MATTER OF DABAASE

In Visa Petition Proceedings

A-18375444

Decided by Board October 1, 1976

(1) Where, in visa petition proceedings, proof of termination of a Ghanaian customary tribal marriage by customary tribal divorce is sought by securing from a Ghanaian District Court a decree confirming the fact that the non-judicial divorce was validly obtained, the confirmation decree should be certified as a true copy by the issuing court and, in turn, by the appropriate United States embassy or consulate as a decree of the court.

(2) Where proof of such a Ghanaian customary divorce is being sought without the assistance of the Ghanaian judicial system, (A) evidence to establish the current customary divorce law of the tribe may be derived from reported cases, legal treaties and commentaries, depositions of legal scholars, and advisory opinions from those organizations traditionally recognized by the Ghanaian Government as possessing knowledge of the customary law (The Courts Act, 1971, Act 372, sec. 50(3)(ii)), and (B) evidence to establish compliance with the pertinent ceremonial procedures, consisting of affidavits from the parties and witnesses involved, must be specific rather than conclusory in nature, and the information provided in the affidavits should include, but need not be limited to, the date of the customary marriage, the ground for its dissolution, the date of the proceeding, the names and birthdates of any children born of the marriage, as well as any custody agreement reached, and a description of the tribal formalities observed. ON BEHALF OF PETITIONER: Pro se

The United States petitioner applied for immediate relative status for the beneficiary as her spouse under section 201(b) of the Immigration and Nationality Act. In a decision dated September 12, 1973, the District Director denied the petition. Although an appeal was taken from that decision, it apparently was not forwarded to the Board. A second decision, again denying the petition, was issued by the District Director on February 18, 1976. The petitioner has appealed. The record will be remanded to the District Director.

The beneficiary is a native and citizen of Ghana. He married the petitioner on May 12, 1973, in the State of Missouri. At the time of the marriage, the petitioner was apparently unaware that her divorce from a previous husband was not yet final. After her divorce was granted on July 2, 1973, the petitioner and the beneficiary went through another

marriage ceremony on September 22, 1973. The validity of this second ceremony remains in doubt, however, since the petitioner has failed to prove that the beneficiary's first marriage to a Ghanaian wife had been legally dissolved.

The record indicates that in 1956 the beneficiary was married in Ghana according to his tribal custom. He has alleged that his Ghanaian wife divorced him in 1973, again according to tribal custom. The evidence submitted to establish the validity of that divorce consists of photostats of two letters which the beneficiary's brother allegedly wrote to him from Ghana. In the first letter, the beneficiary is informed of the divorce which his wife had recently secured. In the second, the beneficiary is advised to explain the procedures surrounding customary divorce to the Immigration and Naturalization Service.

In visa petition proceedings, the petitioner bears the burden of proving the beneficiary's eligibility for the immigration benefit sought. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 C.F.R. 204.2(c)(2), the petitioner must submit proof of the legal termination of all previous marriages of both parties. We agree with the District Director that the undocumented opinion of the beneficiary's brother is insufficient to establish the validity of the alleged customary divorce.

In Matter of Akinola, Interim Decision 2400 (BIA 1975), we noted that a Ghanaian divorce, governed by customary law, may be granted by a Ghanaian District Court or may be effectuated without recourse to the courts. In contrast to the court-decreed divorce, the purely customary divorce in a traditional tribal setting is difficult to prove. Since there is no document issued for such a divorce and no system of registration, proof of its validity, of necessity, must be undertaken by the parties to the proceeding.

Perhaps the simplest method of supplying such proof involves securing from a Ghanaian District Court a decree confirming the fact that the non-judicial divorce was validly obtained. For use in immigration matters, this decree of confirmation should be certified as a true copy by the issuing court and, in turn, by the appropriate United States embassy or consulate as a decree of the court.

If the party to the tribal divorce prefers to prove the validity of the proceeding without the assistance of the Ghanaian judicial system, he must provide evidence which establishes (1) the tribe to which he belongs (2) the current customary divorce law of that tribe (3) the fact that the pertinent ceremonial procedures were followed. See Matter of Akinola, supra; Matter of Annang, Interim Decision 2248 (BIA 1973).

To establish the current customary law of his tribe, the party may present evidence derived from reported cases, legal treaties and commentaries, and depositions of legal scholars. The evidence could also consist of advisory opinions from those organizations traditionally rec

ognized by the Ghanaian Government as possessing knowledge of customary law.**

Once the law has been established, it remains for the party to prove that the divorce was properly perfected. Affidavits from the parties and the witnesses involved must be specific rather than conclusory in nature. Information provided should include, but need not be limited to, the date of the customary marriage, the ground for its dissolution and the date of the proceeding, the names and birthdates of any children born of the marriage as well as any custody agreement reached, and a description of the tribal formalities observed.

We shall remand the case to the District Director to afford the petitioner an opportunity to obtain the evidence necessary to establish the beneficiary's eligibility for immediate relative status. After receipt of such evidence, the District Director should enter a new decision, stating his reasons and make appropriate service on the interested parties in accordance with Matter of To, Interim Decision 2283 (BIA 1974).

ORDER: The record is remanded for the action indicated in the foregoing opinion.

See, The Courts Act, 1971, Act 372, section 50(3)(ii) in which the Ghanaian courts are allowed to solicit advisory opinions from a "House of Chiefs, or a Divisional or Traditional Council or other body possessing knowledge of the customary law in question." No doubt there are numerous domestic tribunals which are capable of rendering expert opinions in the area of tribal divorce.

MATTER OF RODRIGUEZ

In Deportation Proceedings

A-14559693

Decided by Board October 4, 1976

In order for a suspension applicant, who is a native of a contiguous country, to establish pursuant to section 244(f) of the Immigration and Nationality Act, as amended, that he is ineligible to obtain an immigrant visa, he must show that his best efforts would not result in his being able to obtain a visa. Where, as in the instant case, respondent is ineligible for a visa under section 212(a)(17) of the Act and he has not applied and refuses to apply for relief (permission to reapply for admission after deportation) which, if granted, would remove the ground of ineligibility, he has not satisfied the requirement of section 244(f) by establishing ineligibility to obtain an immigrant visa; accordingly, the denial of his suspension application by the immigration judge was proper. CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S. C. 1251(a)(1)]—Excludable at time of

entry

ON BEHALF OF RESPONDENT: Emanuel Braude, Esquire

215 West 5th Street

Los Angeles, California 90013

On October 17, 1975, the immigration judge entered an order in which he found the respondent deportable, denied the latter's application for suspension of deportation, and granted him the privilege of voluntary departure. The appeal will be dismissed.

The record relates to a married male alien, 37 years of age, a native and citizen of Mexico, who entered the United States without inspection during 1968. He conceded deportability. Accordingly, the finding of deportability rests upon evidence which is clear, convincing and unequivocal.

The relief of suspension of deportation is not available to the respondent, who is a native of a country contiguous to the United States, unless he establishes that he is ineligible to obtain an immigrant visa, section 244(f)(3) of the Immigration and Nationality Act. Inasmuch as the respondent is the father of a United States citizen, he does not require a labor certification and therefore is not ineligible for a visa under section 212(a)(14).

The respondent claims that he is ineligible for a visa pursuant to section 212(a)(17) as an alien who has been deported and who has not received permission to reapply. The respondent has been previously deported, and he has never received permission to reapply for admission. He concedes, however, that he has never made an application for that permission. Counsel argues that the respondent, who without permission appears to be eligible for suspension, cannot be forced to apply for permission and thereby be forced to lose his eligibility for suspension. Counsel characterizes the suggestion that the respondent must do so as requiring the respondent to "act as his own executioner." We reject counsel's argument. An applicant for suspension who is a native of a contiguous country must, by the terms of section 244(f), establish that he is ineligible to obtain an immigrant visa.

In order to establish ineligibility for an immigrant visa, the respondent must show that his best efforts would not result in his being able to obtain a visa. That has not been shown in this case, for the respondent refuses to apply for relief which is available and which, if granted, would remove the claimed ground of ineligibility. Were the respondent to obtain permission to reapply, he could utilize the normal consular channels to achieve lawful permanent resident status and he would not need the relief of suspension of deportation. The relief of suspension of deportation was not designed for such a person. The decision of the immigration judge to deny the application was correct. He considerately provided that, should an advance application for permission to reapply be made and denied, he would, upon his own motion, reconsider his denial of the application for suspension.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 90 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.