validity of a Kittima adoption. However, section 5 of the Registration of Kittima Adoptions Act states:

No dispute as to the right of any person to inherit as or through a Kittima son or daughter shall be entertained by any Court unless the fact of the adoption, if it was effected after the 1st April 1941, is evidenced by an instrument:—

(i) executed by the person making the adoption and (a) by the person who is adopted if not less than 18 years of age at the time of such execution aforesaid, or (b) if less than that age, then by the person or persons, if any, whose consent to the adoption is required by the Burmese Buddhist Law, and

(ii) attested by at least two witnesses, and

(iii) registered in Book 4 of the books referred to in sub-section (1) of section 51 of the Registration Act.

In Lim Chin Neo v. Lim Geok Soo, [1956] Burma L.R. 248, 251, 261, the court held that a claim for inheritance as a Kittima child was barred unless the adoption was evidenced by a registered deed of adoption conforming to the requirements of section 5 of the Registration of Kittima Adoptions Act. We shall not accept less proof of a Kittima adoption than a Burmese court would require when the question arises in an inheritance suit.

Finally, counsel argues that the registered deed of adoption operates from the date of an earlier Appatittha adoption of the beneficiary. There is no provision of Burmese law that would allow an earlier informal adoption to operate retroactively as a Kittima adoption. Section 47 of the Registration Act of Burma evidently permits a registered instrument to operate from the date of its execution if such date is prior to the date of its registration. However, this does not help the present beneficiary, because his deed of adoption was both executed and registered after his fourteenth birthday.

We are satisfied that our prior decision was correct. The motion to reconsider will be denied.

ORDER: The motion to reconsider is denied.

Theodore P. Jakaboski, Alternate Board Member, dissenting:

I respectfully dissent.

The majority opinion relies overly much on the provisions of Section 5 of the Registration of Kittima Adoptions Act, which went into effect in 1941. That section merely stipulates that courts will not entertain disputes over inheritance rights arising out of a purported Kittima adoption unless the adoption be evidenced by an instrument (1) executed by the adopter, (2) witnessed, and (3) registered in a volume referred to in the Registration Act of 1909.

There is no compelling reason to hold that Section 5 controls with validity of a Kittima adoption for purposes of the administration of the immigration laws of the United States.

The memorandum of law from the Library of Congress of January

1975 relied upon by the majority itself acknowledged that prior to 1941 "it was held that where a formal ceremony of Kittima adoption could be shown to have taken place in the presence of credible witnesses, summoned in order to secure publicity and notoriety to the factum of adoption, proof of adoption was complete." The petitioner claims that there was a Kittima ceremony in 1960, although there was no registration until 1970, when the child was over the 14-year old cut-off date provided for in the immigration laws. It seems to me that the late registration is a piece of evidence that should be considered as bearing upon whether there indeed was an adoption ceremony in 1960. This situation may be similar to that in Matter of Yue, 12 I. & N. Dec. 747 (BIA 1968), wherein a customary adoption was subsequently registered under the Hong Kong Adoption Ordinance, and the later registration was too late for immigration purposes.

The majority opinion rests upon the underlying premise that recognition of foreign adoptions is dependent upon the existence of full inheritance rights in favor of the person adopted. However, there is not express requirement to this effect in the immigration laws. Moreover, this approach conflicts with this Board's earlier ruling in Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972), wherein the Board recognized adoptions of females according to Chinese customary law in Hong Kong, even though adopted girls did not enjoy full rights of inheritance. It is difficult to distinguish the issues in the present case from those in the Ng

case.

It seems to me that the ends of justice and sound administration of the immigration laws, as well as the purposes behind these laws, would be better served if the resolution of an administrative appeal were to depend more upon the factual realties of the familial situation than upon the interposition of legalistic bars derived from an unrelated area of the law such as inheritance.

That is, what evidence is there that the Burmese authorities who enacted Section 5 of the Registration of Kittima Adoptions Act wished to invalidate unregistered Kittima adoptions? The simple answer is that there is not such evidence. Obviously, the provisions of Section 5 were promulgated in order to nudge the general populace into registering their unregistered Kittima adoptions, so as to make the work of the courts easier in inheritance cases.

I see no policy that is served by extending these considerations into something that bars our recognition of what evidently the ordinary Burmese would consider to be a valid adoption of the higher type.

A number of factual questions have not been aired. Therefore, I believe this case should be remanded to the district director for additional proceedings.

MATTER OF RODRIGUEZ

In Visa Petition Proceedings

A-14925372

Decided by Board March 21, 1975

Petitioner was allegedly divorced from her first husband in an in absentia proceeding in the Dominican Republic. Neither party was domiciled in the Dominican Republic at the time of the marriage or divorce nor did either appear personally in the divorce proceedings. Under these circumstances, the petitioner's divorce is not entitled to recognition in New York, and the petition to accord beneficiary classification under section 203(a)(2) of the Immigration and Nationality Act was properly denied.

ON BEHALF OF PETITIONER: Pro se.

The lawful permanent resident petitioner applied for preference classification for the beneficiary as her spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated July 25, 1974, the district director denied the petition. The petitioner has appealed from that denial. The appeal will be dismissed.

The record shows that the petitioner, a native and citizen of the Dominican Republic, was married previously in New York to another native and citizen of the Dominican Republic. The petitioner allegedly was divorced from her first husband by mutual consent in the Dominican Republic in June 1972. Neither the petitioner nor her first husband appeared personally in the Dominican action and neither was domiciled in the Dominican Republic at the time of the divorce. The district director concluded that the petitioner's Dominican divorce was not entitled to recognition in New York, the place of celebration of the petitioner's subsequent marriage to the beneficiary.

The question whether New York will recognize the Dominican divorce is one of comity. New York courts will recognize divorce decrees rendered in foreign countries when such recognition does not offend any public policy of New York. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709, 262 N.Y.S.2d 86 (1965), cert. denied, 384 U.S. 971 (1966); Rosenbaum v. Rosenbaum, 309 N. Y. 371, 130 N.E.2d 902 (1955); Matter of Moncayo, 14 I. & N. Dec. 472 (BIA 1973).

In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not

domiciled in Mexico at the time of the divorce. The court held that where one party was physically present within the jurisdiction of the Mexican court, and the other party appeared by attorney and submitted to the jurisdiction of the Mexican court, the Mexican divorce decree was entitled to recognition in New York. See also Ramm v. Ramm, 34 App. Div. 2d 667, 310 N. Y.S.2d 111 (1970), aff'd, 28 N.Y.2d 892, 271 N.E.2d 558, 322 N.Y.S.2d 726 (1971).

A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican consulate in New York was at issue in De Pena v. De Pena, 31 App. Div. 2d 415, 298 N.Y.S.2d 188 (1969). Neither party appeared in person in the Dominican action, and process was not personally served on the wife. The court refused to recognize the divorce. In doing so, it pointed out that the wife was a domiciliary of New York, and the husband's only existing contact with the Dominican Republic was his continued Dominican citizenship. The court distinguished Rosenstiel on the ground that in De Pena there was no physical presence by either party and the Dominican court had not acquired jurisdiction over the wife.

In Matter of Moncayo, supra, we had occasion to interpret the policy statements made by the New York courts in Rosenstiel and De Pena. We held that New York would not recognize an Ecuadorian divorce obtained by an Ecuadorian citizen residing in the United States, where neither party appeared in person before the Ecuadorian court and the beneficiary's first wife was not personally served and did not submit to the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13 I. & N. Dec. 152 (BIA 1969).

The foregoing cases indicate that where jurisdiction of the foreign court is not based on domicile, New York policy generally requires some physical presence on the part of at least one party within the jurisdiction rendering the divorce, combined with some type of appearance or submission to jurisdiction by the other party. In the past we have concluded that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present within the jurisdiction of the foreign court granting the divorce. Such recognition has been extended where the parties involved where nationals of the foreign country rendering the divorce, were married in that country, lived in that country as husband and wife, consented to the jurisdiction of the foreign court, and appeared in the foreign action through their authorized representatives. Matter of Koehne, 10 I. & N. Dec. 264 (BIA 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974); Matter of Kurtin, 12 I. & N. Dec. 284 (BIA 1967).

In the present case, the petitioner and her first husband were both. citizens of the Dominican Republic and they both consented to the jurisdiction of the Dominican court. Nevertheless, neither party was

physically present within the jurisdiction of the Dominican court, and their marriage had taken place in New York, not the Dominican Republic. Under these circumstances, we believe that New York would not find sufficient connection between the Dominican Republic and the parties to recognize the in absentia Dominican divorce.

The district director reached the proper result. The appeal will be dismissed.

ORDER: The appeal is dismissed.

Theodore P. Jakaboski, Alternate Board Member, dissents without opinion.