LEVINE
The petitioner, a citizen of the United States, appeals from an order entered by the District Director at San Francisco, California on September 30, 1968 denying a visa petition for immеdiate relative status filed in behalf of his wife, Irene Elisabeth Levine, whom he married in a civil ceremony in Las Vegas, Nevada on December 28, 1965 and remarried in a religious ceremony at San Francisco, California on February 11, 1966. Exceptions have been taken to the District Director‘s finding that the petitioner‘s marriage to the beneficiary is not valid for immigration purposes because of the alleged invalidity of a divorce obtаined by the beneficiary in Mexico from her former husband.
The issue presented on appeal concerns the validity of the beneficiary‘s divorce from her prior husband which was granted by the Juzgado De Lo Civil, Tlaxcalа, Mexico, on December 18, 1965 and recorded on December 28, 1965. The applicable rule of law concerning the validity for immigration purposes of a subsequent marriage where an earlier marriage has been terminated by a divorce secured in Mexico has been stated by the Attorney
The beneficiary is a citizen of Sweden, born of Swedish parents in Paris, France, on December 10, 1930. Her first marriage to a Swedish national was terminated by a divorce obtained by her first husband in Stockholm, Sweden, on April 18, 1956. A copy of this divorce decree is in the record.
Following her divorce in Stockholm, the beneficiary traveled to Mexico City. There in 1956 she met Leo Eugene Haughey, an American citizen, who had been lawfully residing in Mexico for some time. While in the United States on a temporary visit, the beneficiary married Hаughey at Concordia, Kansas, on October 22, 1957. They returned to Mexico City immediately following the wedding and lived there together until their separation in February of 1965. The beneficiary became a lawful permanent resident of Mexico soon after her marriage to Haughey.
Following her separation from Haughey, the beneficiary returned to Sweden for a visit. She left her personal belongings in Mexico City. During August 1965 while in Sweden, she decided to оbtain a divorce from Haughey. She notified her lawyer in Mexico City to proceed with the filing of a divorce action, and while visiting in California in September of 1965, she signed the required documents. The divorce decree wаs handed down by the Civil Court of Tlaxcala, Mexico on December 18, 1965. She obtained a copy of the decree personally from her lawyer when she was in Mexico City during February of 1966 (p. 3, Statement of August 20, 1968).
In an affidavit executed on November 9, 1968, the beneficiary stated:
I did not go to Mexico personally for the divorce ... I was advised by my lawyer in Mexico City that it was perfectly legal and proper for me to secure a divorcе in this manner . . . I certainly had no intention of evading any law of the United States or of California in securing my divorce this way. (Emphasis added.)
The beneficiary also stated in the affidavit that she retained her lawful residence in Mexico until February of 1967, when she returned to Mexico City for her personal belongings. Her former husband also continued to reside in Mexico until the middle of 1967. The beneficiary returned to Sweden and on November 13, 1967, she had her visitor‘s visa revalidated by the United States
The Uniform Divorce Recognition Act,1 enacted by the California State legislature in 1949, prohibits recognitiоn of foreign divorce decrees where both parties were California domiciliaries at the time of the proceedings. It appears, therefore, that the Uniform Divorce Recognition Act is not contrоlling in this case since there is no showing that either of the parties to the Mexican divorce proceeding was domiciled in California at the time of the Mexican decree.
Questions concerning the recоgnition of foreign judgments in California are governed by section 1915, Code of Civil Procedure, California, which provides:
Except as provided in Chapter 2 (commencing with section 1713) of Title II of Part 2 of this Code,2 a final judgment of аny other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered, and also in the same effect аs final judgments rendered in this state.
The Supreme Court of California has stated that the application of section 1915 of the California Civil Code depends upon two conditions. The first, which is mentioned in the statute, requires a showing that the foreign court had jurisdiction under its own laws to pronounce the judgment. The second condition, which is not mentioned in the statute, would preclude recognition of the foreign judgment if the judgment is contrary to the public policy of California or violates due process limitations, Scott v. Scott, 51 Cal. 2d 249, 331 P. 2d 641, 645 (1958).
The beneficiary and her former husband were lawful residents of Mexico City at the time their divorce proceeding was commenced in Tlaxcala, Mexico. According to the record, they never appeared personally before the Tlaxcala Court. It is stated in the divorce decree that both the beneficiary and her former husband were represented by counsel and that “all legal requirements had been
We next turn to a determination of whether the public policy of the State of California would preclude the recognition of the beneficiary‘s Mexican divorce decree. The California Supreme Court in the case of Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d 1 (1950), recognized as valid a Cuban divorce decree upon a showing that the Cuban court had jurisdiction of one of the parties. Relative to the public poliсy of the State of California, the court said:
It can no longer be said that public policy requires nonrecognition of all irregular foreign divorces . . . We conclude that the public policy of this state requires thе preservation of the second marriage and the protection of the rights of the second spouse, rather than a dubious attempt to resurrect the original marriage.4
The California Supreme Court in Scott v. Scott (supra at p. 645 of 331 P.2d) said that the question of public policy did not arise in that case because the “plaintiff was a bona fide resident of Mexico, neither party was a resident of California, and the defendant had reasonable notice.” Since the record affirmatively establishes that the foreign jurisdiction (Mexico) had a legitimate interest in the marital status of both the beneficiary and her for
Concerning the validity of Mexican divorce decrees, the Supreme Court of California has stated the general rule in Scott v. Scott (supra at p. 648 of 331 P.2d and cases cited) as follows:
Where a party has established a bona fide residence in Mexico and obtained a Mexican decree of divorce, such decree is entitled to full faith and credit in California.
This Board has followed a rule similar to the California rule based upon whether the foreign jurisdiction has a legitimate interest in the marital status of the parties concerned in determining whether a foreign divorce decree should be recоgnized for immigration purposes.5
We conclude that on this record, the petitioner‘s marriage to the beneficiary at San Francisco, California on February 11, 1966 is valid and subsisting under the laws of the State of California. The beneficiary is entitled to immediate relative status under the provisions of section 201(b) of the Immigration and Nationality Act as the spouse of a United States citizen. An appropriate order will be entered.
ORDER: It is directed that the appeal be and the same is hereby sustained; the visa petition filed pursuant to section 204(a) of the Immigration and Nationality Act is hereby approved.
Notes
Art. 139. That judge has jurisdiction to whom the litigants have submitted themselves expressly or by implication.
Art. 140. There is express submission when the interested persons renounce clearly and in a final manner the forum which the law grants them, and designate with all precision the Judge to whom they submit themselves.