec. 153

(BIA 1984); Matter of Dhillon, 16 I&N Dec. 373 (BIA 1977).

In this case, it is the USCIS that presents evidence of Ghanaian divorce law,

which was provided by the Library of Congress. The petitioner does not

dispute this evidence on appeal. To the contrary, the petitioner’s arguments

in the Notice of Appeal accord with the position taken by the USCIS.

Based on the arguments of the parties and the evidence presented by the

USCIS, we agree that the holding in Matter of Kumah, supra, has been

superseded by amendments to Ghanaian law. Matter of Kumah is accordingly

modified to hold that affidavits executed by the heads of household, i.e., the

fathers of the husband and wife, may be sufficient under Ghanaian law to

establish the dissolution of a customary tribal marriage. We note, however,

that in accordance with the Foreign Affairs Manual, the desirable proper

documentation continues to be a court decree, both because customary divorce

is more difficult to prove and because polygamous marriage is permissible

under the customary law of some groups, but not under civil law.

In Matter of DaBaase, supra, we held that where a party seeks to prove the

validity of a customary divorce, he or she must present evidence that

establishes (1) the tribe to which he belongs, (2) the current customary divorce

law of that tribe, and (3) the fact that the pertinent ceremonial procedures were

followed. We also stated the following:

To establish the current customary law of his tribe, the party may present evidence

derived from reported cases, legal treaties and commentaries, and depositions of legal

scholars. The evidence could also consist of advisory opinions from those

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organizations traditionally recognized by the Ghanaian Government as possessing

knowledge of customary law.

Id. at 40-41. Moreover, the parties must prove that the divorce was properly

perfected. Affidavits should be specific and include the full names and birth

dates of the parties; the date of the customary marriage; the date of, and

grounds for, the dissolution of the marriage; the names, birth dates of, and

custody agreement for any children born of the marriage; and a description of

the tribal formalities that were observed, including the names of the tribal

leaders, the name of the tribe, the place, the type of divorce, and any other

relevant information.

The parties submitted a statutory declaration dated October 29, 2004, from

the fathers of both the beneficiary and his first wife confirming the dissolution

of the marriage on January 23, 2004. USCIS counsel asks us to consider the

effective date of the divorce to be the date confirmed by the fathers in their

affidavit, rather than the later date of the execution of the affidavit. We agree

that January 23, 2004, is the proper date of the divorce and will therefore

sustain the petitioner’s appeal.

Finally, the USCIS requests a remand in order to determine the validity of

the fathers’ affidavit and to check its authenticity. We find that a remand is

appropriate and will grant the request.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings

consistent with the foregoing opinion and for the entry of a new decision.

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