Interim Decision #2306 

MATTER OF HOEFFLJN 

In Visa Petition Proceedings 

A-19762445 

Decided by Board July 24, 1974 

Where petitioner, in an uncontested hearing in a Michigan circuit court, obtained a decree 

of validity of his marriage to beneficiary in Michigan in 1971 following a Mexican "mai: 

order" divorce dissolving his prior marriage, and the Attorney General of the State of 

Michigan advised that the marriage should not be recognized as valid in the absence of 

further proof of the jurisdiction of the court to enter the decree in question, petitioner's 

marriage to beneficiary is not recognized as valid for the purpose of conferring second 

preference classification on her as his spouse. (Matter of Kwan, 11 I. & N. Dec. 205, and 

Matter of Allison, 12 I. & N. Dec. 835, distinguished.] 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: 

J. C. Bruno, Esquire David L. Milhollan 

2050 Guardian Building Appellate Trial Attorney 

. Detroit, Michigan 48226 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his spouse under section 203(a)(2) of the 

Immigration and Nationality Act. In a decision dated June 25, 1971, the 

district director denied the petition on the ground that a prior marriage 

of the petitioner had never been legally terminated. The petitioner has 

appealed from that decision. The appeal will be dismissed. 

The petitioner and the beneficiary were married in Detroit, Michigan 

on January 2, 1971. The petitioner has admitted that he was married 

previously and that the divorce allegedly dissolving that prior marriage 

was of the "Mexican mail order" variety, with neither party being 

present or domiciled in Mexico. 

Generally, the validity of a marriage is governed by the law of the 

place where the marriage was celebrated. Matter of P—, 4 I. & N. Dec. 

610 (BIA 1952; Atty. Gen. 1952); Matter of Levine, 13 I. & N. Dec. 244 

(BIA 1969). Therefore, the petitioner's present marriage is valid only if 

he was free to marry under Michigan law. 

We have previously held that Mexican mail order divorces are not 

recognized in Michigan. Matter of Norton, 12 I. & N. Dec. 490 (BIA 

1967). A letter in the record from the Attorney General of Michigan, 

dated October 15, 1971, indicates that there has been no change in the 

Michigan law. Consequently, the petitioner's marriage to the ben31 
Interim Decision #2306 

eficiary is not valid under Michigan law. We conclude that the district 

director's denial of the petition was correct. 

While this appeal was pending, the petitioner instituted an action in a 

Michigan circuit court for the affirmance of his present marriage, naming the beneficiary as the defendant. The action was brought under 

Section 25.84 of the Michigan Statutes Annotated, which states: 

When the validity of any marriage shall be denied or doubted by either of the parties, 

the other party may file a bill or petition in the manner aforesaid, for affirming the 

marriage; and upon due proof of the validity thereof, it shall be declared by a decree or 

sentence of tt.e court; and such decree, unless reversed on appeal, shall be conclusive 

upon all persons concerned. 

A hearing was held before the court pursuant to the petitioner's 

motion for summary judgment. This proceeding was not adversary in 

nature. The petitioner's first wife was not made a party to or given 

notice of the action. Counsel appeared on behalf of the petitioner and 

asked him a few questions concerning his present marriage. The gist of 

the petitioner's testimony was that he had presented his Mexican divorce decree to the clerk of the court at the time he applied for a 

marriage license and that the clerk of the court had accepted it. No 

questions were asked regarding the jurisdiction of the Mexican court to 

render the divorce decree, and no specific mention was made of its mail 

order nature. The beneficiary's only statement on the record, in response to an inquiry by the judge, was that she wished to remain 

married to the petitioner. 

The court rendered an order dated July 12, 4971, decreeing that the 

petitioner and the beneficiary were legally married on January 2, 1971, 

and that their marriage was valid. 

That judgment was submitted to the district director, who in turn 

submitted it to the Attorney General of Michigan. In a letter dated 

October 15, 1971, the Attorney General advised the district director not 

to recognize the petitioner's present marriage as valid "unless and until 

you are presented with further documentation concerning the jurisdiction of the Circuit Court for the County of Bay to entertain whatever 

petition was made to that court." 

The judgment, the Attorney General's letter, and a transcript of the 

proceedings in the circuit court have been made a part of this record. In 

addition, counsel has submitted a copy of the pleadings in the circuit 

court action. 

Normally, we would remand the record to the district director for him 

to enter a decision based on the new evidence. However, the question 

presented is ;purely a legal one; all of the pertinent evidence is before us, 

and we have heard extensive oral argument on the issue of what effect 

should be given to the Michigan court decree. Consequently, there is no 

need to remand the case to the district director. 

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Interim Decision #2306 

The petitioner could have obtained a valid Michigan divorce and 

remarried the beneficiary. He instead attempted to achieve the same 

result by a different procedure. It appears that the State of Michigan 

does not give recognition to such an attempt to circumvent her own 

laws. 

The Michigan trial court decree is certainly entitled to no more effect 

in the present proceedings than it would be given in the State of 

Michigan. In his letter advising the district director not to recognize the 

decree, dated October 15, 1971, the Attorney General of Michigan 

stated that "it is the view of this office that no finding of validity for the 

previous divorce can be considered legally effective unless the court was 

fully advised with respect to the circumstances and took cognizance of 

the fact that it was a mail order decree with neither party present." 

It appears that the State of Michigan does not consider the trial court 

decree to be determinative of the validity of the petitioner's prior 

divorce. There is no legal theory which compels us to give a state court 

decree more effect than it would have in the rendering state. 

Matter of Kwan., 11 I. & N. Dec. 205 (BIA 1965), and Matter of 

Allison, 12 I. & N. Dec. 835 (BIA 1968), are distinguishable from the 

present situation. in neither of those cases was it evident that the 

decree would not be recognized in the rendering state. 

We conclude that the petitioner has not terminated his prior marriage 

in accordance with the law of Michigan Consequently, his present 

marriage to the beneficiary is not valid under the law of Michigan. The 

appeal will be dismissed. If the petitioner secures a valid Michigan 

divorce from his first wife and remarries the beneficiary, he may submit 

a new petition in her behalf. 

ORDER: The appeal wfil be dismissed. 

Warren R. Torrington, Member, Concurring: 

Among the federal court cases cited in the dissenting opinion are 

Zeldman v. Celebrezze, 252 F. Supp. 167 (E.D. N.Y. 1965); Collins v. 

Celebrezze, 250 F. Supp. 37 (S.D. N.Y., 1966), and -Gr:zy v. Richardson, 

474 F.2d 1370, 1373 (C.A. 6, 1973). In those cases, the courts interpreted the effect of state court decrees entered in contested domestic 

relations cases. Thus, those decisions do not govern the present entirely 

different factual situation, namely, the absence of any true contest, with 

which we are concerned. 

The state court cases cited in the dissenting opinion (Bair v. Bair, 91 

Idaho 30, 415 P.2d 673 (1966); Presbrey v. Presbrey, 6 App. Div. 2d 477, 

480, 179 N.Y.S. 2d 788, 792 (1958), aff'd 8 N.Y.2d 797, 168 N.E.2d 135 

(1960) and Jackson City Bank & Truet Co. v. Fredrick, 271 Mich. 52R, 

260 N.W. 908, 909 (1935)), do not appear to be relevant either. The 

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Interim Decision #2306 

Idaho case held that a decedent's brothers and sisters who sought a 

declaration • that they were his heirs at law had no standing to attack the 

validity of a divorce decree which the widow had secured prior to her 

marriage to the decedent. The New York case dealt with the res 

judicata erect of a judgment of separation which incorporated the 

terms of the separation agreement_ The Michigan case dealt with an 

action brought by an administrator of an estate to set aside conveyances, and discussed the possibility of an error that a divorce court 

might previously have made in the exercise of its undoubted jurisdiction. 

I concur in the decision of the majority. 

Maurice A. RTherts, Chairman, Dissenting: 

I respectfully dissent. I agree with the majority insofar as they have 

concluded that the presentation by the petitioner of an in absentia 

Mexican divorce decree is insufficient to establish the termination of his 

prior marriage under the law of Michigan. Matter of Norton, 12 I. & N. 

Dee. 490 (BIA 1967). However, I do not agree with the majority's 

conclusion that a Michigan state court decree affirming the petitioner's 

present marriage to the beneficiary has no effect in these proceedings. 

Section 25.84 of the Michigan Statutes Annotated has been set forth 

in the majority opinion. It states that when the validity of a marriage is 

in doubt a party may "file a bill or petition in the manner aforesaid, for 

affirming the marriage. . . ." "In the manner aforesaid," must refer to 

the previous section, Michigan Statutes Annotated section 25.83, which 

states that a bill or petition may be filed "in the circuit court of the 

county where the parties, or one of them, reside. . . ." 

There is no question but that the parties were domiciled in Michigan 

and resided in Bay County, and they also appeared in person before the 

court. The Bay County Circuit Court had jurisdiction both over the 

parties and over their marital status. 

Section 25.84 states that the decree of the court, unless reversed on 

appeal, "shall be conclusive upon all persons concerned." 1It is a general principle of law that an adjudication of marital status rendered by a 

' "When there is a want of jurisdiction over the parties, or the subject-matter, no 

matter what formalities may have been taken by the trial court, the action thereof is void 

because of its want of jurisdiction, and consequently its proceedings may be questioned 

collaterally as well as directly. . . . But in cases where the court has undoubted jurisdiction of the subject-matter, and of the parties, the action of the trial court, though 

involving an erroneous exercise of jurisdiction, which might be taken advantage of by 

direct appeal, or by direct attack, yet the judgment or decree is not void though it might 

be set aside for the irregular or erroneous exercise of jurisdiction if appealed from. It may 

not be called in (peal= collaterally." Juukbon. City Bunk & Truat Co. v. F, atria, 271 

Mich. 538, 260 N.W. 908, 909 (1935). 

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Interim Decision #2306 

court which has actual jurisdiction is conclusive on all persons with 

respect to the existence of that status, unless that adjudication is subsequently reversed on appeal or otherwise set aside pursuant to law. 

Restatement of Judgments, section 74 and comments (1942); Restatement (Second) of Judgments, section 74 and comments (Tent. Draft No. 

1, 1072); see e.g., Bair v. Bair, 91 Idaho 20, 415 P.2d 673 (1966); 

Presbrey v. Presbrey, 6 App. Div. 2d 477, 480, 179 N.Y.S.2d 788, 792 

(1958), aff'd 8 N.Y.2d 797, 168 N.E.2d 135 (1960); cf. Williams v. North, 

Card-btu., 325 U.S. 287 (1942); 'Williams v. North Carolina, 325 U.S. 

226, 232 (1945). See also Headen v. Pope and Talbot, Inc., 252 F.2d 739, 

744 (C. A. 3, 1958), in which it was held that an adjudication under a 

South Carolina statute nearly identical to Michigan Statutes Annotated 

section 25.84 was conclusive upon the world, 'even in a subsequent action 

on a different subject matter. 

Several federal courts have recognized a state court decree declaring 

marital status as determinative when that status was brought into 

question in the course of a federal administrative proceeding under the 

Social Security Act. Zeldman v. Celebrezze, 252 F.Supp. 167 (E.D. 

N.Y., 1965); Collins v. Celebrezze, 250 F.Supp. 37 (S.D. N.Y., 1966). 

Even federal courts which have held that the Government cannot be 

absolutely bound by a state trial court decree rendered in an action to 

which the Government was not a party have noted that special deference should be given to state court decrees in the area of domestic 

relations, since the states have traditionally been the sole arbiters of 

rights in that area. Gray v. Richardson, 474 F.2d 1370, 1373 (CA. 6, 

1973); Collins v. Celebrezze, supra. 2 

This is not the first time that the issue of the effect of a state court 

decree affirming a marriage has been before the Board. In Matter of 

Ktvan, 11 I. & N. Dec. 205 (BIA 1965), the Board was faced with a 

decree under the very same Michigan statute. In that case we noted our 

concern both with. the propriety of the procedure sanctioned by the 

Michigan statute and with the problem posed by the in rem effect of an 

adjudication of status. We concluded that the wisest administrative 

policy would be to accept the decree of the Michigan court as proof of a 

valid marriage under Michigan law. We applied a similar policy in 

Matter of Allison, 12 I. & N. Dec. 835 (BIA 1968), in which we accepted 

an adjudication from a court of the state of the petitioner's domicile 

2Collins v. Celebrezze, supra, dealt with a Social Security claim based on a state court 

decree that the parties had entered into a common law marriage. The court stated: "If, as 

here, the state courts have decided the issue the Secretary [of H.E.W.] cannot summarily 

disregard that adjudication and proceed to re-decide de novo the issue of status. He cannot 

ignore what the state courts already determined on the spurious ground that he was not a 

party to the proceeding." 250 F. Supp. 37, at 41. 

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Interim Decision #2306 

declaring that it recognized and considered valid the petitioner's Mexican divorce decree. 

I wish to make it clear that nothing I have said is intended in any way 

to diminish the Service's unquestionable authority to attack a marriage 

which is entered into for the purpose of evading the immigration laws. It 

is well established that a sham marriage is entitled to no effect under 

the immigration laws, regardless of its validity under the applicable 

domestic law. Matter of Garnero,.14 I. & N. Dec. 674 (BIA 1974); Matter 

of Kitsalis, 11 I. & N. Dec. 613 (BIA 1966); Matter of M—, 8 I. & N. 

Dec. 217 (BIA 1958). However, in the present case there is no suggestion whatsoever that the marriage in question was entered into to evade 

the immigration laws. 

The petitioner has presented the judgment of a Michigan state court 

of competent jurisdiction affirming his present marriage to the beneficiary. I k elieve that the matter should end there. In the absence of 

evidence that this judgment has been reversed on appeal or otherwise 

set aside according to the law, I would accept it as determinative of the 

petitioner's marital status under Michigan law. Consequently, I would 

grant the petition. 

Louisa Wilson, Member, Dissenting: 

I concur in the dissent of the Chairman. I believe the judgment of the 

Michigan court is determinative of the petitioner's marital status, and 

should be accepted in the present case. I would approve the petition. 

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