Imagini ale paginilor
PDF
ePub

of the parties continued to be a resident of the State of New York.? The Supreme Court of New York held in the Hansen case (supra) that notwithstanding the fact that the parties (husband and wife) were not residing in Denmark at the time the petition for a divorce was filed or at the time it was granted, nevertheless, the judgment of the Danish court dissolving the marriage was entitled to full faith and credit by the courts of the State of New York because Denmark was the situs of the marital domicile and the parties voluntarily submitted to the jurisdiction of the Danish court.

The Oettgen case is directly in point with the case before us. The issue before the New York court concerned the validity of a German divorce decree granted in absentia to aliens who were residing in the State of New York. The plaintiff wife, a native of Denmark, became a German national upon her marriage to a national of Germany at Hamburg on December 22, 1926. They entered the United States with permanent resident visas on or about December 11, 1928. Thereafter, a divorce action was filed in the Supreme Court of Hamburg, Germany. Both parties were represented by counsel. The testimony was in the form of affidavits taken at New York City where both parties were then residing.

The Supreme Court for New York County noted in their decision that the lack of domicile in Germany is not necessarily a bar to recognition of a foreign decree by the courts of New York, citing Gould v. Gould (supra). The court held that the law and public policy of New York State would not be offended by recognizing the German decree because it was granted “by a jurisdiction where the parties were married and of which they remained nationals. It does not shock the conscience to conclude that people who marry under a certain set of laws may expect to be bound only so long as that set of laws required it ... We are not here dealing with a 'mail order divorce granted by a country having no relationship to the parties marital status.” Oettgen v. Oettgen, 94 N.Y. Supp. 2d at p. 172.

The United States Court of Appeals for the Second Circuit had before it the validity for immigration purposes of a divoree obtained by a Pakistani national residing in New York City from his wife then residing in Pakistan. The divorce decree was awarded by the Director of the National Islamic Mission in the United States, one Reverend Sheikh Faisal, “in accordance with the courts of Islam (and in accordance) with the laws of the Government of the United States of America."

Hansen v. Hansen, 8 N.Y. Supp. 2d 655, S. Ct., Appellate Div., December 31, 1938; Weil v. Weil, 26 N.Y. Supp. 2d. 467, Domestic Relations Court, City of New York, 1941; Oettgen v. Oettgen, 94 N.Y. Supp. 2d 168, S. Ct. Special Term, New York County, 1949.

The court in ruling that the divorce would not be recognized as valid in New York State made this comment: "We ... believe that the purported divorce in the case at bar could be valid only when granted in Pakistan.” The court in support of this statement cited the New York case relied upon in this decision (see 2). The court noted that although the parties concerned were physically present in the United States at the time the divorces were granted nevertheless the validity of the decrees were acknowledged for the reason that the marriages had been performed within the jurisdiction of the foreign courts and the parties were still nationals of the country in which the foreign courts were located. (Shikoh v. Murff, 257 F. 2d 306, C.A. 2, 1958)

We conclude on the basis of the foregoing authority that the Hungarian decree of divorce would be recognized as valid under the laws of the State of New York and as a necessary corollary thereof, that the marriage between the petitioner and the beneficiary in this proceeding will support an application for third preference classification under section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)). An appropriate order will be entered.

ORDER: The order entered by the District Director at New York on December 5, 1962 denying the petitioner's application for third preference classification under section 203(a) of the Immigration and Nationality Act is hereby withdrawn.

It is further ordered that the appeal be and the same is hereby sustained; the petition filed in behalf of Rainer E. Koehne is hereby approved for third preference classification pursuant to section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)).

[ocr errors][merged small][merged small][merged small][merged small]

Since respondent was represented during the deportation hearing by counsel

who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he

is not subsequently entitled to the production of the statements. CHARGE: Order: Act of 1952—Section 241 (a) (6) [8 U.S.C. 1251 (a) (6)]—After entry,

an alien who was a member of the Communist Party of the United
States.

Before us are an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above and a motion for the production of documents. The appeal will be dismissed and the motion denied.

On February 4, 1963, the special inqury officer ordered respondent's deportation upon the charge stated above. The special inquiry officer found the charge sustained on the basis of the testimony of Service witness Fikes. The attorney of record became ill; notice of appeal was filed by a new attorney who thereafter handled the case. In the notice of appeal deportability was contested on the ground that the evidence did not support an order of deportation.

A day after the appeal was filed, counsel filed a motion asking that the appeal be held in abeyance and that she be furnished with copies of all statements made by Government witness Fikes to any agency of the Federal Government. The motion was forwarded to the special inquiry officer who informed counsel that the record contained no copies of statements made by Fikes and that the motion was belated since the proceedings before him had been completed. This motion is now before us.

Respondent, a 66-year-old married male, a native and last a citizen of Russia, has resided in the United States since his admission for permanent residence in 1922. The order of deportation is based on the

finding that respondent had been a member of the Communist Party after his entry. Counsel raises four main issues; laches, lack of credibility, meaningfulness of membership, and nonaccess to documents.

The special inquiry officer has dealt in great detail with the facts of record and we shall state no more than is required to understand the contentions of counsel.

Deportation hearings required three sessions. At the first (April 13, 1959) counsel conceded the accuracy of all findings of fact contained in the order to show cause except the one which charged the respondent with having been a member of the Communist Party after entry. The respondent refused to be sworn and testify at this session or at those which followed.

At the second session (May 19, 1959) the Service produced Abraham Zide who testified he had attended Communist Party meetings with respondent from the end of 1946 to about August 1948. At the conclusion of his examination, the Service asked for an adjournment to arrange for the appearance of another witness. Counsel objected; when he was overruled he stated that in view of the courtesies which had been extended to him by the examining officer he would have no objection to the case going over sine die.

At the third session (November 1, 1962) counsel moved for termination of proceedings on the ground the Government was guilty of laches. The motion was overruled. (We believe the special inquiry officer has adequately discussed this issue.) The testimony of Government witness Fikes was taken at this session.

Fikes testified that he had joined the Communist Party in Birmingham, Alabama, in 1949, that in late 1949 or early 1950, he had gone to New York where a Communist Party representative arranged that he stay with the respondent, that he stayed about four weeks, that during the stay he attended four or five Communist Party meetings held at the respondent's apartment, that respondent presided at the meetings, that respondent paid Communist Party dues, and that in discussions with the witness, respondent admitted that he was a member of the Communist Party.

Fikes testified that the Stockholm Peace Petition had been one of the subjects of discussion at the meetings, that on two or three occasions between 1953 and 1958, he stayed at the respondent's home in New York, that he last saw respondent in 1957 when he received a donation for the Communist Party from him, and when in the respondent's presence and in respondent's apartment, and after the respondent had helped arrange the meeting, the witness met on Communist Party matters with Communist Party officials, Silvia Hall and Jim Jackson (pp. 77-75, 97-98, 104).

[merged small][merged small][merged small][merged small][ocr errors]
[ocr errors]

Since respondent was represented during the deportation hearing by counsel

who had notice of the existence of pre-hearing statements made by a Government witness but did not request that the statements be made available, he

is not subsequently entitled to the production of the statements. CHARGE: Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6)]-After entry,

an alien who was a member of the Communist Party of the United States.

Before us are an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above and a motion for the production of documents. The appeal will be dismissed and the motion denied.

On February 4, 1963, the special inqury officer ordered respondent's deportation upon the charge stated above. The special inquiry officer found the charge sustained on the basis of the testimony of Service witness Fikes. The attorney of record became ill; notice of appeal was filed by a new attorney who thereafter handled the case. In the notice of appeal deportability was contested on the ground that the evidence did not support an order of deportation.

A day after the appeal was filed, counsel filed a motion asking that the appeal be held in abeyance and that she be furnished with copies of all statements made by Government witness Fikes to any agency of the Federal Government. The motion was forwarded to the special inquiry officer who informed counsel that the record contained no copies of statements made by Fikes and that the motion was belated since the proceedings before him had been completed. This motion is now before us.

Respondent, a 66-year-old married male, a native and last a citizen of Russia, has resided in the United States since his admission for permanent residence in 1922. The order of deportation is based on the

[ocr errors]
« ÎnapoiContinuați »