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MATTER OF KENNEDY

In Exclusion Proceedings

A-13455180

Decided by Board April 3, 1969

An alien who enters the United States while he has an appeal pending from

an exclusion order is considered to have abandoned his appeal, leaving the

exclusion order in effect. EXCLUDABLE: Act of 1952—Section 212 (a) (3) [8 U.S.C. 1182 (a) (3)]—Prior

attack of insanity. Act of 1952—Section 212(a) (22) [8 U.S.C. 1182 (a) (22)]—

Departed from or remained outside United State to avoid or evade training or service in armed forces in time of war

or national emergency. Act of 1952—Section 212 (a) (20) [8 U.S.C. 1182 (a) (20)]

Immigrant-no valid visa or entry document in lieu thereof.

ON BEHALF OF APPLICANT:

James F. Flynn, Esquire
208 Bellingham Nat'l Bank Bldg.
Bellingham, Washington 98225
(Brief filed)

ON BEHALF OF SERVICE:

B. G. Greenwald
Trial Attorney
(Memorandum filed)

The merits of this appeal will not be considered since, for technical reasons, it is considered abandoned. The case will be returned to the Service.

The applicant, a 22-year-old single male, a native and citizen of Canada, was admitted as an immigrant on December 2, 1963. He applied for readmission to the United States from Canada on December 26, 1967. He was paroled and subsequently given a hearing in exclusion proceedings. The Service charged he was excludable on the grounds stated in the caption. The Service charged that he departed from the United States in January 1966 to Canada with the intention of abandoning his residence in the United States and for the purpose of evading service in the armed forces, and that he had been hospitalized for a mental condition

in the United States from January 13, 1968 to February 16, 1968. On November 19, 1968, the special inquiry officer ordered the applicant excluded on the second and third charges set forth in the caption. The applicant appealed.

On January 23, 1969, before his appeal was decided, the applicant entered the United States to comply with the request of his local draft board that he present himself. He had planned to enter at the port where his case was known, but weather conditions caused him to enter at a different port, where he alleges he was admitted upon informing the inspecting officer that he had been ordered to report by the draft board. The nature of his admission is not clear, but it is certain that he was not paroled into the United States. He is now in Canada.

An alien who enters the United States while he has an appeal pending from an exclusion order is considered to have abandoned his appeal, leaving the exclusion order in effect. Matter of AP-, 31. & N. Dec. 178; see Matter of Estrada-Betancourt, 12 I. & N. Dec. 191; Matter of A—, 9 I. & N. Dec. 356 (BIA 1961). There is, therefore, no appeal pending before us. The case will be returned to the Service.

Counsel has informed the Board that the alien desires a consideration of his case upon its merits rather than on the basis of his inadvertent violation of immigration regulations. In view of this desire, the complete record which was created, and the seemingly inadvertent nature of his illegal return, it would not be inappropriate for the alien to apply for readmission 1 in accordance with the provisions of 8 CFR 212.2, then apply for entry, seeking to have the record previously created, and brought up-to-date, as the basis for a decision on the merits of his new application to enter.

ORDER: In accordance with the foregoing, it is ordered that the record be returned to the Service.

1 The applicant was a person who had been excluded from the United States at the time he reentered on January 23, 1969. He would, therefore, appear to be inadmissible under section 212(a) (16) of the Act (8 U.S.C. 1182(a) (16)) as one who sought admission within one year from the date of his exclusion and deportation without having obtained the consent of the Attorney General for his reapplication for admission.

MATTER OF LEVINE

In Visa Petition Proceedings

A-18485936

Decided by Board April 11, 1969

Since beneficiary's divorce obtained in Mexico at a time when both parties

thereto were permanent residents of, and domiciled in, Mexico, even though the parties to the divorce were not actually present in court but were represented by counsel, is recognized as valid under California law for the purpose of her subsequent marriage to the U.S. citizen petitioner in that State, the marriage is recognized as valid for the purpose of conferring immediate relative status on beneficiary as the spouse of the U.S.

citizen petitioner.
ON BEHALF OF PETITIONER: Donald L. Ungar, Esquire

Phelan, Simmons and Ungar
517 Washington Street
San Francisco, California 94111
(Brief filed)

The petitioner, a citizen of the United States, appeals from an order entered by the District Director at San Francisco, California on September 30, 1968 denying a visa petition for immediate relative status filed in behalf of his wife, Irene Elisabeth Levine, whom he married in a civil ceremony in Las Vegas, Nevada on December 28, 1965 and remarried in a religious ceremony at San Francisco, California on February 11, 1966. Exceptions have been taken to the District Director's finding that the petitioner's marriage to the beneficiary is not valid for immigration purposes because of the alleged invalidity of a divorce obtained by the beneficiary in Mexico from her former husband.

The issue presented on appeal concerns the validity of the beneficiary's divorce from her prior husband which was granted by the Juzgado De Lo Civil, Tlaxcala, Mexico, on December 18, 1965 and recorded on December 28, 1965. The applicable rule of law concerning the validity for immigration purposes of a subsequent marriage where an earlier marriage has been terminated by a divorce secured in Mexico has been stated by the Attorney

General as follows: "The validity of a marriage is governed by the law of the place of celebration.” Matter of P—, 4 I. & N. Dec. 610 (A.G., 1952); also see Matter of Freeman, 11 I. & N. Dec. 482 (BIA, 1966). We conclude that the laws of California control in the instant case as the beneficiary testified that she has resided in California with her husband since February of 1966 (p. 3).

The beneficiary is a citizen of Sweden, born of Swedish parents in Paris, France, on December 10, 1930. Her first marriage to a Swedish national was terminated by a divorce obtained by her first husband in Stockholm, Sweden, on April 18, 1956. A copy of this divorce decree is in the record.

Following her divorce in Stockholm, the beneficiary traveled to Mexico City. There in 1956 she met Leo Eugene Haughey, an American citizen, who had been lawfully residing in Mexico for some time. While in the United States on a temporary visit, the beneficiary married Haughey at Concordia, Kansas, on October 22, 1957. They returned to Mexico City immediately following the wedding and lived there together until their separation in February of 1965. The beneficiary became a lawful permanent resident of Mexico soon after her marriage to Haughey.

Following her separation from Haughey, the beneficiary returned to Sweden for a visit. She left her personal belongings in Mexico City. During August 1965 while in Sweden, she decided to obtain a divorce from Haughey. She notified her lawyer in Mexico City to proceed with the filing of a divorce action, and while visiting in California in September of 1965, she signed the required documents. The divorce decree was handed down by the Civil Court of Tlaxcala, Mexico on December 18, 1965. She obtained a copy of the decree personally from her lawyer when she was in Mexico City during February of 1966 (p. 3, Statement of August 20, 1968).

In an affidavit executed on November 9, 1968, the beneficiary stated:

I did not go to Mexico personally for the divorce ... I was advised by my lawyer in Mexico City that it was perfectly legal and proper for me to secure a divorce in this manner I certainly had no intention of evading any law of the United States or of California in securing my divorce this way. (Emphasis added.)

The beneficiary also stated in the affidavit that she retained her lawful residence in Mexico until February of 1967, when she returned to Mexico City for her personal belongings. Her former husband also continued to reside in Mexico until the middle of 1967. The beneficiary returned to Sweden and on November 13, 1967, she had her visitor's visa revalidated by the United States

Consul (p. 3, Statement of August 20, 1968). The beneficiary last entered the United States with the petitioner on May 6, 1968, and was admitted as a visitor.

The Uniform Divorce Recognition Act, enacted by the California State legislature in 1949, prohibits recognition of foreign divorce decrees where both parties were California domiciliaries at the time of the proceedings. It appears, therefore, that the Uniform Divorce Recognition Act is not controlling in this case since there is no showing that either of the parties to the Mexican divorce proceeding was domiciled in California at the time of the Mexican decree.

Questions concerning the recognition of foreign judgments in California are governed by section 1915, Code of Civil Procedure, California, which provides:

Except as provided in Chapter 2 (commencing with section 1713) of Title II of Part 3 of this Code, a final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered, and also in the same effect as final judgments rendered in this state.

The Supreme Court of California has stated that the application of section 1915 of the California Civil Code depends upon two conditions. The first, which is mentioned in the statute, requires a showing that the foreign court had jurisdiction under its own laws to pronounce the judgment. The second condition, which is not mentioned in the statute, would preclude recognition of the foreign judgment if the judgment is contrary to the public policy of California or violates due process limitations, Scott v. Scott, 51 Cal. 2d 249, 331 P. 2d 641, 645 (1958).

The beneficiary and her former husband were lawful residents of Mexico City at the time their divorce proceeding was commenced in Tlaxcala, Mexico. According to the record, they never appeared personally before the Tlaxcala Court. It is stated in the divorce decree that both the beneficiary and her former husband decree that both the beneficiary and her former husband were represented by counsel and that “all legal requirements had been

1 Uniform Divorce Recognition Act of 1949 (chi. 1292, p. 2275, Statutes of 1949). Sec. 150.1—“A divorce obtained in another jurisdiction shall be no force or effect in this state, if both parties to the marriage were domiciled in this state at the time the proceedings for the divorce were commenced.” Sec. 150.2—This section provides that a presumption of domicile is raised if the party obtaining the divorce was domiciled in California within 12 months prior to the action and resumed residence within 18 months afterwards, or if a residence has been maintained during the absence.

2 The exceptions referred to are not applicable here.

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