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satisfied ... and in addition [they had] complied with the requisities of statutes 139 and 140 of the Code of Civil Procedure" 3 in that they had renounced the forum of their domicile. It is also stated in the divorce decree that the complainant (beneficiary) had submitted to the court Certificate No. 2153417 issued by the Federal Government of Mexico as evidence of her legal admission to Mexico and that under Article 1 of the Mexican Constitution and Statute 12 of the Civil Code of the Federal District (Mexico City), the parties are entitled to enjoy the benefits of the laws of Mexico and the State of Tlaxcala (See translation of divorce decree found in the record). We conclude on the basis of the foregoing that the Civil Court at Tlaxcala had jurisdiction under its own law to pronounce the judgment of divorce granted the beneficiary on December 18, 1965.
We next turn to a determination of whether the public policy of the State of California would preclude the recognition of the beneficiary's Mexican divorce decree. The California Supreme Court in the case of Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1 (1950), recognized as valid a Cuban divorce decree upon a showing that the Cuban court had jurisdiction of one of the parties. Relative to the public policy of the State of California, the court said:
It can no longer be said that public policy requires nonrecognition of all irregular foreign divorces . . . We conclude that the public policy of this state requires the preservation of the second marriage and the protection of the rights of the second spouse, rather than a dubious attempt to resurrect the original marriage.4 The California Supreme Court in Scott v. Scott (supra at p. 645 of 331 P.2d) said that the question of public policy did not arise in that case because the "plaintiff was a bona fide resident of Mexico, neither party was a resident of California, and the defendant had reasonable notice." Since the record affirmatively establishes that the foreign jurisdiction (Mexico) had a legitimate interest in the marital status of both the beneficiary and her for
3 Articles 139 and 140 of the Code of Civil Procedure, State of Tlaxcala, Mexico read as follows:
Art. 139. That judge has jurisdiction to whom the litigants have submitted themselves expressly or by implication.
Art. 140. There is express submission when the interested persons renounce clearly and in a final manner the forum which the law grants them, and designate with all precision the Judge to whom they submit themselves.
4 To the same effect is the decision of the California Supreme Court in Dietrich v. Dietrich, 41 Adv. Cal. Repts. 509, 516–571, 261 P.2d 269, 273 (1953). Also see Watson v. Watson, 39 Cal.2d 305, 307, 246 P.2d 19 (1952).
mer husband, we conclude that the divorce decree granted the beneficiary by the Civil Court of Tlaxcala, Mexico does not offend the public policy of the State of California.
Concerning the validity of Mexican divorce decrees, the Supreme Court of California has stated the general rule in Scott v. Scott (supra at p. 643 of 331 P.2d and cases cited) as follows:
Where a party has established a bona fide residence in Mexico and obtained a Mexican decree of divorce, such decree is entitled to full faith and credit in California.
This Board has followed a rule similar to the California rule based upon whether the foreign jurisdiction has a legitimate interest in the marital status of the parties concerned in determining whether a foreign divorce decree should be recognized for immigration purposes.
We conclude that on this record, the petitioner's marriage the beneficiary at San Francisco, California on February 11, 1966 is valid and subsisting under the laws of the State of California. The beneficiary is entitled to immediate relative status under the provisions of section 201 (b) of the Immigration and Nationality Act as the spouse of a United States citizen. An appropriate order will be entered.
ORDER: It is directed that the appeal be and the same is hereby sustained; the visa petition filed pursuant to section 204 (a) of the Immigration and Nationality Act is hereby approved.
5 Matter of B-, 5 I. & N. Dec. 659 (BIA, 1954), Matter of Freeman, 11 I. & N. Dec. 482 (BIA, 1966), Matter of Kurtin, 12 I. & N. Dec. 284 (BIA, 1967).
MATTER OF SAVETAMAL
In Section 212(e) Proceedings
Decided by Regional Commissioner May 8, 1969
Exceptional hardship within the meaning of section 212(e) of the Immigra
tion and Nationality Act, as amended, is established by an exchange alien whose lawful permanent resident spouse, a medical doctor, would be forced to give up an established career and start over again upon his return to the United States after a two-year absence, should he accompany her abroad; should he remain in this country, he would be faced with the unusual hardship of maintaining two households and, further, their U.S. citizen child, approximately two years of age, would be deprived of the affection, emotional security and direction of its father which is most important during its formative years.
This case is before me on appeal from the decision of the District Director who denied the application April 4, 1969 on the ground that “exceptional hardship” as contemplated by the statute had not been established.
The applicant, a medical doctor, is a citizen of Thailand, born September 21, 1935 in Bangkok. She was admitted to the United States as an exchange visitor June 24, 1963. She is married to Dr. Charoen Savetamal a lawful permanent resident alien of the United States. They have a United States citizen daughter born June 4, 1967 at Raleigh, West Virginia. As an exchange alien, the applicant is required by law to reside and be physically present in Thailand for a period of at least two years following her departure from the United States unless a determination is made that the foreign residence requirement would impose "exceptional hardship” upon her resident alien spouse or citizen child.
The applicant's spouse is a medical doctor who has established a practice at Beaver Dam, Wisconsin. The record contains a letter from the Chairman of the Dodge County Health Planning Committee which states that he is the only urologist in the community. Compliance with the foreign residence requirement by the applicant would result in an exceptional hardship to the resident alien spouse should he accompany her abroad as he would be forced to give up an established career and start over again upon his return to the United States after a two year absence. Should he remain in the United States, he would be faced with the unusual hardship of maintaining two households. Furthermore, the United States citizen child would be deprived of the affection, emotional security and direction of its father which is most important during its formative years. Under these circumstances I believe the waiver should be granted.
It is ordered that the appeal be sustained and that the District Director seek the necessary favorable recommendation by the Department of State.
It is further ordered that the case be processed to completion consistent with this order and the recommendation of the Department of State.
MATTER OF LE FLOCH
In Exclusion Proceedings
Decided by Board May 12, 1969
(1) An alien cannot withdraw her application for admission during the
course of an appeal to the Board of Immigration Appeals after the special inquiry officer has rendered his decision and entered an order of exclu
sion.* (2) An alien who seeks to enter the United States as a nonimmigrant stu
dent without a valid nonimmigrant student visa is inadmissible under section 212(a) (26) of the Immigration and Nationality Act, even though in possession of a nonimmigrant visitor visa, and she is denied, in the exercise of discretion, a waiver of the student visa requirement pursuant to the provisions of section 212(d) (4) of the Act (unforeseen emergency), based on allegations she was misinformed by the United States consul as to the need of a student visa, where at the time of her alleged application for a student visa she was not then in possession of, and has been unable to secure, a certificate of eligibility from an approved institution of learn
ing. EXCLUDABLE: Act of 1952—Section 212 (a) (20) [8 U.S.C. 1182 (a) (20)]
Immigrant without visa.
Nonimmigrant without valid nonimmigrant
ON BEHALF OF APPLICANT:
Donald Kottler, Esquire 7080 Hollywood Boulevard Hollywood, California 90028
ON BEHALF OF SERVICE:
Sam I. Feldman
An order entered by the special inquiry officer on December 23, 1968 excludes the applicant as a nonimmigrant alien who seeks admission without a valid nonimmigrant visa pursuant to the provisions of section 212 (a) (26) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (26)). Counsel requests withdrawal of the applicant's application for admission in his notice of appeal (Form I-290A).
* Modified. See, Matter of Vargas-Molina, Interim Decision No. 2069.