Interim Decision #2515 

MA.TTER OF HUSSEIN 

In Visa Petition Proceedings 

A-20167543 

Decided by Board August 12, 1976 

(1) Where petitioner, a native of Palestine and resident of New York had returned to her 

home country aid had personally appeared before a divorce court of that country where 

both she and her first husband had been born, where they had been married, and where 

both their children had been born, there were substantial contacts between the divorcing jurisdiction, the parties, and the marital res. 

(2) Service of process on petitioner's Ant husband was had by publication in accordance 

with local Islamic law because his Whereabouts were unknown. The Islamic law is 

similar to that of New York (section 216 of the Civil Practice Law and Rules of the State 

of New York), and under those circumstances the service of process herein met minimal 

due process requirements. 

(3) Under the circumstances, it is concluded that New York courts would extend recognition to the foreign divorce decree secured by petitioner as a matter of comity; the decree 

is valid for immigration purposes; and the visa petition filed to accord beneficiary 

preference classification under section 203(a)(2) of the Immigration and Nationality Act 

is approved. 

ON BEHALF OF I rrrioNaa: Omar Z. Ghobaahy, Esquire 

377 Broadway 

New York, New York 10013 

In a decision dated March 8, 1974, the officer-in-charge in Athens, 

Greece, denied the visa petition filed by the petitioner in behalf of the 

beneficiary as her spouse under section 202(a)(2) of the Immigration and 

Nationality Act. We dismissed the petitioner's appeal from that decision 

on April 10, 1975. The petitioner has moved to reopen the proceedings. 

The motion will be granted, and the visa petition will be approved. 

The officer-in-charge denied the petition on the ground that, under 

New York law, a previous marriage of the petitioner had not been 

dissolved and, as a consequence, her marriage to the beneficiary is 

invalid. 

Briefly, the relevant facts appearing in the record are as follows: The 

petitioner and the beneficiary are natives of Palestine, born in BirNabala, a village now occupied by Israel. This is the second marriage for 

the petitioner. She was first married in 1967 by the Shari'a Court in 

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Jerusalem to a man from the same village. She followed her husband to 

the United States in 1971. They separated a year later. The petitioner 

has stated under oath that, from the time of the separation, her husband 

concealed his whereabouts to prevent her from gaining custody of their 

children and from obtaining financial support from him. The petitioner, 

after living in New York for three months, returned to Bir-Nabala. Her 

husband remained in the United States. On August 20, 1973, the petitioner obtained a divorce from the Shari'a court in Jerusalem. She was 

married to the beneficiary by the same court on January 19, 1974. She 

now wishes to return to New York with her new husband. 

The issue raised in this appeal is whether the divorce obtained by the 

petitioner from her first husband would be accorded recognition, as a 

matter of comity, by the State of New York. 

We know of no New York decision which is factually identical to the 

present ease. 'However, as the Court declared in another case involving 

the recognition of a foreign divorce judgment— 

In the absence of a statutory provision or judicial precedent directly laying down our 

policy applicable to the circumstances of a particular ease, we must look for guidance to 

the general spirit and purpose of our laws and the trend of our judicial decisions. De 

Pena v. De Pena, 298 N.Y.S.2d 188, 191 (Sup. Ct., App. Div. 1969) 

From a review of New York decisions, it is evident that, for many 

years and in appropriate circumatances, New York courts have recognized divorces :which foreign nationals residing in New York had secured abroad in accordance with the laws of their native countries. See, 

Oettgen v. Oettgen, 94 N.Y.S.2d 168 (Sup.. Ct., Spec. Term 1949); 

Martens v. Martens, 20 N.Y.S. 206 (Sup. Ct., App. Div. 1940, rev'd on 

other grounds, 284 N.Y. 363 (1940); Hansen v. Hansen, 8 N.Y. S.2d 655 

(Sul). CL, App. Div. 1938); Sorensen v. Sorensen, 220 N.Y. S. 242 (Sup. 

Ct., App. Div. 1927). Such judgments have been recognized, as a matter 

of comity, where the foreign jurisdiction had a legitimate interest in the 

marital status of the parties and where minimal due process standards 

had been met. 

This petitioner had returned to her home country and had personally 

appeared before a divorce court of that country where both she and her 

first husband had been born, where they had been married, and where 

both of their children had been born. Thus, there were substantial 

contacts between the divorcing jurisdiction and the parties and the 

marital res. 

On the facts of this record, recognition of the divorce would not 

violate due process requirements or established local policy. On August 

20, 1973, a "first sentence of divorce" was issued by the Primary Court 

of Jerusalem. On August 28, 1973, notice of that judgment was served 

on the defendant by publication.in his village newspaper. Although the 

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defendant was in the United States, and his whereabouts was unknown 

to the petitioner, his relatives continue to live in his native village in 

Palestine. In the English translation of the notice, the sentence is 

described as "a Judgment given in absence with the right of opposition 

and appeal". 

On September 9, 1973, the petitioner requested confirmation of the 

judgment from the Highest Court of Appeal in Jerusalem. The issue of 

proper service on the defendent was reviewed by the appellate court, 

and the judgment was modified to allow the defendant thirty days from 

the date of publication in which to challenge the judgment. The defendant did not respond within the time allotted. Thereafter, the appellate 

court reviewed the lower court's decision on the merits, and affirmed 

the judgment. 

The publication requirements under the applicable Islamic law and 

under New York law (section 316 of the Civil Practice Law and Rules of 

the State of New York) in a case in which the defendant's whereabouts 

is unlcnown, are quite similar. 

We conclude that New York courts would extend recognition to the 

foreign divorce decree secured by the petitioner, as a matter of comity, 

and that the decree is valid for immigration purposes. 

ORDER: The motion to reopen is granted. 

Further order: The visa petition is approved. 

Board Member Irving A. Appleman abstained from consideration of 

this case. 

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