MATTER OF AWADALLA

In VISA PETITION Proceedings

A-12935982

Decided by Board May 28, 1964

An unauthenticated Jordanian judgment of divorce obtained in absentia by the wife in Jordan while the husband was in Colombia lacks essential proof of due process for recognition as valid in Puerto Rico for the purposes of a subsequent marriage in that jurisdiction since neither party was before the court, there were no witnesses, and the court apparently considered no evidence except the ex parte statements of plaintiff/wife's attorney and assumed defendant/husband's concurrence because of his absence. Consequently, the subsequent marriage of the husband in Puerto Rico to a native and citizen thereof is not valid for immigration purposes and does not serve to confer nonquota status.

The district director denied this visa petition on the ground that the evidence fails to establish sufficiently that petitioner and beneficiary are validly married. He certified the case to us for final decision. Except for one point, the reasons underlying our decision differ completely from those on which the district director relies. We reach the same conclusion, however. Therefore we affirm the district director's order.

Beneficiary is a 43-year-old native and national of Jordan of the Islamic faith. He entered the United States on June 14, 1961, at San Juan, Puerto Rico as a visitor. Prior to that entry he resided in Colombia for about a year and a half.

Beneficiary was married in Jordan. He says that in October of 1960 he was divorced in Jordan from his Jordanian wife. Six children of that marriage-four girls and two boys-live in Jordan.

Petitioner married the beneficiary at San Juan, Puerto Rico, on September 29, 1961. She is a native of Puerto Rico, 50 years old, who has not been previously married.

The petition was filed on December 20, 1961, and has been before us twice prior to this certification. Originally, petitioner submitted a declaration by beneficiary's Jordanian wife. That declaration states in Arabic and English that beneficiary has been declarant's lawful

husband, that he divorced her on the 11th day of October 1960, that he left her from that date, and that there has been no relation between them at all after that date. Both the Arabic and English versions contain an obvious erasure in the year of divorce.

The district director had the Federal Bureau of Investigation's laboratory examine the document. The laboratory on March 14, 1962, reported that the original date on the English version has been changed from 1961 to 1960 and that the "1" on the typewriter making the change differed from the "l's" on the document. The laboratory also reported that the last digit in the year in the typewritten Arabic text has been erased and an Arabic "0" written in ink. The laboratory could not determine the erased character.

Apparently the Service either had checked on the document before submitting it to the Federal Bureau of Investigation or had information on the results of the laboratory findings before receiving the formal report. In a sworn statement taken almost two months before the Federal Bureau of Investigation's report, a Service officer confronted beneficiary with the information that the declaration had been altered. The officer said experts on documents had determined the year of the divorce had been changed from 1961 to 1960. Beneficiary denied any changes had been made in the document.

The district director initially held petitioner had failed to establish that her marriage to beneficiary occurred subsequent to his divorce. He based his conclusion on the evidence that the date of petitioner's marriage, September 29, 1961, preceded the date October 11, 1961, originally given for the divorce on the declaration. Petitioner appealed from that decision, but offered nothing to rebut the evidence of the erasure and alteration on the declaration. Our decision of September 28, 1962, upheld the district director's analysis of the evidence.

Subsequently petitioner submitted directly to us a "Court Notice in Absentia" by the Qadi of Ramallah, a religious judge, which confirmed that beneficiary divorced his Jordanian wife on October 11, 1960. On October 26, 1962, we certified the case to ourselves, withdrew our order of September 28, 1962, reopened the proceedings, remanded the case to the district director for consideration of the new evidence, and directed the district director to certify the case to us for review if his decision were adverse. The district director again denied the petition bringing the case to its present posture.

The district director contends that the later evidence of the court notice does not alter the fact that the year of divorce was changed from 1961 to 1960 on the declaration originally submitted. He asserts that the court notice, issued on September 9, 1962, granted a retroactive divorce to the wife. He concludes, therefore, that beneficiary and his

Jordanian wife were not finally divorced until September 9, 1962, because the retroactive effect of that divorce should be disregarded. Thus, he argues that the divorce granted by the Qadi of Ramallah failed to cure the invalidity of petitioner's marriage to the beneficiary. Counsel for petitioner, in his brief in opposition to the district director's decision, argues that the change in the date on the declaration merely corrected a clerical error. In any event, he contends, the judgment of the Court of Ramallah establishes that beneficiary was divorced in October of 1960.

The district director and petitioner's counsel each recognize the basic issue the validity of the marriage performed on September 29, 1961, at San Juan, Puerto Rico, between petitioner and beneficiary. In this proceeding petitioner has the burden of establishing the validity of the relationship upon which the petition is based. Therefore, the rule presuming validity of the most recent marriage has no applicability here.1 Ordinarily, we follow the general rule that the validity of a marriage depends upon the law of the place where the marriage was contracted. We shall consider the validity of the marriage here under the law of Puerto Rico wherever that law is applicable.

Several questions arise under the primary issue here, however. We shall consider first the one which has primarily occupied the parties up to this point.

I. The effect of the alteration of the date of divorce in beneficiary's Jordanian wife's declaration

Close examination of the declaration executed before the Mukhtar of Ein Yabroud village by beneficiary's Jordanian wife reveals that the Service's theory of this case has been erroneous from the begin

1 Matter of T-S-Y-, 7 I. & N. Dec. 582, cf. Petition of Sam Hoo, 63 F. Supp. 439 (N.D. Calif., 1945); Petition of Lujan, 144 F. Supp. 150 (Guam, 1956).

A second marriage has been presumed valid in a deportation proceeding in which the burden of proof was on the Government. The Government charged deportability on the ground of bigamy. U.S. ex rel. Kazanos v. Murff, 170 F. Supp. 182 (S.D. N.Y., 1959). (2 (Matter of T-S-Y-, supra, arose in deportation proceedings but the issue was respondent's eligibility for preexamination.)

The Supreme Court of Oklahoma has held that where the right of a party to the relief sought depends upon a marriage, either ceremonial or common law, the burden is upon that party to establish the facts essential to constitute the marriage. Hawkins v. Hitchock, 365 P. 2d 971 (1961)-petition for letters of administration.

2 The Acting Attorney General so ruled in Matter of P—, 4 I. & N. Dec. 610. That decision arose under prior law but also applies to the Immigration and Nationality Act. Matter of Koehne, Int. Dec. No. 1282.

Circumstances under which we have departed from this rule are not present here. See, for example, Matter of G-, 6 I. & N. Dec. 337; Matter of Napello, Int. Dec. No. 1303.

ning. The declaration bears on its face evidence which demonstrates conclusively that the divorce to which the document refers could not have occurred in October of 1961. A rubber stamp impression in Arabic, which authenticates the signature of the district governor, bears the date of February 22 and a year which, although somewhat indistinct, is either 1960 or 1961. The revenue stamp aflixed to the document distinctly bears the date February 22, 1961, written upon it. Thus, the declaration was executed prior to beneficiary's marriage in Puerto Rico. Obviously, when the document was originally prepared, the year in which the document was executed was used erroneously for the year of the divorce. Later, the dates in the Arabic and English texts were changed to correct that error.

Although there is actually no conflict as to the date of divorce between the declaration and beneficiary's testimony, the record does contain serious conflicts. The district director's opinion says that whether beneficiary renounced his first wife at all is highly questionable. That is the one point in his opinion with which we agree. Certainly, beneficiary's own testimony casts doubt upon the fact of his divorce.

II. Effect of evidentiary conflicts in beneficiary's testimony, his Jordanian wife's declaration, and the Court Notice in Absentia, taking such evidence at face value

According to beneficiary's Jordanian wife's declaration-confirmed by the Qadi's court notice-beneficiary exercised his right under Moslem law to divorce his wife, unilaterally, by declaring to her that she was divorced from him.3 Apparently he made a single statement, which, under certain conditions, he could revoke. Apparently, also, there were no witnesses to the divorce. Moslem law does not require witnesses or any particular procedure, although the husband may, if he desires, declare his divorce under more formal circumstances than in beneficiary's case. Jordan recognizes Moslem law as the personal law of a Moslem.

The district director notes that, although petitioner presented the declaration of the Jordanian wife and the Court Notice in Absentia as evidence that beneficiary divorced his first wife, beneficiary says that his Jordanian wife divorced him. The immigration officer who

3

The wife evidently made the declaration to comply with the Palestinian Law of Marriage and Divorce Registration, of July 23, 1919, which is in force in beneficiary's area in Jordan.

* See Appendix "A."

B Petitioner's counsel refers to the declaration and court notice as evidence that the beneficiary was divorced from his first wife but does not discuss the discrepancy between beneficiary's statements that his wife divorced him and the statement in the documents that beneficiary divorced his wife.

took beneficiary's statement had the declaration before him at the time but failed to call beneficiary's attention to his wife's statements that he divorced her.

The question who divorced whom ordinarily would not be important to us so long as we were satisfied a divorce occurred. That question, however, becomes important to the issue whether a divorce under Moslem law occurred at all. A wife in Jordan may divorce her husband if he delegates to her the right of divorce. In the absence of such right, she can, in certain circumstances, request a divorce from a religious judge.

There is no evidence that the wife received a judicial divorce on October 11, 1960-the date both parties say the divorce occurred. Therefore, unless beneficiary had specifically delegated to his Jordanian wife the right of divorce, he would have had to be the moving party in a divorce which occurred in the manner here set forth. There is also no evidence here of any such delegation. In these circumstances, beneficiary's denial that he divorced his wife raises a serious question whether the divorce occurred at all.

Beneficiary's Jordanian wife's declaration does not show whether beneficiary was in the village at the time of the divorce. The language in both the Arabic and English versions is consistent with either his presence or absence.

The court notice does indicate that beneficiary came to this hemisphere after divorcing his wife. The judge, however, appears to have merely repeated what the wife's lawyer told him. Therefore, it is possible the statement of facts in the court notice does not accurately reflect all of the details.

Beneficiary's sworn statement of January 26, 1962, contains confusing information. According to that statement, beneficiary was in Colombia for a year and a half before entering Puerto Rico in June

'Beneficiary says that his wife sent him "a paper from the court," referring to the declaration. The declaration became an official record under Jordanian law through registration. It is not a judicial document, however.

7 The translation given in the record reads in part:

Since the claimant Amira claimed through her lawyer that the accused Awadallah in absentia, whose place of residence is unknown and whom has been decided to be judged in the courts in absentia, was her husband and carried with her marital relations, according to the Islamic Religion, and divorced her at her village, Ein Yabroud, on the 11th of October 1960, by telling her (You are divorced from me) and abstained thereafter from marital relations, and departed to an unknown destination in the United States, requested the confirmation of divorce. (Emphasis supplied.)

This version of the Arabic text is somewhat ambiguous, since it is not clear whether "thereafter" modifies "departed" as well as "abstained." The critical portion of the original text may be translated more accurately, however, to read: *** After he divorced her, he left for an unknown place *