56113/504
Decided by the Board December 16, 1943.
Suspension of deportation — Validity of marriage.
A divorce decree obtained in a foreign country by a national thereof is entitled to recognition in the United States, when it appears that at the time of divorce the plaintiff was domiciled in such foreign country, although then residing abroad. An alien who thereafter married a legally resident alien is eligible for suspension of deportation under section 19 (c) (2), Immigration Act of 1917, as amended, on the basis of such marriage.
CHARGE:
Warrant: Act of 1924 — Remained longer than permitted.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charge above specified. The Central Office concurs.
DISCUSSION: The respondent is a native and citizen of Germany, 51 years of age, married. He last entered the United States on June 29, 1925, at Baltimore, Md., on the S.S. Charlton Hall as a member of the crew. He has remained in the United States since such time. At the time of the respondent's entry seamen were admitted for a period not to exceed 60 days.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of Germany;
(2) That the respondent last entered the United States on June 29, 1925, at Baltimore, Md., on the S.S. Charlton Hall as a member of the crew;
(3) That the respondent was admitted for a period not to exceed 60 days;
(4) That the respondent has remained longer than 60 days.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 14 and 15 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that he has remained in the United States for a longer time than permitted by the said act or regulations made thereunder;
(2) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Germany at Government expense.
SUSPENSION OF DEPORTATION — FACTORS: The respondent formally applied for suspension of deportation. The presiding inspector recommends that his deportation be suspended. The Central Office concurs in this recommendation.
The respondent testified that he was married in Germany in 1919 and that he obtained a German divorce in 1926. He was unable to present a copy of the decree because he had lost it. He remarried in California on June 4, 1927. His present wife is a legally resident alien, and there is one child, issue of the marriage, born in the United States. The circumstances attending the dissolution of the respondent's first marriage require further comment. The respondent is a native and citizen of Germany. His first wife was born in England, and, according to the respondent, she acquired German nationality as a result of the marriage. He testified that his wife left him in 1923 and came to the United States. He was unsuccessful in his endeavor to ascertain her whereabouts. On September 1, 1924, the respondent departed from Germany as a seaman and he has never returned. Between the date of his departure and June 1925 he made several voyages between ports in the United States and ports in Cuba and South America. He last entered the United States on June 29, 1925. In the latter part of 1925 he decided to institute divorce proceedings, and through his sister in Germany he retained an American attorney practicing in Berlin. This attorney commenced a divorce proceeding on the ground of desertion, the respondent having executed a power of attorney authorizing the proceeding. The wife apparently was served by publication. According to the respondent a decree of divorce was entered in September 1926 and recorded in Hamburg. The presiding inspector, referring to the foregoing, states:
The present war conditions preclude the respondent from obtaining any additional evidence from Germany attesting to facts of his alleged divorce from his first wife, however, credence may be given to his testimony regarding the manner in which such divorce was secured as under section 613 ZPO (Zivilprozessordnung), which was apparently in effect in Germany in 1925, the court had power to investigate questions arising and to require the personal appearance of both parties but that the parties could appoint counsel to represent them in court if such counsel produced special powers of attorney for the matrimonial suit.
Section 606, paragraph 2 of the German Code of Civil procedure (as translated in Vreeland, Validity of Foreign Divorces, pp. 276-277) provides that a husband who is a German national and who has no general domicile in Germany may institute a divorce proceeding in the district within which he had his last domicile within Germany. This is representative of the general civil law in European countries authorizing the divorce of nationals even when the plaintiff is domiciled in another country (Divorce of Foreigners, 28 Iowa Law Review, p. 199). Whether such a decree should be recognized in the United States is a question not free from doubt. The general rule as to the recognition of such decrees of divorce is set forth in 105 American Law Review (1936) as follows:
As the full faith and credit provision of the Federal Constitution does not apply to judgments and decrees of foreign countries, the only basis upon which recognition may be extended to foreign decrees of divorce is the rules of international comity. But, the well settled principle is that unless the foreign court had jurisdiction over the subject-matter of the divorce, by reason of the bona fide residence or domicile there of at least one of the parties thereto, its decree of divorce will not, under the rules of comity, be recognized in one of the States of the United States; and, this it seems is so, although the laws of such foreign country do not make residence or domicile a condition of its court's jurisdiction.
The rule has been followed uniformly with respect to so-called Mexican mail-order divorces in California when the respondent contracted the second marriage ( Ryder v. Ryder, 37 P. 2d 1069; People v. Harlow, 50 P. 2d 1052; Kegley v. Kegley, 60 P. 2d 482).
In Wisconsin a Swedish divorce decree was refused recognition, when the parties, citizens of Sweden who had been married in Sweden, had resided in the United States for 22 years, the wife obtaining the divorce during a temporary absence in Sweden and without notice to her husband ( St. Sure v. Lindsfelt, 52 N.W. 308). On the other hand, New York has extended recognition to a Danish divorce decree obtained by the husband, a citizen of Denmark and a continuous resident in Denmark, when the wife consented to the Danish proceeding, and even though she had abandoned her residence in Denmark some 8 years before the suit was started ( Sorensen v. Sorensen, 220 N.Y.S. 242).
Although the facts presented by this record do not seem to be as strong as those in Sorensen v. Sorensen, they are of greater appeal than the facts set forth in St. Sure v. Lindsfelt or in the mail-order cases. In our opinion the respondent had a substantial claim to German domicile at the time he authorized the institution of the German proceeding, because of the comparatively brief period of time that had elapsed since he had left Germany, and because at the time he last entered the United States he did not intend to remain in this country permanently but intended to reship foreign. This he could not do on account of physical disability. Nor can we see that at such time there was any State in this country that might be said to have any interest in the respondent's matrimonial status.
In Le Mesurier v. Le Mesurier (1895) A.C. 517 the House of Lords said (pp. 527-528):
When the jurisdiction of the court is exercised according to the rules of international law, as in this case where the parties have their domicile within its forum, its decree dissolving their marriage ought to be respected by the tribunals of every civilized country * * * a decree of divorce a vinculo, pronounced by a court whose jurisdiction is solely derived from some rule of municipal law peculiar to its forum, cannot, when it trenches upon the interests of any other country to whose tribunals the spouses were amenable, claim extra-territorial authority.
We think that in line with the doctrine enunciated in the Le Mesurier case we are not unwarranted in holding the 1926 German decree entitled to recognition of this country. For the purpose of this proceeding we conclude that the respondent's marriage in California in 1927 is valid.
The respondent is employed as a painter and earns $130 per month. He derives an income of $40 per month from real estate owned by him. His assets are valued at $7,100 consisting of the cash surrender value of insurance in the amount of $3,000, real estate in the amount of $3,500, and the balance in miscellaneous personal property. The respondent's wife has no independent income, and the family is totally dependent on the respondent for support. It is manifest that the respondent's deportation would result in serious economic detriment to his legally resident alien wife and his minor citizen child.
The respondent is registered under the Alien Registration Act and the Selective Training and Service Act of 1940. The Federal Bureau of Investigation and the Alien Enemy Control Unit have no record concerning him. He testified that he has never been arrested or convicted of any crime, and he has submitted documentary evidence in corroboration. The Immigration and Naturalization Service has conducted an independent investigation, which establishes that the respondent bears a good reputation. This is supported by the testimony of persons personally acquainted with the respondent. The absence of a criminal record together with the favorable showing made on investigation justifies the finding that the respondent has been of good moral character during the preceding 5 years. Full inquiry has developed no evidence to indicate that he is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.
SUSPENSION OF DEPORTATION — FINDINGS OF FACT: Upon the basis of all the evidence it is found:
(1) That the respondent is of the white race;
(2) That the respondent has been a person of good moral character for the preceding 5 years;
(3) That the deportation of the respondent would result in serious economic detriment to his legally resident alien wife and his minor citizen child;
(4) That after full inquiry no facts have been developed that establish that the respondent is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.
SUSPENSION OF DEPORTATION — CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the respondent is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
ORDER: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.