Matter of P- and S- — 5 I&N Dec. 1

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IN THE MATTER OF P AND S

In VISA PETITION Proceedings A-6258524 A-6258525 VP-334392

Decided by the Central Office December 12, 1946, and June 3, 1947 Decided by the Board July 18, 1947

Marriage-Termination of-Forced divorce in Germany An enforced divorce decree issued during the Hitler regime based on racial grounds is held to be a valid decree. However, a subsequent decree by a court of competent jurisdiction ( either in Germany or in this country) holding that the marriage is subsisting will be recognized as reinstating such marriage. BEFORE THE CENTRAL OFFICE (December 12, 1946)

Discussion : M - P filed a petition for issuance of immigration visa in behalf of his wife, A— P— nee K , and minor son, P- , both born and residing inVienna,Austria. The petitioner stated in his petition that he was naturalized on June 22, 1944, in the United States District Court for the Southern District of New York, certificate of citizenship No. 5959522 having been issued to him ; that he was married in Vienna on July 23, 1924, and that his son was born on June 24, 1928. The files of this Service verify the facts of naturalization, the names of the wife and child, and their dates and places of birth. The peti- tioner's affidavit of support advised that "these two members of his family are the only persons for whose support he is responsible." From the affidavits in the file, it appeared to be in order to approve the petition, and the beneficiaries were both granted nonquota status onApril 12, 1946, under section 4 (a) of the Immigration Act of 1924. The petition was forwarded to the Department of State on April 25, 1946, for transmittal to the American Consul in Vienna. There has now been received from the Department of State a despatch from the American Legation in Vienna dated October 23, 1946, accompanied by copy of a letter to that office from the petitioner, in which he states "* * * I do not acknowledge the annulment of my marriage, pronounced by a Nazi Court ; at that time forced upon by threat and under duress, for racial reasons." The consular officer in

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his despatch advises that on the copy of petition received in that office, a line had been drawn through “A- P— nee K-, wife" where these words appear on the face of the petition in the column relating to prospective immigrants. There is nothing in the file which would put this Service on notice that the petitioner's marriage was not at that time in full force and effect. There is no line drawn through the name of either beneficiary on the copy remaining in the Service file. Under section 4 (a) of the Immigration Act of 1924, a nonquota status may be accorded "an immigrant who is the unmarried child under 21 years of age, or the wife * * * of the citizen of the United States * * * ". Under 8 C. F. R. 165.2, it is stated that "in all cases *** the issuance of a visa will be withheld and approval of the petition may be revoked if it is ascertained that the petitioner * * * has become divorced from the beneficiary wife * * *; ". The petitioner has admitted in writing that his marriage to his wife was annulledby a Nazi court. It is ordered that the approval of the petition insofar as it relates to the beneficiary AP - nee Kbe revoked. In accordance with 8 C. F. R. 90.3, the case is referred to the Board of Immigration Appeals. BEFORE THE CENTRAL OFFICE (June 3, 1947)

Discussion : The petitioner, R— P— S-, who was naturalized by the United States District Court for the Northern District of California at San Francisco on September 17, 1945, has submitted a visa petition wherein it is alleged that he and the beneficiary were married in Germany on December 22, 1921. The question presented is whether or not the beneficiary is entitled to nonquota section 4 (a) immigration status as the wife of the petitioner. Representations have been made by the petitioner that following the Nazi regime in Germany in 1933 and because of the attending difficulties he and the beneficiary in 1937 applied for and were issued quota numbers by the American Consulate at Stuttgart, Germany, and were informed that in all probability they would be able to emigrate to this country in December 1938 ; that when the pogrom against the Jews began on November 9, 1938, his home was attacked and he took shelter with friends ; that his wife, who is not a Jew, consulted with attorneys who in turn contacted high Nazi officials, and she was informed that it was essential for her safety, as well as that of the petitioner, that they leave Germany at once; that the beneficiary could not leave Germany at that time because her daughter was expecting a baby; that the beneficiary was advised, even if she desired to stay in Germany for a short period of time to assist her daughter, that she had to institute divorce proceedings against the petitioner immediately; that follow

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ing the petitioner's departure from Germany, the beneficiary was arrested by the Gestapo and was tortured with a view to eliciting from her information concerning the whereabouts of her husband ; and that on February 23, 1939, his wife being compelled by the Gestapo to institute proceedings, neither she nor the petitioner appearing in court, a decree of divorce was rendered by the Court of First Instance in Munich I, Fourth Chamber, to the effect that the marriage of the petitioner and the beneficiary was dissolved, the respondent to bear the blame for the divorce and the respondent to pay all the costs of that action. Service records show that when the petitioner applied for a non- preference quota visa on November 15, 1939, he claimed he was divorced and that he also claimed he was divorced when he filed his declaration of intention on April 29, 1940; when he registered under the Alien Registration Act on September 4, 1940, and when he filed his petition for naturalization on April 24, 1945. It should be noted, however, that when the petitioner registered under the Alien Registration Act, he claimed his wife was forced to divorce him by the Gestapo in February 1939 and that as soon as she was able she would proceed to the United States to remarry him. The State Department has informed this Service that there were no express provisions in German law either before or during the Hitler Regime for the granting of a divorce on racial grounds, although under the Hitler Marriage and Divorce Code of July 6, 1938, a non- Jewish party to a marriage remaining inGermany could divorce his Jewish partner who was forced to flee Germany because of racial persecution ; that in practice, fairly extensive use was made of this opportunity, and that in many cases, the institution of divorce actions was dueto pressureby the Nazi authorities. Ithas also been reported by the Department of State that subsequent to the accession to power of Hitler, German courts on numerous occasions granted annulments of marriages between Jews and non-Jews upon the petition of the non-Jewish party under the German Civil Code ofAugust 18, 1896. The State Department also informed this Service that on September 15, 1935, there was adopted at Nuremberg the so-called "Law for the Protection of German Blood and German Honor," which prohibited marriages between Jewish and non-Jewish persons. However, this law had no retroactive effect ; further, that a marriage contracted in violation thereof was valid until annulled by a court of competent jurisdiction. This "Law for the Protection of German Blood and German Honor" was incorporated by reference into the Hitler Code. Although Article 20 of the Code referred to provided that a marriage was null in cases in which the nullity was provided for in the "Law for the Protection of German Blood and German Honor," such marriage was valid until a decree of nullity had

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been pronounced by a court of competent jurisdiction, which decree invalidated the marriage ab initio, as distinct from a divorce obtained pursuant to the Hitler Code which invalidated the marriage only from the date of the decree. The State Department explained that the Allied Control Council gave careful consideration as to whether means should be devised for setting aside decrees of dissolution rendered on racial grounds during the Hitler Regime and that the conclusion was reached that however obnoxious such decrees might be from the standpoint of military government policy, a party adversely affected by such a decree should not be given the right to claim restoration of a marriage which had been declared void or had been annulled or dissolved, through divorce, the only remedy provided by the Council in such cases being for the party who suffered injury to ask for compensation for damages and for removal or mitigation of hardship. It has also been provided by the Allied Control Council that the contesting party may in such an action claim compensation for material damage inequitably suffered by him and demand the removal or mitigation of such hardship as adversely affecting his personal position, and that no claim for restoration of a marriage which has been declared void or has been annulled or dissolved through divorce can be made. However, the Legal Division of the Office of Military Government for Germany (U. S.) has expressed the view that the purpose of the remedies provided by the Council was merely to prevent the restoration of a marital status under the action for mitigation of hardship, and that the remedies could be interpreted so as not to preclude the inclusion in actions, not based on the laws of the Control Council, but on other provisions of German law, of an application directed towards restoration of the marital bond. The Legal Division of the Office of Military Government for Germany believes the following actions would lie in German courts for the purpose of bringing about a recognition of the marital status as still subsisting in such cases :

(1) Suits for reopening of the case ( Wiederaufnahmeverfahren) , within the statutory period, pursuant to section 578 et seq., ZPO (German Code of Civil Procedure ) : a. Action for annulment of judgment ( Nichtigkeitsklage) in cases of certain of the more serious violations of procedural rules enumerated in section 579, ZPO . b. Action for restoration ( Restitutionsklage ) section 580, ZPO, applicable to cases where, as a result of a criminal offense committed by one of the parties, witnesses, or experts, the court has been given wrong facts, or where members of the court themselves have been guilty of a criminal offense in violating the law, or finally where the injured party discovers, or is now able to use, an earlier judicial decision rendered on the same subject matter, or new documentary evidence, which if put in evidence in the first trial, would have caused termination of the original proceeding in favor of the injured party.

(2) The action for judicial declaration of the existence or nonexistence of a marriage pursuant to sections 256, 606, 638, ZPO may be adaptable to the instant situations. So far it has been held to apply only to limited classes of cases,

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one of which is the case where it is doubtful as a matter of fact or law whether amarriage formally concluded has been annulled or dissolved (RG 102, 82 ; RG 109, 385; Die Zivilprozessordnung, annotated by Dr. Martin Jonas, 1938, vol. II, Annotation to sec, 606, p. 4) . The action is predicated upon proof by the injured party of the present legal interest in having declaratory relief which might be supplied in the instant case by the pending immigration. There seems to be no limitations of time for commencing declaratory actions.

From the foregoing, it is the view of the State Department that when a court legally constituted and competent in Germany has ruled that a person domiciled in that country is not married, the State Department does not believe that it may properly take the position that the decree of annulment is without effect and that notwithstanding the decree, such person is married, unless the decree is reversed by a superior court in Germany, or a court in Germany or the United States, having jurisdiction, declares the marriage to be still subsisting and both spouses so regard it. With respect to German divorce decrees in which the racial element figured, the State Department has indicated that it will continue to be guided by the principle generally acknowledged in our law that the validity of a foreign divorce decree is dependent upon the question of jurisdiction, which, in turn, is founded on domicile; that in applying this rule in a large number of cases presented to it involving divorces obtained in foreign countries, the State Department has consistently held that, if the court of the forum had jurisdiction of the subject matter and of at least one of the parties, the divorce might not ordinarily be questioned, and that where it is claimed that the divorce decree was obtained through duress on the part of the German Government, the State Department believes that the duress should be established in a court of law in Germany in an action to set aside by courts of competent jurisdiction in Germany, or one of the parties to the marriage, with the concurrence of the other, obtains a decision of a court in Germany or this country to the effect that the marriage is still subsisting. Apparently, therefore, the State Department recognizes that some courts in this country have jurisdiction to determine whether a marriage is subsisting notwithstanding its dissolution by divorce in a foreign country. The divorce decree rendered by the Court of First Instance in Munich on February 23, 1939, dissolving the marriage of the petitioner and beneficiary is not of record. Neither does it appear that any action has been taken in Germany or this country to have the marriage declared to be subsisting. While the State Department is of the view that in cases similar to the instant one, the divorce decree should be regarded as valid and that it should not be attacked collaterally, this Service (in re: J - F , March 26, 1947, VP-345281) adopted the view of the Board of Immigration Appeals (in re : HE , January 10, 1947, A-7583089) to the effect that a divorce such as appears

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to have been rendered in the instant case was an enforced one, neither party being a voluntary party thereto ; further, that a divorce decree issued under Nazi law is not entitled to recognition under the full faith and credit clause of the Constitution of the United States inasmuch as that clause is applicable only to the judgments and public acts of the States of the Union and not those of foreign states (Aetna Life Insurance Company v. Tremblay, 223 U. S. 185) , it being noted that in the E case a decree by a court in Massachusetts, affirming the marriage, was of record, while in the F- case no such decree was present. When the E- case was considered by this service on October 25, 1946, it was concluded that Mr. E's visa petition be denied and that he should inform his wife that she should make an application for a quota immigration visa, it having been decided that the order entered by the Probate Court for Suffolk County, Mass., on July 9, 1946, affirming his marriage to the beneficiary, could not be considered as having invalidated the divorce decree granted in Austria in October 1941. The order entered by the Massachusetts court, affirming Mr. E's marriage to the beneficiary, was granted in accordance with C. 207, section 14, Annotated Laws of Massachusetts, volume 6, 1933, which provides that :

If the validity of a marriage is doubted, either party may file a libel for annulling such marriage, or if it is denied or doubted by either party, the other party may file a libel for affirming the marriage. Such libel shall be filed in the same manner as a libel for divorce, and all the provisions of chapter two hundred and eight relative to libels for divorce shall, so far as appropriate, apply to libels under this section. Upon proof of the validity or nullity of the marriage, it shall be affirmed or declared void by a decree of the court, and such decree of nullity may be made although the marriage was solemnized out of the commonwealth, if at that time and also when the libel was filed the libellant had his domicile in the commonwealth or if he has resided in this commonwealth for five years last preceding the filing of said libel, unless the court finds that he has removed into this commonwealth for the purpose of obtaining said decree. (R. S. 76, secs. 3, 4; 1846, 197; 1855, 27; G. S. 107, secs. 4, 5 ; P. S. 145, sec. 11; 1886, 36 ; R. L. 151, sec. 11.)

Although it might well be argued as a result of a literal reading of the above-cited statute, that it was enacted for the purpose only of affording relief to individuals who are in doubt as to their marriages being valid at inception, the fact remains that a court in Massachusetts has apparently interpreted the statute broadly so as to include such a situation as was presented in the E case. Therefore, it is not believed that the Government should at this time attempt to collaterally attack the decision of that court. On reconsideration, therefore, it is the Service view that in the E case the sound basis for holding that that marriage is in force is the decree of the Massachusetts Probate Court affirming the marriage rather than the rule laid down by the Board of Immigration Appeals that the divorce was an

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enforced one obtained under duress and therefore is not entitled to be recognizedby this Government. In line with the position taken by the Allied Control Council and the State Department, it is believed that where a court of competent jurisdiction in Germany or in the United States declares such marriages to be subsisting, the Service, in considering such cases, should be bound by such decrees. The adoption of this view will provide a method whereby a judicial determination of the facts can be obtained in each case which will serve to avoid an administrative determination of the issue as to whether duress was present as would be necessary under the formula laid down by the Board of Immigration Appeals. That latter rule would undoubtedly be a difficult one to administer because of many conflicting claims that would be made in cases concerning the matter of duress. In the instant case, the divorce was rendered by the Munich Court on February 23, 1939, dissolving the marriage of the petitioner and the beneficiary, and that marriage has not been declared subsisting by competent judicial authority. Therefore, the beneficiary cannot be considered as the lawful wife of the petitioner within the meaning of the provisions of section 4 (a) of the act of May 26, 1924, and the submitted visa petition should be denied. It is ordered that the submitted visa petition be denied. In accordance with 8 C. F. R. 90.3, this case is referred to the Board of Immigration Appeals for consideration. BEFORE THE BOARD (July 18, 1947)

Discussion : The petitioner, M— P—, a naturalized citizen of the United States, executed a petition for the granting of a nonquota status in the issuance of an immigration visa in behalf of A- P - nee K , and their minor son, P—. The petitioner, R— P— S-, also a naturalized citizen of the United States, has executed a similar petition in behalf of L K— (S ). The Commissioner has ordered the petition in the S case denied, and revoked in the P- case insofar as relates to A— P— (it having been originally approved) , both on the same premise, namely : that in each case the marriage had been dissolved by divorce or annulment. The matter is before us on appeal in accordance with section 90.3 of Title 8, Code of Federal Regulations. P- was married to A K— in Vienna, Austria, July 23, 1924. A son was born to them June 24, 1928. According to the petitioner, his wife (presumably a non-Jew) was forced to go through an annulment proceeding at the insistence of Nazi authorities. He as

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serts that the proceeding was an enforced one,based on racial grounds, and that neither he nor his wife were voluntary parties thereto ; that hehas never accepted or recognized the annulment (presumably A- is of the same attitude, since she is the beneficiary of the petition herein). He also indicated that legal steps in Austria to restore the original marital status would take considerable time. It is not shown that either the petitioner, in this country, or AP in Austria, has secured a decree from a competent court affirming the original marital status. The petitioner S- was married to L K— (S ) in Germany on December 22, 1921. She obtained a divorce from him in Germany on February 23, 1939. In support of his claim that he considers the beneficiary to be his wife, despite the divorce, petitioner recites that the divorce was an enforced one, and that neither was a willing party thereto. He represents that following political changes in Germany in 1933, and because of attending difficulties visited upon persons of the Jewish race (his wife being a non-Jew), they applied for and were issued quota numbers at the American Consulate, Stuttgart, Germany, during 1937; that before they could emigrate, persecution against the Jews began and he was forced to flee. His wife, as a matter of protection to herself, went through divorce proceedings. Section 4 (a) , Immigration Act of 1924, provides, in pertinent part, that a nonquota status may be accorded an immigrant who is the wife of a citizen of the United States. Section 165.2, Title 8, Code of Federal Regulations, provides, in pertinent part, that in all cases the issuance of a visa will be withheld and approval of the petition may be revoked if it is ascertained that the petitioner has become divorced from the beneficiary wife. The Allied Control Council,¹ in considering whether means should be devised for setting aside decrees of dissolution rendered on racial grounds during the Hitler regime, reached the conclusion that, however obnoxious such decrees might be from the standpoint of military government policy, a party adversely affected by such a decree should not be given the right to claim restoration of a marriage which has been declared void or had been annulled or dissolved through divorce. The United States being a member of the Allied Control Council, this Board takes the position that the view of the Council must be accepted as the position of this Government. Therefore, such decrees will be held to be valid decrees. ( Compare Aetna Life Insurance Co. v. Tremblay, 223 U. S. 185, 39 Op. Atty. Gen. 226.) However, since the generally accepted rule of law in this country, relating to marital status, is to determine questions arising therefrom See report from Department of State, dated April 4, 1947, file Le.

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on the basis of the law of the domicile, a decree by a court of competent jurisdiction (either in Germany or in this country) holding the marriage to be subsisting, will be recognized. This position does not contravene the view of the Council on the pertinent question involved. In the cases now before us such decree has been obtained by either the petitioner or the beneficiary. Order : It is ordered that since neither the petitioners nor their wives have obtained a decree from a court of competent jurisdiction affirming their marriage, the decisions of the Commissioner, dated December 12, 1946, and June 3, 1947, denying and revoking the visa petitions as to P. and S. respectively, are affirmed. Ohio ex rel. Popovici v. Agler, 280 U. S. 379 ; Burbank v. Ernest, 232 U. S. 162; Bell v. Bell, 181 U. S. 175; Williams v. North Carolina, 325 U. S. 226. Aetna Life Insurance Co. v. Tremblay, 223 U. S. 185 ; Williams v. North Carolina, supra ; Matter of E., A-7583089 B. I. A. (January 10, 1947) .