IN THE MATTER OF H

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Docket Number

VP 5-7303.

Judges

BEFORE THE BOARD

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Smart Summary

Factual and Procedural Background

This case arises from an appeal of a denial of an immigrant visa petition filed by A---- W---- H---- on behalf of her husband, A---- O---- H----. The beneficiary entered the United States as an accredited government official and was residing in New York. He was previously married, and the only evidence presented to show termination of that marriage was a divorce certificate issued by the Royal Consulate General of Egypt in New York City, where the beneficiary was residing. The petitioner remarried the beneficiary in Maryland after the purported divorce. The central procedural posture is an appeal from the denial of the visa petition based on the validity of the prior divorce and subsequent marriage.

Legal Issues Presented

Whether a divorce granted by a foreign consulate (Royal Consulate General of Egypt) in New York to a New York resident is valid under New York law.
Whether such a divorce, if invalid in New York, is entitled to full faith and credit in Maryland for purposes of recognizing a subsequent marriage.
Whether the doctrine of comity applies to recognize a foreign consular divorce granted within the United States.

Arguments of the Parties

Petitioner's Counsel

Asserted the Egyptian consul had authority under Egyptian law to grant the divorce.
Relied on the case Hansen v. Hansen to argue for recognition of the divorce decree.

Board's Position

Contended that the divorce certificate issued by the Egyptian consulate in New York did not meet New York's statutory requirements for divorce.
Argued that the divorce was not valid in New York and thus not entitled to full faith and credit in Maryland.
Distinguished the instant case from Hansen v. Hansen on the basis that the latter involved a foreign decree issued abroad by authorities with competent jurisdiction, whereas the instant case involved a consular decree issued within New York without jurisdiction over the matrimonial status of residents.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shelman v. Shelman, 174 N.Y.S. 385, 105 Misc. 461	Invalidity of religious (Jewish rabbinical) divorce in New York absent statutory compliance.	Used as an example illustrating that divorces not conforming to statutory requirements in New York are invalid.
In re Rubenstein's Estate, 257 N.Y.S. 637, 143 Misc. 917	Recognition of foreign divorces valid where obtained abroad under foreign law.	Distinguished from the instant case where the divorce was not foreign but issued domestically by a foreign consulate.
Hilton v. Roylance, 69 P. 660, 25 Utah 129	Invalidity of church (Mormon) divorce not obtained through judicial process and statutory compliance.	Supported the principle that divorces must comply with statutory procedures to be valid.
Hansen v. Hansen, 8 N.Y.S. 2d 655, 255 App. Div. 1016	Recognition of foreign divorce decrees issued abroad by competent foreign authorities under the doctrine of comity.	Distinguished on facts; court held it did not apply because the instant divorce was issued by a foreign consulate in New York, not a foreign court abroad.

Court's Reasoning and Analysis

The court analyzed the validity of the divorce certificate issued by the Royal Consulate General of Egypt in New York City to a New York resident. It emphasized that matrimonial jurisdiction is exclusively vested in state courts, and divorces must comply with state statutory requirements to be valid. Since the divorce was not issued by a New York court and did not meet New York's statutory requirements—including jurisdiction over the defendant and procedural compliance—it was invalid under New York law.

The court further held that because the divorce was invalid where obtained, it could not be entitled to full faith and credit in Maryland, where the subsequent marriage took place. The court rejected the applicability of the doctrine of comity because the divorce was not a foreign decree issued abroad but a consular decree issued within New York, which usurped New York's traditional authority over matrimonial matters.

The court distinguished the cited Hansen case, noting that it involved a foreign decree issued abroad by competent foreign authorities, which warranted recognition under comity. Here, no such foreign decree existed, and no authority supported recognition of a consular divorce issued within the United States.

Although the Egyptian consul had authority under Egyptian law to grant such a divorce, this did not bind New York or Maryland courts. Accordingly, the petitioner's reliance on the consular divorce was insufficient to establish the validity of the subsequent marriage.

Holding and Implications

The Board of Immigration Appeals held that the divorce granted by the Royal Consulate General of Egypt in New York to a New York resident was invalid under New York law and, therefore, not entitled to full faith and credit in Maryland.

As a direct consequence, the subsequent marriage in Maryland was invalid. The immigrant visa petition was properly denied, and the appeal was dismissed. The court did not establish any new precedent but reaffirmed established principles regarding state jurisdiction over matrimonial status and the limits of consular authority within U.S. territory.

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IN THE MATTER OF H----. In VISA PETITION Proceedings.

Divorce — Granted by foreign consul in United States to local resident.

A divorce granted to a resident of the State of New York by the Royal Consulate General of Egypt in New York City is not valid in the State of New York and, consequently, not entitled to full faith and credit in other states even though such divorce is recognized as valid in Egypt.

BEFORE THE BOARD

Discussion: This case comes before us on appeal from a denial of a petition for the issuance of an immigrant visa submitted by A---- W---- H---- on behalf of her husband, A---- O---- H----. The district director's denial of the petition is predicated on the fact that the beneficiary, who entered the United States at the port of New York on August 30, 1948, as an accredited government official and is still residing here, was previously married and the only evidence of termination of that marriage is a certificate that a divorce was granted by the Royal Consulate General of Egypt in New York City, at a time when the beneficiary was residing in the State of New York.

The certificate in question reads as follows: "This is to certify that Mr. A---- O---- H---- was married on December 5th, 1946 at Cairo, EGYPT, to Miss E---- I---- A----, and was divorced from said wife on December 4th, 1950. This divorce was concluded at the office of the Royal Consulate General of Egypt in New York, U.S.A., in conformity with stipulations of the Egyptian Law and entered in the Divorce Records under No: 20." The certificate is dated November 5, 1952, and bears the signature of the Egyptian consul.

The petition reflects that following the above divorce the beneficiary married the petitioner on December 16, 1951, at Baltimore, Maryland. Citizenship of the petitioner is conceded. The issue before us is the validity of the marriage in the State of Maryland on December 16, 1951.

We have been unable to find any authority that a divorce decree terminating a marriage entered into abroad by a resident of the State of New York, handed down by a foreign consulate in that state, in the absence of a defendant who has never resided in that state, will be recognized as valid either in that state or in the State of Maryland, so as to permit a subsequent marriage in the State of Maryland. Under the circumstances, we are constrained to fall back upon general principles of law.

It is the general rule that any court in the United States will recognize a valid divorce decree and give it the same effect that it has in the jurisdiction in which it was rendered (17 Am. Jur. 167-168, 561). Where it is void under the laws of the state or county where it was rendered, it is void everywhere (17 Am. Jur. 556, 557).

It is a concomitant rule that each state has jurisdiction over the matrimonial status of its citizens and persons domiciled in its jurisdiction; hence, each state acting through its legislature has the exclusive right and power to regulate, control, and prescribe and change conditions for divorce of those residing within its territorial limits. Divorce rests wholly on statutory provisions (17 Am. Jur. 150; 27 C.J.S. 527).

Thus, 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.

The doctrine of comity would appear to have no application, since, notwithstanding the fact that the divorce occurred in a foreign consulate in the United States, it was not a foreign divorce, and insofar as its recognition by the State of Maryland with respect to the subsequent marriage, is subject only to the requirement of full faith and credit, if valid under the laws of the State of New York, since it was obtained in that state by a person residing therein.

Hansen v. Hansen, 8 N.Y.S. 2d 655, 255 App. Div. 1016, cited by counsel in his brief and in oral argument, does not govern on the premises. In that case both the plaintiff and her husband were Danish subjects. The divorce proceedings appear to have been initiated by the plaintiff appearing at the Danish consulate in New York City. Her husband was residing in Canada. He joined in the application for divorce, and, pursuant to Danish law a decree of separation was granted by the Minister of Justice. The marriage was dissolved by a Royal Decree of divorce granted by the King of Denmark. The difference between the facts, in the Hansen case and those in the instant case is more than one of mere procedure, as alleged by counsel. In the Hansen case the courts were confronted with a decree which was actually a foreign decree entered abroad by foreign authorities of competent jurisdiction, and the court asserted that in the absence of a showing of lack of jurisdiction, it would be assumed that the decree was valid and would be recognized in Denmark. It is clear that on these facts the doctrine of comity required that the foreign decree be recognized. In the instant case, we are confronted with no such foreign decree. The certificate before us states that the divorce was concluded at the Office of the Royal Consulate General of Egypt in New York, New York. As stated above, we have found no authority in statutes or decisions which would indicate that the State of New York, by an extension of the doctrine of comity, would recognize such a decree entered in usurpation of its traditional authority in matrimonial matters over persons residing within its borders.

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. It is concluded that the petition was properly denied. The appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.