The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:
Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.
USCIS denied Park's application for naturalization because it determined that Park's divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park's purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.
This finding set off a cascade of legal consequences. If Park's divorce from Choi was invalid under California law, then Park's marriage to James Yong Park was similarly invalid. Park's application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park's marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….
We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.
So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn't require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):
Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.
[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties' child at the end of 2019….
The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].
[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….
For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….
This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.
[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….
The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came to the United States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….
Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….
[Senjab]'s subjective intent to make Nevada her home is precluded by Congress' definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….
The case is now on appeal to the Nevada Supreme Court. Immigration law isn't my area of expertise, so there may be something I'm missing here, but this seems to be practically quite significant.