Matter of Hussein

In a decision dated March 8, 1974, the officer-in-charge in Athens, Greece, denied the visa petition filed by the petitioner in behalf of the beneficiary as her spouse under section 202(a)(2) of the Immigration and Nationality Act. We dismissed the petitioner's appeal from that decision on April 10, 1975. The petitioner has moved to reopen the proceedings. The motion will be granted, and the visa petition will be approved. The officer-in-charge denied the petition on the ground that, under New York law, a previous marriage of the petitioner had not been dissolved and, as a consequence, her marriage to the beneficiary is invalid. Briefly, the relevant facts appearing in the record are as follows: The petitioner and the beneficiary are natives of Palestine, born in Bir- Nabala, a village now occupied by Israel. This is the second marriage for the petitioner. She was first married in 1967 by the Shari'a Court in

在1974年3月8日的一项决定中，希腊雅典的主管官员驳回了申请人根据《移民与国籍法》第202(a)(2)条以受益人配偶身份代其提交的签证申请。我们于1975年4月10日驳回了申请人对该决定的上诉。申请人已提出动议要求重新开启程序。该动议将获准，签证申请将获批准。 主管官员驳回申请的理由是，根据纽约州法律，申请人的前一段婚姻尚未解除，因此其与受益人的婚姻无效。 简言之，记录中出现的相关事实如下：申请人与受益人均为巴勒斯坦本地人，出生于现被以色列占领的Bir-Nabala村。这是申请人的第二次婚姻。她于1967年在耶路撒冷的伊斯兰教法法院与

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Jerusalem to a man from the same village. She followed her husband to the United States in 1971. They separated a year later. The petitioner has stated under oath that, from the time of the separation, her husband concealed his whereabouts to prevent her from gaining custody of their children and from obtaining financial support from him. The petitioner, after living in New York for three months, returned to Bir-Nabala. Her husband remained in the United States. On August 20, 1973, the peti- tioner obtained a divorce from the Shari'a court in Jerusalem. She was married to the beneficiary by the same court on January 19, 1974. She now wishes to return to New York with her new husband. The issue raised in this appeal is whether the divorce obtained by the petitioner from her first husband would be accorded recognition, as a matter of comity, by the State of New York. We know of no New York decision which is factually identical to the present ease. 'However, as the Court declared in another case involving the recognition of a foreign divorce judgment—

耶路撒冷的一名同村男子第一次结婚。她于1971年随丈夫来到美国。一年后他们分居。申请人经宣誓陈述，自分居之时起，其丈夫隐瞒下落，以阻止她获得子女监护权并阻止她从其处获得经济扶养。申请人在纽约居住三个月后返回Bir-Nabala。其丈夫留在美国。1973年8月20日，申请人从耶路撒冷的伊斯兰教法法院获得离婚。她于1974年1月19日由同一法院与受益人结婚。她现在希望与新丈夫返回纽约。 本上诉提出的问题是，申请人从其第一任丈夫处获得的离婚是否会作为礼让事项得到纽约州的承认。 我们不知道有与本案事实完全相同的纽约州判例。然而，正如法院在另一涉及承认外国离婚判决的案件中所宣告的——

From a review of New York decisions, it is evident that, for many years and in appropriate circumatances, New York courts have recog- nized divorces :which foreign nationals residing in New York had se- cured abroad in accordance with the laws of their native countries. See, Oettgen v. Oettgen, 94 N.Y.S.2d 168 (Sup.. Ct., Spec. Term 1949); Martens v. Martens, 20 N.Y.S. 206 (Sup. Ct., App. Div. 1940, rev'd on other grounds, 284 N.Y. 363 (1940); Hansen v. Hansen, 8 N.Y. S.2d 655 (Sul). CL, App. Div. 1938); Sorensen v. Sorensen, 220 N.Y. S. 242 (Sup. Ct., App. Div. 1927). Such judgments have been recognized, as a matter of comity, where the foreign jurisdiction had a legitimate interest in the marital status of the parties and where minimal due process standards had been met. This petitioner had returned to her home country and had personally appeared before a divorce court of that country where both she and her first husband had been born, where they had been married, and where both of their children had been born. Thus, there were substantial contacts between the divorcing jurisdiction and the parties and the marital res. On the facts of this record, recognition of the divorce would not violate due process requirements or established local policy. On August 20, 1973, a "first sentence of divorce" was issued by the Primary Court of Jerusalem. On August 28, 1973, notice of that judgment was served on the defendant by publication.in his village newspaper. Although the

从对纽约州判例的审视中可以明显看出，多年来在适当情形下，纽约州法院一直承认居住在纽约的外国国民依照其本国法律在国外取得的离婚。参见，Oettgen v. Oettgen, 94 N.Y.S.2d 168 (Sup. Ct., Spec. Term 1949); Martens v. Martens, 20 N.Y.S. 206 (Sup. Ct., App. Div. 1940, rev'd on other grounds, 284 N.Y. 363 (1940); Hansen v. Hansen, 8 N.Y.S.2d 655 (Sup. Ct., App. Div. 1938); Sorensen v. Sorensen, 220 N.Y.S. 242 (Sup. Ct., App. Div. 1927)。此类判决作为礼让事项得到承认，前提是外国管辖地对当事人的婚姻状况具有合法利益，且符合最低正当程序标准。 本案申请人已返回其本国，并亲自出庭该国的离婚法院，而该法院所在地既是她与其第一任丈夫的出生地，也是他们的结婚地，还是他们两名子女的出生地。因此，离婚管辖地与当事人及婚姻标的之间存在实质性联系。 根据本记录的事实，承认该离婚不会违反正当程序要求或既定的当地政策。1973年8月20日，耶路撒冷初级法院签发了“离婚第一判决”。1973年8月28日，该判决的通知通过在其村庄报纸上公告的方式送达被告。尽管

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defendant was in the United States, and his whereabouts was unknown to the petitioner, his relatives continue to live in his native village in Palestine. In the English translation of the notice, the sentence is described as "a Judgment given in absence with the right of opposition and appeal". On September 9, 1973, the petitioner requested confirmation of the judgment from the Highest Court of Appeal in Jerusalem. The issue of proper service on the defendent was reviewed by the appellate court, and the judgment was modified to allow the defendant thirty days from the date of publication in which to challenge the judgment. The defen- dant did not respond within the time allotted. Thereafter, the appellate court reviewed the lower court's decision on the merits, and affirmed the judgment. The publication requirements under the applicable Islamic law and under New York law (section 316 of the Civil Practice Law and Rules of the State of New York) in a case in which the defendant's whereabouts is unlcnown, are quite similar. We conclude that New York courts would extend recognition to the foreign divorce decree secured by the petitioner, as a matter of comity, and that the decree is valid for immigration purposes. ORDER: The motion to reopen is granted. Further order: The visa petition is approved. Board Member Irving A. Appleman abstained from consideration of this case.

被告在美国，且申请人不知其下落，但其亲属仍居住在巴勒斯坦其出生村庄。在通知的英文译本中，该判决被描述为“缺席作出的判决，享有异议权和上诉权”。 1973年9月9日，申请人请求耶路撒冷最高上诉法院确认该判决。上诉法院审查了对被告适当送达的问题，并修改判决，允许被告自公告之日起30日内对该判决提出异议。被告未在指定期限内回应。此后，上诉法院审查了下级法院对案件实体的裁决，并维持了该判决。 在被告下落不明的情况下，适用的伊斯兰法与纽约州法律（《纽约州民事实践法与规则》第316条）的公告要求相当相似。 我们得出结论，纽约州法院将作为礼让事项承认申请人所取得的外国离婚判决，且该判决就移民目的而言有效。 命令：重新开启的动议获准。 进一步命令：签证申请获批准。 委员会成员Irving A. Appleman回避本案的审议。

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