Interim Decision #2361 

MATTER OF RODRIGUEZ 

In Visa Petition Proceedings 

A-14925872 

Decided by Board March; 21, 1975 

Petitioner was allegedly divorced from her first husband in an in absentia proceeding in 

the Dominican Republic. Neither party was domiciled in the Dominican Republic at the 

time of the marriage or divorce nor did either appear personally in the divorce proceedings. Under these circumstances, the petitioner's divorce is not entitled to recognition 

in New York, and the petition to accord beneficiary classification under section 203(a)(2) 

of the Immigration and Nationality Act was properly denied. 

ON BEHALF OF PETITIONER: Pro se. 

The lawful permanent resident petitioner applied for preference classification for the beneficiary as her spouse under section 203(a)(2) of the 

Immigration and Nationality Act. In a decision dated July 25, 1974, the 

district director denied the petition. The petitioner has appealed from 

that denial. The appeal will be dismissed. 

The record shows that the petitioner, a native and citizen of the 

Dominican Republic, was married previously in New York to another 

native and citizen of the Dominican Republic. The petitioner allegedly 

was divorced from her first husband by mutual consent in the Doniinican 

Republic in June 1972. Neither the petitioner nor her first husband 

appeared personally in the Dominican action and neither was domiciled 

in the Dominican Republic at the time of the divorce. The district 

director concluded that the petitioner's Dominican divorce was not 

entitled to recognition in New York, the place of celebration of the 

petitioner's subsequent marriage to the beneficiary. 

The question whether New York will recognize the Dominican divorce is one of comity. New York courts will recognize divorce decrees 

rendered in foreign countries when such recognition does not offend any 

public policy of New York. 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); 

Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E .2d 902 (1955); Matter of Moncayo, 14 L & N. Dee. 472 (BI.A. 1973). 

In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not 

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domiciled in Mexico at the time of the divorce. The court held that 

where one party was physically present within the jurisdiction of the 

Mexican court, and the other party appeared by attorney and submitted 

to the jurisdiction of the Mexican court, the Mexican divorce decree was 

entitled to recognition in New York. See alsoRamm v. Ramm, 34 App. 

Div. 2d 667, 310 N.Y.S.2d 111 (1970), affd, 28 N.Y.2d 892, 271 N.E.2d 

558, 322 N.Y.S.2d 726 (1971). 

A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican 

consulate in New York was at issue in De Pena v. De Pena, 31 App. 

Div. 2d 415, 298 N.Y.S.2d 188 (1969). Neither party appeared in person 

in the Dominican action, and process was not personally served on the 

wife. The court refused to recognize the divorce. In doing so, it pointed 

out that the wife was a domiciliary of New York, and the husband's only 

existing contact with the Dominican Republic was his continued 

Dominican citizenship. The court distinguished Rosenstiel on the 

ground that in De Pena there was no physical presence by either party 

and the Dominican court had not acquired jurisdiction over the wife. 

In Matter of Moncayo, supra, we had occasion to interpret the policy 

statements made by the New York courts in Rosenstiel and De Pena. 

We held that New York would not recognize an Ecuadorian divorce 

obtained by an Ecuadorian citizen residing in the United Statei, where 

neither party appeared in person before the Ecuadorian court and the 

beneficiary's first wife was not personally served and did not submit to 

the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13 

I. & N. Dec. 152 (BIA 1969j. 

The foregoing eases indicate that where jurisdiction of the foreign 

court is not baseil on domicile, New York policy generally requires sonic 

physical presence on the part of at least one party within the jurisdiction 

rendering the divorce, combined with some type of appearance or submission to jurisdletion by the other party. In the past we have concluded 

that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present 

within the jurisdiction of the foreign court granting the divorce. Such 

recognition has been extended where the parties involved where nationals of the foreign country rendering the divorce, were married in 

that country, lived in that country as husband and wife, consented to the 

jurisdiction of the foreign court, and appeared in the foreign action 

through their authorized representatives. Matter of Koehne, 10 L & N. 

Dec. 264 (BIA 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974);, 

Matter of Kurtkl, 12 I. & N. Dee. 284 (BIA 1967). 

In the present case, the petitioner and her first husband were both 

citizens of the Dominican Republic and they both consented to the 

jurisdiction of the Dominican court'. Nevertheless, neither party was 

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physically present within the jurisdiction of the Dominican court, and 

their marriage had taken place in New York, not the Dominican Republic. Under these circumstances, we believe that New York would not 

find sufficient connection between the Dominican Republic and the parties to recognize the in absentia Dominican divorce. 

The district director reached the proper result. The appeal will be 

dismissed. 

ORDER: The appeal is dismissed. 

Theodore P. Jakaboski, Alternate Board Member, dissents without 

opinion. 

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