The record fails to show that a copy of an undated Service memorandum in support of the decision of the immigration judge was served upon counsel for respondent. An informal check by this office on October 20, 1976, revealed that the memorandum was received by counsel approximately two months after the August 9, 1976, deadline for filing a reply brief, and also after the scheduled date for oral argument. Since ample time has elapsed for the respondent to answer and no additional time has been requested, the case is now ripe for decision.

In order to insure fair and complete consideration of the proceedings before this Board, it is necessary that copies of all briefs, memoranda, and representations filed in connection therewith (see 8 C.F.R. 3.3(c)) shall have been served on opposing parties, and that the record show the date of service. We hold the immigration judge primarily responsible for the physical aspects of the record before us in matters under his jurisdiction, including all material pertaining to the organization and completeness of the record under 8 C.F.R. 242.15, such as an accurate transcript of hearings; orderly inclusion of exhibits and trial briefs; his signed separate opinion; the appeal notice, with attachments; copies of relevant procedural communications between immigration judge, respondent, and Immigration and Naturalization Service; and all appeal briefs with proof of timely service. Failure to insure that the record contains proof of service can result in delay and inconvenience, or, more importantly, a deprivation of due process and a possible miscarriage of justice if inadvertently overlooked (cf. 8 C.F.R. 242.17(c)).

In those matters within 8 C.F.R. 3.1(b) not under the jurisdiction of an immigration judge, it is the District Director who is primarily responsible for the record, including proof of service and memoranda addressed to this Board which can in any way influence our decision, with the exception of classified material which must be handled in accordance with outstanding instructions (see 8 C.F.R. 103.2(b)(2)).

Our review of the record, including briefs submitted by both parties, satisfies us that the hearing was fair, that deportability has been established by clear, convincing and unequivocal evidence, and that the immigration judge properly applied the pertinent legal principles. In considering the suspension application, he found that the respondent has the necessary continuous physical presence in the United States and has been a person of good moral character during the past seven years. He further found, however, that any economic detriment deportation may cause the respondent would not meet the test of extreme hardship, within the contemplation of the statute, citing Matter of Sangster, 11 I. & N. Dec. 309 (BIA 1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965). The respondent came to the United States as a nonimmigrant student and has now resided here for nine years. During that period of time, he has completed only five semesters of college and has no specialized field

(Tr. p. 10). His application for suspension of deportation reflects that he has been employed mostly as a janitor and custodian. As of May 13, 1976, his savings account with the Bank of America showed a balance of $2,652. The unmarried respondent, who has no relatives in this country, is still a young man and should have no difficulty obtaining some type of suitable employment if deported. While he obviously has become accustomed to the American way of life, the difference in economic standards which exists between the United States and other countries cannot be held to command the favorable exercise of discretion. See Yeung Ying Cheung v. INS, 422 F.2d 43 (3 Cir. 1970). We conclude that the immigration judge's reliance upon our decisions in Matter of Sangster, supra, and Matter of Uy, supra, was correct. The respondent has not established that deportation would cause him extreme hardship and he is not eligible for suspension of deportation. See Matter of Marquez, Interim Decision 2352 (BIA 1975); cf. Matter of Kim, Interim Decision 2318 (BIA 1974). Accordingly, the decision of the immigration judge will be affirmed.

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 31 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.

MATTER OF NWANGWU

In Visa Petition Proceedings

A-20501275

Decided by Board December 14, 1976

(1) It appeared that beneficiary had previously been married in 1960 according to the native laws and customs of the East-Central State of Nigeria. Petitioner contended that that marriage had been dissolved automatically in 1966 when beneficiary's first wife married another while he was in England.

(2) Under the law of the East-Central State of Nigeria, a customary law marriage may be dissolved judicially and extra-judically. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary divorce law of the particular ethnic group or tribe. A mere voluntary separation of the parties or desertion does not effectively dissolve the marriage.

(3) Where there was no showing that the minimum requirements for dissolution of marriage had been met, denial of the visa petition on grounds of lack of proof of termination of beneficiary's prior marriage was proper and the appeal will be dismissed. ON BEHALF OF PETITIONER: Ben C. Shapero

1200 1st National Building
Detroit, Michigan 48226

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The lawful permanent resident petitioner applied for preference status for the beneficiary as her spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated April 9, 1976, the District Director denied the petition on the ground that proof of the termination of the beneficiary's prior marriage was lacking. The petitioner appeals from that decision. The appeal will be dismissed.

The petitioner was born on December 7, 1937, in Nigeria and was admitted as a lawful permanent resident to the United States on October 22, 1969. The beneficiary was born on April 4, 1937, in Nigeria and entered the United States as a visitor on December 18, 1972. He and the petitioner were married in Detroit, Michigan on April 16, 1973.

It appears that the beneficiary was previously married in Nigeria in 1960 according to the native laws and custom of that country. It is the petitioner's contention that this customary marriage has been dissolved since the beneficiary's Nigerian wife remarried another in 1966, while

the beneficiary was living in England. The assertion is that this "automatically" dissolved the customary marriage and, as evidence, the petitioner submits a sworn affidavit by the beneficiary's brother attesting to the same. In addition, the beneficiary submitted a letter to the District Director in March 1974, in which, among other things, he stated that Nigeria is essentially a polygamous country; that a man could marry one, two or three women, and that not infrequently a woman might refuse to live with her husband, and marry another man without going through the courts to obtain a divorce. In the letter he also stated that "desertion and remarriage of one party effectively dissolves the marriage."

In a visa petition proceeding the burden of proof is on the petitioner. 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 the parties' previous marriages. Any pre-existing valid marriage is a bar to our recognition of the marriage on which the visa petition is based. The petitioner has failed to prove the legal termination of his previous customary marriage.

In Matter of Akinsete, Interim Decision 2369 (BIA 1975), we recognized that in the Mid-Western State of Nigeria a divorce must be obtained from a competent customary court in order to dissolve a tribal marriage. The law of the East-Central State of Nigeria, in which the beneficiary's prior marriage took place, is different. We have the benefit of a Library of Congress report dated October 6, 1975, entitled "Divorce in the East-Central State of Nigeria Between Persons Married Under Customary Law," which we are attaching hereto as Appendix A. It appears that, in the East-Central State of Nigeria, a customary law marriage may be dissolved not only judicially but also extra-judicially. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary divorce law of the particular ethnic group or tribe of the parties. A mere voluntary separation of the parties or desertion does not effectively dissolve the existing marital relationship.

The only evidence submitted in support of the petitioner's claim that the beneficiary's first marriage was dissolved in 1966 is an affidavit of the petitioner's brother, which states that the first wife deserted the beneficiary, and married another man. The contents of that affidavit are at variance with statements previously submitted by the petitioner, and do not show the legal termination of the beneficiary's marriage under the laws of East-Central Nigeria.

In view of the fact that there has been no showing of the minimum formalities required to dissolve a marital relationship in Nigeria, we must agree with the District Director's decision that the beneficiary's first marriage was not legally terminated prior to his present marriage

to the petitioner. We find, accordingly, that the beneficiary's prior marriage is a valid pre-existing marriage preventing recognition for immigration purposes of the marriage between the petitioner and the beneficiary. The appeal will, therefore, be dismissed. ORDER: The appeal is dismissed.

APPENDIX A

DIVORCE IN THE EAST-CENTRAL STATE OF NIGERIA
BETWEEN PERSONS MARRIED UNDER CUSTOMARY LAW

Some formality is required to bring a Nigerian customary law marriage to an end.' These formalities may take place in or out of court:

Unlike in English law dissolution of marriage under native law and custom could be either judicial or extra-judicial.2

Non-judicial divorce, however, is on the decline in Nigeria, even among people living in traditional societies:

In the areas where non-judicial dissolution of marriage is permitted, divorce may also be obtained in . . . court. Indeed, it appears that more and more people are using these courts, rather than the more informal non-judicial means, in order to make their divorces "official"' so as to be protected against any future claim that the marriage was never dissolved. . .3

3

The court system of the East-Central State of Nigeria was altered in 1971 to place jurisdiction in cases of divorce "between persons married under customary law" in the Magistrates' Courts."

It is not always an easy task for a court having jurisdiction in the locality in question to determine issues of customary law. In Inyang v. Ita the court made the following observation:

A good deal of evidence was given by both sides on this question of native law and custom. This kind of so-called expert evidence must always be treated with very great caution. The evidence of these experts is invariably coloured each by his own personal interests. The only way in which such testimony can be safely treated is to refrain from attempting to estimate individual credibility and to concentrate on drawing conclusions from the general trend of the evidence."

In Okpanum v. Okpanum, a case contesting the validity of an alleged customary divorce, the court based its decision upon evidence of a formal meeting attended by representatives of both families of the

2

'S. N. Chinwuba Obi, Modern Family Law in Southern Nigeria (1966) 368.

Okpanum v. Okpanum, 2 ECSLR 561, at p. 564.

3 Alfred B. Kasunmu and Jeswald W. Salacuse, Nigerian Family Law (1966) 175.