Interim Decision #1684 

MATTER OF Worm 

In Visa Petition Proceedings 

A-13862538-9-40-41 

Decided by Board January 3, 1957 

Since a Chinese mutual consent cuvorce is not vaiia to terminate a marriage 

celebrated in accordance with the Hong Kong Marriage Ordinance (which 

marriage is terminable only in accordance with the Hong Kong Divorce 

Ordinance), the 1958 agreement of divorce written by petitioner's second 

wife is ineffective to terminate their 1955 registry marriage in Kong Kong 

in accordance with the Hong Kong Marriage Ordinance; therefore, petitioner's subsequent registry marriage to the principal beneficiary at Hong 

Kong in 1964 in accordance with the Ming Kong Marriage Ordinance is not 

valid for immigration purposes, and revocation of the petition . according 

beneficiaries immediate•relative status on the basis thereof is approved. Matter 

of Chang, Int. Dec. No. 1665, reaffirmed.] 

Os Emu= OF PETITIONER: ON BEHALF OF Simms: 

Jackson Cook, Esquire Irving A. Appleman 

4 East 41st Street Appellate Trial Attorney 

New York, New York 10017 

(Brief Sled) 

The eases come forward pursuant to certification of the order of the 

District Director, New York District, dated September 1, 1966 ordering that his original decision dated September 9, 1965 revoking the 

approval of the visa petitions be reaffirmed for the reasons set forth 

in an attached order. 

The .petitioner, a native of Kwangtung, China, a citizen of the 

United States by naturalization on July 2, 1951, 63 years old, filed a 

visa petition on May 22, 1964 seeking nonquote. status on behalf of 

the beneficiaries as his wife and children. The petitioner married the 

wife by Chinese custom on September 15, 1958 and again on February 29, 1964 at Hong Kong, B.C.C., by a registry marriage. The minor 

beneficiaries are a son, born September 4, 1959, and two daughters, 

born May 5, 1961 and December 2, 1962, respectively. 

According to the testimony of the petitioner, he first entered the 

'United States in IsTovember 1942 as a seaman and was naturalized 

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Interim Decision 44684 

July 2, 1951. He was first married to Au Shee about 32 years ago in 

China and that marriage was terminated by her death sometime during the last World War. He next married ICwok Tung Ngor on September 19, 1955 at the Registrar's Office in Victoria, Hong Kong in 

accordance with the Hong Kong Marriage Ordinance. This registry 

marriage was allegedly terminated in 1958 by an agreement of divorce 

-written by 'the wife on the back of the marriage certificate. The parties 

were married by a registry marriage pursuant to the Hong Kong Marriage Ordinance, section 22, on February 29, 1964 and this marriage 

certificate bears a notation that the same parties previously were married to each other according to Chinese customary rights and ceremonies on September 15, 1958 in Hong Kong. Counsel argued that it 

NM immaterial how persons were married, whether by a civil ceremony or by a Chinese custom marriage, inasmuch as it has already 

been established that in Hong Kong custom divorces by written agreement between the, parties were recognized as valid. The Service assumed that when the Registrar at Hong Kong issued the marriage 

certificate, he recognized the validity of the divorce, and on May 29, 

1964 the visa petition was approved for nonquota status. 

The American Consul at Hong Kong referred the matter of the dissolution of the second marriage of the petitioner to the Registrar of 

Marriages at Hong Kong who on May 12, 1965 stated that any marriage contracted between persons of any nationality under the Hong 

Kong Marriage Ordinance could only be dissolved by a decree of a 

competent court and that no divorce agreement made between the 

parties concerned could be accepted as a legal divorce document for 

such a marriage and therefore the beneficiary was not the legal wife 

of the petitioner. The matter was referred back to the Service which on 

December 9, 1965 revoked the prior approval of the visa petition. 

On appeal, this Board by order dater October 27, 1965, after reciting the above facts, adverted to a brief submitted by counsel challenging the authority of the Registrar of Marriages at Hong Kong to 

render an opinion as to the validity of the written divorce agreement. 

Counsel also claimed that the Hong Kong Marriage Ordinance does 

not specify how a marriage under that ordinance may be dissolved 

and contended that the divorce agreement effectively terminated the 

Hong Kong civil marriage. We remanded the case for consideration 

of the brief filed by counsel and for the purpose of ascertaining the 

authority of the Registrar of Marriages in Hong Kong to pass upon 

the validity of the Chinese custom divorce, with directions to transmit 

the brief of counsel to the American Consul in Hong Kong for forwarding to the Registrar of Marriages in order to resolve the questions raised therein. 

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Interim Decision #1684 

The order of the District Director dated September 1, 1956 sets forth 

summary of the above matters and of the information developed 

upon the remand. Under date of December 8, 1965 the British Attorney 

General at Hong Kong advised the Service that it is not within the 

powers nor part of the duty of the Registrar of Marriages to make a 

judicial finding on the validity of a divorce; that the Registrar of 

Marriages was replying to a request for information and his response 

should be regarded merely as an attempt to assist rather than as an 

authoritative pronouncement; that he is not authorized, nor is he competent from the British Government's point of view, to deliver an 

opinion on the facts outlined. 

The District Director then goes on to summarize the matters bearing 

on the case : (1) Regarding the purported customary dissolution agreement written by the wife "in her own handwriting in Chinese characters on the reverse side of the original Marriage Certificate," and accepting counsel's argument that the Chinese law applicable in Hong 

Kong is the Tsing Code of China as it existed in 1843 when Hong 

Kong was ceded to England, although the Tsing Law does not require 

the signature of two witnesses, yet the divorce document (called Hsiushu) or letter of divorce must bs written in the handwriting of the 

husband, signed by film alone and then delivered to the wife; divorce 

under Tsing Law is a unilateral right belonging exclusively to the husband and must be exercised by him alone and not in conjunction with 

the wife who has no say in the matter; under the laws of the Tsing 

Dynasty, divorce is a unilateral right belonging exclusively to the husband. Authority for this statement is an opinion dated November 9, 

1958• by Dr. Vernier Y. Chia, Barrister at Law, Hong Kong, former 

Chief Justice of the High and District Courts of China and eight years 

Professor of Chinese Law at National Kwangsi University; also "Chinese Law and Custom in Hong Kong", the report of the Governor's 

Committee printed and published by the Government Printer, Hong 

Kong, Appendix 9, Page 203. 

(2) The second marriage of the petitioner occurred on September 19, 1955 and was celebrated at the Marriage Registry in accordance 

with the "Marriage Ordinance (Chapter 181) Ordinances of Hong 

Kong." A marriage celebrated before the Hong Kong Registrar of 

Marriages in accordance with the Marriage Ordinance is a "Christian" 

marriage or the civil equivalent of a "Christian" marriage (section 41, 

Marriage Ordinance) . A declaration required of all persons celebrating 

marriages before the Registrar of Marriages sets forth the understanding that the marriage cannot be dissolved except by a valid judgment 

of divorce. 

(3) Chapter 25 of the Strickland-Ridehaigh-McDouall Report 

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Interim Decision #1684 

states in part that parties married under the Marriage Ordinance• 

could not be divorced except in accordance with the Divorce Ordinance. 

(4) An examination of the Divorce Ordinance, Chapter 119, indicates that a registry marriage may only be terminated by a formal 

divorce under the Divorce Ordinance. The Divorce Ordinance provides for the dissolution of marriage where that marriage was either 

a Christian marriage or the civil equivalent (section 4(1) (a)), and 

where the domicile of the parties to the marriage was in the Colony 

(section 4(1) (b)). 

(5) This paragraph quotes Page 118 of the Strickland Report to 

the effect that while prima facie Chinese customary divorce applies. 

to Chinese customary marriage, clearly English law would not permit 

Chinese customs to apply to Christian marriages or the civil equivalent of Christian marriage even where the parties are Chinese domiciled in Hong Kong; that the Hammersmith Registry case is authority 

for the proposition that a monogamous form of marriage cannot be 

dissolved in a method appropriate only to a polygamous form. The 

points and authorities referred to in the District Director's order are 

contained in a latter of transmittal from the Officer in Charge at. 

Hong Kong dated May 2, 1966 which contains much additional material which is not repeated in the interest of brevity. 

Counsel for the petitioner has submitted a brief in which he replies 

ad seriatim to the points raised in the order of the District Director.. 

As to point (1), counsel cites the penal provisions of the Tsing Law 

concluding with the statement that a man or wife who can no longer 

live together in harmony and who are willing to divorce may, however, do so without receiving punishment. This is part of the penal 

provision and does not constitute a refutation of Dr. Chiu's opinion 

that the divorce document (Hsiu-Shu) must be in the handwriting 

of the husband, signed by him alone and then delivered to the wife. 

It is noted that the alleged divorce which was written on the back 

of the registry's marriage certificate is stated to be in the first wife's 

handwriting. Counsel refers to an article entitled "The Divorce Law 

of China" by Robert T. Bryan, Jr. printed in the American Bar 

Association Journal of 1920 (Ex. II) which refers to the provisions 

of the Chinese Provisional Civil Code enacted in 1913. The article 

does not set forth the provisions for the interpretation of the Tsing 

Law which is urged to be applicable in Hong Kong. The case of Lee v.. 

Lou, 2 All England Reports 248, involves a ceremonial Chinese custom marriage in Hong Kong and not a registry marriage and the 

holding in that case does not appear to be applicable. 

As to point (2), counsel contends that the declaration required of all 

persons celebrating marriage before the Registrar of Marriages de32 
Interim Decision #1684 

dare that it is their understanding that the marriage cannot be dissolved except by a valid judgment of divorce. Counsel contends that 

this provision is merely a warning or admonition and that the marriage here was dissolved by a valid divorce. He cites the case of TheAttorney General v. Reid, Privy Council Appeal No. 18 of 1964, which 

involved a prosecution for bigamy arising subsequent to a marriage in 

1936 under the Marriage Registration Ordinance of Ceylon, subsequently the husband and a divorced woman being converted to the 

Muslim faith who were later married under the provisions of the Muslim Marriage and Divorce Act notwithstanding the earlier marriage 

was subsisting and had not been dissolved. The burden of proof in a 

criminal proceeding and in a civil proceeding such as a visa petition 

are so disparate as to make this case a doubtful precedent when applied to the facts of the instant case. 

As to point (3), counsel attacks the Strickland-Ridehaigh-McDouall 

Report as merely a report of what the committee found to exist in 

Hong Kong with respect to marriage, divorce, adoption and concubinage and contains certain recommendations as to what the Government should do. He asserts that none of the recommendations contained in the report were adopted by the legislature or government of 

Hong Kong and that the report has no legal binding effect. Nevertheless, it is an official government report and recommendation. as to matters found to exist in Hong Kong, and is entitled to consideration. 

Counsel disputes the accuracy of point (4) which cites sections 

4 (1) (a) and (b) of the Divorce Ordinance of Hong Kong. These sections provide: 

4. (1) Nothing herein shall authorize the court to make any decree of dissolution of marriage except— 

(a) where the marriage was either a Christian marriage or the civil equivalent 

Of a Christian marriage ; and 

(b) where the domicile of the parties to the marriage at the time when the 

petition Was'presented in the Colony. 

Section 4(1) (a) would appear to cover the instant case where there 

was a Christian marriage or the civil equivalent of a Christian marriage 

which must be dissolved by a decree of dissolution of marriage. It is 

recognized that the domicile of the husband-petitioner in this case 

presents a jurisdictional problem as to the Hong Kong divorce which 

is a divorce by agreement, inasmuch as the petitioner was then a citizen of the United States and a resident and domiciliary of New York. 

It may be that the petitioner could not obtain a court divorce in Hong 

Kong. It is even more difficult to perceive how this petitioner, a United 

States citizen, and a resident and domiciliary of the United States, 

could obtain a Chinese custom divorce in Hong Kong. 

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Interim Decision #1684 

Counsel finally refers to point (5) of the District Director's order 

quoting from the Strickland Report that clearly English law would 

not permit them (Chinese customary marriages and divorces) to apply 

to Christian marriages or the civil equivalent of Christian marriages 

even where the parties are Chinese domiciled in Hong Kong; that the 

Hammersmith Registry ease is authority for the proposition that a 

monogamous form of marriage cannot be dissolved in a method appropriate only to a polygamous form. Counsel's argument that no 

English law is being applied but Chinese law, begs the question, inasmuch as the marriage in this case was admittedly a Christian one or 

its equivalent, whereas the divorce was a Chinese customary divorce. 

In a visa petition proceeding the petitioner has the burden of establishing that he is entitled to immediate relative or preference status 

by virtue of any of the relationships described in paragraph (1), (4) 

or (5) of section 203(a) or section 201(b) of the Immigration and 

Nationality Act, as amended. Section 204 of the Immigration and 

Nationality Act; 8 CFR 204.2(d). The petitioner in this case, a 

naturalized citizen of the United States since 1951, and a resident 

and domiciliary of the State of New York, filed a visa petition on 

May 22, 1964 which Was approved on December 5, 1964. The visa 

petition was returned by the American Consul at Hong Kong because 

of information that the petitioner's prior marriage had not been 

validly terminated. The case was remanded for further evidence. The 

additional evidence is set forth in an order accompanying the notice 

of certification dated September 1, 1966 reaffirming the original decision dated September 9, 1965 revoking the approval of the visa petition. Admittedly, there are involved complex questions involving the 

termination of the prior marriage of the petitioner including the domi-

°lie. of the United States citizen petitioner, -which have been set forth 

at length in our decision. In a somewhat similar case, Matter of Chang, 

Int. Dec. No. 1655, based upon information from the Library of Congress, we held that a Chinese mutual consent divorce was not valid 

to terminate the Hong Kong ceremonial or registry marriage. The 

decision of the District Director Confirms the conclusion reached in 

that case. 

After due and careful consideration, bearing in mind that the burden 

.rests upon the petitioner to establish the validity of his claim to immediate relative status on behalf of the beneficiaries, we are not persuaded that the order of the District Director is incorrect. The order 

of the District Director will be approved. Approval of the order of 

revocation will be without prejudice to a motion to reopen supported 

by fl. judgment of a 'New York court as to the validity of the existing 

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Interim Decision #1684 

marital status. The legitimacy of the children of the petitioner should 

also be resolved in a motion to reopen. 

ORDER: It is ordered that the order of the District Director, New 

York, dated September 1, 1966 reaffirming the order of revocation be 

and the same is hereby approved. 

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