KODWO, 24 I&N Dec. 479 (BIA 2008)

Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
Matter of Francis KODWO, Beneficiary of a visa petition
filed by Idelle Monique Hamilton, Petitioner
File A99 245 589 – Fairfax, Virginia
Decided March 26, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
While a court order remains the preferred method of establishing the dissolution of a
customary tribal marriage under Ghanaian law, affidavits executed by the heads of
household, i.e., the fathers of the couple, that meet specified evidentiary requirements may
be sufficient to establish a divorce for immigration purposes. Matter of Kumah,19 I&N Dec.
290 (BIA 1985), modified.
FOR PETITIONER: Charles Okyere, Esquire, New York, New York
Regional Counsel
Temporary Board Members.
MANN, Temporary Board Member:
In a decision dated May 15, 2007, the Acting District Director (“Director”)
of the U.S. Citizenship and Immigration Services (“USCIS”) denied the visa
petition filed by the petitioner on behalf of the beneficiary to accord him
immediate relative status as the spouse of a United States citizen under section
201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (2000).
The Director found that the petitioner failed to demonstrate that her marriage
to the beneficiary was valid, concluding that the beneficiary was not eligible
to legally marry at the time of their marriage. The petitioner has appealed
from that decision. The appeal will be sustained and the record will be
remanded for further proceedings.
The record reflects that the petitioner and the beneficiary were married on
November 22, 2004, in the State of Virginia. On January 21, 2005, the
petitioner filed a Petition for Alien Relative (Form I-130) on the beneficiary’s
behalf. In order to establish eligibility for a spousal visa petition, the petitioner
must prove, by a preponderance of the evidence, that any previous marriages
of both the petitioner and the beneficiary have been legally terminated.
479Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
8 C.F.R. § 204.2(a)(2) (2007). The beneficiary, a Ghanaian citizen, was
previously married in Ghana according to local tribal custom. As evidence of
the termination of the beneficiary’s prior marriage, the petitioner submitted a
statutory declaration before the Superior Court of Judicature, of the High Court
of Justice in Accra, executed on October 29, 2004, by the fathers of both the
bride and the groom. The fathers declared that the customary marriage
contracted between the couple on June 20, 1998, was dissolved on January 23,
2004, in the presence of elders of both parties.
On May 16, 2006, the USCIS issued a Notice of Intent to Deny the visa
petition based on the petitioner’s failure to provide acceptable evidence of the
dissolution of the beneficiary’s prior customary marriage. The notice stated
the following:
Proper documentation of the dissolution of a customary marriage is a decree, issued
by a high court, circuit court or district court under the Matrimonial Causes Act of
1971 (Act 367), Section 41(2), stating that the marriage in question was dissolved in
accordance with customary law. Affidavits or “statutory declarations” attesting to a
divorce under customary law, even when duly sworn, do not constitute proper
documentation of the dissolution of a Ghanaian customary marriage. See Matter of
Kumah, 19 I&N Dec. 290 (BIA 1985).
It further noted that the divorce decree submitted by the petitioner from the
High Court of Justice in Accra, Ghana, was “under the Statutory Declaration
Act [No. 389 of 1971] and is therefore not acceptable as evidence that [the
beneficiary’s] former marriage had been terminated when [the marriage of the
petitioner and the beneficiary] was contracted.”
In response to the notice, the petitioner submitted a new divorce decree
issued by the District Magistrate Court in Koforidua, Ghana, under section
41(2) of the Matrimonial Causes Act of 1971 (Acts 367), indicating that the
marriage was dissolved based on the joint affidavit submitted by the fathers of
the beneficiary and his former spouse. The decree, which was executed on
June 26, 2006, confirmed that the marriage had been dissolved on January 23,
2004, at Kumasi “and since that time any of the parties had the liberty to
re-marry anybody anywhere and at anytime in the world and that such
customary marriage and divorce are recognized under the laws of Ghana.”
In her decision, the Director considered the new divorce decree but
concluded that the attempt in the new decree to backdate the divorce to
January 23, 2004, would not be recognized. Therefore, the Director
determined that since the valid date of the divorce was June 26, 2006, the
beneficiary was not legally free to marry the petitioner on November 22, 2004.
On appeal, the petitioner contends that the Board recognizes customary
Ghanaian divorces, even when a court decree is unavailable, and that statutory
declarations of the dissolution of a customary marriage, and a decree from the
district magistrate court confirming that dissolution, should be sufficient proof
480Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
of the termination of the beneficiary’s prior marriage. In addition, the
petitioner states that the decree she submitted does not attempt to backdate the
divorce but rather confirms the nonjudicial divorce of January 23, 2004, in
conformity with the rulings in Matter of Akinola, 15 I&N Dec. 359 (BIA
1975), and Matter of DaBaase, 16 I&N Dec. 39 (BIA 1976).
In Matter of Kumah, supra, we modified our previous holdings in Matter of
Akinola and Matter of DaBaase and concluded that a Ghanaian court decree
that either grants or confirms a Ghanaian customary divorce is an essential
element of proof in substantiating a claimed customary divorce under the
immigration laws of the United States. We relied on changes in the Foreign
Affairs Manual, which instructed that
the preferred documentation for the dissolution of a customary marriage is an
application by the parties concerned to the appropriate Ghanaian court under the
Matrimonial Causes Act of 1971(Act 367), section 41(2), for a decree of divorce, and
that the affidavits attesting to a divorce under customary law provided by the heads
of the respective families are of minimal reliability.
Matter of Kumah, supra, at 294.
In this case, counsel for the USCIS takes the position on appeal that Matter
of Kumah, supra, was superseded by amendments to statutory Ghanaian
divorce law and that the law no longer requires Ghanaians to register divorce
affidavits with a court. As evidence of the new Ghanaian law, USCIS counsel
submitted a letter from a Foreign Law Specialist of the Library of Congress.1
The letter explains the following in regard to Ghanaian law:
The Ghanaian customary marriage and divorce registration law consists of the
Customary Marriage and Divorce (Registration) Law of 1985 (P.N.D.C.L.112) and
the Customary Marriage and Divorce (Registration) (Amendment) Law of 1991
(P.N.D.C.L. 263).
One important change that the 1991 amendment introduced was making
registration of customary marriage and divorce, which was mandatory under the 1985
law, optional.
The Customary Marriage and Divorce Law of 1985 required Ghanaians to
register customary marriages. The 1991 amendment, however, made it no
The letter from the Library of Congress included copies of several pages from a book
entitled Family Law in Ghana, which included an analysis highlighting the changes
effectuated by the 1991 amendments. William E. Offei, Family Law in Ghana 35-42 (1998).
1 Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
longer compulsory to register a marriage contracted under customary law.
Counsel for the USCIS therefore asserts as follows:
The 1991 amendment . . . does not require Ghanaians to register the divorce affidavits
with the court in order for the divorce to be valid. The amendment allows for the
heads of the families (fathers of the husband and wife) to declare the divorce final
following the customary tribal divorce proceeding. The declaration must confirm the
date, place, and time of the divorce, such as customary tribal. See UK Border &
Immigration Agency § 2: General Information Section, Section 30.42 on Divorce,
subsection on Ghanaian divorce (3.3.2).
In visa petition proceedings, the petitioner bears the burden of establishing
eligibility for the immigration benefit sought. Matter of Brantigan, 11 I&N
Dec. 493 (BIA 1966). When the petitioner relies on a foreign law to establish
eligibility for the beneficiary, the application of the foreign law is a question
of fact, which must be proved by the petitioner. Matter of Fakalata, 18 I&N
Dec. 213 (BIA 1982); Matter of Annang, 14 I&N Dec. 502 (BIA 1973). We
note that we have relied on expert opinions by foreign law specialists from the
Library of Congress to establish foreign law when appropriate. Matter of
Rowe, 23 I&N Dec. 962 (BIA 2006); Matter of Khatoon, 19 I&N Dec. 153
(BIA 1984); Matter of Dhillon, 16 I&N Dec. 373 (BIA 1977).
In this case, it is the USCIS that presents evidence of Ghanaian divorce law,
which was provided by the Library of Congress. The petitioner does not
dispute this evidence on appeal. To the contrary, the petitioner’s arguments
in the Notice of Appeal accord with the position taken by the USCIS.
Based on the arguments of the parties and the evidence presented by the
USCIS, we agree that the holding in Matter of Kumah, supra, has been
superseded by amendments to Ghanaian law. Matter of Kumah is accordingly
modified to hold that affidavits executed by the heads of household, i.e., the
fathers of the husband and wife, may be sufficient under Ghanaian law to
establish the dissolution of a customary tribal marriage. We note, however,
that in accordance with the Foreign Affairs Manual, the desirable proper
documentation continues to be a court decree, both because customary divorce
is more difficult to prove and because polygamous marriage is permissible
under the customary law of some groups, but not under civil law.
In Matter of DaBaase, supra, we held that where a party seeks to prove the
validity of a customary divorce, he or she must present evidence that
establishes (1) the tribe to which he belongs, (2) the current customary divorce
law of that tribe, and (3) the fact that the pertinent ceremonial procedures were
followed. We also stated the following:
To establish the current customary law of his tribe, the party may present evidence
derived from reported cases, legal treaties and commentaries, and depositions of legal
scholars. The evidence could also consist of advisory opinions from those
482Cite as 24 I&N Dec. 479 (BIA 2008) Interim Decision #3606
organizations traditionally recognized by the Ghanaian Government as possessing
knowledge of customary law.
Id. at 40-41. Moreover, the parties must prove that the divorce was properly
perfected. Affidavits should be specific and include the full names and birth
dates of the parties; the date of the customary marriage; the date of, and
grounds for, the dissolution of the marriage; the names, birth dates of, and
custody agreement for any children born of the marriage; and a description of
the tribal formalities that were observed, including the names of the tribal
leaders, the name of the tribe, the place, the type of divorce, and any other
relevant information.
The parties submitted a statutory declaration dated October 29, 2004, from
the fathers of both the beneficiary and his first wife confirming the dissolution
of the marriage on January 23, 2004. USCIS counsel asks us to consider the
effective date of the divorce to be the date confirmed by the fathers in their
affidavit, rather than the later date of the execution of the affidavit. We agree
that January 23, 2004, is the proper date of the divorce and will therefore
sustain the petitioner’s appeal.
Finally, the USCIS requests a remand in order to determine the validity of
the fathers’ affidavit and to check its authenticity. We find that a remand is
appropriate and will grant the request.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.