Interim Decision #1968

Interim Decision #1968

MATTER OF LEVINE

In Visa Petition Proceedings

A-18485936

Decided by Board April 11, 1969

Since beneficiary's divorce obtained in Mexico at a timo when both parties

thereto were permanent residents of, and domiciled in, Mexico, even

though the parties to the divorce were not actually present in court but

were represented by counsel, is recognized as valid under California law

for the purpose of her subsequent marriage to the 'U.S. eitizen petitioner

in that State, the marriage is recognized as valid for the purpose of conferring immediate relative status on beneficiary as the spouse of the U.S.

citizen petitioner.

ON BEHALF OF PETITIONER:

Donald L. Ungar, Esquire

Phelan, Simmons and Ungar

° 517 Washington Street

San Francisco, California 94111

(Brief filed)

The petitioner, a citizen of the United States, appeals from an

order entered by the District Director at San Francisco, California on September 30, 1968 denying a visa petition for immediate

relative status filed in behalf of his wife, Irene Elisabeth Levine,

whom he married in a civil ceremony in Las Vegas, Nevada on

December 28, 1965 and remarried in a religious ceremony at San

Francisco, California on February 11, 1966. Exceptions have been

taken to the District Director's finding that the petitioner's marriage to the beneficiary is not valid for immigration purposes because of the alleged invalidity of a divorce obtained by the beneficiary in Mexico from her former husband.

The issue presented on appeal concerns the validity of the

beneficiary's divorce from her prior husband which was granted

by the Juzgado De Lo Civil, Tlaxcala, Mexico, on December 18,

1965 and recorded on December 28, 1965. The applicable rule of

law concerning the validity for immigration purposes of a subsequent marriage where an earlier marriage has been terminated

by a divorce secured in Mexico has been stated by the Attorney

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Interim Decision #1968

General as follows: "The validity of a marriage is governed by

the law of the place of celebration." Matter of P—, 4 I. & N. Dec.

610 (A.G., 1952) also see Matter of Freeman, 11 I. & N. Dec.

482 (BIA, 1966). We conclude that the laws of California control

in the instant case as the beneficiary testified that she has resided

in California with her husband since February of 1966 (p. 3) •

The beneficiary is a citizen of Sweden, born of Swedish parents

in Paris, France, on December 10, 1930. Her first marriage to a

Swedish national was terminated by a divorce obtained by her

first husband in Stockholm, Sweden, on April 18, 1956. A copy of

this divorce decree is in the record.

Following her divorce in Stockholm, the beneficiary traveled to

Mexico City_ There in 1956 she met Leo Eugene Haughey, an

American citizen, who had been lawfully residing in Mexico for

some time. While in the United States on a temporary visit, the

beneficiary married Haughey at Concordia, Kansas, on October

22, 1957. They returned to Mexico City immediately following the

wedding and lived there together until their separation in February of 1965. The beneficiary became a lawful permanent resident

of Mexico soon after her marriage to Haughey.

Following her separation from Haughey, the beneficiary returned to Sweden for a visit. She left her personal belongings in

MexiCo City. During August 1965 while in Sweden, she decided to

obtain a divorce from Haughey. She notified her lawyer iii Mexico City to proceed with the filing of a divorce action, and while

visiting in California in September of 1965, she signed the required documents. The divorce decree was handed down by the

Civil Court of Tlaxcala, Mexico on December 18, 1965. She obtained a cony of the decree personally from her lawyer when she

was in Mexico City during February of 1966 (p. 3, Statement of

August 20, 1968) .

In an affidavit executed on November 9, 1968, the _beneficiary

stated:

I did not go to Mexico personally for the divorce ... I was advised by my

lawyer in Mexico City that it was perfectly legal and proper for me to secure a divorce in this manner . . . I certainly had no intention of evading

any law of the United States or of California in securing my divorce this

way. (Emphasis added.)

The beneficiary also stated in the affidavit that she retained her

lawful residence in Mexico until February of 1967, when she returned to Mexico City for her personal belongings. Her former

husband also continued to reside in Mexico until the middle of

1967. The beneficiary returned to Sweden and on November 12,

1967, she had her visitor's visa revalidated by the United States

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Interim Decision #1968

Consul (p. 3, Statement of August 20, 1968) . The beneficiary last

entered the United States with the petitioner on May 6, 1968, and

was admitted as a visitor.

The Uniform Divorce Recognition Act, 1 enacted by the California State legislature in 1949, prohibits recognition of foreign divorce decrees where both parties were California domieiliaries at

the time of the proceedings. It appears, therefore, that the Uniform Divorce Recognition Act is not controlling in this case since

there is no showing that either of the parties to the Mexican divorce proceeding was domiciled in California at the time of the

Mexican decree.

Questions concerning the recognition of foreign judgments in

California are governed by section 1915, Code of Civil Procedure,

California, which provides:

Except as provided in Chapter 2 (commencing with section 1713) of Title

II of Part 2 of this Code, a final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to

pronounce the judgment, shall have the same effect as in the country where

rendered, and also in the same effect as final judgments rendered in this

The Supreme Court of California has stated that the application of section 1915 of the California Civil Code depends upon

two conditions. The first, which is mentioned in the statute, requires a showing that the foreign court had jurisdiction under its

own laWs to pronounce the judgment. The second condition,

which is not mentioned in the statute, would preclude recognition

of the foreign judgment if the judgment is contrary to the public

policy of California or violates due process limitations, Scott v.

Scott, '51 Cal. 2d 249, 331 P. 2d 641, 645 (1958) .

The beneficiary and her former husband were lawful residents

of Mexico City at the time their divorce proceeding was commenced in Tlaxcala, Mexico. According to the record, they never

appeared personally before the Tlaxcala Court. It is stated in the

divorce decree that both the beneficiary and her former husband

decree that both the beneficiary and her former husband were

represented by counsel and that "all legal requirements had been

2 Uniform Divorce Recognition Act of 1949 (chi. 1292, p. 2275, Statutes of

1949). Sec. 150.1—"A divorce obtained in another jurisdiction shall be no

force or effect in this state, if both parties to the marriage were domiciled in

this state at the time the proceedings for the divorce were commenced." Sec.

150.2—This section provides that a presumption of domicile is raised if the

party obtaining the divorce was domiciled in California within 12 months

prior to the action and resumed residence within 18 months afterwards, or

if a residence has been maintained during the absence.

2 The exceptions referred to are not applicable here.

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Interim Decision #1968

satisfied ... and in addition [they had] complied with the requisities of statutes 139 and 140 of the Code of Civil Procedure" 9 in

that they had renounced the forum of their domicile. It is also

stated in the divorce decree that the complainant (beneficiary)

had submitted to the court Certificate No. 2153417 issued by the

Federal Government of Mexico as evidence of her legal admission

to Mexico and that under Article 1 of the Mexican Constitution

and Statute 12 of the Civil Code of the Federal District (Mexico

City), the parties are entitled to enjoy the benefits of the laws of

Mexico and the State of Tlaxcala (See translation of divorce decree found in the record). We conclude on the basis of the foregoing that the Civil Court at Tlaxcala had jurisdiction under its

own law to pronounce the judgment of divorce granted the beneficiary on December 18, 1965.

We next turn to a determination of whether the public policy

of the State of California would preclude the recognition of the

beneficiary's -Mexican divorce decree. The California Supreme

Court in the case of Rediker v. Rediker, 35 Ca1.2d 796, 221 P.2d 1

(1950) , recognized as valid a Cuban divorce decree upon a showing that the Cuban court had jurisdiction of one of the parties.

Relative to the public policy of the State of California, the court

said:

It can no longer be said that public policy requires nonrecognition of all

irregular foreign divorces . . . We conclude that the public policy of this

state requires the preservation of the second marriage and the protection of

the rights of the second spouse, rather than a dubious attempt to resurrect

the original marriage.4

The California Supreme Court in Scott v. Scott (supra at p. 645

of 331 P.2d) said that the question of public policy did not arise

in that case because the "plaintiff was a bona fide resident of

Mexico, neither party was a resident of California, and the defendant had reasonable notice." Since the record affirmatively establishes that the foreign jurisdiction (Mexico) had a legitimate

interest in the marital status of both the beneficiary and her for3 Articles 139 and 140 of the Code of Civil Procedure, State of Tlaxcala,

Mexico read as follows:

Art. 139. That judge has jurisdiction to whom the litigants have submitted themselves expressly or by implication.

Art. 140. There is express submission when the interested persons renounce clearly and in a final manner the forum which the law grants them,

and designate with all precision the Judge to whom they submit themselves.

4 To the same effect is the decision of the California Supreme Court in

Dietrich. v. Dietrich, 41 Adv. Cal. Itepte. 509, 510-571, 261 P.2d 260, 273

(1953). Also see Watson v. Watson, 39 021.2d 305, 807, 246 P.2d 19 (1952).

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Interim Decision #1968

mer husband, we conclude that the divorce decree granted the

beneficiary by the Civil Court of Tlaxcala, Mexico does not offend

the public policy of the State of California.

Concerning the validity of Mexican divorce decrees, the Supreme Court of California has stated the general rule in Scott v.

Scott (supra. at p_ 648 of 331 P.2d and cases cited) as follows:

Where a party has established a bona fide residence in Mexico and obtained a Mexican decree of divorce, such decree is entitled to full faith and

credit in California.

This Board has followed a rule similar to the California rule

based upon whether the foreign jurisdiction has a legitimate interest in the marital status of the parties concerned in determining whether a foreign divorce decree should be recognized for immigration purposes .6

We conclude that on this record, the petitioner's marriage to

the beneficiary at San Francisco, California on February 11, 1966

is valid and subsisting under the laws of the State of California.

The beneficiary is entitled to immediate relative status under the

provisions of section 201(b) of the Immigration and Nationality

Act as the spouse of a United States citizen. An appropriate

order will be entered.

ORDER: It is directed that the appeal be and the same is

hereby sustained; the visa petition filed pursuant to section

204 (a) of the Immigration and Nationality Act is hereby approved.

5 Matter of B—, 5 I. & N. Dec.

659 (BIA, 1954), Matter of Freeman. 11 I.

& N. Dec. 482 (BIA, 1966), Matter of Kurtin, 12 I. & N. Dec. 284 (BIA, 1967).

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