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BIA In Unpublished Decision Rules On Presence Requirement For Foreign Divorce To Be Recognized In New York State

by Alan Lee, Esq.

In an unpublished ruling dated May 18, 2006, In re ________ , A70 909 147 (BIA 5/18/06), the Board decided that a divorce was valid under New York law under circumstances in which both parties, natives and citizens of China, were in the U.S. at the time of the divorce, went to the Chinese consulate in New York and followed its procedures for obtaining a China divorce, had been married and lived in China for a period of time, had notice of the action and consented to personal jurisdiction. 

In this case, the validity of the divorce was crucial as the ex-husband had remarried a U.S. citizen whose immigration petition was denied by U.S.C.I.S. on the basis that the divorce was not recognized under New York law and his second marriage was thus invalid as well. 

The District Director relied on Matter of Luna, 18 I&N Dec. 385 (BIA 1983) that there had to be some type of physical presence on the part of at least one party within the jurisdiction of the court and some type of appearance or submission by the other party.  Luna had cast doubt upon the validity of Board decisions in the 1960s and 70s that had previously ruled for the validity of divorces in this situation. Matter of Ma, 15 I&N Dec. 70 (BIA 1974); Matter of Assan, 15 I&N Dec. 218 (BIA 1975); Matter of Koehne, 10 I&N Dec. 264 (BIA 1963).

In finding for the validity of the petition, the Board cited its earlier precedent decisions, especially Matter of Ma's favorable factors, including that:

  1. the parties were married in the jurisdiction where they subsequently divorced;
  2. they lived in that jurisdiction as husband and wife for a period of time;
  3. although they were not personally before the divorcing court or even within its jurisdiction at the time of divorce, both parties had notice of the action and either appeared by counsel or consented to personal jurisdiction; and
  4. both parties to the divorce were citizens of the country granting the divorce. 

The Board then compared those same factors with the case before it now stating that

  1. the parties were married in China where they subsequently divorced;
  2. the parties lived in China as husband and wife for a period of time and even had a child born in China;
  3. although the parties were not personally before the divorcing court or even within its jurisdiction at the time of divorce, both parties had notice of the action and consented to personal jurisdiction;
  4. the parties are natives and citizens of China. 
The Board further dismissed another case cited by the District Director, Matter of Hassan, 16 I&N Dec. 10 (BIA 1976) as inapposite since the instant case was clearly not a consular divorce. 

The petitioner was represented by Alan Lee, Esq.

2006 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.