Eastern and African Law Division, a Nigerian customary divorce requires the institution of certain quasi-judicial proceedings. Such proceedings are held in a customary court which will ascertain and apply the applicable customary law. The party seeking the divorce has the burden of proving the customary law to the satisfaction of the court, either through written or oral evidence, or through witnesses called "assessors," tribal elders who are experts in the details of local customary law. It seems clear that in order to prove the native law and custom, some credible corroborative evidence is required in addition to the representations of the person who asserts it. The petitioner is this case has neither claimed nor shown that the beneficiary's customary marriage has been dissolved pursuant to such formal customary proceedings, although the beneficiary is, of course, free to institute them at any time. Accordingly, we must concur in the district director's conclusion that the proof thus far submitted does not support a grant of immediate relative status to the beneficiary. Should the beneficiary succeed in obtaining a valid customary divorce from his Nigerian wife, and remarry the petitioner, then the petitioner can file a new visa petition in his behalf. The following order will be entered. ORDER: The appeal is dismissed. Irving A. Appleman, Board Member, abstained from consideration of this case. Interim Decision #2370 MATTER OF NIGOGHOSSIAN In Visa Petition Proceedings A-20318610 Decided by Board April 16, 1975 The lawful permanent resident petitioner filed a visa petition under section 203(a)(2) of the Immigration and Nationality Act, which was denied because the petitioner was previously married in Iraq and failed to establish that the prior marriage had been legally terminated. The second marriage took place in California. Petitioner claimed that the first marriage could be considered terminated under section 4401(2) of the California Civil Code becuase she and her first husband had been separated for over five years prior to her second marriage and he had not been heard from since. Such assertion is not sufficient to consider the marriage terminated under section 4401(2), because that section requires a good faith belief that the previous spouse is dead, and there was nothing in the record to indicate petitioner entertained such belief. ON BEHALF OF PETITIONER: Joseph S. Hertogs, Esquire 580 Washington Street San Francisco, California 94111 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 October 17, 1974, the district director denied that petition. The petitioner has appealed from that decision. The appeal will be dismissed. The petitioner and the beneficiary went through a marriage ceremony in San Francisco, California on December 7, 1973. The record shows that the petitioner was previously married in Iraq in 1962. The district director based his denial on the petitioner's failure to establish that her prior marriage had been legally terminated. On appeal, counsel argues that the petitioner's present marriage is valid in California, the place of celebration, by virtue of section 4401 of the California Civil Code, which provides: A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: (1) The former marriage has been dissolved or declared a nullity prior to the date of the subsequent marriage. (2) The former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding the subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted, in either of which cases the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 4425. (Emphasis supplied.) Counsel alleges that the petitioner's first spouse left her in 1965 and has not been heard from since. Counsel therefore contends that the petitioner's present marriage to the beneficiary is valid under the provisions of section 4401(2) of the California Civil Code. We have previously had occasion to deal with the provisions contained in subsection (2) of section 4401 of the California Civil Code (formerly section 61 of the California Civil Code). In Matter of S-, 7 I. & N. Dec. 469 (BIA 1957), we held that subsection (2) required that the person seeking to rely on it establish that he or she had a good faith belief in the death of his or her prior spouse. Our holding was based on the decisions of the California courts in Wilcox v. Wilcox, 171 Cal. 770, 776, 155 P. 95 (1916), and Goff v. Goff, 52 Cal. App. 2d 23, 28, 125 P.2d 848 (1942). The view that section 4401(2) requires a good faith belief in the death of the prior spouse was reaffirmed in Neureither v. Workmen's Compensation Appeals Board, 15 Cal. App. 3d 429, 93 Cal. Rptr. 162 (1971). The only evidence submitted by the petitioner regarding her prior spouse consists of two affidavits from friends indicating that the petitioner's first husband left her in Iraq in 1965 and has not returned to her or been heard from since. There is nothing in the record to indicate that the petitioner entertained a good faith belief that her husband was dead as required under section 4401 of the California Civil Code. In visa petition proceedings, the petitioner has the burden of establishing the validity of the claimed relationship. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). The present petitioner has failed to establish that her marriage to the beneficiary is valid under the law of California. Consequently, the appeal will be dismissed. If the petitioner has evidence that might place her present marriage within the provisions of section 4401 of the California Civil Code, as interpreted by the California courts, she may submit a new petition. ORDER: The appeal is dismissed. MATTER OF KANE In Exclusion Proceedings A-10128460 Decided by Board April 1, 1975 The applicant for admission in this case had been admitted for permanent residence with an immigrant visa in 1964. Since 1967, however, she has spent 11 months of each year living in her native country of Jamaica in an -8 room house which she operates as a lodging house. Each year she comes to the United States for one month which she spends in a furnished room which she rents by the week. Applicant presented herself for admission as a special immigrant under section 101(a)(27)(B) [now (A)] of the Immigration and Nationality Act and was found excludable under section 212(a)(20) of the Act, for lack of a valid immigrant visa. Looking at the purpose of her departure, the duration of her absence, her home, family and employment ties, it was concluded that she had abandoned her permanent residence in the United States and was therefore excludable on the ground alleged. (Saxbe v. Bustos, 419 U.S. 65, related to “commuters” returning to employment in the United States and can be distinguished from one who has no ties of residence or employment here.) EXCLUDABLE: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant-no visa ON BEHALF OF APPLICANT: George W. Drake, Esquire 500 Ingraham Building This is an appeal from the immigration judge's order of exclusion. The appeal will be dismissed. The record relates to a married female alien, 69 years of age, who is a native and citizen of Jamaica. She was lawfully admitted for permanent residence on March 18, 1964 in possession of an immigrant visa. For two years thereafter shw lived with her husband in New York; then she separated from him and moved to Florida. She departed from the United States during 1967. Since that departure she has been absent from the United States for 11 months of each year, during which time she has been living in Jamaica in an eight-room house which she owns and operates as a lodging house. She supports herself from the rents she receives from her lodgers. The purpose of her annual trips to the United States has been to maintain her legal resident status in the United States and for rest. While here, she was rented a furnished room in Florida by the week. The applicant last presented herself for admission on July 31, 1972, in possession of Form I-151 (Alien Registration Receipt Card), and requested admission as a special immigrant, returning from a temporary visit abroad. She was traveling on a 21-day excursion round-trip airplane ticket, originating from and returning to Jamaica. An exclusion hearing was conducted at which the immigration judge held that she was not entitled to admission, because she had no residence in the United States to which to return. To qualify as a "special immigrant" given dispensation from normal documentation requirements and numerical limitations, an alien must be "an immigrant lawfully admitted for permanent residence, who is returning from a temporary visit abroad." Section 101(a)(27)(B), Immigration and Nationality Act. The phrase "lawfully admitted for permanent residence" is defined as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." Section 101(a)(20), of the Act. The word "permanent” is defined as “a relationship of continuing or lasting nature, as distinguished from temporary, . . ." even though the relationship may be one that can be dissolved eventually at the instance of either the United States or the individual. Section 101(a)(31) of the Act. Lastly, "residence" is defined as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." Section 101(a)(33) of the Act. An Immigration and Naturalization Service regulation provides that in order to be exempted from the normal documentation requirements upon entry, an alien must be returning "to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad." If the temporary absence has not exceeded one year, he may be admitted upon presentation of Form I-151, Alien Registration Receipt Card, 8 CFR 211.1(b)(1). The application of these provisions to the factual situation in the present case, necessitates scrutiny of the recent decision in Saxbe v. Bustos, 419 U.S. 65. In that case the Court was concerned with the meaning of section 101(a)(27)(B) in relation to the aliens who have their homes in Canada or Mexico, and who commute daily, or on a seasonal basis, to places of employment in the United States, without actually establishing a permanent residence in this country. Such aliens are originally admitted as immigrants, and thereafter cross the borders upon presentation of their "green card", pursuant to section 211(b) of the Act. Saxbe v. Bustos posed the question "whether commuters are lawfully |