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have maintained their nonimmigrant status, having been granted several extensions, the last expiring on September 30, 1957. On October 5, 1941, the applicant married S--D- in Manila.

Her 2 minor sons are the issue of this marriage. While residing in California the applicant filed an action for divorce in the First Civil Court of the Bravos District, State of Chihuahua, Mexico, on the grounds of separation and incompatibility. The decree, dated September 6, 1956, purports to grant an absolute divorce, but neither the petitioner nor her husband had ever been in Mexico. She thus obtained a "mail order” divorce. On December 19, 1956, the applicant purported to marry D-L-W-, a citizen of the

DMWUnited States, in a marriage ceremony performed in San Francisco, California.

In the instant proceeding the applicant claims eligibility for nonquota status under section 101(a) (27) (A) as the spouse of a United States citizen and her sons claim eligibility under the same section as stepchildren. If it is determined that the marriage on which these applications are predicated is valid, the subjects would appear to qualify for nonquota status as they had all been in the United States for a year prior to acquiring that alleged status. A finding that the quota of the Philippines was oversubscribed at the time the current applications were filed is not contested.

If it is determined that the "mail order” divorce obtained in Mexico was void in law, such impediment of this prior existing marital status would invalidate the principal applicant's subsequent marriage to D—W— Such is the issue to be resolved in connection with this appeal. In these proceedings the burden is upon the applicants to establish the eligibility for the benefits sought or the status claimed.

The record establishes that neither the parties to the first marriage nor the marital res of that marriage were ever in Mexico. Whether such in absentia divorce precludes, for immigration purposes at least, the validity of a subsequent marriage, depends on the recognition accorded it by the jurisdiction wherein the subsequent marriage was performed (Matter of P-56324/762, 4 I & N. Dec. 610, which modified a prior holding in Matter of 0A-6345409, VP-374571, 3 I. & N. Dec. 33, that no divorce decree obtained in absentia would be valid for immigration purposes).

The Courts of California, the State in which the subsequent marriage was performed, have generally refused to recognize in absentia Mexican divorces where the facts were as in the instant case (Ryder v. Ryder, 37 P.2d 1069; Muir v. United States, 93 F. Supp. 939 (1950)).

Matter of B-, VP 13–3521, 5 I. & N. Dec. 659, and Matter of P- 56324/762, 4 I. & N. Dec. 610, cited by counsel in support of


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his position, are readily distinguishable. In the former, the plaintiffwife was physically in Mexico, the defendant-husband consented to the divorce proceedings and was represented by counsel. In the latter, the parties mutually agreed to the institution of the divorce proceedings, the defendant-husband signed a nolo contendere, and the plaintiff-wife was physically in Mexico and there signed the necessary judicial papers for the institution of the divorce proceedings.

The applicant for adjustment under section 245 has the burden of establishing his eligibility. Since the California courts deny recognition to Mexican in absentia divorces such as that present here, it follows that the applicant has failed and is unable to sustain her burden of proving the validity of her marriage to a United States citizen husband. Similarly, applicant's sons cannot establish that they are the stepsons of a United States citizen.

Order: It is ordered that the appeal from the district director's decision denying adjustment under section 245 of the Immigration and Nationality Act be and the same is hereby dismissed.


In FINE Proceedings


Decided by Board April 18, 1958

Fine-No liability under section 231(d) for failure to furnish manifest where

responsible parties had no knowledge of stowaway's presence on vessel. Fine liability under section 231 (d) of the 1952 act is not incurred for failure

to furnish manifest for alien stowaway whose presence aboard vessel had not been known to responsible parties until after stowaway's apprehension in the United States.

Editor's Note: Matter of SS. Monte Monjuich, 5 I. & N. Dec. 601, overruled, in

part-with respect to liability for fine under section 231 (d) of the 1952 act.


Act of 1952–Section 231 (d) (8 U.S.C. 1221) and Section

273(d) (8 U.S.C. 1323).


Discussion: The appeals in these cases are directed to two administrative penalties totaling $1,010 which have been ordered imposed on the vessel's master and/or the Hinkins Steamship Company, its agents. $1,000 of the penalty has been ordered imposed for failure to detain the alien stowaway, A. -C-M-, aboard the vessel until he had been inspected by an immigration officer; and $10 of the penalty has been ordered imposed for failure to deliver a manifest as to him. The appeal will be dismissed as to the former penalty and sustained as to the latter.

The facts of this case have been succinctly set forth in the opinion of the District Director at Baltimore, Maryland, and need not be repeated here in their entirety. Briefly, the stowaway was apprehended by local police officers and turned over to Service officials; he testified that he boarded this vessel at Vera Cruz, Mexico, as a longshoreman engaged in loading the vessel and remained aboard; that he hid in the number 3 cargo hold during the voyage to Baltimore and subsisted by eating pineapples from the cargo in the hold, and left his place of concealment three times late at night to get water from a faucet on the main deck; and his testimony was verified in its substantial portions by an investigation conducted aboard the vessel by Service officers at New York. The evidence of record clearly overrides the master's claims that the alien could not possibly have stowed away aboard his vessel.

We are satisfied from the evidence of record that the responsible parties did not know of the stowaway's presence aboard the vessel until after he had been apprehended ashore, but knowledge is not an element essential to liability to fine under section 273(d) of the Immigration and Nationality Act. This Board has consistently held that a transportation company is liable for fine under this section of law for failure to detain on board alien stowaways until they have been inspected by immigration officers, and that such fine liability exists even though the line had no knowledge of the stowaway being aboard the ship until the discovery of the stowaway in the United States. We so hold here. Also, there is no provision for mitigation of the penalty under this section of the law. Therefore, the $1,000 portion of the penalty ordered imposed here must be permitted to stand.

However, it is our considered opinion that liability to fine under section 231 (d) of the Immigration and Nationality Act for failure to deliver to immigration officers at the port of arrival a manifest containing the stowaway's name presupposes knowledge of the stowaway's presence aboard the vessel. We so hold and, therefore, it follows that the $10 portion of the penalty has been improperly imposed in this instance. Therefore, that portion of the fine will be remitted.

Order: It is ordered that the appeal be sustained as to the penalty ordered imposed under section 231(d) of the Immigration and Nationality Act and that said $10 fine be remitted, and that the appeal be dismissed as to the penalty ordered imposed under section 273(d) of the Immigration and Nationality Act. The penalty permitted to stand in this case will be $1,000.


In DEPORTATION Proceedings


Decided by Board April 24, 1958

Entry-Under military orders-Failure to comply with conditions of enlistment

under Act of June 30, 1950, as amended, deprives alien of right to remain in U.S.-Deportable on "no visa" charge.

(1) Alien dishonorably discharged from United States Armed Forces prior to completing 5 years' service is not entitled to claim lawful residence in the United States on basis of foreign enlistment pursuant to Act of June 30, 1950, as amended, and subsequent entry as member of Armed Forces. (2) Such alien, having declined opportunity to depart voluntarily from the

United States becomes deportable on charge that he entered the United States

as an immigrant not in possession of an immigrant visa. CHARGE:

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

at entry-Immigrant-No valid visa.


Discussion: This case is before us on appeal from a decision entered by the special inquiry officer on January 9, 1958, directing that the respondent be deported from the United States on the charge contained in the order to show cause. Exception is taken to the finding of deportability.

The respondent is a 30-year-old native of Bulgaria who alleges that he is now stateless. His only entry into the United States occurred at the port of New York on November 9, 1955, as a member of the Armed Forces of the United States. He was not in possession of an immigrant visa. He testified that he entered this country pursuant to a law which provided that if he served honorably in the army for 5 years, he could obtain citizenship. He intended to stay in the United States permanently. He admitted that he received an undesirable discharge from the Armed Forces of the United States, effective January 9, 1958, prior to completing 5 years' service. He also admitted that he was offered the opportunity to depart from the United States voluntarily but that he declined to do so. At the hearing he also declined to apply for voluntary departure and

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