The opinion of the court was delivered by: LASKER
This case raises the question whether plaintiff Stanley Lokko ("Lokko") presented adequate proof to the Immigration and Naturalization Service ("INS" or "Service") that a previous foreign marriage had been terminated. The INS concluded that he did not and denied the visa petition which he had filed on behalf of his present spouse, Florence Ayimey Lokko. Lokko disputes the INS" finding and has initiated this suit to obtain a visa for Florence Ayimey Lokko. Plaintiff and defendant have cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff's motion is denied, defendant's motion is granted, and the complaint is dismissed.
The facts are not in dispute. Lokko is a citizen of the Republic of Ghana, where he was born. He became a permanent resident of the United States in March of 1979 under the Immigration and Nationality Act, 8 U.S.C. $ 1151-59 (1982)("INA"), when he married Irene Thomas, a United States citizen. Before he married Thomas, Lokko had been married in 1963 in Ghana to Gifty Botchway. In 1975 Botchway and Lokko underwent a non-judicial divorce, in accordance with custom, which, according to the New York office of the Consulsate-General of Ghana, is recognized as legally binding under Ghanaian law. No official records were kept of such proceedings.Although it is not clear whether the INS challenged the adequacy of the evidence which Lokko submitted in 1979 to prove that he had been legally divorced in Ghana, the issue evidently did not bar his receipt of permanent resident status at that time.
In December of 1979, approximately eight months after becoming a permanent resident, Lokko obtained from a New York State court an uncontested judgment of divorce from Irene Thomas. Lokko subsequently married Florence Ayimey in New Jersey in May of 1981 and filed a petition on her behalf in December of 1981 to obtain for her a "second preference" immigration visa under INA section 203(a)(2), 8 U.S.C. § 1153(a)(2) (1982), as the spouse of an alien lawfully admitted for permanent residence in the United States. See id.
Ayimey was born in Ghana and is currently an illegal alien because here non-immigrant student visa expired seven years ago.
As part of the visa application process on Ayimey's behalf, Lokko informed the INS of his two prior marriages to and divorces from Botchway and Thomas. To prove the legitimacy of his Ghanaian divorce, Lokko submitted with his INS petition two statutory declarations executed in 1978 in Ghana by his uncle and by Botchway's mother stating that they witnessed "the performance of customary rites in connection with the dissolution of the marriage between" Lokko and Botchway. Both declarations were attested to by the Commissioner of Oaths in the High Court of Ghana, but they were not certified as foreign official records by a United States Foreign Service Officer as required under 8 C.R.F. § 287.6 (1984).
By form letter dated August 4, 1982, the INS returned Lokko's petition and asked him to furnish proof of his customary divorce from Botchway in the form either of a divorce decree under the Ghanaian Courts Act of 1971 or (1) legal proof of the current customery law of his tribe and (2) affidavits from both heads of the families involved as to the exact steps of the divorce. The letter further noted that all documents were to be certified by the American Embassy in Ghana. Lokko responded by resubmitting his petition and the declarations in a letter to the INS dated August 9, 1982 in which he wrote that his petition included "affidavits sworn by both heads of family, executed in the High Court of Ghana, Accra before the Commissioner for Oaths."
On Decmeber 3, 1982, the INS District Director denied Lokko's petition on the grounds that he had not provided adequate proof of his Ghanaian divorce. The Director noted that Lokko had simply resubmitted his petition without any further documents; that the two affidavits originally submitted did not state which tribe Lokko was from nor the exact steps that were taken in the customary divorce; and that no legal proof of the current customary law of Lokko's tribe had been submitted.
Lokko filed a notice of appeal with the INS" Board of Immigration Appeals ("BIA" or "Board") on December 21, 1982 which included a Statement of Facts describing the procedures of a Ghanaian customary divorce, a letter from the Consulate-General of Ghana dated December 17, 1982 certifying that the Lokko-Botchway marriage had been dissolved in accordance with Ghanaian customary law in light of the affidavits supplied by the relatives of both families, and a declaration made by Botchway in 1980 in Ghana to the Commissioner for Oaths stating, inter alia, that she and Lokko were "presently not man & wife".
The Board affirmed the District Director's ruling in a per ciriam decision dated April 11, 1983 due to inadequate proof of Lokko's alleged customary tribal divorce. The Board stated that the Ghanaian Consul-General's attestation could not be considered as sufficient for a valid divorce in light of its earlier rulings that to prove a customary divorce it is necessary to submit proof of confirmation by a Ghanaian court, or proof of the customary law of the pertinent Ghanaian tribe or group and proof of compliance with such law. Since Lokko had not submitted either kind of proof, the Board dismissed his appeal. Lokko then initiated this action in June of 1983 seeking a declaratory judgment finding his marriage by Ayimey to be legal and valid for all purposes.
In support of his motion for summary judgment and in opposition to the INS" summary judgment motion, Lokko argues that a presumption of marriage has been held to apply in administrative proceedings,
that the INS therefore bears the burden of proving that his marriage to Ayimey is invalid, and that it has not met this burden. Lokko also claims that the INS should now be estopped from challenging the validity of his divorce from Botchway because it obviously recognized the divorce's validity in 1981 at the time he obtained permanent resident status through his marriage to Irene Thomas.
The INS contends that it did not abuse its discretion in denying Lokko's petition because federal law and regulations applicable to visa petitions on behalf of a spouse place the burden of proof upon Lokko to show legal termination of his previous marriages.
The Service asserts that prior Board of Immigration Appeals rulings have established that a customary Ghanaian divorce will be recognized for immigration purposes when a Ghanaian court certifies the divorce as valid, or when the relevant parties establish the tribe to which they belong, the tribe's customary divorce law, and provide evidence that they have conformed to custom.
In the INS" view, Lokko has not met his burden of proving that he was legally divorced from Botchway because the supporting affidavits which he has submitted simply state in conclusotry terms that Lokko and Botchway underwent a customary divorce but do not describe the specific steps taken by each party. The INS also challenges the letter submitted by the Consulate-General of Ghana because it relies upon these affidavits to certify Lokko's divorce. Inasmuch as the Board of Immigration Appeals has not accepted conclusory affidavits from family members and supporting letters from the Ghanaian Consulate-General as sufficient proof of a customary non-judicial divorce on previous occasions,