Interim Decision #2239 

MATTER OF MONCAYO 

In Visa Petition Proceedings 

.A-19521225 

Decided by Board October 26, 1973 

Since beneficiary was not physically present within the jurisdiction of the 

Ecuadorian court which rendered the divorce decree dissolving his prior marriage, there was no personal service of process upon the spouse and she did not 

appear or otherwise submit to the jurisdiction of the Ecuadorian court, the 

divorce is not recognized as valid in the State of New York where his subsequent marriage to petitioner was contracted; therefore, his subsequent marriage to the U.S. citizen petitioner is not recognized as valid for the purpose of 

conferring upon him immediate relative status. 

ON BEHALF OF PETTrIONER: Bertrand D. Gerber, Esquire 

119 West 57th Street 

New York, New York 10019 

The United States citizen petitioner applied for immediate 

relative status for the beneficiary as her spouse under section 

201(b) of the Immigration and Nationality Act. The District Director, in an order dated October 10, 1972, denied the petitioner's 

application on the ground that a prior marriage of the beneficiary 

was never legally terminated. The petitioner has appealed from 

that denial. The appeal will be dismissed. 

The beneficiary is a native and citizen of Ecuador. The petitioner married the beneficiary on June 20, 1970 in New York. 

Pursuant to 8 CFR 204.2(c)(2), the petitioner submitted a decree of 

divorce rendered by an Ecuadorian court, dated March 16, 1970, as 

proof of the legal termination of the beneficiary's previous marriage. 

The District Director refused to accept that decree as establishing the legal termination of the prior marriage, on the ground that 

neither the beneficiary nor his wife was personally present at the 

divorce hearing. The visa petition indicates that the beneficiary 

has not been outside the United States since April 20, 196'7. The 

divorce decree states that his wife was served by publication, her 

whereabouts being unknown, and that she did not appear at the 

hearing. 

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Usually, 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 (A.G. 1952); Matter of Levine, 13 I. & N. Dec. 244 (BIA 

1969). Therefore, the beneficiary's present marriage is valid only if 

his Ecuadorian divorce is recognized by New York, where his 

marriage to the petitioner took place. 

Since the full faith and credit clause of the Constitution does not 

apply to judgments rendered by courts of foreign countries, the 

question of recognition is solely one of comity. New York courts 

have held that divorce decrees rendered in foreign countries are 

entitled to recognition and effect in New York only when such 

recognition is consistent with that state's public policy. Gould v. 

Gould, 235 N.Y. 14, 138 N.E. 490 (1923); Rosenbaum v. Rosenbaum, 

309 N.Y. 371, 130 N.E.2d 902 (1955). 

The leading New York case on the recognition of foreign divorce 

decrees is Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709, 

262 N.Y.S.2d 86 (1965), cert. denied 384 U.S. 971 (1966), which dealt 

with a bilateral Mexican divorce based on ephemeral contact with 

Mexico. In that case the court summarized New York law as 

follows: 

In eases where a divorce has been obtained without any personal contact 

with the jurisdiction by either party or by physical submission to the 

jurisdiction by one, with no personal service of process within the foreign 

jurisdiction upon, and no appearance or submission by, the other, decision has 

been against the validity of the foreign decree (Caldwell v. Caldwell, 298 N.Y. 

146 [1948]; Rosenbaum v. Rosenbaum, 309 N.Y. 371 [1955]). 1 

A fact situation somewhat analagous to the one before us now 

was considered in De Pena v. De Pena, 31 App. Div. 2d 415, 298 

N.Y.S.2d 188 (1969). That case involved two nationals and citizens 

of the Dominican Republic who were married in the Dominican 

consulate in New York. The husband obtained a divorce from a 

court in the Dominican Republic. Neither party ever left the 

United States and the wife was not personally served and did not 

appear in the action. The court noted that except for the husband's continued Dominican citizenship, "he does not claim any 

present contacts with that country and he did not even personally 

return there to prosecute the divorce proceedings." 2The court 

held that the policy of New York required that the Dominican 

decree not be given recognition. 

In the present case, the record indicates that the beneficiary 

was not physically present within the jurisdiction of the Ecuadorian court. There was no personal service of process upon his wife 

116 N.Y.2d at 72. 

2 31 App. Div. 2d 419. 

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and she did not appear or otherwise submit to the jurisdiction of 

the Ecuadorian court. In light of the statements of New York 

policy contained in Rosenetiel and De Pena, we fmd that New York 

would not recognize the Ecuadorian decree. 

In visa petition proceedings, the burden of proof to establish 

eligibility for the benfit conferred by the immigration laws rests 

upon the petitioner. Matter of Brantigan, 11 I. & N. Dec. 493 ()MA 

1966). In the present case, the petitioner has failed to show that a 

prior marriage of the beneficiary was legally terminated. Therefore, the petitioner has failed to establish that her marriage to the 

beneficiary is valid under New York law. Accordingly, the appeal 

will be dismissed. 

ORDER: The appeal is dismissed. 

474