Matter of Revelo - Recognition of Foreign Divorce under CT law - Litvaitis v. Litvaitis

Interim Decision #2691

Matter of Revelo

In Visa Petition Proceedings
A-19518541
Decided by Board March 7,1979

(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreign divorce in the country where the divorce took place is required for recognition, whether the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672(BIA 1978); Litvatis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972); Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).
(2) A party must have a legally protected interest in order to participate in a judicial proceeding so that the legal questions are framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83(1S68).
(3) In a Visa petition proceeding the District Director Is an adjudicator, not an adversary win needs standing to participate, therefore, the term «standing" has no relevance to his role.
(4) The Immigration and Naturalization Service has the power to contest the validity of a foreign divorce in visa petition proceedings.

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Joseph N. Tauber, Esquire George I^cato
29 Hoyt Street Appellate Trial Attorney
Stamford, Connecticut 06995
BY; Milhollan, Chairman; Mariatis, Appleman, Maguire, and Farb, Board Members
This case presents an appeal from the decision of the Acting District
Director dated June 12,1978, denying a visa petition filed on behalf of the
beneficiary as the spouse of the petitioner pursuant to section 203(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal
will be dismissed.
The petitioner is a native and citizen of Ecuador who was admitted as a lawful permanent resident of the United States at New York on April 9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after each had obtained Dominican divorces from their previous spouses in 1975.

The Acting District Director denied the visa petition concluding that the parties' marriage subsequent to the Dominican divorces was invalid under Connecticut law, and, thus, the beneficiary was not entitled to preference immigration status through the petitioner. His conclusion was based on the Connecticut Supreme Court's decision in Litvaitis v. Litvaitis, 162 Conn. 540,295 A.2d 519 (1972), where the court ruled that an order for a foreign divorce to be recognized in Connecticut, at least one of the parties must be a good faith domiciliary of ťhe foreign country where the divorce was obtained. Since the petitioner was a lawful permanent resident of the United States when the divorce took place and there was no record of the beneficiary having been in the Dominican Republic, the Acting District Director concluded that neither party was a Dominican domiciliary and the divorce would not be recognized under Connecticut law.

The legal validity of a marriage is generally determined by the place of celebration. Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of Freeman, 11 I. & N. Dec. 482 (BIA 1966). In the present case, Connecticut is the place of the marriage celebration, thus, we must evaluate the marriage's validity under Connecticut law.

In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined the law of Connecticut and concluded that a bona fide domicile by at least one of the parties to the divorce in the country where the divorce took place was required in order to recognize it. 8 C.F.E. 204.2(c)(2)specifically requires a petitioner to establish the validity of a claimed divorce. Since the petitioner has not submitted any evidence to prove that any of the parties to the two divorces was a Dominican domiciliary, the petitioner has not met his burden of proving that he is entitled to the immigration benefits sought. Matter of Brantigan, 111. & N. Dec 4S3
(EIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. LitvaitUs, supra. He points out that Litvaitis dealt with an er parte divorce unlike the mutual consent divorce which the petitioner and beneficiary in the present case obtained.

Although we agree with the petitioner's contention that Litvaitis was not a mutual consent divorce, that difference does not require a different result from the Acting District Director's conclusion. In Litvaitis the Connecticut Supreme Court was not stating a rule limited to ex parte divorces. Rather, the court in Litvaitis was restating its previous holdings in other cases involving bilateral divorces, that a bona fide domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gilder sleeve v. Gildersleeve, 88 Conn. 689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (19483; State v.Cooke, 110 Conn. 348,148 A. 385 (1930). The rationale for the Connecticut rule is that the divorcing court must have personal jurisdiction and also res jurisdiction over the marriage which is the res in divorce proceeding: See Gildersleeve v. Gildersleeve, 92 A. at 685.

We also reject the petitioner's contention that the Acting District Director lacks standing under Connecticut law to challenge the validity of the Dominican divorces. The word "standing" is a legal term intimately related to a court's jurisdiction. The courts must ascertain that a party has a legally protested interest in order to allow him to participate in a judicial proceeding so that the legal questions will be framed with the necessary specificity and the issues contested with the necessary adverseness and vigor. See Flast v. Cohen, 392 U.S. 83,106 (1968).

In a visa petition proceeding the Acting District Director is not an adversary who needs standing to participate. 8 C.F.R. 103.1(n) grants the District Director the power to adjudicate the visa petition. Thus, the District Director's role is that of an adjudicator and not an adversary in visa petition proceedings. The term "standing" has therefore no relevance with regards to the Acting District Director's role in adjudicating a visa petition. We impliedly held that the Service has the power to contest the validity of a foreign divorce in visa petition proceedings. See e.g. Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter of Darwish, 141. & N. Dec. 307 (BIA 1973); Matter of Atwater, 141. & N. Dec. 410 (BIA 1973). Thus, the petitioner's contention is without merit and the appeal will be dismissed.

ORDER: The appeal is dismissed

Religious workers with pending I-360 petition with USCIS, may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL

If you have a pending Form I-360 religious worker petition with USCIS, you may be eligible for benefits under Ruiz-Diaz v. United States, No. C07-1881RSL (W.D. Wash. June 11, 2009).

Persons with pending Form I-360 religious worker petitions are immediately eligible to file a Form I-485 and/or Form I-765. Individuals whose applications are properly filed with appropriate filing fees and supporting documentation with USCIS by September 9, 2009 will have any period of unlawful presence or unauthorized employment tolled until USCIS issues a final administrative decision. Failure to file prior to September 9, 2009, will result in the accrual of unlawful presence or unauthorized employment time.
Persons who want to file an Application to Register Permanent Residence or Adjust Status (Form I-485) and/or an Application for Employment Authorization (Form I-765)1 must mail the applications, with the required fees, to:

California Service Center
P.O. Box 10485
Laguna Niguel, CA 92677-1048

Any person who has a Form I-360 religious worker petition pending with USCIS as of June 11, 2009, will have any period of unlawful presence that began accruing as of the date of filing of the I-360 tolled until September 9, 2009. In addition, any period of unauthorized employment that occurred after filing of the I-360 will be tolled until September 9, 2009.

Persons who properly file the Form I-485 and Form I-765 applications on or after June 11, 2009 and have their applications received by USCIS prior to September 9, 2009 also will have the accrual of unlawful presence and unlawful employment tolled until USCIS issues a final administrative decision.

Spouses and children who are the beneficiaries of properly filed Forms I-360 by religious workers may be accorded the same status and order of consideration as the principal, unless the spouse and child are already entitled to another immigrant status and immediate issuance of a visa under section 203(a), (b), or (c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(a), (b), or (c).

For additional information please see the USCIS webpage at www.uscis.gov.

1 Applicants may also file an Application for Travel Document, Form I-131, as long as they are eligible and properly file the application.