MATTER OF TAGLE In Visa Petition Proceedings A-20800319 Decided by Board March 3, 1976 Since the Civil Code of the Dominican Republic, as amended by Law 142 in 1971, does not require a waiting period for pronouncement of a mutual consent divorce obtained by foreigners, the mutual consent divorce terminating the marriage between beneficiary and his first wife (both Ecuadorians), which was obtained in the Dominican Republic and pronounced on the day the judgment was rendered, is valid under the law of the Dominican Republic and, hence, is entitled to recognition in New York, the place of subsequent marriage of beneficiary and the United States citizen petitioner. ON BEHALF OF PETITIONER: John J. Barry, Esquire Barry, Barry & Barry One Hunter Street Long Island City, N. Y. 11101 ON BEHALF OF SERVICE: Paul C. Vincent Appellate Trial The United States citizen 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 August 27, 1975, the District Director denied the petition. The petitioner has appealed from that decision. The appeal will be sustained and the record remanded to the District Director. The marriage between the petitioner and the beneficiary which took place in New York is the second marriage for the beneficiary, a native and citizen of Ecuador. His first wife, also an Ecuadorian, appeared before a court in the Dominican Republic on June 14, 1974 and obtained a mutual consent divorce from the beneficiary. The beneficiary appeared by an attorney duly authorized to act for him. The beneficiary's divorce is entitled to recognition under New York law if the divorce is valid under the law of The Dominican Republic. Rosenstiel v. Rosenstiel, 262 N.Y.S.2d 186, 209 N.E. 709 (1965), cert. denied 384 U.S. 971 (1966). See also Matter of Assan, 15 I. & N. Dec. 218 (BIA 1975). The petitioner has submitted a copy of the beneficiary's divorce decree and the copy of the Pronouncement of the Divorce issued by an official of the Civil Registry on the day the divorce was decreed. How ever, the district director, relying on certain quotations from a Library of Congress report in our decision in Matter of Darwish, 14 I. & N. Dec. 307 (BIA 1973), denied the petition on the ground that the divorce was invalid in the Dominican Republic because the pronouncement was made sooner than eight days after the divorce was decreed. Subsequent to our decision in Matter of Darwish, supra, we received a more complete translation of the Dominican law on divorce 1from the Library of Congress. Under that law separate procedures are set forth for mutual consent divorces and divorces sought for cause. Chapter 4 of the Dominican law on divorce, which contains Articles 26 through 33, pertains to procedures to be followed in mutual consent divorces. Article 31 states: The spouses, or the more diligent of them, are responsible for registering the divorce judgment in the Office of the Civil Registry; the judgment shall be pronounced [by the official of the Civil Registry] no less than eight working days after the judgment was issued. It would appear then that the parties must wait seven business days before having the decree pronounced at the Civil Registry. However, in 1971, Law 142 added a further paragraph to Article 31. That paragraph reads, in pertinent part: "In the case provided for in paragraph 5 of Article 28 of this law [relating to mutual consent divorces obtained by foreigners], once the judgment has been rendered, the divorce shall be pronounced by any official of the Civil Registry of the jurisdiction of the court where the case was tried, upon presentation of a certified copy of the judgment, previously transcribed in the Office of the Civil Registry." (Emphasis supplied.) This amendment clearly eliminates the waiting period for foreigners. The divorce in the present case was obtained by foreigners and pronounced on the day the judgment was rendered. We conclude that the divorce decree is valid in the Dominican Republic and, as indicated, it is consequently entitled to recognition in New York. We note that the district director, in denying the petition, refers to Article 19 in his decision. In Matter of Darwish, supra, we also made a reference to Article 19. However, we have learned that the translation of Article 19 provided us by the Library of Congress in connection with Matter of Darwish, supra, is erroneous. The time limitations set out therein should not be relied on. The correct translation of Article 19 follows: The plaintiff who fails to act within the term of two months as set forth in Article 17 shall lose the benefits granted to him by the judgment thus obtained, and he shall not be able to obtain a new judgment, unless his petition is based on new grounds. The previously alleged grounds may be added to the new ones. 1 Civil Code of The Dominican Republic, Law 1306-bis (1937), as amended by Law 142 (1971). From the more complete translation of the Dominican divorce law now before us, it is evident that Article 17, which provides that the divorce decree must be pronounced within two months, and Article 19 set forth the pronouncement requirement and the consequences of a failure to fulfill the requirement in divorces obtained for cause. Article 19 makes no reference to mutual consent divorces nor does any other provision of the statute specifically penalize the parties in a mutual consent divorce for failure to have the divorce pronounced. The district director's decision with respect to the Dominican law was incorrect. The appeal will therefore be sustained. We shall, however, remand the record in order that the district director may determine if the marriage between the petitioner and the beneficiary is bona fide. ORDER: The appeal is sustained; the record is remanded to the district director. MATTER OF RECZYNSKI In Bond Proceedings A-20919696 Decided by Board March 3, 1976 (1) While an immigration judge is empowered pursuant to 8 CFR 242.2(b) to redetermine the amount of, or a condition of, a bond subsequent to its imposition by a district director and before a deportation order becomes administratively final, there is no independent basis in the regulations authorizing an immigration judge to determine whether there has been a breach of bond. A district director, who is authorized to declare a bond breached (8 CFR 103.6(e)), is the one who should do so. (2) Where, on the basis of information presented at the hearing before an immigration judge in connection with request for bond redetermination under 8 CFR 242.2(b), there is reason to believe, as in the instant case, there may have been a breach of a bond condition, the procedure to be followed is adjournment of the hearing to allow the district director to determine whether or not the bond should be declared breached. If declared breached, the redetermination hearing then becomes moot. ON BEHALF OF RESPONDENT: Nathan T. Notkin, Esquire 11 South LaSalle Street This is an appeal from a determination of an immigration judge, dated September 26, 1975, denying the respondent's request for a change in his custody status. The record will be remanded. The respondent is a single male alien who is a native and citizen of Poland. On February 5, 1975, an order to show cause and warrant of arrest were issued. The order to show cause alleges that the respondent entered the United States as a nonimmigrant visitor and has remained in the United States for a period longer than authorized. The respondent was released from custody under bond in the amount of $1,500. A rider attached to the bond prohibited the respondent from being employed without permission of the Immigration and Naturalization Service. The respondent does not contest the amount of the bond, but only the imposition of the non-employment rider. The request for the bond redetermination hearing was not formally made until September 26, 1975. At the time of the request, the deportation hearing had not yet been held. In his memorandum of decision of support of his determination, the immigration judge stated that, on the morning of the hearing, the trial attorney orally informed him that the Service had learned that the respondent had been employed, in apparent violation of the nonemployment condition of the bond. The immigration judge stated that he questioned the respondent and that the respondent admitted that he had been employed. The immigration judge concluded that the respondent had breached the condition of the bond and that because of the breach he accordingly lacked jurisdiction to determine the issue. There is nothing in the record to indicate the district director declared the bond breached. On appeal, the respondent contends that a breach does not occur absent such a declaration. A condition against unauthorized employment is provided for in 8 CFR 103.6(a)(2). See Matter of Leon-Perez, 15 I. & N. Dec. 239 (BIA 1975). See generally Matter of Toscano-Rivas, 14 I. & N. Dec. 523 (BIA 1972, 1973; A.G. 1974). A bond is breached when there has been a "substantial violation of the stipulated conditions." 8 CFR 103.6(e). However, this regulation also provides: The district director having custody of the file containing the immigration bond executed on Form I-352 shall determine whether the bond shall be declared breached or cancelled, and shall notify the obligor on Form I-323 or Form I-391 of the decision, and, if declared breached of the reasons therefor and of the right to appeal in accordance with the provisions of this part. (Emphasis supplied.) It is apparently this provision on which the respondent relies in contending that there could have been no breach absent a declaration by the district director. Under 8 CFR 242.2(b), an immigration judge is empowered to redetermine the amount of, or a condition of, a bond subsequent to its imposition by a district director and prior to an order of deportation being entered.1 However, there is no independent basis in the regulations giving an immigration judge the authority to pass on whether or not there has been a breach of the bond. Resolution of such a factual issue could precipitate a lengthy bond determination hearing. The district director, who is authorized to declare a bond breached, is the one who should do so. Once there has been a breach, and a declaration of such by the district director, there is little reason for an immigration judge to redetermine the bond condition. To hold otherwise would permit an alien under bond to violate the bond conditions with the knowledge that if he is discovered, he could then challenge the imposition of the condition. An alien 1 As amended effective November 28, 1975, 8 CFR 242.2(b) now provides that when an alien has posted the bond and has been released from custody, the immigration judge may make a redetermination only if the request is made within seven days of release. After that seven-day period, requests for modification of conditions of the bond are made to the district director. See 40 Fed. Reg. 50250 (October 29, 1975). |