Cite 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
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