Interim Decision #1736 

MATTER GE SALVADOR-FVENTES 

In Visa Petition Proceedings 

A-14480072 

Decided by Board May 5, 1967 

Where a divorce decree obtained by petitioner in Mxloo on Tune 7, 1966, terminating his prior marriage contained a restriction prohibiting remarriage within 

one year from the date thereof, such restrictive clause has no extraterritorial 

effect udder the law of Illinois go as to 'affect the validity of a subsequent 

marriage of petitioner in that State within the prohibited period ; consequent y, 

petitioner's remarriage to beneficiary in Illinois on June 28, 1966, within the 

prohibited period, is a valid marriage for immigration purposes and serves to 

confer preference quota classification on beneficiary. 

ON BEHALF OF PETITIONER : Mary L. Sfasciotti, Esquire 

Immigrants' Service League 

608 S. Dearborn Stieet 

Chicago, Illin'ola 60605 

(Brief filed) 

The case comes forward on appeal from the order of the District 

Director, Chicago District, dated August 8, 1966 denying the visa petition for the reasons that in order for the petitioner to be eligible to 

file a visa petition on behalf of his alien spouse, he must be legally 

married; the marriage certificate presented shows the marriage on 

June 28, 1966 in Chicago, Illinois; the divorce decree terminating the 

prior marriage was granted on June 7, 1966 with the stipulation that 

the petitioner could not contract marriage until one year had passed 

from that date; the petitioner has failed to establish that he is legally 

married to the beneficiary. 

The petitioner, a native of Mexico, a lawful permanent resident of 

the United States since April 18, 1955, 39 years old, seeks preference 

quota status on behalf of the beneficiary us his wife. The beneficiary is 

a native and citizen of Iraq, 27 years old. The petitioner had been 

married once previously. 

The file does not contain the documents relating to marriage and 

divorce although the District Director was requested to forward all the 

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Interim Decision #1736 

evidence upon which the decision had been rendered. Accordingly, 

reliance will be placed upon the facts set forth in brief of counsel. 

The brief sets forth that the visa petition showed an original marriage date of August 11, 1965 in Chicago, Illinois. The petitioner was 

requested to submit evidence of the termination of his prior marriage 

in Mexico in 1956 but an exhaustive five-month search revealed that 

no divorce was registered. Thereupon the petitioner went to Mexico and 

procured a Mexican divorce on June 7, 1966 and remarried his second 

wife in a civil ceremony in Chicago, Illinois on June 28, 1966. 

The Mexican divorce decree contained a restriction stipulated in 

Article 289 of the Mexican Civil Code to the effect that neither of the 

parties can contract marriage until one year has passed from the date 

of the divorce. Inasmuch as the Mexican divorce was secured June 7, 

1966 and their remarriage occurred on June 28, 1966, the fact that the 

remarriage had occurred in the same month that the divorce had been 

granted was the basis for the denial of the visa petition by the District 

Director. The brief of counsel takes issue with this determination. 

It is noted that the remarriage occurred not in Mexico, where the 

divorce was obtained, but in Chicago, Illinois. The prohibitory and 

punitive provisions restricting remarriages contained in Illinois Laws 

1905, p. 194, section la were repealed by the amendment of 1923, Laws 

1923, p. 327. Sections 1-2 (Smith-Hurd Illinois Annotated Statutes, 

ch. 40, sections 1-2). 

The rule regarding the validity of remarriages subsequent to a foreign divorce decree prohibiting remarriage within a specified period 

is not uniform. It has been held that a statute prohibiting remarriage 

has no extraterritorial effect. It is a rule in some jurisdictions that the 

provision of a foreign divorce prohibiting remarriage for a specified 

period does not defer the date of the termination of the prior marriage 

and does not render the subsequent marriage during the proscribed 

period invalid? The validity of a marriage is governed by the law of 

the place of celebration? 

It therefore becomes necessary to look to the case law obtaining in 

the state of Illinois. We find the case of arks v. industrial Commission, 

348 111. 75, 180 N.E. 572, cited by counsel, completely applicable in this 

situation. The Criss case involved a divorce obtained in Alabama which 

contained a prohibition against remarriage for a period of 60 days and 

the subsequent remarriage occurred in Chicago, Illinois within this 

60-day period. The court held that unless the Alabama statute was 

clearly intended to apply to marriages contracted outside the state of 

Alabama, the statute must be construed to apply only to marriages 

1 27 CIO. section 369. 

'Matter of P--, 4 L & N. Dec. 010. 

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Interim Decision #1736 

within that state. By the weight of authority in this country, statutes 

prohibiting the remarriage of a divorced person for a period after the 

divorce have no extraterritorial effect unless by express terms or necessary implication, such effect must be given them and they do not operate to prohibit marriage in another state.' 

There is no express provision in the Alabama statute that any 

marriage contracted in violation of such marriage shall be void, and 

there are no express terms of the statute and no necessary implication 

from the words used that lead to the conclusion that it was intended 

that the provision against remarriage shall have the effect of making 

the parties to the divorce decree incapacitated from contracting a 

valid marriage outside •the state of Alabama. The court in the Criss 

case distinguished the case of Masholder v. Industrial Commission, 

30 Ill. '497, 160 N.E. 835, where the decree of divorce obtained in 

Wisconsin contained a provision that the judgment should not be 

effective until after a year. In that case it was held that the Wisconsin 

decree did not operate as a dissolution of the marriage until after a 

year from the date of its entry. (In other words, the decree of divorce 

was interlocutory and not final.) The Alabama decree on the other 

hand 'purports to be a decree in pre.esenti. The court held that the 

marriage in Illinois within the restrictive period contained in the 

Alabama divorce decree was valid. 

In visa petition proceedings the burden of proof is upon the petitioner to establish eligibility for the benefit he seeks under the immigration laws. The petitioner's prior marriage was terminated by a 

foreign (Mexican) divorce decree with a restrictive clause. The subsequent marriage was celebrated in the state of Illinois.Under Illinois 

precedent, the prohibitory or restrictive clause in the Mexican decree 

has no extraterritorial effect. There is no express provision in the 

Mexican statute that a subsequent marriage in violation of such divorce 

shall be void or renders the parties incapable of contracting a valid 

marriage outside Mexico. On its face, the Mexican divorce decree was 

fival.•It is concluded that petitioner has borne the burden of establishing that the Illinois marriage subsequent to the Mexican divorce was 

valid. The appeal will be sustained. 

ORDER: It is ordered that the appeal be sustained and that the 

visa petition be approved for preference quota status. 

° Citing Commonwealth v. Lane, 113 Mass. 458; Van Voorhis v. Brintnall, 88 

N.Y.S. 18; State v. Shattuck, 89 Vt. 403; Dudley v. Dadlev, 151 Iowa 142. 130 

N.W. 758; Griswold v. Griswold, 23 Cal. App. 385, 138 P. 312; 19 0.7. 183. 

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