Court: District Court, E.D. Virginia; August 23, 2016; Federal District Court
Peter Kofi Annan, a citizen of Ghana, appealed a decision by USCIS that denied his naturalization application. The court held a hearing on March 31, 2016, and reviewed cross-motions for summary judgment. The court determined that under Virginia's comity doctrine, the Commonwealth would recognize the Ghanaian divorce decree between Mary Yaa Obeng and her former husband, Adinkrah Kwasi Boampong, validating Annan's subsequent marriage to Obeng in Virginia. Consequently, the court found that USCIS erred in denying Annan's application based on the assumption that Virginia would not recognize Obeng's divorce, thus invalidating the marriage and Annan's permanent resident status. The court granted Annan's Motion for Summary Judgment and denied USCIS's Motion for Summary Judgment, remanding the case for further proceedings.
The background establishes that Annan entered the U.S. in 1995 on a visitor’s visa, married A.W., divorced in 1999, and then married Obeng in 2001. Obeng, a lawful permanent resident, had her prior marriage to Boampong dissolved in Ghana in 1999 through customary procedures. Annan and Obeng's marriage produced six children, and they have lived continuously in Virginia. Obeng petitioned for an immigrant visa for Annan shortly after their marriage.
Obeng submitted an Order from the Circuit Court of Accra confirming the dissolution of her marriage to Boampong, which was necessary for her I-130 petition. During the processing of this petition, the plaintiff filed an I-485 application for permanent residence, which was approved on May 18, 2005, after the I-130 had been approved on September 13, 2004. The plaintiff later applied for naturalization on May 27, 2014, but USCIS denied the application on December 8, 2014, citing that the plaintiff was not lawfully admitted for permanent residence due to the void nature of the marriage between Obeng and the plaintiff, as Virginia does not recognize the divorce obtained in Ghana. The plaintiff appealed the decision, but USCIS upheld its initial ruling on July 24, 2015, referencing the case Jahed v. Acri.
The document further explains that summary judgment is permissible when there are no genuine disputes regarding material facts. The court reviews USCIS decisions de novo, allowing for independent findings of fact and conclusions of law. The burden of proof lies with the applicant to demonstrate eligibility for naturalization, adhering strictly to immigration laws. An applicant must show lawful permanent residence status to qualify for citizenship, and any status obtained through fraud or misrepresentation is not considered lawful.
The BIA has extended its "non-fraud" doctrine beyond fraud cases to include situations where an alien gained permanent resident status due to a negligent government error. Relevant case law includes *Koszelnik v. Sec’y of DHS* and *Injeti v. USCIS*, which emphasize that the BIA considers the validity of prior divorces to assess the legality of subsequent marriages. The Fourth Circuit's position indicates that state law governs the recognition of a divorce's validity, as illustrated by *Jahed* and *Matter of Hosseinian*. In this context, Virginia's application of the doctrine of comity is crucial for determining the lawfulness of the plaintiff's permanent resident status and subsequent naturalization application.
The central legal question is whether Virginia would recognize a Ghanaian divorce decree that dissolved Obeng’s marriage to Boampong, affecting the validity of Obeng’s subsequent marriage to the plaintiff. Both parties concur that there are no factual disputes, framing the issue strictly as a question of law concerning the Ghanaian divorce's validity under Virginia law. It is established that states govern matrimonial status for residents. Virginia recognizes foreign divorce decrees under the full faith and credit clause or the principle of comity, provided such recognition does not conflict with public policy. Additionally, for a foreign divorce to be valid, at least one party must have been domiciled in the jurisdiction where the divorce was granted. The crux of the dispute lies in the significance of domicile, with USCIS asserting that domicile in the foreign country is an essential condition for recognizing the divorce decree.
The plaintiff argues that the lack of domicile at the time a divorce decree is issued does not automatically negate its recognition and must be evaluated alongside other factors, such as the parties' ties to the foreign jurisdiction and the potential conflict with Virginia public policy. Recognition of a divorce decree under the full faith and credit clause requires that at least one party be domiciled in the issuing jurisdiction when the decree is granted. Jurisdiction to grant a divorce is fundamentally based on domicile. Virginia assesses foreign divorce decrees not solely through the full faith and credit clause but also under the doctrine of comity. Comity involves recognition by one jurisdiction of the legislative, executive, or judicial acts of another, balancing international obligations and the rights of its own citizens. The Virginia Supreme Court emphasizes that it will not act as an appellate surrogate for foreign courts, presuming those courts better understand their own substantive law, especially when they issue clarifying orders about their legal framework. The assessment of whether to grant comity focuses on whether the foreign law aligns with Virginia's moral standards, societal values, personal rights, and public policy. The Virginia Court of Appeals delineates comity as the recognition given to foreign acts based on various considerations, including public policy and the rights of local citizens. The Fourth Circuit also recognizes that a valid foreign divorce decree is generally valid everywhere, subject to public policy constraints.
Comity is recognized as a nuanced legal principle that varies based on specific factual scenarios. Courts in Virginia have consistently denied recognition of foreign divorce decrees when neither party was domiciled in the foreign jurisdiction at the time of the divorce. In *Furman v. Furman*, the court refused to acknowledge a Haitian divorce because neither party established domicile in Haiti, despite the husband's temporary presence there. Similarly, *Howe v. Howe* noted that a divorce obtained solely for the purpose of the decree, without genuine residency, is typically not recognized. The BIA also upheld this principle, rejecting a Korean divorce due to lack of domicile. However, the current case presents unique circumstances, including significant ties to the jurisdiction, citizenship of both parties in that country at the time of the divorce, and mutual consent in accordance with local laws. Other jurisdictions have recognized foreign decrees despite the absence of domicile when certain conditions are met, such as marital ties and notice of proceedings. The BIA has established criteria to evaluate the validity of foreign divorce decrees for immigration purposes, which the Fourth Circuit has endorsed: 1) marriage in the jurisdiction of divorce, 2) cohabitation in that jurisdiction, 3) notice and participation in the divorce proceedings, and 4) citizenship of both parties in the divorcing country.
A Virginia court would consider several key facts regarding the marriage and divorce of Obeng and Boampong. They entered into a customary marriage in Ghana on August 20, 1992, while both were Ghanaian citizens domiciled in Ghana. They lived together in Ghana until immigrating to the U.S. in 1997. In 1998, they arranged a customary divorce, confirmed by the Circuit Court of Accra, Ghana, on October 19, 1999, with their representatives consenting to the dissolution. The customary divorce was legally processed, requiring the involvement of household heads, and no evidence of fraud exists regarding its procurement.
Subsequently, Obeng and Boampong married in Virginia on January 16, 2001, and established a marital union that produced multiple children. The divorce and its legitimacy were evident from the divorce decree submitted to USCIS, which involved parties other than the divorcing couple. Virginia would recognize the Ghanaian divorce decree based on established criteria for foreign divorce recognition, as articulated in Matter of Ma and supported by the Fourth Circuit in Jahed.
Virginia’s public policy, which protects the rights of its citizens, would not be offended by recognizing the Ghanaian divorce, given both parties' consent and their historical ties to Ghana. The Circuit Court of Accra had personal jurisdiction, and the grounds for the divorce did not conflict with Virginia law. Thus, the court concludes that Virginia would validate Obeng’s Ghanaian divorce for the purposes of recognizing the subsequent marriage.
Virginia law mandates that a spouse seeking divorce must substantiate the grounds for the divorce with corroborated evidence; a divorce complaint cannot be granted based solely on uncorroborated testimony. This policy also protects the welfare and rights of minor children. In this case, the couple married in Virginia and had children, believing in good faith that Obeng was legally divorced from Boampong, a belief supported by prior USCIS decisions in 2004 and 2005. The Court determined that Virginia would recognize Obeng's Ghanaian divorce under the doctrine of comity, validating her marriage to the plaintiff in Virginia. The Court concluded that USCIS erred in denying the plaintiff’s lawful permanent resident status and naturalization eligibility based on the invalidation of Obeng's Ghanaian divorce, asserting that there were no genuine material facts in dispute, entitling the plaintiff to judgment under Federal Rule of Civil Procedure 56. The Court ordered copies of the Memorandum Opinion to be sent to all counsel and indicated an appropriate Order would follow. The plaintiff appealed under the Immigration and Naturalization Act, with the relevant administrative records reviewed. Additionally, affidavits described tribal customs surrounding marriage, with Obeng belonging to both the Ga and Akan tribes, while Boampong is from the Ashanti tribe. USCIS acknowledged that had it known Obeng's divorce from Boampong was by proxy, it would have denied her I-130 petition, which is crucial for establishing a spousal relationship for immigration purposes. Consequently, the plaintiff's permanent resident status was deemed unlawful due to the erroneous approval of the visa petition.
The final decision cites Obeng's testimony from the N-336 hearing, confirming that neither she nor Mr. Boampong was in Ghana during their divorce, as both resided in Virginia at that time. For a foreign divorce to be recognized in Virginia, at least one party must be domiciled in the foreign jurisdiction. "Domicile" is defined as an individual's permanent home to which they intend to return after temporary absences. Under Section 316 of the Immigration and Nationality Act (INA), individuals whose naturalization applications are denied can seek de novo review in U.S. district courts, which are not constrained by the administrative record and may reevaluate the application of foreign law. The petitioner must prove eligibility under foreign law when relevant to the case.
The parties dispute whether the recognition of Obeng's Ghanaian divorce decree by Virginia law is central to Mr. Annan's naturalization application or whether Annan's eligibility for an immigrant visa as Obeng's spouse is the key issue. Both parties agree that the court must ascertain whether USCIS erred in concluding that the Ghanaian divorce was not recognized under Virginia law. The Fourth Circuit previously declined to recognize a Pakistani divorce because neither party was domiciled there at the time of divorce, citing Virginia law that requires at least one spouse to be domiciled in the divorce jurisdiction for recognition. The administrative record lacks clarity on Obeng's domicile during the divorce, and while USCIS assumed that neither spouse was domiciled in Ghana, the record does not definitively establish their domiciles under Virginia or Ghanaian law.
Obeng did not explicitly declare a change of domicile from Ghana to the United States, despite her obtaining permanent resident status, which could imply such a change. The USCIS did not consider the impact of her parents' domicile, even though they were involved in her customary divorce as "heads of household" and were the "applicants" for its confirmation. There is a genuine dispute regarding Obeng's domicile at the time of her Ghanaian divorce; however, this issue is not crucial to the Court's ruling, which assumes neither Obeng nor Boampong was domiciled in Ghana during the divorce decree's issuance. If the appellate court finds the domicile status relevant and reverses the decision due to the plaintiff's insufficient proof of Obeng's domicile in Ghana during the divorce, the Court would accept further evidence and make factual determinations on their domiciles. Additionally, there is a question of whether the relevant date for determining domicile is the date of the customary divorce (August 6, 1998) or the confirmation date by the Circuit Court (October 19, 1999).
