MATilm OF F— 

In VISA PETITION Proceedings 

VP 3-1-126943 

Decided by Board January 29, 1959 

Nonquota status—Spouse of United States citizen—Divorce decree granted by 

State court not subject to collateral attack In visa petition proceedin g. 

(1) For the purposes of administering the immigration laws, a divorce decree granted by a State court will not be open to collateral attack on jurisdictional grounds to inquire into questions of residence and domicile, pro-

-vided one of the parties to the divorce was actually present within the 

court's jurisdiction. 

(2) Visa petition filed by United States citizen wife to confer nonquota status 

upon alien husband will be approved whore tho record elvers that the hone. 

ficiary's divorce from his first wife in Italy was granted by a Florida court 

before whom the beneficiary was physically present and was followed by a 

ceremonial marriage in New York to his present spouse. 

BEFORE THE BOARD 

Discussion: The case comes forward on appeal from the order 

of the District Director, New York District, dated August 11, 1958, 

denying the visa petition for the reason that petitioner's marriage 

to the beneficiary/husband is not legal on tthe ground that he did 

not have the necessary residence in the State of Florida before he 

obtained his divorce there; that consequently his prior marriage 

had not been legally terminated and the petitioner's present marriage to the beneficiary is invalid. 

The petitioner's acquisition of United States citizenship through 

her father is conceded. She seeks nonquota status on behalf of 

the beneficiary whom she married at New York on January 25, 

1958. This is the first marriage for the petitioner. The beneficiary 

was previously married on March 6, 1950, and as evidence of the 

termination of his prior marriage he submitted a final decree of 

divorce obtained in the Circuit C,ourt of the Eleventh Judicial 

District in and for Dade County, Miami, Florida, on January 16, 

1958. Examination of the divorce decree indicates that a decree 

pro confes8o was entered against the defendant's wife and provided 

for the payment of $10 per month by the plaintiff-husband for the 

support of the minor child of the parties, the wife and child then 

residing in Italy. 

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A sworn statement was taken from the beneficiary, who is an 

applicant for preexamination, by a Service officer on May 26, 1958, 

and May 20, .W55. In the course of the first statement the beneficiary stated that he had lived in Miami Beach, Florida, continually from April 1957 to September 1957, returned to Miami after 

15 days in New York, next returned to New York Christmas 1057, 

back to Miami about the fifteenth of January 1958 to obtain his 

divorce decree, thereafter returning to New York where he has since 

resided. 

The beneficiary appeared voluntarily for a second statement to 

reveal that he had not disclosed the whole truth about his Florida 

residence. He stated that he first went to Florida in April 1957 

and remained 4 days in order to sign some papers before a notary 

public; that he next went to Florida in June or July 1957, also for 

the purpose of signing papers before a notary public, and returned 

the same day; that he finally returned to Florida on January 15, 

1958, and appeared in court and was granted a divorce the next day. 

He admitted that he had never actually resided in Florida but had 

alwaye lived in New York. He did not recall being ached under 

oath whether he was a resident of Florida and claimed that he did 

not know the residential requirements for divorce in Florida but 

simply did what his lawyer told him to do that the lawyer had told 

him that he could go back and forth 3 times and that it was the 

same as if he had resided there. He stated he had been advised by a 

friend to testify that he had resided in Florida and that he was 

scared when he appeared before an official of the law for a sworn 

statement on May 26, 1958. He further testified that he retained a 

New York lawyer to handle the divorce matter and that the latter 

refereed him to the Florida attorney. He tut [her e.xplained that he 

and his wife did not actually consummate the marriage and live 

together until the religious ceremony in April 1958, and that they 

had lived together since that time. The beneficiary stated that his 

first wife was never in the United States but that she had been 

notified of the divorce action by letter. 

In the instant case we have in evidence a marriage certificate 

showing that the parties married in accordance with all the prescribed formalities of law. In addition, there has been submitted 

a divorce decree of a State court purporting to dissolve the prior 

marriage of the beneficiary. There is of course the legal presumption which favors the validity of every ceremonial marriage which 

is one of the strongest presumptions known to the law and which 

ordinarily will yield only in the face of the most compelling 

proof.' In addition, the divorce decree in Florida was rendered by 

Schouler. Marriage, Divorce, Separation and Domestic Relations (Cth ed.), 

vol. II, p. 1477; IV/Donne on Evidence (3rd ed.), vol. IX. p. 370. 

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a legally constituted court. Not only the full faith and credit 

clause of the Federal Constitution, but familiar principles of law 

require the acceptance at face value of a judgment regularly granted 

by a competent court, unless a fatal defect is evident upon the 

judgment's face. However, the presumption of regularity and of 

jurisdiction may be overcome by extrinsic evidence or by the record itself.' That presumption may be overcome and is open to 

attack where the other spouse in the divorce proceeding had neither 

appeared nor been served with process in the State. ,The burden 

of undermining the decree of a sister State is a heavy one and is 

not overcome by a record which contains merely a statement by the 

court below that the findings do not show that the defendant has 

appeared or been served with process in the divorce State, where 

the record does not contain the decree nor any stipulation concerning 

it.' 

In the instant case the first wife of the beneficiary had neither 

appeared nor been served with process in the State. The Service 

representative has cited a number of Florida cases which indicate 

that the residence of a plaintiff in a divorce action in Florida 

may he attacked to show lack of jurisdiction and where jurisdiction is shown to be vulnerable, generally, under such circumstances, 

a collateral attack may be made on the decree of the court. Here, 

the beneficiary who was the plaintiff in the court action did make 

a personal appearance within the jurisdiction of the Florida court. 

The question we are confronted with is, whether, for immigration 

purposes, and under circumstances such as are present in this case, 

in the face of a divorce decree granted by a court of competent 

jurisdiction, followed by a ceremonial marriage which complies with 

the formalities of law, and evidence showing that the plaintiff in 

the court action wee present within the jurisslietinn of the enurt, we 

should inquire into the question of bona fide residence which purported to give the court jurisdiction. 

This problem has previously been the subject of administrative 

scrutiny.' Questions involving the validity and recognition of 

divorces have concerned the courts for many years and unquestionably will continue to cause difficulty in the future; however, the 

Service can hardly undertake to become a disputant in the divorce 

arena since immigration officers are not equipped to adjudicate 

• Adam v. Soe,9,,, 2C1? L`- C_ as Mat ) 

3iriniaM8 V. North CarOlintl, 325 U.S. 226 (1945). 

Cook v. Cook, 342 U.S. 126 (1951). 

Hernorandunt of the General Counsel, Immigration and Naturalization 

Service, File 56013—B (7/2/47), approved by the Commissioner 7/5/47, The 

General Counsel's memorandum involved a Nevada divorce decree but the 

arguments would appear to apply with equal cogency to a Florida divorce 

decree. 

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troublesome legal questions of this character; and for the purpose 

of the immigration laws a divorce decree regularly granted by a 

court in the fruited States should be accepted at face value and 

should be deemed to have terminated the prim- marriage for immigration purposes. There is no Federal policy which enjoins the 

nullification of State divorce decrees. On the other hand, a sound 

policy would require the avoidance, if possible, of a disruption of 

stable family relationships, and as a Federal administrative agency 

enforcing Federal statutes there is no justification in disregarding 

a divorce decree legally granted by a State court. 

The assumption of authority to pass upon the validity of divorce 

decrees would place an excessive burden upon those charged with 

administration of the immigration laws. Exploration of the ramifications of divorce law in each case would inevitably lead into 

labyrinths of jurisdiction, domicile, residence and status with no 

satisfactory goal and an involvement in complexities utterly foreign 

to the responsibilities of administering the immigration laws. It 

would not appear to be sound administrative practice to expect 

immigration officers to pause in executing their own exacting duties 

in order to embark upon the collateral inquiry so to whether State 

divorce decrees were supported by proper jurisdiction and such an 

inquiry would impede the expeditious administration of the immigration laws. The wisest emir.e would be to accept at face value 

the marital status regularized in conformity with the laws of the 

State. In conclusion, for the purpose of the immigration laws, 

the Service should regard as valid a divorce regularly granted by 

a State court and a subsequent remarriage formalized in conformity with the laws of that State or of any other State. In 

adopting this policy the requirements of the law would be adhered 

to, proper effect would be given to judgment, and proceedings of a 

sovereign State, and reasonable safeguards would thereby be erected 

to protect a properly solemnized marital relationship. Finally, the 

adoption of such a policy would unquestionably facilitate the administration of the immigration laws. 

These views received endorsement in Metter of B—, 3 I. & N. 

Dec. 227, where the residential requirements of jurisdiction of a 

Mexican divorce obtained by the petitioner were brought into question. It appeared that the petitioner had gone to Mexico for a few 

days, was granted a divorce, then returned to live in Florida and 

later remarried the beneficiary. In that case we disapproved as 

improper the view that immigration authorities must inquire into 

the validity of every divorce, whether obtained within the United 

States or elsewhere, and satisfy itself that the petitioner in a divorce 

action in every instance was domiciled within the jurisdiction of the 

court granting the decree before a subsequent marriage would be 

2y4 
recognized. We expressed the view that an administrative agency 

is going far beyond its legislative sphere when it attempts to inquire into the issue of whether the petitioner for a divorce was 

domiciled within the jurisdiction of the court granting the divorce 

and, therefore, whether the decree ought to be recognized. We set 

forth the principle that inquiry into the jurisdiction of a court 

should stop when it is ascertained that a party to the proceeding 

was tietually within the court's jurisdiction. 

In Matter of B—, 5 I. & N. Dec. 659, we recognized as valid 

a marriage in California subsequent to a Mexican divorce obtained 

by a wife, the wife having made a trip to Mexico to secure the 

divorce and the defendant-husband having given his written consent to the divorce and having been represented by counsel in the 

divorce proceedings, applying the principle that the validity of a 

marriage is governed by the law of the place of celebrations Of 

course, this type of case differs from the pure Mexican "mailorder" divorce decree where neither party was ever physically present within the jurisdiction of the court or within the jurisdiction 

of the state. However, if recognition under rules of comity is 

grained iv a Mexican divorce decree in which one of the parties was 

physically present within the jurisdiction, it would follow that 

recognition under the full faith and credit clause of the Constitution would pragent a stronger argument for recognition of a divorce 

decree granted by a sister State in which one of the parties was 

actually present within the court's jurisdiction. Under such circumstances, it having been established that one of the parties was 

physically present within the court's jurisdiction, for immigration 

purposes the inquiry as to jurisdiction should end. 

In the present case it appears that the beneficiary was actually 

present within the jurisdiction of the Florida court and appeared 

in court when he obtained the divorce decree terminating his first 

marriage. He has presented evidence of a subsequent ceremonial 

civil marriage, as well as a religious marriage with the petitioner in 

the State of New York. There is no indication of any attempt by 

the first wife to contest the Florida divorce decree. Under these 

circumstances, the visa petition will be approved. 

Order: It is ordered that the visa petition be and the same is 

hereby approved for nonquota status on behalf of the beneficiary. 

Matter of P---, 4 I. & N. Dec. ecu. 

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