A-8847164
Decided by Board August 23, 1957
Divorce under Jordanian-Moslem law by resident of Connecticut not recognized — Subsequent marriage invalid — Ineligibility for relief under section 101 (f) (2) of the act.
(1) Absentee divorce obtained under Jordanian-Moslem law by respondent who acquired domicile in Connecticut is not recognized as valid when it does not comply with the statutory requirements for divorce in that State. (Cf. Matter of H----, VP 5-7303, 6 IN Dec. 470.) As his first marriage has not been legally terminated, respondent is not entitled to preexamination on the basis of his subsequent marriage to a U.S. citizen.
(2) It further follows that respondent is ineligible for voluntary departure by virtue of section 101 (f) (2) of the Immigration and Nationality Act.
DEPORTABLE:
Act of 1924 — Sections 13 and 14 — No visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the special inquiry officer dated March 13, 1957, holding the alien deportable on the above-stated charge and determining that respondent was ineligible for discretionary relief. Respondent, a 30-year-old native of Palestine and a citizen of Transjordan, last entered the United States at New York on November 30, 1950, as a temporary visitor to May 19, 1951.
This proceeding has been pending since 1951, when it was determined that the respondent was deportable on the above-stated charge. Since respondent intended to obtain employment in this country upon entry and remain here indefinitely, he was properly held deportable as an alien entering without a visa by a hearing officer on October 12, 1951. The Board affirmed the order of deportation on July 1, 1952.
Thereafter, respondent disappeared, failed to surrender for deportation, but requested a reopening of the proceedings in 1956 in order to produce evidence of marriage to a United States citizen and to apply for voluntary departure with preexamination.
A motion to reopen was granted by the special inquiry officer on October 31, 1956. Since the proposed reopening concerned an order entered by the Board, jurisdiction to reopen was lodged with the Board under 8 CFR 6.21. However, the record having been reopened and the case having progressed to the point of appeal from the decision of the special inquiry officer upon the reopened hearing, we will now proceed to dispose of the case on the merits.
According to the record, respondent married in 1947, while living in Jordan, and has 2 children who are now living in that country with their mother. On August 23, 1954, respondent married a United States citizen in Connecticut. Respondent alleges that at the time of this second marriage, he honestly believed that his wife had taken steps to divorce him, although he admittedly had no proof along this line.
Thereafter, by a sworn affidavit [made September 4, 1956, at New Haven, Connecticut], respondent attempted to divorce his first wife through a written declaration in the Islamic tradition. On November 18, 1956, respondent and his second "wife" were again married in Connecticut, with respondent then applying for preexamination on November 26, 1956.
The special inquiry officer determined, citing Matter of H----, VP 5-7303, 6 IN Dec. 470 (B.I.A., 1954), that respondent's Moslem divorce was not effective, for Connecticut would not recognize the first marriage as dissolved. Hence, the first marriage had not been legally terminated and respondent was not entitled to preexamination, as well as also being ineligible for voluntary departure by virtue of section 101 (f) (2) [ 8 U.S.C. 1101 (f) (2)].
Matter of H----, supra, involved the validity of an Egyptain divorce obtained at the Egyptian Consulate General in New York City, while the husband was in this country in a diplomatic capacity and his first wife, whom he married in Egypt, was elsewhere. The husband then married a United States citizen in Maryland and the couple began living in New York. The Board refused to recognize the decree, since it was not considered binding under either New York or Maryland law.
Counsel contends that because respondent is a citizen of Jordan [the country in which he originally married and where his first wife still resides], the law of that country governs a personal status question, such as is now before us.
Jordanian-Moslem law, as it relates to the present situation, is found in Law of the Middle East, edited by M. Khadduri and Liebesne (Mideast Institute, Washington, D.C., 1955, Vol. 1, p. 148 et seq.), and Outlines of Muhammadan Law, by Asaf Alle Fyzee (Oxford University Press, 2d ed., 1955, p. 126 et seq.). These sources reveal that:
In Jordan, like most so-called Moslem countries, Islamic law is applicable to those residents who are of the Mohammadan religion, with the Scharia Court (the lowest religious court of each Moslem community, presided over by the Kadi) having jurisdiction over personal status problems. Jordanian Law of 1938; "Moslem Religious Community Councils Law."
In Jordan, unless the right of divorce is reserved to the wife at the time of marriage, only the husband may seek a termination of the relationship. On the husband's side, he need not take his case before a judge (Kadi) should incompatibility develop, rendering impossible the achievement of the objective of marriage. Conversely, the wife, even if she reserved the right of divorce, must have her divorce approved by the Scharia Court.
Under Moslem law, a divorce is effected by means of repudiations of the wife by the husband. The modes of accomplishing the required repudiations are various: By a single pronouncement of repudiation, which is revocable within 3 months by express words or conduct; by 3 successive pronouncements during 3 successive periods, with the marriage finally being dissolved on the third repudiation; by 3 successive pronouncements of repudiation made on a single occasion, probably before witnesses; or by a single irrevocable declaration in writing (bill of divorce), which is final immediately, but must be communicated to the wife.
Counsel argues that respondent could not legally obtain a divorce in Connecticut or any other state of the United States, because he was illegally in this country and, according to counsel's view, respondent was thus precluded from acquiring a domicile in any state of the United States. However, residence for divorce must be bona fide for all purposes, that is, the person concerned must have the fixed intention of remaining in the jurisdiction granting the divorce for the decree to be effective. State v. Cooke, 110 Conn. 348 (1930); Mills v. Mills, 119 Conn. 612 (1935); Zeiner v. Zeiner, 15 Conn. Supp. 366 (1948).
Under American law concepts, a person's initial domicile, or domicile or origin, gives way to a subsequently acquired domicile of choice only when the person is physically present in the new locale and at the same time has the intention to acquire a domicile there. Goodrich, Conflict of Laws (3d ed., 1949), pp. 57-65. See also Whits v. Tennant, 31 W. Va. 790, 8 S.E. 596 (1888); Kerby v. Town of Charlestown, 78 N.H. 301, 99 A. 835 (1916); In re Dorrance's Estate, 115 N.J. Eq. 268, 170 A. 601 (1934); In re Jones' Estate, 182 N.W. 227 (1921).
Intent, motive, or accidental factors (such as illegal presence in the United States under immigration laws, involved here) are immaterial and do not affect his acquisition of a new domicile. Goodrich, op. cit., pp. 67, 68. In the present situation, a Connecticut domicile is acquired only by actual residence at a chosen place coupled with an intention to remain permanently in that place.
Deportability is predicated on the fact that respondent entered in 1950 with the intention of remaining here permanently and has in fact lived in the State of Connecticut for the past several years attempting to marry a United States citizen in 1954. Respondent's intention to remain in the United States and more specifically Connecticut is also manifested by his application for preexamination — a prelude to adjustment of his status to that of a legally resident alien. Hence, we feel that respondent definitely gave evidence of an intention to abandon his prior domicile in Jordan and did in fact acquire a bona fide domicile in Connecticut.
In Connecticut, the rule is that the judicial power of a court to grant a divorce is founded on domicile, which rule stems primarily from Rice v. Rice, 134 Conn. 440, 445 (1948), the controlling precedent. Any attempt by a court, which does not have jurisdiction to hand down a decree of divorce is a nullity ( Samson v. Bergin, 138 Conn. 306 (1951)). Analogous to the present situation is the position taken by Connecticut courts in refusing to recognize the so-called mail-order Mexican divorces, for failure to obtain jurisdiction of the parties (who were not present within the geographical limits of the Mexican court's jurisdiction). Application of Blackwell, 5 Conn. Supp. 190 (1937); Chetelat v. Chetelat, 4 Conn. Supp. 209 (1936); Ringhoffer v. Ringhoffer, 1 Conn. Supp. 35 (1935).
To some effect, Melille v. Melille, 18 Conn. Supp. 397 (1953); Tessier v. Magee, 15 Conn. Supp. 342 (1948); White v. White, 138 Conn. 1 (1951).
State courts, as well as the Board, have long subscribed to this view and ruled that a purely religious marriage or divorce is invalid and of no legal consequence, unless the statutory dictates of the jurisdiction in which the parties find themselves at the time of the attempted marriage or divorce are complied with.
Furthermore, in Matter of H----, supra, a situation analogous to the one before us and referred to in Footnote 1, the Board specifically stated:
* * * in the United States a divorce may be secured only in a court having a proper statutory jurisdiction of such proceedings, upon a ground prescribed by statute, and upon compliance with statutory modes and forms of procedure (27 C.J.S. 527-528). For example, a Jewish rabbinical divorce obtained in the State of New York has been held invalid ( Shelman v. Shelman, 174 N.Y.S. 385, 105 Misc. 461) even though such a divorce, if obtained abroad in a country recognizing its validity would be recognized here upon grounds of comity ( In re Rubenstein's Estate, 257 N.Y.S. 637, 143 Misc. 917). Similarly, a church divorce of the Mormon church was not regarded as valid when it was not secured through judicial proceedings and failed to conform with the statutory requirements for divorce in the State of Utah ( Hilton v. Roylance, 69 P. 660, 25 Utah 129).
There is no question that the instant "divorce" failed to meet the statutory requirements of the State of New York, since the Civil Practice Act of that State provides that the State Supreme Court has exclusive jurisdiction of matrimonial actions, adultery is the only ground for absolute divorce, and the jurisdictional requirements of the statute as to residence of the defendant, service, etc., must be met (C.P.A. 1147; C.P.A. 1167; Rules of Civil Practice 47, 53).
We are of the opinion that the above-stated general, and well-accepted, principles govern in the instant case. The divorce was obtained in the State of New York. It was not obtained in a court of competent jurisdiction in that State and under general principles of law would not be recognized as valid in the State of New York. Since it was invalid in the State where obtained it would not be entitled to full faith and credit in the State of Maryland where the subsequent marriage occurred. It follows that the marriage in issue was invalid.
* * * * * * *
Counsel, in his brief and in oral argument, asserts the authority of the Egyptian consul to grant such a decree under Egyptian law. We do not question that he has such power, and that such a decree granted by him would be recognized as valid in Egypt. This is a different matter from saying that such a decree would be binding on either the New York or Maryland courts. As we have indicated above, this would be contrary to the weight of authority. * * *
Therefore, it is clear that in order for a person to obtain a divorce which will be fully recognized for purposes of remarriage, there must be full compliance with the laws of the domicile of the party seeking a divorce (respondent-husband who lived in Connecticut was required to subject himself to the jurisdiction of the court issuing the decree by being physically present in Connecticut with the intention to remain permanently there). This latter intention is reflected in respondent's attempt to marry a United States citizen and also to defeat deportation. See, In re Newcomb's Estate, 192 N.Y. 238, 84 N.E. 950 (1908); Williamson v. Osenton, 232 U.S. 619 (1913); Terlonia v. Terlonia, 108 Conn. 292, 142 A. 843 (1928).
Since respondent is asking us to recognize an absentee divorce, attempted under Moslem-Jordanian law while he was a resident of Connecticut without complying with the divorce laws of Connecticut, his attempt must fail. Precedent is opposed to such recognition and consequently no foundation exists for respondent's request for preexamination as the spouse of a citizen ( Matter of H----, supra). Therefore, we agree with the special inquiry officer's denial of preexamination and voluntary departure. The appeal is accordingly dismissed.
Counsel has also requested that the special inquiry officer reopen the record for presentation of new evidence. However, since the special inquiry officer lacked jurisdiction to reopen the record, the ruling on this point was correct.
Order: It is hereby ordered that the appeal be dismissed.
It is further ordered that the motion be denied.