Interim Decision #2879

MATTER OF WOJTKOW

In Deportation Proceedings
A-13934122
Decided by Board September 10,4981

:1) Pursuant to section 125.15(1) of the Penal Law of New York, a person is guilty of
manslaughter in the second degree when "he recklessly causes the death of another
person."
(2) A person acts "recklessly" when he is aware of and consciously disregards a substantial and unjustifiable risk, which constitutes a gross deviation from the standard of
conduct a reasonable personl.vOuld observe in the situation. New York Penal Law, section 15 05(5)
(3) A conviction for second degree manslaughter under section 125.15(1) of the Penal
Law of New York is a crime involving moral turpitude. Matter of Medina, 15 I&N Dec.
611 (BIA 1976), followed; Matter of Gantus-Bo9aditla, 13 I&N Dec. 7 (BIA 1971),
modified.

CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. 1251(a)(4)1—Returning resident—convicted
of a crime involving moral turpitude
ON BEHALF OF SERVICE:
James W. Grable
Chief Legal Officer

ON BEHALF OF RESPONDENT:

Isabel Gillebaard, Representative
International Institute
864 Delaware Avenue
Buffalo, New York 14209

BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
This case is before us on certification by the immigration judge for
review of his decision dated June 19, 1981, wherein he found the respondent ineligible for the privilege of voluntary departure; denied his applications for a waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), as amended, asylum, and withholding of
deportation, pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h); but
ordered termination of these proceedings. The decision of the immigration judge insofar as it ordered the proceedings terminated will be
reversed.
The respondent is a native and citizen of Poland, age 29, who was
admitted to the United States in August 1973 as a returning resident.
He had initially entered this country in 1905. The respondent was indicted
for the murder of his aunt, Mary TabachewSky,' on January 5, 1974, but

111

Interim Decision #2879
later pleaded guilty before trial to the lesser crime of manslaugher,
second degree.' Thereafter, he served 4V2 years of a 7-year prison
sentence. 2 On August 14, 1978, the Service issued an Order to Show
Cause charging the respondent with being deportable under section

241(a)(4) of the Act, 8 U.S.C. 1251(a)(4).
The immigration judge found, inter alia, that he was "reluctantly
bound" to conclude that the respondent's conviction under section
125.15(1) of the New York Penal Law did not involve moral turpitude in
view of this Board's decision in Matter of Gantus-Bobadilla, 13 I&N
Dec. 7 (BIA 1971). In Matter of Gantus-Bobadilla, the Board held that
a conviction under section 125.15(1) did not involve moral turpitude.
The immigration judge's finding was inconsistent with that of the Dis-

trict Director who earlier, in denying the respondent's application for
asylum on July 23, 1979, had concluded that a conviction under section
125. 15(1) "constitutes conviction of a crime involving moral turpitude,"
citing Matter of Medina, 15 I&N Dec_ 611 (BIA 1976). In view of the
immigration judge's above finding, he ordered these proceedings
"terminated for lack of proof of deportahility" and certified this matter
to the Board for final decision.
Upon review of the record, including briefs submitted by both parties,
we find that the decision of the immigration judge should be reversed.
In Matter of Medietu, seepru, the Board reconsidered its position taken
in Matter of Gantus-Bobadilia, supra, and concluded that "moral turpitude can lie in criminally reckless conduct." We further noted that under
Illinois law "recklessness" arises only where a person "consciously disregards a substantial and unjustifiable risk" and such disregard "constitutes
a gross deviation from the standard of care which a reasonable person
would exercise in the situation." We held that such criminal reckless
conduct did involve moral turpitude.

The definitions of "recklessness" at issue in Matter of Medina, supra,
involving Illinois law and in Matter of Gantus-Bobadilla, supra, involving New York law are essentially identical. Section 15.05(3) of the New

Yorli Penal Law defines under "Culpability":
"Recklessly." A person acts recklessly with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjuStifiable risk that such result will occur or that such
' Pursuant to section 125.15(1) of the Penal Law of New York, a person is guilty of
manslaughter in the second degree when "he recklessly causes the death of another
person."
Tlhe respondent was later found guilty of issuing a bad check in Johnson City, New
York. while unemployed (Exs. 8 and 9), and was in the process of making restitution in the
amount of $374.46 at the time of the hearing in June I9s1 (Tr. pp. 29, 30). The crime of
issuing wnrthleas checks involves moral turpitude if a conviction can only be obtained

where intent to defraud is proven. See Matter of Zangurill, 18 I&N Dec. 22 (BIA 1981).

112

Interim Decision #2879
circumstance exists. The risk must be of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is unaware thereof

of voluntary intoxication also acts recklessly with respect thereto.
(Emphasis added.)
Accordingly, we recede from Matter of Gantus-Bobadilla insofar as
solely by reason

that case held that a conviction under section 125.15(1) of the New York
Penal Law does not involve moral turpitude. We find that a conviction
under section 125.15(1) does involye moral turpitude. 3
We note that Mongiovi v.. Icarazak, 30 F.2d 825 (D.C. W.D.N.Y
1929), which was relied upon in Gaiztus Robadilla, supra, involved a
1923 New York conviction for second degree manslaughter. The law
-

then in effect in New York in relevant part defined second degree
manslaughter as a crime committed -without design to effect death:
3. By any act, procurement or culpable negligence of any person, which, according to
the provisions of this article, does not constitute the crime of murder in the first or
second degree, nor manslaughter in the first degree. (Emphasis added.)'

The differences between the prior law and section 125.15(1) were neither acknowledged nor discussed in Gantus-Bobaditta, supra.
We conclude that the respondent's New York conviction for second
degree manslaughter did involve moral turpitude and that his deportability has been established by clear, convincing, and unequivocal
evidence. The respondent has failed to establish his eligibility for any
form of discretionary relief. Accordingly, the decision of the immigration judge will be reversed and the respondent will be ordered deported
to Poland.
ORDER: The decision of the immigration judge is reversed and
the respondent shall be deported to Poland.

3 Compare section 125.10 of the New York Penal Law regarding the crime of "criminally
negligent homicide," a Class E felony punishable by a term of imprisonment not to exceed
4 years. A conviction under section 125.15(1) is a Class C felony punishable by a term of
imprisonment not to exceed 15 years.
Section 1052 of the 1909 Penal Law of New York.

113


MilTKBOFDxK

In VISA PETITION Proceedings
A-11752066
Approved by Assistant Commissioner December SI, 1959
first preference—Tailor (men**)—Employment as alterer of ready-to-wear
clothing.
Beneficiary who has qualifications of "skilled tailor" la entitled to first preference quota status when hfa prospective employment in the United States
will be as an alterer of ready-to-wear clothing since such employment will
require him to remake practically every part of a man's suit or overcoat.
(Of. Matter tf B
S
> Inc., 7 I. & N. Dec. 428.)
BEFORE THE REGIONAL COMMISSIONER

Discussion: The beneficiary is a 27-year-old unmarried male, a
native and resident of Italy. The petitioner is a retail merchant
engaged in the sale of men's clothing. The men's suits and coats
sold are received ready-made from the manufacturer and each garment usually requires alteration to fit the customer who buys it.
This may involve such alteration of the garments as resetting the
shoulders, lowering the coat collar, lowering or making higher the
rise of trousers, removing pleats from trousers, or recutting and
resewing any part of a suit, as well as making the necessary measurements for such alterations.
The petition was denied by the district director on the ground
that the proposed employment of the beneficiary as an alterer of
ready-to-wear clothing is not one which requires the technical training, specialized experience, or exceptional ability contemplated by
the law for first preference status (section 203(a) of the Immigration and Nationality Act). The petitioner has appealed from this
decision and the case is here for consideration of the appeal, the
sole issue being, therefore, whether the proposed employment requires a tailor with* the qualifications recited in the case under
reference.
The evidence shows that the beneficiary is a skilled tailor and
that he is employed in that craft in Italy, having been a tailor's
apprentice from 1944 to 1949, having been employed in a, work shop
as a tailor from 1949 to 1952, and since 1952 having operated his
own shop as a tailor. This evidence is considered to establish the
509

beneficiary's qualifications as a tailor according to the criteria recited in Matter of B
8
, Inc., T L 4 N . Dec. 428.
It was stated in that case that for the beneficiary to qualify he
must be capable of performing all of the operations necessary to
make a man's suit or outercoat. It follows as a necessary consequence that the proposed employment of a beneficiary as a tailor
should require skill of this scope and kind..
It appears from the evidence that the bemJiciary in this case
would be required in his proposed employment to measure a customer and to recut and resew any part of a suit of a ready-made
garment to fit the measurements of the customer. The petitioner
alleges, in effect, that this requires the same skill as a tailor as for
one required to perform all of the. operations necessary to make a
man's suit or outercoat in the first place. Altering a ready-made
suit or outercoat for one customer does not of course involve a total
remaking pf the garment, but where one customer will require for
alterations the remaking of the garment in one part, another customer will in the same circumstances require the remaking of the
garment in another part. On this assumption, it is reasonable to
concede that the alteration tailor will be required over a period of
time and in dealing with many customers to measure for and to
remake practically every part that goes to make up a man's suit
or outercoat, thus having to be capable in such employment of performing all of the operations necessary to make a man's suit or
outercoat. It is, therefore, considered that the issue before us, that
is, whether the proposed employment in this case requires a tailor
capable of performing all of the operations necessary to make a
man's suit or outercoat, must be decided in favor of the appellant
and an order to that effect will be made.
Order; It is ordered that the appeal be sustained and that the
petition to establish first preference quota status be granted.

WO


Interim Decision #2141

MATTER OF TABCUM
In Section 245 Proceedings
A-19438229

Decided by Regional Commissioner April 11, 1972
The 1970 amendment to section 212(e) of the Immigration and Nationality Act
did not alter the applicability of the two-year foreign residence requirement to
the alien spouse of an exchange visitor where the principal alien is subject to
that requirement. Accordingly, applicant is subject to the foreign residence
requirement of section 212(e), as amended, as the "accompanying spouse" of a
principal exchange visitor alien who is subject to such requirement. Since she
has not complied with the foreign residence requirement, she is ineligible for
adjustment of status under section 245 of the Act.
UN l3HALFOPAPPLICANT: Jules E. Coven, Esquire
One East 42nd Street

New York, New York 10017

This matter is before the Regional Commissioner on certification
by the District Director who dismissed the motion to reconsider
the denial of the application for adjustment of status under section
245 of the Immigration and Nationality Act, as amended.
The facts in this case, which are not in dispute, are set forth in
detail in the District Director's decision of November 8, 1971 and
need not be fully repeated. In brief, the applicant is a 32-year-old
native and citizen of Thailand who was last admitted to the
United States at Honolulu, Hawaii on July 6, 1968 as the spouse of
an exchange visitor. She accompanied her husband, Sarote Tabcum, a 30-year-old native and citizen of Thailand who was admitted in J-1 status to participate in Exchange Program G—I-1 which
is financed by the United States Government. They were both
admitted until January 3, 1969 and received extensions of stay in

their respeclive nonimmigrant classifications until June 30, 1971.
The applicant is the beneficiary of an approved third preference
visa petition as a registered nurse which she filed in her own
behalf on July 17, 1970. Her application for status as a permanent
resident submitted pursuant to section 245 of the Act was denied
September 10, 1971 on the ground she is ineligible for such
adjustment because she has not complied with the two -year
foreign residence requirement of section 212(e) of the Act.

113

Interim Decision #2141
The record further discloses that a motion to reconsider the denial of adjustment was filed on October 26, 1971. It was claimed
therein that, in view of the revision of the statutory language of
section 212(e) by the Act of April 7, 1970, the bar to adjustment is
now limited to participants in Government-financed programs; that
the instant applicant, who is not a participant but merely an accompanying spouse, is no longer ineligible for adjustment under
section 245 of the Act. The District Director dismissed the motion on
November 8, 1971 holding that the applicant, having received an
exchange visitor's visa, was a participant in her husband's program
and enjoyed all of the privileges entailed therein, i.e., permission to
enter the United States, grants of extensions of stay, etc. It was
concluded that she, as her spouse, is subject to the foreign residence
requirement. In connection with the certification of the matter to
this office, counsel has asserted the following in a memorandum,
which he subsequently reiterated in oral argument on March 8,
1971:
The facts as stated in the decision of the Immigration Service of November
8, 1970 are essentially correct. The sole question involved is one of the
interpretation of the amendment to the Immigration Law on April 7, 1970.
The applicant who entered the United States as an accompanying apnuse of
an exchange student did not, as an individual, participate in the program
which was financed by the United States Government Agency, or tly the
Government of her country.
The words of the amendment are very significant in that it did not
specifically bar all persons who were admitted under Sec. 101(015)(3). The
purpose of the amendment of April 7, 1970 was to make it easier for persons
who entered as "J's" to adjust their status in the United States. The
interpretation made by the Immigration and Naturalization Service is very
strict indeed.
The record apparently disclosed that the applicant did not sign any statement indicating that she understood she would have to return to her home,
which would indicate to the writer that she was never considered to be a
participant, but merely an accompanying spouse.
In the State Department regulations, there is a separate definition for an
accompanying spouse. It is obvious from. the wording and intention of the
Statute that the applicant was not a participant in the program and, therefore, she is not subject to the foreign residence requirement of the Immigration and Naturalization Act as amended.

We do not agree with counsel's contention that the instant
applicant is not subject to the foreign residence requirement of
section 212(e) of the Act because she was only an accompanying
spouse. To the extent that she was permitted to enter and remain
in the United States and was beneficiary to the financial aspects
of the principal alien's participation in a Government-sponsored
program, she too derived benefits from such program. Counsel
concedes that prior to the 1970 amendment of section 212(e), the
accompanying spouse and children were subject to the same
114

Interim Decision #2141
foreign residence provision as the principal alien. This held true
whether or not the J-2 alien signed a statement to the effect that
she underkood she would have to return home. The sole question
to be resolved is whether the statutory revision resulted in a
change in such requirement insofar as the accompanying spouse is
concerned.
The legislative history of the Act of April '7, 1970 (Public Law 91 225) makes no reference to any intent on the part of Congress to
extend the more liberalized provisions of the amended section
212(e) to the accompanying spouse and/or children of an exchange
visitor who is or has been in a Government-financed program or
where his country requires his talents or skills (2 U.S. Cong. &
Admin. News '70, pp. 2755-2757). Current regulations state that an
alien's spouse and children, if also subject to the foreign residence
requirement, may be included in the waiver application of the J-1
alien, provided the spouSe has not been a participant in an
exchange program (8 CFR 212.7(c)). If we were to concede arguendo that counsel's interpretation is proper, there would be no
need for such regulatory provision since all J-2 aliens (except
those who themselves have been participants in Governmentfinanced programs) would no longer be subject to the foreign
residence requirement. Although the 1970 amendment removed
restrictions from many exchange visitors, the two-year .foreign
residence requirement still applies to the spouse of an exchange

visitor where the principal alien is subject to such provision
(Gordon and Rosenfield, Immigration Law and Procedure, 6.8g, p.
6-51, footnote 40b).
It should be further pointed out that in cases where both a J-2
spouse and child(ren) are involved, permitting them to adjust their
status to permanent residents, would bring the J-1 participant in
a Government-financed program within the purview of Matter of
Nassiri, 12 I. & N. Dee. 756. On the basis of the rationale expressed
therein, the principal alien would then be eligible for a waiver of
the foreign residence requirement on hardship grounds. This, in

effect, would gain him back-door access to a benefit to which he
otherwise would not be entitled. We do not believe under such
circumstances that counsel's reasoning is in keeping with the
spirit and intent of exchange visitor legislation, even as contemplated
_ by_ the less stringent 1970 amendment.
in view of the foregoing, it is concluded that the instant
applicant, as the spouse of an exchange visitor who has participated in a program financed by the United States Government, is
subject to the two-year foreign residence requirement of section
212(e) of the Act; as amended. Accordingly, the decision of the

District Director will be affirmed.
115

Interim Decision #2141

It is ordered that the denial of the application for adjustment of
status under section 245 of the Immigration and Nationality Act
be and same is hereby affirmed.

116


Interian Decision #1858

MATTER or

SIM

In VISA PETITION Proceedings
A 13008502
-

Decided by Regional 0 ommission November 6,1962
The petitioner and spouse have not established that they will properly care for

the beneficiary-child, as defined in section 101(b) (1) (F), pursuant to section
205(b), Immigration and Nationality. Act, as amended, since they have 2
minor daughters or their own, the petitioner has no steady employment, biS
wife is employed as night superintendent at a hospital working from 11:00
PM to 7:00 AM, and petitioner, who was discharged from the United States
Army in 1044 under other than honorable conditions, has a long record of
arrests and convictions, the host of which was in 1081.

This case is on certification from the District Director, Seattle,
Washington, who denied the petition on the ground that it has not
been established that the petitioner and spouse are able to care for the
child properly if the child is admitted to the United States. 1
The petitioner works as a handyman and house painter, but he has
no steady employment. He earned approximately $850.00 during the
first eight months of 1962. His spouse is night superintendent of
nurses at Northgate General Hospital, Seattle, and earns $440 a month.
Her hours of employment are from 11:00 PM to 7:00 AM. They
have two daughters of their own, who are 10 and 15 years of age. It
is stated. that one of the parents is always at home to care for the
children.
The petitioner was discharged from the United. States Army on
May 5, 1944, under conditions other than honorable, because of chronic
alcoholism. While in the army he was convicted four times by courtsmartial for such things as being drunk in quarters and for being
AWOL. He has a long arrest record. He was arrested and convicted
of larceny in Seattle twice in 1958 and once in 1959, and was sentenced
to serve 60 days in jail the first time and 90 days in jail the second and
third times. He was arrested and fined or sentenced to jail numerous
Section 205(b), Immigration and Na\tionality Act, as amended.

624

Interim Decision #1358
times in Washington, Oregon, and California for being drunk. The
last time was on May 17, 1961.
On the basis of the record in this case it must be concluded that the
petitioner and his spouse have failed to establish that the orphan will
be cared for properly if admitted to the United States. Accordingly
the denial of the petition was proper and the appeal will be dismissed.
ORDER: It is ordered that the decision of the District Director
be affirmed.

68- 456-65-41

625


Interim Decision #1839

MASTER OF GARCIA
In Visa Petition Proceedings
A-17963963
Decided by Board January E9,1968
Whore paternity of beneficiary. who was born out of wedlock in the Philippine
Islands in 1932, was acknowledged by petitioner, his natural father, and he
was received into the home in the Philippines of the petitioner who since 1927
• had been living out of wedlock with the natural mother of the beneficiary,
legitimation of beneficiary sines birth occurred pursuant to section 230 of the
Civil Code of California, the State of residence and domicile of petitioner, notwithstanding the legitimating acts occurred outside that State and petitioner
has been living in California since 1933 and beneficiary has been living in the
Philippines. Renee, beneficiary is entitled to preference classification under section 203(a) (4) of the Immigration and Nationality Act, as amended, as the
married son of the U.S. citizen petitioner.
ON BsztArr or PmwrioNsa: Alberto V. Bsteva, Esquire
1255 Post Street
San Francisco, California 94109
(Brief filed)

The case comes forward pursuant to certification by the District
Director, San Francisco District, of his order dated November 6, 1967
denying the visa petition for the reason that the evidence presented

by the petitioner does not establish that the beneficiary is a child as
defined in section 101(b) (1) of the Act and that he is not entitled to
status as the married son of a citizen of the United States under section
203 (a) (4) of the Act.
The petitioner, a native of the Philippines, a naturalized citizen of
the United States, 76 years old, male, seeks preference status under
section 203(a) (4) of the Immigration and Nationality Act on behalf
of the beneficiary as his son. The beneficiary is a native and citizen
of the Republic of the Philippines, 35 years old, married.
In support of the visa. petition the file shows that the local civil
registrar certified that Philippine birth records prior to 1945 are not

available; however, a baptismal certificate of the beneficiary dated
was born January 16,

February 91, 1982 shows that the beneficiary
628

Interim Decision #1839
1932, the legitimate son of Pedro M. Garcia and Macaria Fernando.
The petitioner also submitted his marriage certificate showing his marriage to Macaria Fernando on April 28, 1967 at Quezon City, Republic
of the Philippines. Examination of the baptismal certificate and the

marriage certificate establish that the petitioner and his wife are natural parents of the beneficiary. The petitioner also submitted a notarized affidavit executed July 3,1967 setting forth that he had been living
with Macaria Fernando, the mother of the beneficiary, since July 1927
as husband and wife, that the beneficiary was born to her sometime in
January 1932 and that he is claiming him as his legitimate son. The
petitioner stated that in the Philippines there is no divorce law and
that once you are married you are married for life; for that reason
some people in the islands prepare to live together unmarried several
years; when they find out that they are on good terms, then they get
married. The petitioner also submitted letters dated August 7, 1967
from Isidro Teope and Alfred S. Moreno setting forth that they have

and 1934, respectively; that they know
the petitioner has a wife and son in the Philippines; that the former
known the petitioner since 1946

knew this because he often visited his family when he was there; and
the latter because the petitioner had many times showed him group

pictures of his family; and that Alfred S. Moreno knows that the petitioner oftentimes sends support money for his family in the
Philippines.
It is voted that the petitioner, the natural father, married the
natural mother of the beneficiary on April 28, 1967 when the beneficiary was 35 years old. Consequently, there can be no legitimation
under section 101(b) (1) (0) of the Immigration and Nationality Act
which provides for legitimation under the laws of the child's residence or domicile, or under the laws of the father's residence or
domicile, whether in or outside the United States, if snob legitimation

takes place before the child reaches the age of 18 years and the child
is in the legal custody of the legitimating parent or parents at the
time of such legitimation.
However, counsel for the petitioner claims that the beneficiary was
legitimated under the provisions of section 230 of the California Civil
Code which provides that the father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the
consent of his wife, it he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it as such;
and such child is thereupon deemed for all purposes legitimate from
the time of its birth. Petitioner's counsel sets forth that the petiticiner
has been physically present in the State of California from 1933 to
the present time and that the petitioner has had the intent, through-

620

Interim Decision #1839
out these years, to remain and live in such state, and petitioner is
therefore a domiciliary of said state.
The statute, section 230 of the Civil Code of California, has been
construed as a statute of legitimation rather than adoption and the
provisions thereof are to be literally construed. The word "family" is
not a technical word but a word of flexible meaning and is to be
broadly construed. so as to include within its purview even a case
where the father is living out of wedlock with a woman not his lawful
wife?
The petitioner has submitted the baptismal certificate as proof that
he gave his name to the beneficiary, acknowledging him to be his son.
In his affidavit of July 3, 1967 he stated that he had been living with
Macaria Fernando since July 1927 and that the beneficiary was born
to her sometime in January 1932. In addition, he has supplied the
statements of two persons, Isidro Teope and Alfred S. Moreno, who
have known the petitioner since 1946 and 1934, respectively, who
state that the petitioner has a, wife and son in the Philippines and has
so acknowledged. This evidence constitutes proof that the petitioner
acknowledged the beneficiary as his child and received it into his
family and gave the beneficiary the family name. 2
In Matter of Pa2acio, 11 1. & N. Dec. 132, the petitioner sought non-

quota status on behalf of his unmarried child, born June 27, 1944, a
native and citizen of the Philippines. A certificate of baptism estab:
lished that he was the child of the petitioner and of one Nena de Silva.
The petitioner married his present wife on May 6, 1963. The petitioner
obtained a decree in the Superior Court of the State of California,
San Francisco, entered September 15, 1904 declaring that the petitioner was a legitimate father from birth of the beneficiary and the
children included in the judgment, that said minor children were
legitimate children of the petitioner and that a valid and subsisting
relationship of parent and child existed between petitioner and said
minor children. The petitioner had been separated from the mother
of the beneficiary since 1939 and in September 1944 he signed a
legal separation but did not see her and believed her to be deceased.
The petition was denied without prejudice to reopening if the petitioner could establish legitimation of the beneficiary prior to his
18th birthday. Thereafter (Matter of Palacio, 11 I. & N. Dec. 183),
the petitioner submitted an amended judgment of legitimation under
section 230 of the California Civil Code in the Superior Court of the
'Matter of Der—, 6 I. & N. Dec. 325; Betate of Baird. 193 Cal. 225; In Re
Merkel°, 183 Cal. 177; Rankin v. Rankin, 52 Cal. App. (2d) 231, 235; Garner v.
Judd, 136 Cal 304.
*In ro Jessup, SI Cal. 411g, 434 and dissenting opinion.

630

Interim Decision #1839
State of California, San Francisco, dated April 27, 1965 in -which it
was decreed that the 'petitioner was the legitimate father of the
beneficiary and of the other minor children named in the petition and
the children were the legitimate children of the petitioner, and that
a valid subsisting relationship of parent and child existed between
the petitioner and the said minor children since their birth. It was.
further ordered, adjudged and decree that the date of legitimation or
the beneficiary was eight years of age. We noted that-according to theamended judgment, the court evidently considered the relationship.
between the petitioner and Nena de Silva, the beneficiary's natural.
mother, sufficient to base a finding of "receiving into the family" even:
though it occurred in the Philippines, under the circumstances of the
case. The visa petition was approved.
In Matter of Pableo, Int. Dec. No. 1808 (D.D., November g,
1967), the petitioner sought classification under section 203(a) (1) of
the Immigration and Nationality Act, as amended, on behalf of the
beneficiary, his natural son, who was born out of wedlock In the
Philippines. The petitioner claimed legitimation pursuant to section 230 of the California Civil Code which has been construed as an
out and out statute of legitimation. 8 The beneficiary's certificate of
baptism showed him to be the son of petitioner and the record established that the petitioner acknowledged the beneficiary as his child.
received him as such with the consent of his wife into his family in
the Philippines in 1951 when the beneficiary was 11 years of age and
otherwise treated him as if. he were a legitimate child both' in the
Philippines and in the State of. California. It was. conceded that the
record established that the beneficiary had been legitimated under
the provisions of section 280 of the California Civil Code and, as
construed by the California courts, it was immaterial whether legitimation had ocuurred during the applicant's minority or thereafter.'
The facts of the case were submitted to the Attorney General of the
State of California and his opinion was requested as to whether the
beneficiary had been legitimated under the laws of the State of California and, if so, the date on which the legitimation deemed to have
occurred. The Attorney General replied :
-

-

Under the facts given, it appears that the requirement of Civil Code, section
230 has been met. The legitimating acts specified in section 230 are not required to occur in California. Estate of Lund, 26 Cal. (2d) 472. In the leading
case of Blythe v. Ayres, 96 Cal. 582, the court held that section 280 had extra
territorial operation and its affect attaches to a state of facts

where the child

1 .13aIlantine T. .De Silva, 226 F.2d 623, 632 (9th Cir., 1955), aff'd 35/ U.S.
570, reb. den. 352 U.S. 97
'Citing Estate of LleaU, 26 Cal. (2d) 472; 'Wolf v. Gall, 32 Cal. App. NG;

Blythe v. Ayres, 96 Cal. 532.

631

Interim Decision #1839
was never in California, but resided in a foreign country whenever the question
of legitimation presents itself to the court of California and this is so, regardless of the law of the country.
It would appear that the son was legitimated under California law as early
as 1945 when the child lived with petitioner's father, if this was the petitioner's
domicile. However, there can be no doubt that in 1951 when petitioner established a home with his wife, son, and the beneficiary and he lived as a family
unit, that all other requirements of the Civil Code. section 230 had been met.
The evidence submitted in the instant case establishes that the natural father lived with the natural mother out of wedlock since 1927;
the beneficiary, whose certificate of baptism bears his father's name,
was born in 1932; that the petitioner left the Philippines in 1933; and
that the petitioner acknowledged the beneficiary as his son. It appears further on the basis of the provisions of section 230 of the California, Civil Code and the interpretations thereof in Matter of Palacio,
11 I. & N. Dec. 183 and Matter of Pable,o, Int. Dee. No. 1808, the beneficiary was legitimated under section 230 of the California Civil Code
upon the basis of the acknowledgment of paternity in the certificate of
baptism and the receiving into the home, since the date of birth under
the circumstances of the case. 6 Accordingly, the visa petition will

be approved.

ORDER: It is ordered that the visa petition be and the same is
hereby approved for preference status under section 203 (a) (4) of
the Immigration and Nationality Act, as amended.
Prior administrative holdings to the contrary as to the extraterritorial effect
of section 230, California Civil Code are overruled.


Interim Decision #2295

MATTER OF FERREIRA.

In Visa Petition Proceedings
A-19411014

Decided by Board June 12, 1974
Since under the law of Portugal, judicial separation of natural persons and of
property does not dissolve the marriage bonds (Article 1774, Civil Code of
1966), the Portuguese court decree of separation of persons and property
presented by petitioner in support of his visa petition does not constitute proof
of the termination of his first marriage in Portugal in 1961. (Neither is the
decree recognized in the State of New York, the place of celebration of the
subsequent marriage, as sufficient to terminate petitioner's first marriage.)
Hence, petitioner's marriage to the beneficiary in New York in 1970 is void
and cannot serve to confer preference classification on the beneficiary under
section 203(aX2) of the Immigration and Nationality Act, as amended, as
petitioner's spouse.
ON

R FIT A tr tIF PETTTIONER:

Allan Ross. Esquire
60 Broad Hollow Road
Melville, New York 11746

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of
the Immigration and Nationality Act. The petition was approved
by the District Director on October 15, 1970. However, on May 3,
1971, the District Director notified the petitioner of his intent to
revoke the approval of the visa petition on the ground that a prior
marriage of the petitioner had never been legally terminated.
Subsequent correspondence by counsel failed to overcome the
ground for revocation. In a decision dated August 5, 1971, the
District Director revoked the visa petition. The petitioner has
appealed from that decision. The appeal will be dismissed.

The petitioner and the beneficiary, both natives of Portugal,
were married in Hauppauge, New York on April 28, 1970. A
petition for a spouse must be accompanied by proof of the legal
termination of all previous marriages of both husband and wife. 8
CFR 204.2(cX2). The petitioner presented a decree of separation of
persons and property rendered by a court in Portugal on January
17, 1970. The District Director found that this decree did not
terminate the petitioner's prior marriage.
723

Interim Decision #2295
We have consulted the Hispanic Law Division of the Library of
Congress regarding Portuguese law. Article 1789 of the Civil Code
of Portugal (promulgated in 1966) states that a marriage may be
dissolved by the death of one of the spouses or by divorce. Article
1790 provides that neither Catholic marriages performed after
August 1, 1940, nor civil marriages in which the parties have
contracted Catholic marriages after that date, may be dissolved by
divorce. Article 1774 states that judicial separation of natural
persons and of property does not dissolve the marriage bonds.
The petitioner entered into a Catholic marriage in Portugal in
1961. The Portuguese decree of separation of persons and property
did not terminate the petitioner's first marriage. Counsel has
conceded that this is the Portuguese law. Nevertheless, he argues
that New York, the place where the present marriage was celebrated, would recognize the Portuguese decree as sufficient to
terminate the prior marriage.
We are not dealing with a- statutory prohibition against the
remarriage of divorced persons, to which New York might decline
to give extraterritorial effect if it violated New York policy. We are
faced here with a decree that did not dissolve the marriage bonds_
A New York court has stated that:
If a divorce decree, whether designated interlocutory or otherwise, does not
of itself immediately terminate the marriage affected thereby, any attempted

subsequent marriage by a party thereto, prior to said decree becoming or
being made final, is void and bigamous; and the courts have unanimously so
declared, irrespective of the place of celebration thereof.... Marzano v.
Marzano, 154 N.Y.S2d 507, 509 (Sup. Ct. 1956).

In Kurras v. Kurras, 1 N.Y.S.2d 867, 253 App. Div. 896 (1938), the
court held that an Austrian separation from bed and board was
not an absolute divorce in Austria, and that therefore the defendant's subsequent New York marriage was void ab initio.
We conclude that the Portuguese decree of separation was not
sufficient to terminate the petitioner's prior marriage under either
Portuguese or New York law. Nor is there any merit to counsel's
contention that the issuance of a. marriage license by the Town
Clerk of Smithtown, New York establishes the legal termination of
the petitioner's prior marriage.
Since the petitioner still has a wife in Portugal, we have no
choice but to hold that his present marriage to the beneficiary is
void. Therefore, he cannot confer preference status on the beneficiary as his spouse under section 203(a)(2) of the Act.
The decision of the District Director was correct. Consequently,
the appeal will be dismissed. It appears from the record that
counsel is exploring the possibility of instituting a divorce proceeding in the petitioner's behalf in the States of New York. If the
724

Interim Decision #2295
petitioner is able to obtain a valid divorce from his first wife and
remarry the beneficiary, he may submit a new petition in her
behalf.
ORDER: The appeal is dismissed.

725


Interim Decision #2741

MATTER OF SALAZAR

In Exclusion Proceedings
A-30326095

Decided by Board November 9, 1979
(1) A lawful permanent resident who departed the United States for five months and
traveled through various countries and visited relatives, has meaningfully interrupted
his permanent residence and can be properly placed in exclusion proceedings.
(2) If, in the course of an exclusion hearing, a possible ground of excludability develops,
it is proper for the ground to be ruled upon by the immigration judge, as long as the
applicant is informed of the issues confronting him at some point in the hearing, and
is given a reasonable opportunity to meet them.
(a) Where the applicant had a colorable claim to lawful permanent resident status at
the time he attempted to enter, the Service had the burden of proof to establish that he
should be deprived of this status. Matter of Kane, 15 1&N Dec. 258 (BIA 1975).
(4) While written notice of revocation of a visa petition to a beneficiary is not necessary
under Section 205 of the Immigration and Nationality Act, 8 U.S.C. 1155, there mustbe
proof of actual notice for the requirements of the section to be met.
(5) In a case where there was some evidence that the applicant, a returning lawful
permanent resident, knew that a visa petition filed by his wife had been withdrawn,
the Service produced a cable to the Commissioner of the Service for relay to the
Consulate in Peru. However, there was no proof that the consul notified him of the
revocation and a visa was issued by the consul. Held there was insufficient evidence to
establish that the applicant had actual notice of the revocation to meet the requirements of Section 205 of the Act, and that he was properly admitted in 1176, and
exclusion proceedings were terminated.
EXCLUDABL E
Order: Act of 1952 — See 215(a)(20) [8 D.S.C. 1182(a)(20)]—No valid visa
ON BEHALF OF APPLICANT: David A. Kattan, Esquire

419 Gravier Street,
New Orleans, Louisiana 70130
BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated November 14, 1978, an immigration judge found
the applicant excludable as charged and ordered him excluded. The
applicant appeals. The appeal will be sustained.
The applicant is a 29-year-old native and citizen of Peru. On May 20,
1975, a visa petition on his behalf was approved by the District

Interim Decision #2741
Director. Shortly afterward, his wife withdrew the visa petition, and in
a letter dated May 28, 1975, she was given notice of the automatic
revocation of the visa petition by the District Director. A cable was
sent that same day to the Commissioner of the Service in Washington,

D.C., informing him of the revocation so that the United States Consulate in Lima, Peru, could in turn be informed of the revocation. The
visa petition shows that the petition was received by the Consulate on
May 30, 1975. In the meantime, although the evidence is somewhat
unclear, it would appear that the applicant had a conversation with his
wife touching on the withdrawal of the visa petition, but not on the
revocation of the visa petition. In November 1975, the applicant left the
United States for Peru to receive his visa. The visa was issued to him
on January 19, 1976. He was admitted as a lawful permanent resident
on April 7, 1976, on the basis of that visa. In December 1977, he was
divorced from his wife. He left the United States in March 1978. On
August 10, 1978, when he attempted to reenter the United States, he
was not admitted because the immigration inspector found that he was
possibly excludable under section 212(a)(20) of the Immigration and

Nationality Act, 8 U.S.C. 1182(a)(20), and he was referred to an immigration judge for an exclusion hearing. The immigration judge
found that he was excludable under both section 212(a)(20) and (a)(19)

of the Act, the first because he was not in possession of a valid
immigrant visa when he attempted to enter in April 1976, and the
second because he had willfully misrepresented the fact that he was
the beneficiary of an approved visa petition.
Before we consider the points raised by the respondent on appeal, it
is necessary to resolve an initial question of the propriety of the
exclusion proceedings in this case. The applicant as noted, was admitted as a lawful permanent resident in 1976, and remained in the United
States until March 1978, when he traveled to several countries in
Central and South America_ He remained outside the United States for

about 5 months, apparently visiting his family and sightseeing in
various places. Given the length of time he remained outside the
United States, and his activities during that time, we have concluded
that his departure was meaningfully interruptive of his permanent
residence. Exclusion proceedings were, therefore, properly instituted
against the respondent. Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963);
but see, Maldonado-Sandoval v. INS, 518 F.2d 278 (9 Cir. 1975). We can,

therefore, go on to the issues presented by the applicant.
On appeal, the applicant claims that he was found excludable under
section 212(a)(19) of the Act although the Notice to Applicant for
Admission Detained for Hearing Before Special Inquiry Officer (Form
1-122) did not contain this charge. He also asserts that the finding of
willful misrepresentation under section 212(a)(19) of the Act was
168

Interim Decision #2741
incorrect because he was in fact married when he obtained his visa.
Finally, he contends that he received no notice of the revocation of the
visa petition pursuant to section 205 of the Act.
We do not agree that it was necessary for the Notice (Form 1-122) to
contain a charge under section 212(a)(19) of the Act for it to be
considered by the immigration judge. If, in the course of an exclusion
hearing, a possible ground of excludability develops, it is proper for the
ground to be ruled upon by the immigration judge, as long as the

applicant is informed of the issues confronting him at some point in
the hearing, and he is given a reasonable opportunity to meet them.
See Matter of Healy and Goodchild, Interim Decision 2716 (BIA 1979).
There is no provision in the Act or in 8 C.F.R. setting forth requirements such as those governing an Order to Show Cause in deportation
proceedings. This point of appeal has, therefore, not been
substantiated.
Before the next two points of appeal are considered, however, it is
necessary to discuss the burden of proof imposed in this case, as it
directly affects the outcome of the proceedings. In his decision, the
immigration judge states that the burden of proof was upon the
applicant to establish that he was not subject to exclusion, and that he
had failed to carry this burden. Since the applicant had a colorable
claim to lawful permanent resident status at the time he attempted to
enter, the burden in this case was upon the Service to show that he
should be deprived of this status. Matter of Karte,15 I&N Dec. 258 (BIA
1975). Given this burden, it was incumbent upon the Service in the first
instance to show that the applicant had received notice of the revocation of the visa petition communicated through the Secretary of State
to him as the beneficiary before he commenced his journey to the
United States, or that he had actual notice of the revocation through
other means, and in the second instance to show that he had misrepresented a material fact.
The evidence in this regard is unclear. The applicant testified that he
was never asked any questions about the visa (Tr. p. 29). He also

testified that when he left the United States in 1975 to go to Peru, he
was separated from his wife, but that she had led him to believe that

she would live with him when he returned. He also testified that she
had not told him that she had withdrawn the visa petition, when he
communicated with her while he was in Peru (Tr. pp. 28-31). In his
statement to the Service investigator, dated August 31, 1978, he said
that he knew that his wife had withdrawn the visa petition, but that he
did not know the date. In addition, he also stated that he was asked no
questions by the consul about a possible separation and that he did tell
the consul that he was coming to the United States to join his wife,
which was his actual intent. He also stated that a Service official told
169

Interim Decision #2741
him on June 4, 1975, that his wife had withdrawn the visa petition, that
he did not know that the petition had been withdrawn before he left
the United States in. November 1975, and that the same Service official
who had informed him of the withdrawal of the petition also told him
to return to Peru and get the visa (Ex. 4). Given this state of affairs,
and the apparent uncertainty of his marriage at that time, it cannot be
said that the Service has carried its burden in establishing that the
applicant was in fact aware of what had transpired concerning his visa

petition, and that his failure to volunteer information on the subject to
the consul constituted a willful misrepresentation of a material fact.
We also do not find that the Service has established that notice of the

revocation of the approval of the visa petition was communicated to
the applicant, or that he had actual notice of the revocation as set forth
in section 205 of the Act which states:
Sec. 205. The Attorney General may, at any time, fOr what he deems to be good and
sufficient cause, revoke the approval of any petition approved by him under section
204. Such revocation shall be effective as of the date of approval of any such petition.
In no case, however, shall such revocation have e ffect unless there is mailed to the
petitioner's last known address a notice of the revocation end unless notice of the
revocation is communicated through the Secretary of State to the beneficiary of the
petition before such beneficiary commences his journey to the United States. If notice
of revocation is not so given, and the beneficiary applies for admission to the United
States, his admissibility shall be determined in the manner provided for by sections
235 and 236. (Emphasis added).

The evidence relied on by the immigration judge is that contained in
the applicant's testimony at the hearing and in the statement by him
to the Service investigator taken on August 31, 1978 (Ex. 4). In that
statement, as noted, the applicant relates his belief that his wife had
withdrawn the visa petition, but that when he left the United States in
November 1975, to go to Peru he did not know that the petition had
been withdrawn. His testimony at the hearing was that he communicated with his wife on four or five occasions while he was in Peru
waiting for his visa and she did not tell him that she had withdrawn
the visa petition. He also testified that he did not receive any written
notification from the Service or the State Department concerning
revocation of the visa petition (Tr. pp. 27 25). The testimony and the
-

statement contain the major evidence on the question of whether or
not the applicant was notified of the revocation of the visa petition.
The Service has provided a copy of a cable addressed to the Commissioner of the Service for relay to the United States Consulate in Peru.
But this in itself is not persuasive evidence that if received the cable
was acted upon. In fact, quite the opposite conclusion could be drawn
from the fact, that the visa was issued. Consequently, while there is a
substantial amount of evidence showing that the applicant was aware
that his wife may have with drawn the visa petition, awareness of this
170

Interim Decision #2741
fact cannot be equated with actual notice of the revocation on the part
of the applicant, particularly in light of the testimony concerning the
apparent uncertainty of the marriage. So although we do not agree
with the applicant that written notice of revocation to a beneficiary
outside the United States is necessary under the terms of section 205 of
the Act, there must be proof of actual notice for the requirements of
the provision to have been met. In this case, there is only evidence
establishing that the applicant was aware that the visa petition may

have been withdrawn. This is not sufficient to establish that actual
notice of revocation was received by the applicant before he left Peru
for the United States. Since this is true, the revocation had no effect,
the applicant was appropriately admitted as a lawful permanent resi-

dent in 1976 and he is not excludable under section 212(aX20) of the
Act. The appeal will accordingly be sustained.
ORDER, The appeal is sustained, the exclusion proceedings are
terminated and the applicant is admitted into the United States.

171


Cite as 27 I&N Dec. 495 (A.G. 2018)

Interim Decision #3947

Matter of CASTILLO-PEREZ, Respondent
Decided by Acting Attorney General December 3, 2018
U.S. Department of Justice
Office of the Attorney General

BEFORE THE ACTING ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for review of its decision. The
Board’s decision in this matter is automatically stayed pending my review.
See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist
me in my review, I invite the parties to these proceedings and interested amici
to submit briefs on points relevant to the disposition of this case, including:
1. In connection with an application for cancellation of removal under 8 U.S.C.
§ 1229b(b), what is the appropriate legal standard for determining when an
individual lacks “good moral character” under 8 U.S.C. § 1101(f)?
2. What impact should multiple convictions for driving while intoxicated or
driving under the influence have in determining when an individual lacks “good
moral character” under 8 U.S.C. § 1101(f)?
3. What impact should multiple such convictions have in determining whether
to grant discretionary relief under 8 U.S.C. § 1229b(b)?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before January 4, 2018. Interested amici may submit briefs not exceeding
9,000 words on or before January 18, 2019. The parties may submit reply
briefs not exceeding 6,000 words on or before January 18, 2019. All filings
shall be accompanied by proof of service and shall be submitted
electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before
the pertinent deadlines. Requests for extensions are disfavored.

495


Interim Decision #2580

MATTER OF ESPINOSA

In Visa Petition Proceedings
A-20997794
A-20998610

Decided by Board April 27, 19n
(1) The United States citizen petitioner applied for immediate relative status for his wife
and stepson under section 201(b) of the Immigration and Nationality Act. Beneficiary
married her first husband in Mexico on September 7, 1957. The stepson beneficiary was
born November 18, 1958. Beneficiary married petitioner in 1967 in a ceremonial marriage in the State of Texas. On December 6, 1973, the petitioner and beneficiary adopted
beneficiary's son. In March 1975 petitioner's wife entered into a mutual consent divorce
decree terminating her first marriage before the Civil Registrar of Coahuila, Mexico.
Four months later beneficiary and petitioner filed a Declaration and Registration of
Informal Marriage under Title 1, section 1.92 of the Texas Code Annotated. The district
director denied the petitions concluding that because a child had been born to the
petitioner's wife and first husband, the mutual consent divorce decree was invalid under
Mexican law, and therefore the beneficiary's subsequent marriage to the petitioner was
invalid.
(2) Under Article 279 of the Civil Cade of Coahuila a mutual consent divorce decree may
be obtained only if the spouses have no children. The adoption of the child by petitioner
and beneficiary would have removed that child from the marriage of the natural parents
for purposes of the mutual consent divorce decree, if the adoption had been registered in
the office of the Civil Registry of the state of the child's birth which was Zacatecas. The
adoption was not registered in Zacatecas and as a result had no legal effect in the state
of Coahuila. Thus, failure by the beneficiary and her first husband to mention the child
in their mutual consent divorce decree entered into in Coahuila constituted grounds to
annul the divorce decree.
(3) Under the Civil Code of Coahuila annulment of the divorce decree will not take effect
without court action declaring the decree void, and the decree will be considered valid
until such court action. Since there was no court action declaring the mutual consent
divorce decree of beneficiary and her first husband void, that divorce is valid. Therefore, the parties' subsequent declaration of informal marriage created a valid marriage
between them under the laws of the State of Texas and is valid for immigration
purposes. The visa petitions will be granted.
ON BEHALF OF PETITIONER: W. A. Griffis, Jr., Esquire
Griffis, Griffis & Wilson
P. 0. Box 2190
San Angelo, Texas 76901
BY: Wilson, Acting Chairman; Maniatis, and Appleman, Board Members

The United States citizen petitioner has applied for immediate relative

status for the beneficiaries as his wife and stepson under section
199

Interim Decision #2580
201(b) of the Immigration and Nationality Act. In a decision dated
November 21, 1975, the District Director denied the petitions and the
petitioner has appealed from that denial. The appeals will be sustained.
The beneficiaries are natives and citizens of Mexico. In support of the
petitions, the petitioner submitted documents indicating that his stepson was born in Mexico on November 18, 1958; that on May 16, 1967, he
married his wife in the state of Texas; and that in 1973 he adopted his
stepson, also in the state of Texas. The District Director denied the
petitions on the ground that, for immigration purposes, the petitioner
-was not validly married to the beneficiary-spouse due to the fact that
her previous marriage had not been validly dissolved.
The petitioner's wife married her first husband in Mexico on September 7, 1957, with one son born to the couple the following year. In
1967, she entered into a ceremonial marriage to the petitioner, in the
state of Texas On December 6, 1973, the petitioner, joined by his wife,
adopted her son. In March of 1975, the petitioner's wife entered into a
mutual consent divorce decree before the Civil Registrar of Coahuila,
Mexico.' The decree states, in part, that the parties to the divorce were
without children and had so stated in writing. Four months later, the
petitioner and his wife, pursuant to section 1.92 of the Texas Family
Code, filed a Declaration and Registration of Informal Marriage. 2 The
District Director concluded that because a child had been born to the
petitioner's wife and her first husband, the divorce decree was invalid

and therefore that her subsequent marriage to the petitioner was also
invalid.
The legal validity of a marriage is generally determined by the law of
the place of its celebration. Loughran v. Loughran, 292 U.S. 216 (1934);
Natter of Levine, 13 I. & N. Dec. 244 (BIA 1969). The issue on appeal,
therefore, is whether the state of Texas would recognize the mutual
consult divorce as valid.
On appeal, counsel concedes that the District Director was correct in
concluding that, under the law of Coahuila, Mexico, a mutual consent
decree before a Civil Registrar cannot issue where children are involved, but reasons that since the child had been adopted by the peti-

tioner by the time of the divorce, there were no children of the marriage.
Counsel for the petitioner alleges on appeal that the petitioner's wife was of the
opinion that she had previously divorced her first husband, but because the divorce papers
could not be located, entered into a second divorce. We note that the petitioner has not
smibmitted evidence to substantiate the existence of a prior divorce, and for purposes of
this appeal we will assume that none exists.
a Under Tex. [Fem.) Code Ann. tit. 1, §§1.91 and 1.92 (Vernon), a declaration of
tmforrnal marriage is recognized as valid in Texas. eceEsparza v. Espuizu, 082 0. W.2d
1.62 (Tex.Civ.App. 1965).

200

Interim Decision #2580
Under the Civil Code of Coahuila, mutual consent divorce decrees
may be obtained from an official of the Civil Registry under the following conditions:
Art. 272. In the cases that both spouses agree to a divorce and are of legal age, have
no children, and by common accord have liquidated their community property, if they
contracted to marry under this regime, they shall appear in person before the official of
the Civil Registry of the place of their domicile; they shall prove with respective
certification [issued by the office of the Civil Registry] that they are married and of legal
age; and they shall express in a clear manner that they wish to divorce.

Par. three. A divorce decree thus obtained shall not produce legal effects if it is
proved that the spouses had children, are minors, or have not liquidated their community property, ire which cases they shall also be penalized pursuant to the provisions of
the Code on this matter. 3

Under Mexican law, the valid adoption of the beneficiary's son would
remove that child from the marriage of his natural parents for purposes
of the mutual consent divorce decree. However, that adoption decree
would have to be registered in the office of the Civil Registry of the
state of the child's birth, Zacatecas, in order to have legal effect. 4
Withouscregnfadoptiecr,wulnpode
legal effect in the state of Coahuila and, therefore, the failure of the
natural parents to mention that they had a child would constitute
grounds to annul the divorce decree. 5 However, under the Civil Code of
Coahuila, the annulment of the divorce decree would not take effect
until court action declaring it void, and would be considered. valid until
that time.
3

Civil Code of the State of Coahuila (Cajica, Puebla, 1967).
Article 65 of the Civil Code of the State of Zacatecas (Cajica, Puebla, 1964) states:
In order to establish the civil status of Mexicans born, acimowledged, subject to

guardianship, emancipated, married, or deceased abroad, the certifications of these aids

filed by the interested parties shall be sufficient, provided they have been issued
pursuant to the laws of the country where the acts were effected and that they were
registered in the office of the Civil Registry [of the state].
Article 228 states:
The judge that issues a decree approving an adoption shall forward copy of said
decree to the judge in charge of the Office of the Civil Registry of the plate [where the
birth is recorded] in order that he issue the corresponding act in the book of acknowleagments by literally transcribing said decree, which shall be filed under the corresponding number.
"Under Article 121 of the Mexican Constitution, the acts of the Civil Registry in
Zacatecas would have legal effect in Coahuila. Article 121 states:
Complete faith and credence shall be given in each State of the Federation to the
public acts, registries, and judicial proceedings of all the others.
IV. Acts of a civil nature done in accordance with the laws of one State shall have

validity in the others.

201

Interim Decision #2580
Therefore, although we know of no Texas case which is factually
identical to the present case, it would appear that the Texas courts
would accept the Mexican mutual consent decree as valid. As noted
previously, the parties' subsequent declaration of marriage is valid in
Texas, and consequently it is also valid for immigration purposes.
The appeal will be sustained.
ORDER: The appeal is sustained and the visa petitions are granted.

202


Interim Decision 40815

MATTER OF CATDADI

In Deportation Proceedings
A-12681937

Decided by Board November 24, 1961
Where the subject alien was cm-tilled by U.D. Public Health Service medical

officers as afflicted with "Sexual Deviation—Class A" and the underlying
medical-psychiatric "examination" and "certification", as well as the appellate
procedure before the Board. of Medical Examiners, failed to comply with substantive procedures and regulatiune set forth in the "Manual for Medical
Examination of Aliens" and 42 CER 84 (initial examination not by 2 medical officers, no evidence . of independent medical examination by Board of
Medical Examiers and 'refusal by the Board to accept into evidence psychiatric
Mons Mend by the alien), bad.' Class A. certification is not binding on the

special inquiry officer on the question of the alien's inadmissibility under
section 212(a) (4) of the Immigration and Nationality Act, as a sex deviant,
in conjunction with an application for adjustment of status under section 245
of the Act, and the case .is remanded for a new and proper examination by
U.S.1'.H.S. medical authorities.
CHARGE :

Order: Act of 1952—Sectlon 241(a) (2) t8 U.S.C. 1201(a) (2) j—Nonimmigrant
visitor—remained longer.
ON Broils OF

RESPONDENT:

Sidney Bradpiece, Esquire
280 South Beverly Drive
Beverly Hills, California 90212

Respondent appeals from a decision of the special inquiry officer
finding him deportable as charged and ineligible for any form of relief
other than voluntary departure, which has been granted.
Respondent is a 23-year-old married male alien, native and citizen
of Turkey, who was admitted to the United States as a nonimmigrant
student on September 16, 1961. On February 19, 1965, he was married
to Jacqueline Jean Ray, a native born citizen of the United States,
and they have lived together since that time. Her petition for nonquota status for him was filed on March 3, 1965, together with his
application for adjustment under section 245.
As part of the adjustment procedure, respondent presented himself

528

Interim Dicisibn 4E1815
at the United States Public Health Service for examination in May,
1966. Thereafter, on a Form FS498, a report relating to respondent
was issued it was signed by D. A. St. Claire, M.D., Chief of Medicine,
dated May 27, 1966 and in the space left for notation of defect, disease
or disability, the following is typed in :
"Per Dr. Conrad

class A—Sex deviant

his statement attached.".

Attached were two sheets of casually handwritten notes, in two different handwritings, bearing the signature of S. J. Conrad at two points.
These two pages, together with repOrts of negative results on two
diagnostic medical tests, were attached to a pink printed sheet, numbered PHS 4854, indicating that the attached material was an original
report, with no copies being retained by the Public Health Service.
These papers were received and stamped by the 'Immigration and
Naturalization Service on May 31, 1966. Thereafter, on October 10,
a Board of Medical Examiners, of the Public Health Servide, was
convened, and respondent, his counsel, and Dr. EdWin E. McNiel, a
psychiatrist, appeared before it. By an undated' communication,
labelled "REPORT OF BOARD OF MEDICAL EXAMINERS",
signed by the three doctors who had composed -the board and mailed
to the Immigration and Naturalization Service under date of October
18, 1966, the United States Public Health Service affirmed its earlier
holding that respondent was afflicted' -With "Sexual Deviation—
Class A)' • . . „ , .
On November 7, 1966; the District DirebtOr of the Immigration and
NaturalizatiOn Service; refethig to the proceedings before the Public
Health Service and the results thereof, advised respondent that his
application for adjustment to 'permanent resident status was denied,
-

for the reason that he was ineligible to receive a. vise and excludable
-

from admission under section 212(a) '(4) as an alien afflicted with
sexual deviation. Respondent was given 15 days froia the' date of the
letter in which to depart voluntarily from the United States.
Respondent remained in the United State s' beyond 'November ,22,
1966 and on February 23, 1967 an 'order to Show cause was' issued,
charging him with being deportable for overstay. IlearingS in the deportation proceedings were held on Maich -6 and March 23, 1967.
Respondent admitted the factual "allegations 'contained in the order
to show cause, but did not concede deporiability, and renewed his application for adjustment under section 245. The special inquiry officer,
in his oral decision rendered at the close of the second hearing, recited
that respondent had been examined by a medical officer of the United
States Public health,ervice, with a resulting Class A. Medical Cer-

529

Interim Decision #1815
tificate as a sex deviant; that on appeal the Board of Medical Examiners of the United States Public Health Service had affirmed the
Class A Medical Certificate; that the special inquiry officer, in eases
involving admission or adjustment was bound by the decision of the
Board of Medical Examiners and must base his findings upon their
certification (section 236(d), Immigration and Nationality Act) where
there had been compliance with the appropriate requirements (emphasis supplied) (citing U.S. ex rel. Johnson v. Shaughnessy, 336 U.S.
806) ; that inasmuch as it appeared there was such compliance in respondent's case, the United States Public Health Service certificate
must be conclusive, and respondent must be found inadmissible under
section 212(a) (4). Since it followed that respondent must, therefore,
be ineligible for adjustment, the special inquiry officer granted voluntary departure as the only relief available, with an alternate order of
deportation to Turkey if respondent should fail to depart when and as
,;.equired.
In the situation we have before us, where the decision of the Public
Health Service when made is so binding that there is no appeal from
a denial of adjustment or admission based upon that decision, and
where not only the, alien, but an American citizen wife is affected,
the procedure promulgated by the Surgeon General of the United
States cannot be overlooked, or abridged for the sake of convenience.
From an examination of the record, we are not satisfied that either
the initial "sex deviant" classification, or its affirmance by the medical
board, was made in compliance with the regulations governing such
functions, or with the procedures prescribed by the Public Health

Service itself for the medical examination of aliens. Respondent, on
appeal, attacks not only the procedures used by the Public Health
.$ervice, but the type and sufficiency of evidence relied on in reaching
its conclusion. Mindful of the Congressional intent that the medical
judgment of Public Health Service officers in these situations is to be
conclusive, we address ourselves only to the propriety and sufficiency
of the procedures used by them in reaching their conclusion.
First, it is prescribed that a certification as to a Class A condition
must be issued on a specific form, PHS-124 (FQ), (Manual for Medical
Examination of Aliens, Public Health Service, 1963, hereinafter referred to as Manual, pp. 4-1, par. 1), and the original of that form is
to be turned over to the Immigration and Naturalization Service
(Manuakpp.; 2 12, par. 2. (5) ). No such form is in the file, nor was
-

it apparently ever filled out. While on its face, this failure to comply
with the rules would appear to be trivial, in actuality it resulted, from
the outset, in the denial of substantive right to respondent, for the
Class A Certificate (with exceptions not applicable here) :

530

Interim Decision #1615
"shall be signed by at least two medical officers who have examined the alien.
* • *" (Manual, pp. 4-2, par. 3.b.) (Emphasis supplied.)
Respondent was seen by only one medical officer, and from the notes

appended by that medical officer to the report sent to the Immigration
and Naturalization Service, it cannot be ascertained whether he actually gave respondent a medical-psychiatric examination. Those notes
bear little resemblance to reports of psychiatric examinations we have
had before us in the past. Further, they do not contain the information
that the Manual specifies as necessary in records of examination : (pp.
2-19, par. 54)
"Examiners shall maintain records of all examinations. When mental conditions
are certified, the record shall contain a statement of the personal and antecedent
history of the individual as far as obtainable, a description of any physieal

abnormalities detected, and a detailed description of the mental signs and
symptoms * ""
•

As to the Board of Medical Examiners which was convened, counsel
points out that the doctor who made the initial finding of sexual deviation was not only a member of that board, but that he acted as Chairman as well. His is the first signature on the board's report, and he
apparently made the only record of its proceedings (see handwritten
notes above referred to, part of Ex. 3, and entry after date 10/10/66).
That his presence on the board is recognized by the Public Health
Service as an undesirable practice is shown by the following instruction in the Manual (pp. 2-15, par. 44.d.)
"All practical effort shall be made to mid haying a medical board include in
ite tnemberghip an individual who has previously rendered a decision in the
same case."
It is difficult to believe that another qualified medical officer was not
available, in an area where medical boards may be convened whenever
required (Manual, pp. 2-14, par. 44a.(1) ), and where, therefore, sufficent facilities and personnel for them are presumably on hand at all
times.
As for the procedure to be followed by the medical board, Title 42
CFR, section 34.14, in defining the scope of reexamination by the
board, states:
"(c) Reexamination shall include :
(1) A medical examination by the board. If the mental condition of the
alien is in question and the board does not include at least one officer who has
had special training in the diagnosis of mental defects, diseases and disabilities,
the board shall designate a physician with such training who shall (gee examine
the alien, and his report shall be included in the record." (Emphasis supplied.)
That this medical examination was intended to be something more
than a mere scrutiny of the alien while testimony was being given be531

Interim Decision #1815
fore the board is made even clearer by a provision of the Manual which
states:
"* • • The alien's counsel shall not be permitted to be present during the board's
independent medical examination • • •." (pp. 2-16, par. 46, last sentence.)

Although the board's report implies that it did make a medical examination of respondent (see par. 8 of the Report), counsel, who was present with the respondent throughout the proceedings, insists there was
no examination of the type required by the regulations. (See respondent's Brief, p. 10.) The file contains no record of an examination, in
accordance with the requirements set forth in the Manual (pp. 2-19,
par. 51) ; there is no statement in the medical board's report as to
when and where the board examined the respondent (as required by
par. V, pp. 2-16, Manual); and the only record of the proceedings,
the handwritten notes referred to above, makes just the following
reference to respondent's participation on October 10, 1966:
"Pt. comes in
police report

with atty Sidney Bradpiece. Dr. Edwin E. MeNeil. They deny the

. .", etc.

From the above mentioned material, and counsel's statements, it does
not appear that respondent was afforded the independent medical reexamination which is one of the basic reasons for the convening of
the board.
Counsel claims further error and unfairness in the board's proceedings. Xe states that reports of a psychiatrist and psychologist who
examined the respondent and conclUded that he was not a sexual
deviant were offered in evidence bit were refused by the board and
returned to counsel. (Copies of these reports are in this record as
Exhibit 4.) One of them was a report made by the psychiatrist who
appeared before the board on respondent's behalf. Title 42 CFR, section 34.14(e) provides that witnesses before the board shall be given
a reasonable opportunity to all relevant and material evidence,
orally or in writing, and section 34.14 (g) provides that the findings of
the board are to. be hazed on its medical examination of the alien and
on the evidence presented and made a part of the record of its proceedings. That the clalined Material was presented is confirmed by the
October 10, 1966 entry in the handwritten record of the proceedings
referred to above.
Both. 42 CFR 34 and the - Manua/ require that the board's report
give both findings and conclusions. The Mammal, at pages 2-16, paragraph 47, gives in detail the material that the report should contain,
followed by a • sp'ecinien report. The report in this file contains virtually none of the specified information; it does not show when and
where the respondent was medically examined; it does not indicate

532

Interim Decision #1815
the nature of all records submitted, or identify the witnesses heard,
or give the nature of the testimony and evidence; it does not give the
facts on which its finding is based. It merely lists, in vague terms, the
records it reviewed, and then states that on the basis of that evidence
and of its medical examination of respondent, it concludes that he
has: Sexual Deviation—Class A, and the earlier medical certificate is
affirmed.
It is apparent that the regulations and Mama procedures were
given only token recognition, or honored. in the breach, and that respondent did not receive the type of hearing and examination contemplated. The medical board's finding of the existence of a Class A
condition was not based on its own independent medical-psychiatric
examination, for it did not make one. It did not carefully consider an
of the evidence presented, because it refused to accept and make a part
of the record the reports of a psychiatrist and psychologist who had examined and tested respondent, which reports were offered by respondent as evidence of his normality. There is no way of knowing
why it reached the decision it did, because its report contains absolutely no findings.
In a situation in which the sufficiency of a Public Health Service
Class A finding was attacked in the courts, in U.S. ere rel. Johnson v.
Shaughnessy, supra, the Supreme Court held that a certificate of a
Class A condition, made by a medical board of review without full
compliance with the applicable regulations and procedures, which
denied the alien the independent review and reexamination which
Congress and the Surgeon General had prescribed, was not binding

on the question of medical admissibility, and remanded the case with
the order that the petitioner be afforded a proper hearing and medical
examination before the appropriate public health authorities.
Here, not only the appellate procedure before the medical board,
but the underlying "examination" and "certification" failed to comply
with the prescribed steps and standards. We hold that because of these
serious omissions and failure to comply with the regulations and procedures, the Class A. finding in this case is invalid and is not binding
in these proceedings. Therefore, the conclusion of the special inquiry
officer that respondent must be found inadmissible and ineligible for

adjustment on the basis thereof, will not be affirmed. However, as
neither the special inquiry officer nor this Board has the expertise
or the authority to make a determination on respondent's medical admissibility or inadmissibility in these proceedings, we will remand this
case with the direction that respondent be afforded the opportunity
for a new and proper. medical examination , conducted in accordance
with the standards set forth therefor by the Surgeon General of the
533

Interim Decision *1815
United States; and that upon receipt of the results of such examination, the special inquiry officer shall make a new determination on
respondent's eligibility and application for adjustment of status, and
any or all such other findings and orders as may be proper and necessary at that time.
ORDER: It is ordered that this matter be and the same is hereby
remanded for the purposes se•fortb. above.
It is further ordered that the decision of the special inquiry officer,
made after the above proceedings, shall be certified to this Board for
final review.

534


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
237

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.

238

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.

239


Interim Decision 4E1655

MATTER OF CHANG

In Visa Petition Proceedings
A-15861046
Decided by Board October 4, 196'6
Where benetleiary'e Snot marriage in Shanghai, China in 3934, by Chinese

custom, was followed by a remarriage to the same person in Hong Kong in
1962 by civil ceremony celebrated under the law of Hong Kong, the
Chinese mutual consent divorce entered into by the parties in 1964 is
not valid to terminate the Hong Hong ceremonial marriage (terminable
only by a valid judgment of divorce) ; therefore, a visa petition to accord
beneficiary immediate relative status on the basis of his marriage to a
United States citizen In 1965 is denied.

The case comes forward on appeal from the order of the District
Director, New York District, dated June 7, 1966 denying the visa
petition since the beneficiary failed to submit valid evidence to
terminate his prior marriage.
The petitioner, a native of Puerto Rico, a citizen of the United
States, 55 years old, seeks nonquota (now immediate relative) status
on behalf of the beneficiary as her husband. Her husband is a
native and citizen of China, 50 years old. The parties were married
at New York, New York on June 17, 1965. The petitioner's prior
marriage was terminated by the death, of her first husband on. November 3, 1961 at New York, New York.
The notice of denial contains an attachment from which it appears
that the beneficiary was previously married to Chang Kiang A.
Chuen by a Chinese custom marriage and not according - to any
Christian rite in Shanghai, China in 1934. He remarried this same
person at the Registrar's Office in Hong Kong on August 24, 1962
and a certificate of this marriage was issued under Hong Kong Marriage Ordinance, section 22. As evidence of the.terrnination of this

prior marriage there was submitted a deed made December 21, 1964
between the beneficiary, then residing in New York, and the first
wife, then residing in Hong Kong, reciting that whereas the parties
853

Interim Decision #1655
were married in 1981 in Shanghai and the marriage was solemnized
according to Chinese custom and not according to any Christian
rite, and the spouses are domiciled in Hong Kong, and whereas
unhappy differences have arisen between the spouses by reason whereof they have agreed to dissolve their marriage, such marriage was
dissolved by virture of a mutual divorce agreement. This instrument was signed by the husband, the beneficiary, in the presence of
a notary public in New York, and was signed by the wife in the
presence of a solicitor in Hong Kong. Thereafter,, the beneficiary
married the present petitioner on June17, 1965.

The District Director held that since the beneficiary and his first
wife were remarried at the Registrar's Mee at Hong Kong, the
mutual consent divorce was not valid to terminate the marriage and
that only a valid judgment of divorce could terminate the same.
The attachment sets forth the Marriage Ordinance (Chapter 181),
Ordinances of Hong Kong, which provides that:
All parties appearing before the Registrar of Marriages shall sign a written
declaration before the Registrar which he shall witness in the prescribed
form. This declaration states, in part, that the parties thereto understand
that the effect of publicly taking the other party as husband or wife creates
between them a marriage which cannot be dissolved "during our joint lives
except by a valid judgment of divorce, and that if either of us, during lifetime of the other, shall contract another marriage, while this one remains
-Undissolved, he or she will be guilty of bigamy and will be liable to the
punishment for that offense."

The regulations dealing with a petition to classify an alien as an
immediate relative of a -United States citizen are set forth in 8 (..AVR
Part 801. 8 CFA 204.2(d) (2) sets forth that if a, petition is submitted on behalf of a wife or husband, it must be accompanied by
a. certificate of marriage to the beneficiary and proof of the legal
termination of all previous marriages of both husband and wife.
The determination of what constitutes a legal termination of a previous marriage is in the first instance for the Service, and upon
appeal, to this Board. Thus, in many instances, marriages purported to have been terminated by a Mexican "mail order" decree
have been administratively found to have been not properly terminated.
It is noted that the deed of divorce by mutual consent recites that
the parties were married in 1934 in China and omits any reference
to the subsequent civil marriage of the parties 'in Hong Kong in
1962. The instrument also recites that the spouses are domiciled
in Hong Kong.
854

Interim Decision #1655
Information on the situation herein was requested of the Far
Eastern Law Division of the Library of Congress. The memorandum dated October 4, 1966 1 sets forth that under section 4(1) of
the Divorce Ordinance of Hong Kong, the jurisdiction of the Court,
is contingent•upoit the presence of the following conditions:
(a) where the marriage was either a Christian marriage or the civil
equivalent of a Christian marriage; and
(b) where the domicile of the parties to the marriage . . . was in the
Colony.
The use of the word "and" in place of "or" implies the absolute

fulfillment of the two conditions which are not severable. This
means that the Hong Kong courts may grant- a divorce only where
the marriage, at its inception, falls within the definition of a monogmanna marriage in section 2 of the Marriage Ordinance. Clearly,

a Chinese 'customary marriage will not be covered by this provision
as a "Christian marriage" or its "civil equivalent".
While section 39(1) of the Marriage Ordinance of Hong Kong
preserves customary marriages, there is room for arguing that once
a "Christian marriage" or -its "civil equivalent" is contracted, it is
caught in the web of the Ordinance as a "marriage under this
Ordinance. As such, it can be dissolved only under the Divorce
Ordinance providing for dissolution upon the existence of certain
grounds and jurisdictional basis. It is doubtful whether a customary form of divorce procedure, e.g., mutual agreement, is legally
effective to dissolve a civil or Christian marriage.
Under the Marriage Ordinance (Chapter 181), section 22 provides
for the prescribed form in which the parties "understand the effect"
of the civil marriage which cannot be dissolved during their joint
lives "except by a valid judgment of divorce." A "valid judgment
of divorce" here must refer to a judicial decree since marriages
celebrated under the Ordinance can be dissolved only according to
the provisions of the Divorce Ordinance providing for judicial relief. Hence, a divorce by mutual -agreement would definitely not
have sufficient standing to dissolve a civil marriage under the Marriage Ordinance. In view of the above, customary marriages do
not Come within section 2 of the Marriage Ordinance and sections
4 and 5 of the Divorce Ordinance, providing for the jurisdictional
bases of the court.

The provision that "only a valid judgment of divorce could terminate the marriage" does not state specifically which marriage is
' Prepared by

Ivy ohm,

Legal Assistant, Far Eastern Law Division, Library

of Congress.

•
855.

Interim. Decision #1655 ,
being referred to. Presumably, it refers to the Civil marriage celebrated under the Marriage Ordinance. If sections 39(1) and (2)
could be read together to mean:that the first marriage is deemed to
be submerged in the second, then consequently there can be only one

marriage, and since the second "must not be deemed to prejudice"
the first, then possibly the subsisting marriage could still be terminated by its original prodedure, i.e., by mutal agreement. While
tenable, it is submitted that a better view seems to be that since
the parties have voluntarily undergone a second marriage procedure
under the Ordinance, then it could be terminated only as provided
fur by the. Ordinance. In any event, the customary marriage is not
sufficient to establish the jurisdictional bases of the court.
The memorandum from the Library of Congress, which has been
set forth in part, confirms the decision of the District Director, New
York District, that the mutual consent divorce is not valid to terminate the ceremonial marriage and that only, a valid judgment of
divorce could terminate the same. Absent a showing that a Hong
Kong court would recognize this mutual divorce agreement as effective to terminate the first marriage, it is concluded that the bene-

ficiary's first marriage was not validly terminated and that he is not
eligible for immediate relative status•as the legal husband of a
United States citizen. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

858