A-6308586.
Decided by Central Office May 21, 1947. Decided by Board October 21, 1947.
Visa petition beneficiary — Wife of United States citizen — Section 9 of the Immigration Act of 1924 — Foreign judgments of divorce — Validity of marriage in Connecticut after Mexican divorce terminating her former marriage — Rules of comity — Exceptions.
The termination of a prior marriage celebrated outside Mexico, by procurement of a Mexican divorce (by a resident of Eire against a non-resident of Mexico, where the evidence fails to show jurisdiction there as to either party or their matrimonial domicile) may be conceded under rules of comity, if (1) the foreign judgment of divorce was valid where granted, (2) a departure from the rules of comity is not warranted under the law, public policy or public morals of the state (Connecticut) where a subsequent marriage was solemnized (while she was in the United States in transit) and (3) there has been no avoidance of the laws of any United States domicile.
BEFORE THE CENTRAL OFFICE
(May 28, 1947)
Discussion: The above-named person has filed a petition for issuance of an immigration visa on behalf of his alleged wife, M---- P. McG----. The question presented is whether she may be considered the lawful wife of the petitioner for the purpose of such visa petition. The alien-beneficiary, a native and citizen of Eire, has been previously married on September 15, 1938, to one R---- P---- S----, in Jersey, Channel Islands. She decided to obtain a divorce in Mexico, because, she stated, divorces were not possible in Eire. The alien obtained a visa from the American Consul General in London, England, on April 26, 1946, and on May 9, 1946 received a transit certificate from the United States Consul at Dublin, Eire, covering her trip to Mexico through the port of New York by way of Brownsville, Tex. She was admitted at the port of New York on May 12, 1946 under section 3 (3) of the Immigration Act of 1924, for a period of 10 days. On May 21, 1946 she employed a New York attorney who filed a petition for a Mexican divorce on her behalf by mail. On July 6, 1946 the alien entered Mexico and resided in Mexico City until July 23, 1946, at which time she returned to the United States and was admitted under section 3 (3) of the Immigration Act of 1924, the period of this temporary admission being valid until September 22, 1946. The alien exhibited her Irish passport, which bore a rubber stamp impression, dated July 22, 1946, by the British Embassy, Consulate Section, Mexico, reading "Registered for the year 1946." Subsequent to her return to the United States, she received a final decree of divorce dated August 3, 1946, issued by the First Civil Court, Bravos District, City of Juarez, State of Chihuahua, Mexico, against R---- P---- S----. On August 21, 1946 the alien married the petitioner, a native-born citizen of the United States, in Connecticut. She departed from the United States on March 9, 1947, and is presently residing in Eire.
The only basis upon which recognition may be extended to divorce decrees obtained in foreign countries is the rule of international comity. The well-settled principle is that unless the foreign court had jurisdiction of the subject matter of the divorce, by reason of bona-fide residence or domicile there of at least one of the parties, its decree of divorce will not, under the rules of comity, be recognized in any of the United States; and this, it seems, although the law of such foreign country does not make residence or domicile a condition of that court's jurisdiction. American Law Reports Annotated 1312, 1313.
In the instant case the beneficiary's Mexican divorce proceeding was initiated by mail. Her first husband, the defendant in that proceeding, never resided in Mexico and the beneficiary was in Mexico from July 6, 1946 to July 23, 1946, a period of approximately two and a half weeks. There appears no basis for a finding that this abbreviated residence of the beneficiary, for some two and a half weeks in Mexico, takes this divorce decree out of the class of "mail order" Mexican divorce decrees, to which this Service has consistently refused to accord recognition for immigration purposes. The State of Connecticut, where the marriage of the petitioner and the beneficiary was performed, likewise does not recognize "mail order" Mexican divorce decrees. Gildersleeve v. Gildersleeve, 88 Conn. 689; Pettis v. Pettis, 91 Conn. 608; State v. Cooke 100 Conn. 348.
It is therefore concluded that the validity of the present marriage of the petitioner and the beneficiary has not been established by reason of the fact that the beneficiary's prior marriage has not been lawfully terminated.
It is ordered, That the petition for the issuance of immigration visa executed by J---- F---- Mc---- on behalf of M---- P---- Mc---- be denied.
In accordance with 8 C.F.R., 90.3 this case is referred to the Board of Immigration Appeals for consideration.
Discussion: The above-captioned petitioner, a native citizen of the United States residing in Jersey City, N.J., has filed a petition for the issue of a nonquota immigration visa on behalf of his alleged wife, M---- P---- Mc----, a native and citizen of Ireland. The question presented is whether she may be considered the lawful wife of the petitioner for immigration purposes. The evidence of record establishes that the alien beneficiary was duly admitted at the port of New York on May 12, 1946, under section 3 (3) of the 1924 act, in transit to Mexico. She traveled on an Irish passport duly visaed for transit through the United States and her sojourn to Mexico. She entered Mexico on July 6, 1946, and resided at Mexico City until July 23, 1946. She reentered the United States on July 23, 1946, and was duly admitted under section 3 (3) of the 1924 act in transit to Ireland. She departed for Ireland on March 9, 1947.
The alien beneficiary married one R---- P---- S---- in England (Channel Islands) on September 15, 1938. Thereafter on August 3, 1946 she was awarded a final decree of divorce issued by the First Civil Court, Bravos District, City of Juarez, State of Chihuahua, Mexico, against R---- P---- S----. Her petition for divorce was filed in the Mexican court on May 21, 1946, by a local attorney, one Federico Munoz, who appeared as special attorney for the alien beneficiary. There is no showing of record that the alien beneficiary was ever within the jurisdiction of the court granting the divorce or that she was ever domiciled in Mexico. The alien beneficiary married the petitioner in the State of Connecticut on August 21, 1946. She has never been domiciled in the United States and now resides at Dublin, Ireland.
The Commissioner finds that the divorce awarded the alien beneficiary by the Mexican court is of the class generally referred to as a "mail-order divorce," which we have consistently refused to accord recognition for immigration purposes. The Commissioner concludes that the validity of the present marriage of the petitioner and the alien beneficiary has not been established by reason of the fact that the beneficiary's prior marriage has not been lawfully terminated.
The well-established and general rule is that marriages and divorces valid where entered into will be recognized as valid everywhere. The courts of this country have been in perpetual conflict as to the application of the laws of the place of divorce or marriage and the place where recognition of the divorce or marriage is sought. However, in resolving these issues the courts, when interpreting the laws of a foreign jurisdiction, follow the general rule that the laws of one nation will, by what is termed the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The rules of comity may not be departed from except, in certain cases, for the purpose of necessary protection of our citizens or in enforcing some paramount rule of public policy.
Guaranty Deposit Co. v. Philadelphia, R. N.E.R. Co., 69 Conn. 709, 720, 38 Atl. 792.
The courts of Connecticut have held that there are five instances wherein it is generally considered that the municipal law of the State where the question is raised ( lex fori) forbids the enforcement of a foreign law. (1) Where the enforcement of the foreign law would contravene some established and important policy of the State of the forum; (2) where the enforcement of such foreign law would involve injustice and injury to the people of the forum; (3) where such enforcement would contravene the canons of morality established by civilized society; (4) where the foreign law is penal in its nature; and (5) where the question relates to real property.
Gildersleeve v. Gildersleeve, 88 Conn. 689, 695; Cristilly v. Warner, 87 Conn. 461, 463.
The Commissioner in Petition of B----, V-317053, July 2, 1945, concluded that in cases involving foreign divorces obtained by parties who had never been domiciled in the United States, the doctrine of comity as between nations controlled. We fail to find the instant case distinguishable. We fail to find that a recognition of the mariage of the alien beneficiary and the petitioner herein would do violence to the public policy or public morals of the State of Connecticut. There is no injustice or injury to a citizen of the State of Connecticut involved, nor does the question relate to a matter involving real property. Furthermore, we find that no miscegenation is involved and no blood ties exist between the parties to the marriage. There was no avoidance of the laws of any United States domicile. Under these circumstances there seems to be no real basis in either law or fact to apply to the marriage tests which rest upon reasons which do not exist in this case.
Order: It is ordered that the petition for the issuance of an immigration visa executed by J---- F---- M---- on behalf of his wife, M---- P---- M----, be and the same is hereby granted.