Interim Decision #3030 

MATTER OF HOSSEINIAN 

In Visa Petition Proceedings 

A-22664984 

Decided by Board August 25, 1987 

A foreign divorce is not recognized as valid under California law if both parties to 

the marriage were domiciled in California at the time the divorce proceeding was 

commenced. Matter of Kurtin, 12 I&N Dec. 284 (BIA 1967), overruled. 

ON BEHALF OF PETITIONER: Rafael A. Rose, Esquire 

9107 Wilshire Boulevard, Suite 701 

Beverly Hills, California 90210 

Milhollan, Chairman; Dunno, Morris, Vows., and Heilman, Board Members 

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, 8 U.S.C. § 1151(b) (1982). In a 

decision dated April 8, 1985, the district director denied the petition but certified his decision to the Board for review pursuant to 8 

C.F.R. § 3.1(c) (1985). The decision of the district director will be affirmed. 

The petitioner is a 39-year-old native of Hungary and citizen of 

the United States. The beneficiary is a 38-year-old native and citizen of Iran. A marriage certificate submitted with the visa petition 

indicates that the petitioner and the beneficiary were married in 

California on May 29, 1983. The record also reflects that the petitioner has two prior marriages. To show the legal termination of 

these marriages, the petitioner submitted divorce decrees purporting to terminate each of them. One divorce decree, dated November 

23, 1978, was issued by a Hungarian court. This decree states that 

a marriage entered into by the petitioner and her first husband in 

Hungary on September 14, 1968, was dissolved with the agreement 

of both parties. According to the decree, both the petitioner and 

her first husband were then residing in Los Angeles and were represented in court by Hungarian attorneys. The other decree is a 

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Interim Decision #3030 

May 16, 1983, final judgment of dissolution of marriage issued by a 

California court. 

Also contained in the record is a March 15, 1984, letter to the 

Immigration. and Naturalization Service from the European Law 

Division of the Law Library of the Library of Congress, which 

states that the petitioner's Hungarian divorce is valid under Hungarian law. It is pointed out that no law in Hungary requires the 

parties to a divorce to appear personally before the court if they 

are represented by a duly authorized attorney, unless the court 

finds it necessary to hear their testimony. The letter also states 

that the Hungarian court had jurisdiction over the proceedings because under Hungarian law the parties remained citizens of Hungary even if they acquired citizenship from another country. 

The district director noted in his decision that the Board has 

held that, pursuant to section 1915 of the California Code of Civil 

Procedure, California allows for recognition of divorces rendered by 

a tribunal of a foreign country if the tribunal had jurisdiction according to the laws of that country. See Matter of Kurtin, 12 I&N 

Dec. 284 (BIA 1967). The district director also pointed out, however, 

that in 1974, subsequent to the Board's decision in Kurtin, the 

State of California repealed section 1915 of the California Code of 

Civil Procedure. See 1974 Cal. Stat., ch. 211, § 6. The district director further determined that the petitioner's Hungarian divorce 

would not be recognized under California law. He accordingly 

denied the instant visa petition on the ground that the petitioner 

had a prior marriage which had not been terminated and therefore 

had failed to show that she was legally eligible to enter into her 

marriage with the beneficiary. 

The petitioner objects to the reliance on state law to determine 

whether her foreign divorce would be recognized and suggests that 

the issue of recognition be resolved by application of a uniform federal standard. She further contends that the Service should be estopped from refusing to recognize her Hungarian divorce as valid 

because its validity has already been acknowledged by the granting 

of a previous visa petition filed by the petitioner for a different 

beneficiary. The petitioner argues that she detrimentally relied on. 

the Service's prior acceptance of her Hungarian divorce by filing 

the instant petition without the assistance of counsel. 

Section 201(b) of the Act provides for the granting of immediate 

relative status to the spouse of a citizen of the United States. 

Where a petition is filed on behalf of an alien spouse, it must be 

accompanied by a certificate of marriage to the beneficiary and 

proof of the legal termination of all previous marriages of both the 

petitioner and the beneficiary. See 8 C.F.R. § 204.2(c)(2) (1987). 

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Interim Decision *3030 

We reject the petitioner's argument that the validity of her marriage to the beneficiary should be determined by a uniform federal 

standard. The petitioner cites no authority in support of her argument and gives no indication of the way in which such a federal 

standard would be formulated. The well rule is that it 

is the function of the state to determine how its residents may 

enter into the marital relationship. See Loughran v. Loughran, 292 

U.S. 216 (1934); Maynard v. Hill, 125 U.S. 190 (1888); United States 

v. Seay, 718 F.2d 1279 (4th Cir. 1983), cert. denied, 467 U.S. 1226 

(1984); United States v. Sacco, 428 F.2d 264 (9th Cir.), cert. denied, 

400 U.S. 903 (1970). Therefore, the validity of a marriage for immigration purposes is generally governed by the law of the place of 

celebration of the marriage. Adams v. Howerton, 673 F.2d 1036 (9th 

Cir.), cert. denied, 458 U.S. 1111 (1982); Matter of Luna, 18 I&N Dec. 

385 (BIA 1983); Matter of Bautista, 16 I&N Dec. 602 BIA 1978); 

Matter of Arenas, 15 I&N Dec. 174 BIA 1975); Matter of P-, 4 I&N 

Doe_ 610 (BIA, Acting A.G. 1952). Where one of the parties to a 

marriage has a prior divorce, we look to the law of the state where 

the subsequent marriage was celebrated to determine whether or 

not that state would recognize the validity of the divorce. Matter of 

Ma, 15 I&N Dec. 70 (IRA 1974). 

As the marriage between the petitioner and the beneficiary was 

celebrated in California, the issue before us is whether the petitioner's divorce in Hungary would be recognized as valid under California law. In Matter of Kurtin, supra, we referred to section 1915 of 

the California Code of Civil Procedure and found that California 

would recognize as valid a Yugoslav divorce decree granted in absentia to two nationals of Yugoslavia, where the Yugoslav court 

had jurisdiction over the parties under Yugoslav law. As noted by 

the district director, however, section 1915 of the California Code of 

Civil Procedure was repealed in 1974. Accordingly, we withdraw 

from the holding in Kurtin as to the applicable law in the State of 

California. 

We now hold that the controlling California law on the facts 

before us is found in the sections of the California Civil Code which 

provide as follows: 

§ 5001. A divorce obtained in another jurisdiction shall be of no force or effect 

in this state, if both parties to the marriage were domiciled in this state at the 

time the proceeding for the divorce was commenced. 

5002. Proof that a person hereafter obtaining a divorce from the bonds of matrimony in another jurisdiction was (a) domiciled in this state within 12 months 

prior to the commencement of the proceeding therefor, and resumed residence in 

this state within 18 months after the date of his departure therefrom, or (b) at all 

times after his departure from this stet° and until his return maintained a place 

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Interim Decision #3030 

of residence within this state, shall be prima facie evidence that the person was 

domiciled in this state, when the divorce proceeding was commenced. 

Cal. Civil Code §§ 5001-5002 (West 1983) (effective Jan. 1, 1970). 1 

 The divorce decree from the Hungarian court specifically states 

that both the petitioner and her first husband were residing in Los 

Angeles at the time the judgment was entered. Thus, it is clear 

that California would refuse to recognize the Hungarian decree, despite the fact that it is valid under Hungarian law, because both 

parties were domiciled in California at the time of the foreign divorce proceeding. See Lee v. Commissioner of Internal Revenue, 550 

F.2d 1201 (9th Cir. 1977); In re Atherley's Estate, 44 Cal. App. 3d 

758, 119 Cal. Rptr. 41 (1975). 

In visa petition proceedings, the burden is on the petitioner to 

establish eligibility for the benefit sought. See Matter of Brantigan, 

11 I&N Dec. 493 (BIA 1966). The petitioner has neither shown that 

her Hungarian divorce is valid under the law of California, which 

denies recognition to foreign divorces granted to two clomiciliaries 

of California, nor has she rebutted the information in the Hungarian divorce decree indicating that she and her first husband were 

residents of California at the time the judgment was entered. Because the petitioner has not established that her first marriage was 

legally terminated, she has not established that she had the capacity to marry the beneficiary. Her marriage to the beneficiary, 

therefore, is deemed invalid for immigration purposes. 

We find no merit in the petitioner's contention that the Service 

should be estopped from refusing to recognize her Hungarian divorce as valid because its validity has already been acknowledged 

by the granting of a previous visa petition filed by the petitioner 

for a different beneficiary. Evidence regarding the visa petition 

filed for this other beneficiary is not before us. Even assuming, 

however, that a previous visa petition was erroneously granted by 

the Service, it is not clear that estoppel will lie against the Government in immigration cases. See Heckler v. Community Health Services, 467 U.S. 51 (1984); INS v. Miranda, 459 U.S. 14 (1982); Matter 

of Tuakoi, 19 I&N Dec. 341 (BIA 1985). Further, even if estoppel is 

applicable against the Government, the petitioner has failed to 

show the elements necessary for equitable estoppel. In order to 

show estoppel, the petitioner must prove that an action by the Government or its agent constituted affirmative misconduct, that she 

1Section 5004 of the California Civil Code limits the application of sections 5001 

and 5002 by the requirement of the Constitution of the United States that full faith 

and credit be given in each state to the public acts, records, and judicial proceedings 

of every other state. As the case before us involves a divorce proceeding of a foreign 

country, however, the full faith and credit clause is not applicable. 

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Interim Decision dt 8030 

reasonably relied on the action or representation of the Government, and that she was prejudiced thereby. See Heckler v. Community Health Services, supra. 

We do not find the failure of the Service to detect an invalid termination of a prior marriage to constitute "affirmative misconduct." See Mukherjee v. INS, 793 F.2d 1006 (9th Cir. 1986); see also 

Matter of Tayabji, 19 I&N Dec. 264 (BIA 1985) (a district director's 

approval of an alien's application for a waiver under beetion 212(e) 

of the Act, 8 U.S.C. § 1182(e) (1982), in excess of his authority); 

Matter of Morales, 15 MN Dec. 411 (MA 1975) (the Service's erroneous approval of a visa petition); Matter of Polanco, 14 I&N Dec. 

483 (BIA 1973), and Matter of Khan, 14 I&N Dec. 397 (BIA 1973) 

(immigration inspectors' admission of inadmissible aliens). In addition, it does not appear that the petitioner has been prejudiced by 

her reliance on the Government's erroneous action, as she received 

the benefit of conferring status on a prior spouse who was not entitled to an immigrant visa. Further, her position has not been adversely affected simply because she anticipated no problems with 

the instant petition and therefore filed it without the assistance of 

counsel. The petition was denied as a matter of law. Had the application been filed by an attorney, the validity of the petitioner's 

prior divorce would still have been the determinative issue. Moreover; we note that the petitioner is currently represented by counsel, who submitted a rebuttal to the district director's decision. 

Accordingly, the decision of the district director will be affirmed. 

ORDER: The decision of the district director is affirmed. 

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