RODRIGUEZ

Interim Decision #2361

MATTER OF RODRIGUEZ

In Visa Petition Proceedings
A- 14925872

Decided by Board March; 21, 1975
Petitioner was allegedly divorced from her first husband in an in absentia proceeding in
the Dominican Republic. Neither party was domiciled in the Dominican Republic at the
time of the marriage or divorce nor did either appear personally in the divorce proceed-
ings. Under these circumstances, the petitioner's divorce is not entitled to recognition
in New York, and the petition to accord beneficiary classification under section 203(a)(2)
of the Immigration and Nationality Act was properly denied.
ON BEHALF OF PETITIONER: Pro se.

The lawful permanent resident petitioner applied for preference clas-
sification for the beneficiary as her spouse under section 203(a)(2) of the
Immigration and Nationality Act. In a decision dated July 25, 1974, the
district director denied the petition. The petitioner has appealed from
that denial. The appeal will be dismissed.
The record shows that the petitioner, a native and citizen of the
Dominican Republic, was married previously in New York to another
native and citizen of the Dominican Republic. The petitioner allegedly
was divorced from her first husband by mutual consent in the Doniinican
Republic in June 1972. Neither the petitioner nor her first husband
appeared personally in the Dominican action and neither was domiciled
in the Dominican Republic at the time of the divorce. The district
director concluded that the petitioner's Dominican divorce was not
entitled to recognition in New York, the place of celebration of the
petitioner's subsequent marriage to the beneficiary.
The question whether New York will recognize the Dominican di-
vorce is one of comity. New York courts will recognize divorce decrees
rendered in foreign countries when such recognition does not offend any
public policy of New York. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209
N.E.2d 709, 262 N.Y.S.2d 86 (1965), cert. denied, 384 U.S. 971 (1966);
Rosenbaum v. Rosenbaum, 309 N.Y. 371, 130 N.E .2d 902 (1955); Mat-
ter of Moncayo, 14 L & N. Dee. 472 (BI.A. 1973).
In Rosenstiel v. Rosenstiel, supra, the court was faced with a situa-
tion involving a Mexican divorce obtained by parties who were not
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domiciled in Mexico at the time of the divorce. The court held that
where one party was physically present within the jurisdiction of the
Mexican court, and the other party appeared by attorney and submitted
to the jurisdiction of the Mexican court, the Mexican divorce decree was
entitled to recognition in New York. See alsoRamm v. Ramm, 34 App.
Div. 2d 667, 310 N.Y.S.2d 111 (1970), affd, 28 N.Y.2d 892, 271 N.E.2d
558, 322 N.Y.S.2d 726 (1971).
A Dominican Republic divorce decree allegedly dissolving the mar-
riage of two Dominican citizens who were married in the Dominican
consulate in New York was at issue in De Pena v. De Pena, 31 App.
Div. 2d 415, 298 N.Y.S.2d 188 (1969). Neither party appeared in person
in the Dominican action, and process was not personally served on the
wife. The court refused to recognize the divorce. In doing so, it pointed
out that the wife was a domiciliary of New York, and the husband's only
existing contact with the Dominican Republic was his continued
Dominican citizenship. The court distinguished Rosenstiel on the
ground that in De Pena there was no physical presence by either party
and the Dominican court had not acquired jurisdiction over the wife.
In Matter of Moncayo, supra, we had occasion to interpret the policy
statements made by the New York courts in Rosenstiel and De Pena.
We held that New York would not recognize an Ecuadorian divorce
obtained by an Ecuadorian citizen residing in the United Statei, where
neither party appeared in person before the Ecuadorian court and the
beneficiary's first wife was not personally served and did not submit to
the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13
I. & N. Dec. 152 (BIA 1969j.
The foregoing eases indicate that where jurisdiction of the foreign
court is not baseil on domicile, New York policy generally requires sonic
physical presence on the part of at least one party within the jurisdiction
rendering the divorce, combined with some type of appearance or sub-
mission to jurisdletion by the other party. In the past we have concluded
that there are certain circumstances in which New York would recog-
nize a foreign divorce even where neither party was physically present
within the jurisdiction of the foreign court granting the divorce. Such
recognition has been extended where the parties involved where na-
tionals of the foreign country rendering the divorce, were married in
that country, lived in that country as husband and wife, consented to the
jurisdiction of the foreign court, and appeared in the foreign action
through their authorized representatives. Matter of Koehne, 10 L & N.
Dec. 264 (BIA 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974);,
Matter of Kurtkl, 12 I. & N. Dee. 284 (BIA 1967).
In the present case, the petitioner and her first husband were both
citizens of the Dominican Republic and they both consented to the
jurisdiction of the Dominican court'. Nevertheless, neither party was
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physically present within the jurisdiction of the Dominican court, and
their marriage had taken place in New York, not the Dominican Repub-
lic. Under these circumstances, we believe that New York would not
find sufficient connection between the Dominican Republic and the par-
ties to recognize the in absentia Dominican divorce.
The district director reached the proper result. The appeal will be
dismissed.
ORDER: The appeal is dismissed.
Theodore P. Jakaboski, Alternate Board Member, dissents without
opinion.

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