Interim Decision #2895 

MATTER OF HANN 

In Visa Petition Proceedings 

A-21504220 

Decided by Board February 3, 1982 

(1) The law of the Dominican Republic does not preclude a nonresident from obtaining a 

divorce for cause in the Dominican Republic. 

(2) Article 17 of the Law on Divorce 1306-bis, Civil Code of the Dominican Republic, 

does not require the party who obtains a divorce for cause to appear person" to 

have the divorce pronounced and registered. Matter (If Valerie, 15 I&N Dee. 659 (BIA 

1976); Matter of Go)P7alez, 16 I&N Doc. 178 (BIA 1977); and Matter of Luccroi 16 UN 

Dec. 679 (BIA 1979), modified. 

(3) The visa petition was properly denied on the ground that the petitioner's marriage to 

the beneficiary is invalid, i.e., at the time it was entered into, the petitioner's divorce 

had not vet become final and he was not free to contract another marriage. 

ON BEHALF OF PETITIONER: George C. Lange, Esquire 

Ragan & Mason 

The Farragut Building 

900 Seventeenth Street, NM. 

Washington, D.C. 20006 

BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vines, Board Members 

In a decision dated March 27, 1981, the Officer-in-Charge, Hong Kong, 

on his own motion reversed his prior decision dated May 5, 1980, and 

approved a visa petition filed to accord the beneficiary immediate rela 

tive status as the spouse of a United States citizen under section 201(b) 

of the Immigration and Nationality Act, 8 U.S.C. 1151(b). The Officerin-Charge certified his decision to the Board for review. In an order 

dated May 19, 1981, we remanded the case to the Officer-in-Charge for 

further proceedings. Cn September 23, 1981, the Officer-iri-Charge 

entered a new decision denying the petition and certified it to the Board 

for review. This latest decision of the Officer-in-Charge will be affirmed. 

The petitioner is an 80-year-old native and citizen.of the United States, 

currently residing in Japan. The beneficiary is a 58-year-old native and 

citizen of Japan. The petitioner married the beneficiary in Japan on 

January 25, 1980. That same day he filed a visa petition in her behalf. In 

support of his petition, the petitioner submitted a copy of a divorce 

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judgment entered on December 7, 1979, at San Cristobal, Dominican 

Republic, purporting to dissolve the petitioner's prior marriage to Ellen 

Jane Hann on the ground of incompatibility of character. The divorce 

was pronounced by an official of the Civil ItegiStry on February 9, 1980. 

In our prior order in this case, Matter of Hann, 18 I&N Dec. 59 

(RIA 1981), we remanded the ease to the Officer-in-Charge for resolution of three issues: 

(1) Whether Dominican law allows nonresidents to obtain divorces for cause in the 

Dominican Reopublic; 

MI Whether Article 17, Law 1306-bis, Civil Code of the-Dominican Republic, requires 

ti party who obtains a divorce for cause to apppear "in person" before an official of 

the Civil Registry to have the divorce pronounced and registered; and 

(3) Whether Japan, the country of the petitioner's residence at the time of his divorce 

and the place of celebration of his marriage to the beneficiary, would recognize his 

Dominican divorce. 

In addressing these issues, the Officer-in-Charge relied upon a report 

provided him by the Hispanic Law Division of the Library of Congress. 

With :::Tract to the first issue, the report concludes: "(W)hen a foreigner obtains a divorce on any of the grounds authorized by Article 2 of 

Law 1306-bis (for cause) . . . there is no doubt that such a divorce decree 

would be valid in the Dominican Republic." 

With respect to the second issue, the Library of Uongress report 

states: "(A)n examination of the Spanish text of the provision of Article 

17 of the Law on Divorce 1306-bis of 1937, shows. that the personal 

appearance of the party in question is not required. Therefore, the 

translation of Article 17 quoted in the letter of inquiry should be corrected by eliminating the words "in person." 

With respect to the third issue, the report from the Library of Congress states that there are no court decisions relating to the validity of 

foreign divorces under the law of Japan and that scholarly opinion on the 

subject is divided. However, the report notes that if the petitioner and 

beneficiary registered their marriage in Japan on January 25, 1980, 

before the petitioner's divorce became final on February 9, 1980, that 

the marriage would be bigamous. The report fiuther states that Article • 

732 of the Civil Code of Japan provides that "a person who has a spouse 

may not effect an additional marriage." The report also notes that bigamous marriages are prohibited under Article 184 of the Penal Code of 

Japan. 

The Officer-in-Charge entered his decision adopting the conclusions of 

the Library of Congress with respect to the first two issues. He denied 

the visa petition on the ground that the petitioner was not free to marry 

the beneficiary on January 25, 1980, because the divorce terminating his 

prior marriage did not become final until February 9, 1080. By Notice of 

Certification dated September 23, 1981, the Officer-in-Charge provided 

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counsel for the petitioner a copy of his decision and advised him that the 

decision had been certified to the Board for review. The Notice of Certification also advised the petitioner that he had 10 days within which tosubmit a brief or other -written statement for consideration by the Board. 

He was also advised that if he wished to present oral argument before 

the Board, he should promptly request oral argument by a letter to the 

Board. The petitioner (lid not request oral argument before the Board 

and the record file does not contain a brief or other statement in response 

to the decision of the Officer-in-Charge or the Notice of Certification 

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

establish eligibility for the benefits sought. Matter of Brantigan, 11 

I&N Dec. 493 (BIA 1966). A. petitioner who relies on foreign law to 

establish eligibility for an immigration benefit must prove that taw as if 

it were a question of fact. Matter of Annang, 14 I&N Dee. 502 (BIA 

1973). 

The only evidence of record regarding the issues of foreign law critical 

to the decision in this case is the report prepared by the Library of 

Congress, Although he has had ample opportunity to do so, the petitioner has not submitted any evidence regarding these issues. Neither 

has he in any manner disputed the report submitted by the Library of 

Congress. Therefore, on the basis of the evidence before us we'conclude: 

(1) That the law of the Dominican Republic does not preclude a nonresident from 

obtaining a divorce for calm in the Dominican Republic. 

(2) That Article 17 of the Law on Divorce 1306-bis, Civil Code of the Dominican Republic, 

does not require the party who obtains a divorce for cause to appear "in person" to 

have the divorce pronounced and registered. Therefore, as the translation of Article 

17 which we relied upon in Matter ofValerio,151SeN Dec. 659 (BIA 1976); Matter of 

Gonzalez, 16 I&N Dee. 178 (BIA 1977), and Matter of Lacer°, 16 I&N Dec. 679 

(BIA 1979), was an erroneous translation, these cases are hereby modified insofar as 

they hold that one who obtains a divorce decree for cause in the Dominican Republic 

must appear "in person" in order to have the divorce decree pronounced. 

(3) That the visa petition in this case was properly denied on the ground that the 

petitioner's marriage to the beneficiary is invalid because at the time entered into, 

the petitioner's divorce had not yet become final and he was not free to contract 

another marriage. Matter of Valerio, supra. 

Accordingly, the following order will be entered. 

.ORDER: The decision of the Officer-in-Charge is affirmed and the 

visa petition is denied. 

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