of 1961. On that basis, he would have left Jordan in about December of 1959 or January 1960. The immigration officer who took the statement referred to beneficiary's presentation of an air line ticket from Avianca (Colombian Airlines) for round-trip transportation from Beirut to San Juan and return. The record does not show where or when the ticket was issued or whether any of the transportation covered thereby had been used. Thus, the possibility arises that beneficiary had returned to the Near East after he took up residence in Colombia.8

The evidence that the declaration was executed in February of 1961 conflicts with beneficiary's testimony that he received that document six, seven, or eight months after he arrived in Colombia, or about June to August 1960, if his statement about 18 months' residence in Colombia is accurate. Thus, either some of beneficiary's statements are in error or the facts are not as he represents them.

As the record now stands, however, we find that beneficiary was in Colombia at the time the divorce is said to have occurred. Under Jordanian law beneficiary could have divorced his wife by a unilateral pronouncement of divorce in Colombia. Beneficiary, of course, denies that he divorced his wife at all, but the record otherwise discredits that statement. As we have seen, both the documentary evidence and the circumstances here refute beneficiary's statement that his Jordanian wife divorced him. Therefore, the evidence is inconclusive on the question whether an absentee divorce occurred.

In view of the discrepancies in the record and the highly informal circumstances under which the alleged divorce occurred, however, the possibility arises that beneficiary did repudiate his Jordanian wife after coming to this hemisphere and then arranged with her to pre

8 The record does not contain any information from beneficiary's passport showing where and when he obtained his Colombian visa, departures from or entries into any country, or the place and date of issuance of his nonimmigrant visa for this country. Avianca operates to Europe via San Juan. Perhaps the officer misstated the information on the ticket. It may have read Bogota to Beirut (with a connecting carrier) via San Juan and return or simply Bogota to San Juan and return. Either of these situations would fit more logically into beneficiary's testimony. Moreover, beneficiary also presented a reentry permit issued on May 4, 1961, by the "Ministerio de Relaciones Exteriores." The immigration officer did not note the country of issuance, but presumably it was Colombia. Thus beneficiary's round-trip ticket could be expected to provide transportation to that country.

Although we think it unlikely, the ticket may have covered the beneficiary's initial trip from the Near East to this hemisphere. In that event the destination instead of Puerto Rico should have been Colombia. Another possibility, but one which we also think unlikely, is that beneficiary had previously returned to the Near East and in June of 1961 had traveled from Beirut to San Juan with a ticket providing for return transportation to Beirut.

pare the declaration showing their status as divorced. On the basis of this record, we believe that if the divorce occurred at all it probably occurred under these circumstances.

If by any chance, however, beneficiary divorced his wife by a single pronouncement of repudiation while he was in the village in Jordan, the record also raises a question on the finality of the divorce under Jordanian law. Beneficiary said in his sworn statement that he wrote to his Jordanian wife, presumably from Colombia, asking her to join him. Attempts by beneficiary at reconciliation, if they occurred during the idda period, would nullify such a repudiation.1o

Thus, this highly unsatisfactory record does not establish that a divorce under Moslem law occurred at all. If, however, such a divorce did occur, we find that it was an absentee divorce pronounced in Colombia. A Moslem divorce pronounced in a jurisdiction which does not ordinarily apply Moslem law raises a serious question of its validity.11 In the unlikely possibility a divorce occurred while beneficiary was in Jordan, the record does not establish that the divorce is final and valid under Jordanian law.

Moreover, for reasons other than conflicting statements, we accord little or no weight to the Jordanian wife's declaration and no weight to the court notice. Deficiencies in those documents further strengthen our conclusion that the record fails to establish a valid divorce.

III. Evaluation of the documentary evidence of divorce

We have shown that beneficiary's testimony conflicts in certain particulars with documentary evidence submitted by petitioner. We now consider the effect of that documentary evidence apart from any such conflict. Solely for purposes of discussing that effect, we shall assume that Puerto Rico would recognize a divorce pronounced under the circumstances alleged here.

Regardless of objections which might be raised against beneficiary's Jordanian wife's declaration as unsworn, hearsay, or lacking proper authentication, we may accept it for our purposes for whatever probative value we might attach to it. We should then consider it simply as a statement by the wife, divesting it of any official character.

That document would probably not be acceptable under Puerto Rican law, however. Apart from any question of lack of proper

9

* The Palestinian Law of Marriage and Divorce Registration, adopted by Jordan, does not prescribe any particular formalities for the registration. Supra1 10 See Appendix "A." (Idda is the period during which a woman is prohibited from remarrying after dissolution of a marriage, i.c., the period of waiting for ascertainment of pregnancy.)

"Compare Matter of M—, 7 I. & N. Dec. 556. See also Shikoh v. Murff, 257 F.2d 306 (C.A. 2, 1958).

authentication and hearsay, the Code of Civil Procedure of 1933 contains specific provisions for conditions under which affidavits may be used.12 The use for which petitioner offers the declaration is not included.13 In all cases not covered by the provisions for use of affidavits, a written declaration under oath must be a deposition as prescribed by the Code.14 The Puerto Rican Rules of Civil Procedure of 1958 have preserved the provisions of the Code of Civil Procedure of 1933 pertaining to affidavits and depositions.

The Court Notice in Absentia handed down on September 9, 1962, by the religious court at Ramallah has in Jordan the effect of a judgment. The district director, as we have seen, contends that, even assuming beneficiary divorced his Jordanian wife on October 11, 1960, beneficiary was not free to marry petitioner at the time of their marriage because the divorce did not become final until the court's action in 1962. The district director believes that the court attempted to grant a retroactive divorce to beneficiary's first wife. He argues that the retroactive effect of the judgment should be disregarded. On the other hand, petitioner's counsel argues that the judgment of the Qadi is similar to an appellate court's judgment affirming a decree of divorce. He says the decree would become final as of the time the lower court decision would be final in absence of an appeal.

Neither of these views correctly applies Jordanian law. The judgment is not in any way a judgment or decree of divorce and does not attempt to grant a retroactive divorce. It merely confirms a divorced status which it recognizes already exists. Taking the facts as the court found them, the divorce became final as to both parties when the idda period elapsed without a resumption of the marital status. Assuming that the divorce could be satisfactorily established, it already had full legal effect in Jordan.

Therefore, petitioner's counsel's contention that the Qadi's judgment does not affect the date upon which the divorce became final is correct, although his analogy to an appealed judgment of divorce is inappropriate. There has never been any decree of divorce here. The reli

"Sec. 490, 32 L.P.R.A. Sec. 2061. That provision derived from the Act of March 9, 1905 and Calif. Code of Civil Proc., Sec. 2009.

Although the declaration registers the divorce under Jordanian law, it is, for our purposes, more in the nature of an affidavit. Even though unsworn the document might be given the effect of an affidavit, if its official character were recognized.

13 California law at the time of adoption of the Puerto Rican Code provided that Sec. 2009 applies only to matters of procedure and has no relation to proof of facts necessary to establish a fact in sustaining a cause of action. Lacrabere v. Wise, 141 Cal. 554, 75 P. 185 (1904). This case still represents California law.

"Code of Civil Proc., 1933, Sec. 496, 32 L.P.R.A. Sec. 2081. (Calif. Code of Civil Proc., Sec. 2019.

gious court did not review any divorce proceedings, but merely determined for its purposes that a divorce had occurred as alleged.

We consider the authenticity of the Qadi's judgment has not been established sufficiently for us to consider it as official evidence of beneficiary's status as a divorced person.15 The judgment of the religious judge has not been authenticated in a manner acceptable in Federal judicial proceedings. 16 The certification of our vice consul in Jerusalem is merely an acknowledgment of execution of the translation of the document. It serves to identify the translator. There is nothing to authenticate the signature of the judge or to certify that he is the official custodian of the record. Although the Federal Rules do not control our proceedings, we may be guided by them.

The Puerto Rican Rules of Civil Procedure of 1943 contained a Rule 44 identical, except for one slight variation, with Federal Rule 44. That rule was not continued in the 1958 edition of the Puerto Rican Rules. Section 431.8 of the Code of Civil Procedure remains in effect, however. That section prescribes a form of authentication similar to the provisions of Rule 44. Thus the evidence of the judgment of the religious court in Ramallah is unacceptable in its present form for our purposes and probably would be unacceptable as evidence in a judicial proceeding in Puerto Rico.18

Even if the evidence of this judgment were in proper form, however, more fundamental objections to its evidentiary value arise. Neither of the parties were before the court. Beneficiary's Jordanian wife appeared only by her attorney. The judgment itself is described as a notice in absentia as to the defendant and recites that he had departed to an unknown destination in the United States. Service of the defendant was by publication only, probably by posting a notice at the

15

Cf. Chung Young Chew v. Boyd, 309 F. 2d 857 (C.A. 9, 1962); Yaich v. U.S., 283 F. 2d 613 (C.A. 9, 1960); U.S. v. Grabina, 119 F. 2d 863 (C.A. 2, 1941); Balazinski v. Lebid, 65 N.J. Super. 483, 168 A. 2d (1961).

Our order which, because of petitioner's submission of the Court Notice in Absentia, remanded these proceedings antedated the decision in Chung Young Chew.

19 F.R.C.P. Rule 44. 28 USC 1741.

17

** Documents of any other class in a foreign country by the original or by a copy, certified by the legal keeper thereof, under, his seal if he has one, with a certificate of the minister or ambassador, or a consul, vice consul, or consular agent of the United States in such foreign country, to the effect that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the custody of the original. 32 L.P.R.A. Sec. 1803.8.

18 We might consider evidence of this type, however, even though not properly authenticated, if it was accepted without objection into the record in adversary proceedings before a special inquiry officer. Matter of O'Sullivan, Int. Dec. No. 1294.

court or by inserting a notice in the local press. Moreover, no witnesses appeared. The court apparently considered no evidence except the ex parte statements of plaintiff's attorney. The court assumed defendant's concurrence because of his absence.

Under these circumstances, minimum standards of due process of law have not been met. Generally, before extending recognition to foreign judgments, our courts require the judgments to reflect satisfaction of such minimum standards. Even jurisdictions which authorize service by publication in their own proceedings generally require personal service upon a party as a condition for recognition of a foreign judgment.19 Recognition and enforcement of foreign judgments on the basis of international comity are subject to much stronger inhibitions than applications of foreign law in general.20

Even if there is no question about the propriety of the judgment here, proceedings of the type underlying that judgment may be conducive to fraud or collusion. For our purposes-irrespective of formal requirements-the judgment adds little or no probative force to the other evidence of record bearing upon beneficiary's status as a divorced person.

The Puerto Rican Code of Civil Procedure-after providing specifically for foreign courts of admiralty and judgments against a specific thing-provides that in all other cases the judgment of any tribunal of a foreign country, having jurisdiction to pronounce the judgment, is presumptive evidence of a right between the parties and their successors in interest by a subsequent title, and can only be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.21 This provision derived from the California Code of Civil Procedure.22 Such provisions indicate a legislative policy in favor of recognizing foreign judgments. Courts, however, in determining whether a particular judgment will be recognized, are apt to be guided by fundamental legal principles and to give effect to the legislative policy where application of the statutory directive would not conflict with those principles.23 Moreover,

13

· People v. Baker, 76 N.Y. 78 (1870)-decree of divorce. Hilton v. Guyot, 159 U.S. 113 (1895). See also 3 Freeman, Judgments Secs. 1497–98 (5th Ed., 1925). Cheatham, Dowling, Goodrich, Cases on Conflict of Laws 274 (1936). Sec. 428, 32 L.P.R.A. Sec. 1800.

22 Calif. Code of Civil Proc. Sec. 1915.

Cf. Lichtig v. Lichtig, 81 P.R.R. 716 (1960); Ponce v. F. Badrena and Hijos, 74 P.R.R. 210 (1952).

See also, R. B. Perez Mercado, Reconocimiento Validez y Medios para hacer Efectivas Sentencias Extranjeras en Puerto Rico, 20 Rev. Jur. U.P.R. 345 (1951); Comment, "Recognition of Foreign Country Divorces: Is Domicile Really Necessary?" 40 Calif. L. Rev. 93 (1952); Note, "Recognition of Foreign Country Divorce Decrees in California,” 2 Hastings L.J. 86 (1950).