Matter of Pearson

On August 5, 1967, the petitioner, a United States citizen, filed a visa petition on behalf of his spouse, a native and citizen of the Philippines. The petition recited that the parties were married on February 18, 1967 in the State of Nevada and thereafter re- sided in California until May 31, 1967. The record reflects that since July 8, 1967, the parties have resided in the City of New York. The petitioner had been married previously and submitted with the visa petition is a decree of divorce obtained by the peti- tioner in the Country Court of Yautepec, Fifth Judicial District, State of Morelos, Republic of Mexico. The divorce was granted on July 10, 1959: On October 5, 1967, the petitioner was interviewed by an immigrant inspector. The petitioner stated that he went to Mexico in 1959 to obtain an attorney, remaining there for a few hours, and did not appear before the Mexican court. He was ad-

1967年8月5日，申请人（美国公民）为其配偶（菲律宾本土出生公民）提交了签证申请。申请书中陈述双方于1967年2月18日在内华达州结婚，此后居住在加利福尼亚州直至1967年5月31日。记录显示，自1967年7月8日起，双方居住在纽约市。申请人此前曾结婚，并随签证申请提交了一份由申请人在墨西哥共和国莫雷洛斯州第五司法区Yautepec县法院获得的离婚判决书。该离婚于1959年7月10日获准。1967年10月5日，申请人接受了移民检查员的面试。申请人称其于1959年前往墨西哥聘请律师，仅停留数小时，且未在墨西哥法院出庭。他

vised by his Mexican attorney that the divorce was legal in the United States. Thereafter the petitioner was summoned for fur- ther interviews. Failing to appear, the District Director, on Au- gust 23, 1968, denied the visa petition for lack of prosecution and for petitioner's failure to resolve the issue of the validity of his present marriage to the beneficiary. Counsel on appeal argues that the visa petition should not have been denied for failure to prosecute. He states that petitioner, a seaman, has been on the high seas since June 1968, and was una- ble to present himself for interview. Failure to appear, counsel asserts, should not be the basis for denial of a visa petition based on a marriage formalized in conformity with the laws of the State of Nevada and followed, by actual cohabitation of the par- ties. We have reviewed the entire record. We find that the District Director properly denied the visa petition for failure to prose cute. The burden is upon the petitioner to establish eligibility for the benefits he seeks under the immigration laws, Matter of Awct, dam, 10 I & N Dec. 530 (1964); Matter of Branagan, 11 I. & N. Dec. 493 (1966). The burden upon petitioner never shifts and is not satisfied by the mere presentation of documentary proof that he has obtained a divorce. Petitioner must show that the marriage presently contracted is valid where celebrated and that any pre- vious marriagei have been legally terminated. By failing to ap- pear for interviews to dispel the doubts raised by his Mexican di- vorce, he failed to prosecute his petition for benefits under the immigration laws. Turning to the question of the effect of the Mexican divorce on the validity of petitioner's present marriage, we reject the notion that we must accept at face value the divorce rendered in Mexico. The issue, here, is whether the Mexican divorce will be recognized by Nevada, the lex eelebrationis, thereby rendering the marriage valid. Counsel argues that it is not the function of the Service to ex- plore the ramifications of legal questions of domicile, residence and the like involved in foreign divorce decrees, citing as author- ity Matter of B—, 3 L & N. Dec. 227 (1948). That case involved a person who had been physically present in Mexico for a period of four days .and had appeared before a "civil judge" although the divorce had not been granted before he left Mexico. That de- cision, holding that the administrative agency's inquiry should end when It has been ascertained that the person had been physi- cally present in. the divorce court's jurisdiction, is based on a

从其墨西哥律师处获悉该离婚在美国合法。此后，申请人被传唤进行进一步面谈。因未出庭，地区主任于1968年8月23日以缺乏诉讼及申请人未能解决其当前与受益人婚姻有效性为由拒绝了签证申请。 上诉律师辩称，签证申请不应因未进行诉讼而被拒绝。他表示，申请人是一名海员，自1968年6月起一直在公海上，无法出席面谈。律师主张，未出庭不应成为拒绝基于按照内华达州法律正式缔结婚姻且双方实际同居的签证申请的理由。 我们已审查了整个记录。我们认为地区主任因未进行诉讼而适当拒绝了签证申请。申请人有责任证明其符合移民法下所寻求福利的资格，Matter of Awct, dam, 10 I & N Dec. 530 (1964)；Matter of Branagan, 11 I. & N. Dec. 493 (1966)。申请人的责任从未转移，仅提交其已获得离婚的文件证明并不能满足该责任。申请人必须证明当前缔结的婚姻在举行地有效，且任何先前婚姻已合法终止。由于未出席面谈以消除其墨西哥离婚所引起的疑虑，他未能就其根据移民法寻求福利的申请进行诉讼。 关于墨西哥离婚对申请人当前婚姻有效性的影响问题，我们拒绝必须表面接受墨西哥所作离婚的观念。此处的问题是，墨西哥离婚是否会被内华达州（婚姻举行地法）承认，从而使婚姻有效。 律师主张，移民局不应探究外国离婚判决中涉及的住所、居留等法律问题的分支，并援引Matter of B—, 3 I & N. Dec. 227 (1948)作为权威。该案涉及一人在墨西哥实际停留四天并在“民事法官”面前出庭，尽管其离开墨西哥前离婚尚未获准。该裁决认为，一旦确定该人实际处于离婚法院管辖范围内，行政机构的调查即应结束，该裁决基于

Interim Decision #1943

临时裁决第1943号

previous holding by the Attorney General. In a prior decision, Matter of 0—, 3 I. & N. Dec. 33 (1949), the Attorney General held that in visa petition cases, the validity of a foreign divorce is to be determined in accordance with the prevailing law of the country in which the subject is domiciled and physically present at the time the divorce is granted. In Matter of P—, 4 I. & N. Dec. 610 (1952), the Attorney General later changed his position, thereby also overruling indirectly Matter of B—, supra, stating that the validity of marriage is governed by the place where the marriage took place. Another case, Matter of B—, 5 I. & N. Dec. 659 (1954), relied on by' counsel, applies this new rule to deter- mine whether a Mexican divorce, rendered where the Mexican court had jurisdiction over one of the parties, would be recog- nized under California law, the place of celebration. However, in Matter of B—, supra, one party was in Mexico for over a week and the other party was represented by counsel. In the case be- fore us, the former spouse of the petitioner did not appear in court, either personally or through authorized counsel. In accord- ance with the rule set down in Matter of P—, supra, we reject the- notion that this Mexican divorce should be accepted at face value and we look to the laws of Nevada to determine the legal effect of the Mexican divorce upon the marriage in question. We have recently decided a similar case. In Matter of Adamo, Interim Decision No. 1910 (1968), we concluded that Nevada would not recognize a Mexican divorce Where neither of the par- ties had obtained domicile in Mexico. In Adamo, the petitioner had gone to Mexico to obtain a lawyer but did not submit himself to the jurisdiction of the Mexican court, nor did he acquire resi- dence or domicile in Mexico. We found that under the laws of Ne- vada, mere physical presence in a foreign jurisdiction as opposed to actual domicile will not' suffice to confer jurisdiction in a for- eign court over the subject matter in a divorce proceeding, Bates v. Bates, 53 Nev. 77 292 P. 298 (1930). Consequently, we held that Nevada would not recognize petitioner's divbrce obtained in Mexico where he had not assumed domicile. The marriage be- tween the parties was determined to be void. Counsel for petitioner asserts that New York, the matrimonial domicile of the parties, would rule on the question differently. Under New York law, a marriage which is valid where per- formed, in the absence of contrary public policy, will be recog- nized in New York, though it would be invalid if performed in New York, Herndon v. Herndon, 164 N.Y.S. 2d 568 (1967). How- ever, even under such a rule, we find that New York 'would arrive

总检察长先前的裁决。在先前裁决Matter of 0—, 3 I. & N. Dec. 33 (1949)中，总检察长认为，在签证申请案件中，外国离婚的有效性应根据当事人在离婚获准时住所地和实际居留国的现行法律确定。在Matter of P—, 4 I. & N. Dec. 610 (1952)中，总检察长后来改变了立场，从而也间接推翻了上述Matter of B—，指出婚姻的有效性由婚姻举行地管辖。律师所依赖的另一案件Matter of B—, 5 I. & N. Dec. 659 (1954)适用这一新规则来确定墨西哥法院对一方当事人有管辖权时所作墨西哥离婚是否会根据加利福尼亚州法律（举行地）得到承认。然而，在上述Matter of B—中，一方在墨西哥停留超过一周，另一方由律师代理。在本文所涉案件中，申请人的前配偶既未亲自出庭，也未通过授权律师出庭。根据上述Matter of P—所确立的规则，我们拒绝表面接受该墨西哥离婚的观念，并依据内华达州法律确定墨西哥离婚对所涉婚姻的法律效力。 我们最近裁决了一个类似案件。在Matter of Adamo, 临时裁决第1910号 (1968)中，我们得出结论，如果双方均未在墨西哥获得住所，内华达州不会承认墨西哥离婚。在Adamo案中，申请人前往墨西哥聘请律师，但未服从墨西哥法院的管辖，也未在墨西哥获得居留或住所。我们认定，根据内华达州法律，仅在外國管辖范围内的实际停留而非实际住所不足以赋予外国法院对离婚诉讼标的的管辖权，Bates v. Bates, 53 Nev. 77 292 P. 298 (1930)。因此，我们认定内华达州不会承认申请人在墨西哥获得的离婚，因其未取得住所。双方之间的婚姻被认定为无效。 申请人的律师主张，纽约州（双方的婚姻住所地）将对此问题作出不同裁决。根据纽约州法律，在无相反公共政策的情况下，在举行地有效的婚姻将在纽约州得到承认，尽管若在纽约州举行则无效，Herndon v. Herndon, 164 N.Y.S. 2d 568 (1967)。然而，即使根据该规则，我们认定纽约州在确定墨西哥离婚是否合法终止申请人先前婚姻方面将得出

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at the same result as the State of Nevada in determining whether the Mexican divorce legally terminated petitioner's previous mar- riage. Citing Rosenstiei v. Rosenstiel, 202 N.Y.S. 2d 86 209 N.E. 2d 709 (1965), counsel asserts that New York no longer views domicile as a jurisdictional requirement to the recognition of for- eign divorce decrees. We do not find that the Rosenstiel case stands for such a proposition. The Rosenstiel case involves facts different from those presented here. That case concerns itself with a bilateral Mexican divorce. There the party-plaintiff went to Mexico, signed the Municipal Registry and was physically present in Mexico for a total of one hour. However, the defendant spouse also went to Mexico, appeared in the Mexican court by a duly authorized representative and filed an answer in which she submitted to the jurisdiction of the Mexican court. The New York court, although finding that neither party had domicile in Mexico, determined that both parties to the divorce had submit- ted to the jurisdiction of the Mexican court. The court in Rosen- stiel, if faced with a situation such as is before us, would declare the divorce of no effect since only one of the parties submitted to the jurisdiction of the Mexican court. During oral argument, the Service representative questioned counsel's standing to appear in light of petitioner's apparent lack of interest in prosecuting this visa petition. Since we have de- cided the issues presented herein on their merits, we find it un- necessary to resolve the question of standing. In summary, it appears in all respects that both Nevada and New York would not give extraterritorial effect to the Mexican divorce and consequently the marriage performed in Nevada be- tween the petitioner and the beneficiary is void. We affirm the de- cision of the District Director. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

与内华达州相同的结果。律师援引Rosenstiel v. Rosenstiel, 202 N.Y.S. 2d 86 209 N.E. 2d 709 (1965)，主张纽约州不再将住所视为承认外国离婚判决的管辖权要求。我们并不认为Rosenstiel案支持此种主张。Rosenstiel案涉及的事实与本案不同。该案涉及双边墨西哥离婚。在该案中，原告方前往墨西哥，签署了市政登记册，并在墨西哥实际停留共一小时。然而，被告配偶也前往墨西哥，通过正式授权的代表在墨西哥法院出庭并提交了答辩状，服从墨西哥法院的管辖。纽约州法院虽认定双方均未在墨西哥有住所，但确定离婚双方均服从墨西哥法院的管辖。Rosenstiel案法院若面对如本案的情况，将宣布离婚无效，因为仅一方服从墨西哥法院的管辖。 在口头辩论中，移民局代表质疑律师出庭的资格，鉴于申请人显然缺乏起诉本签证申请的兴趣。由于我们已根据案情裁决了本文所提出的问题，我们认为无需解决资格问题。 总之，各方面看来，内华达州和纽约州均不会赋予墨西哥离婚域外效力，因此申请人与受益人在内华达州举行的婚姻无效。我们维持地区主任的裁决。 命令：兹命令上诉予以驳回。