Matter of Nwangwu
| Decision Date | 14 December 1976 |
| Docket Number | A-20501275,Interim Decision #2542 |
| Citation | 16 I&N Dec. 61 |
| Parties | MATTER OF NWANGWU In Visa Petition Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) Under the law of the East-Central State of Nigeria, a customary law marriage may be dissolved judicially and extra-judically. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary divorce law of the particular ethnic group or tribe. A mere voluntary separation of the parties or desertion does not effectively dissolve the marriage.
(3) Where there was no showing that the minimum requirements for dissolution of marriage had been met, denial of the visa petition on grounds of lack of proof of termination of beneficiary's prior marriage was proper and the appeal will be dismissed.
ON BEHALF OF PETITIONER: Ben C. Shapero 1200 1st National Building Detroit, Michigan 48226
The lawful permanent resident petitioner applied for preference status for the beneficiary as her spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated April 9, 1976, the District Director denied the petition on the ground that proof of the termination of the beneficiary's prior marriage was lacking. The petitioner appeals from that decision. The appeal will be dismissed.
The petitioner was born on December 7, 1937, in Nigeria and was admitted as a lawful permanent resident to the United States on October 22, 1969. The beneficiary was born on April 4, 1937, in Nigeria and entered the United States as a visitor on December 18, 1972. He and the petitioner were married in Detroit, Michigan on April 16, 1973.
It appears that the beneficiary was previously married in Nigeria in 1960 according to the native laws and custom of that country. It is the petitioner's contention that this customary marriage has been dissolved since the beneficiary's Nigerian wife remarried another in 1966, while the beneficiary was living in England. The assertion is that this "automatically" dissolved the customary marriage and, as evidence, the petitioner submits a sworn affidavit by the beneficiary's brother attesting to the same. In addition, the beneficiary submitted a letter to the District Director in March 1974, in which, among other things, he stated that Nigeria is essentially a polygamous country; that a man could marry one, two or three women, and that not infrequently a woman might refuse to live with her husband, and marry another man without going through the courts to obtain a divorce. In the letter he also stated that "desertion and remarriage of one party effectively dissolves the marriage."
In a visa petition proceeding the burden of proof is on the petitioner. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 C.F.R. 204.2(c)(2) the petitioner must submit proof of the legal termination of the parties' previous marriages. Any pre-existing valid marriage is a bar to our recognition of the marriage on which the visa petition is based. The petitioner has failed to prove the legal termination of his previous customary marriage.
In Matter of Akinsete, Interim Decision 2369 (BIA 1975), we recognized that in the Mid-Western State of Nigeria a divorce must be obtained from a competent customary court in order to dissolve a tribal marriage. The law of the East-Central State of Nigeria, in which the beneficiary's prior marriage took place, is different. We have the benefit of a Library of Congress report dated October 6, 1975, entitled "Divorce in the East-Central State of Nigeria Between Persons Married Under Customary Law," which we are attaching hereto as Appendix A. It appears that, in the East-Central State of Nigeria, a customary law marriage may be dissolved not only judicially but also extra-judicially. An extra-judicial divorce requires the observance of certain ceremonial formalities in accordance with the current customary divorce law of the particular ethnic group or tribe of the parties. A mere voluntary separation of the parties or desertion does not effectively dissolve the existing marital relationship.
The only evidence submitted in support of the petitioner's claim that the beneficiary's first marriage was dissolved in 1966 is an affidavit of the petitioner's brother, which states that the first wife deserted the beneficiary, and married another man. The contents of that affidavit are at variance with statements previously submitted by the petitioner, and do not show the legal termination of the beneficiary's marriage under the laws of East-Central Nigeria.
In view of the fact that there has been no showing of the minimum formalities required to dissolve a marital relationship in Nigeria, we must agree with the District Director's decision that the beneficiary's first marriage was not legally terminated prior to his present marriage to the petitioner. We find, accordingly, that the beneficiary's prior marriage is a valid pre-existing marriage preventing recognition for immigration purposes of the marriage between the petitioner and the beneficiary. The appeal will, therefore, be dismissed.
ORDER: The appeal is dismissed.
APPENDIX A
DIVORCE IN THE EAST-CENTRAL STATE OF NIGERIA BETWEEN PERSONS MARRIED UNDER CUSTOMARY LAW
Some formality is required to bring a Nigerian...
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