Matter of B—

Discussion: This matter comes forward on appeal from an order of the District Director, San Francisco, dated November 1, 1957, denying subjects' applications for adjustment of status from non- immigrants to that of persons lawfully admitted for permanent resi- dence, as provided for under section 245 of the Immigration and Nationality Act. The denial was predicated on a finding that the appellants were not entitled to classification as nonquota immi- grants and that quota immigrant visas were not immediately avail- able to the appellants at the time the applications were filed, as the quota of the Philippines to which they were chargeable was then oversubscribed. The facts are not in dispute. The appellants are a 35-year-old female, hereinafter called "the applicant," and her 2 minor sons, 12 and 16 years of age. All are natives and citizens of the Philippines. They last entered the United States at Honolulu, T.H., on June 10, 1955, at which time they were admitted as nonimmigrant visitors un- der section 101(a)(15) (B) for a period expiring on September 30, 1955. On September 15, 1955, they applied under section 248 for changes in their nonimmigrant classification, and on October 6, 1955, they were reclassified as nonimmigrant students under section 101(a) (15) (F). Until the filing of the current applications they

have maintained their nonimmigrant status, having been granted

several extensions, the last expiring on September 30, 1957.

On October 5, 1941, the applicant married S—D--- in Manila.

Her 2 minor sons are the issue of this marriage. While residing in California the applicant filed an action for divorce in the First

Civil Court of the Bravos District, State of Chihuahua, Mexico, on

the grounds of separation and incompatibility. The decree, dated

September 6, 1956, purports to grant an absolute divorce, but neither

the petitioner nor her husband had ever been in Mexico. She thus

obtained a "mail order" divorce. On December 19, 1956, the ap- plicant purported to marry I) L — W — , a. ritiren of the

United States, in a marriage ceremony performed in San Francisco,

California.

In the instant proceeding the applicant claims eligibility for nonquota status under section 101(a ) (27) (A) as the spouse of a

United States citizen and her sons claim eligibility under the same

section as stepchildren. If it is determined that the marriage on

which these applications are predicated is valid, the subjects would

appear to qualify for nonquota status as they had all been in the

United States for a year prior to acquiring that alleged status. A finding that the quota of the Philippines u-a.s ovea,ubacribed at the

time the current applications were filed is not contested. If it is determined that the "mail order" divorce obtained in

Mexico was void in law, such impediment of this prior existing marital status would invalidate the principal applicant's subsequent

marriage to D—W---. Such is the issue to be resolved in con-

nection with this appeal. In these proceedings the burden is upon

the applicants to establish the eligibility for the benefits sought or

the status claimed.

The record establishes that neither the parties to the first mar- riage nor the marital res of that marriage were ever in Mexico.

Whether such in absentia divorce precludes, for immigration pur-

poses at least, the validity of a subsequent marriage, depends on

the recognition accorded it by the jurisdiction wherein the subse- quent marriage was performed (Matter of P—, 56324/762, 4 I &

N. Dec. 610, which modified a prior holding in Matter of 0—,

A-6345409, VP-374571, 3 I. & N. Dec. 33, that no divorce decree

obtained in absentia would be valid for immigration purposes).

The Courts of California, the State in which the subsequent mar-

riage woe performed, have generally refused to recognize in absentia Mexican divorces where the facts were as in the instant case (Ryder

v. Ryder, 37 P.2d 1069; Muir v. United States, 93 F. Supp. 939

(1950)). Matter of B—, VP 13-3521, 5 I. & N. Dec. 659, and Matter of

P , 56324/762, 4 I. & N. Dec. 610, cited by counsel in support of

his position, are readily distinguishable. In the former, the plaintiff- wife was physically in Mexico, the defendant-husband consented to the divorce proceedings and was represented by counsel. In the latter, the parties mutually agreed to the institution of the divorce proceedings, the defendant-husband signed a nolo contendere, and the plaintiff-wife was physically in Mexico and there signed the necessary judicial papers for the institution of the divorce pro- ceedings. The applicant for adjustment under section 215 has the burden of establishing he eligibility. Since the California courts deny recognition to Mexican in absentia divorces such as that present here, it follows that the applicant has failed and is unable to sustain her burden of proving the validity of her marriage. to a United States citizen husband. Similarly, applicant's sons cannot establish that they are the stepsons of a United States citizen. Order: It is ordered that the appeal from the district director's decision denying adjustment under section 245 of the Immigration and Nationality Act be and the same is hereby dismissed.