Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

A Ninth Circuit decision that had helped a noncitizen (who wanted her foreign divorce recognized, so she could remarry) has now led to a ruling against a noncitizen in a Nevada case.

|

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.

NEXT: Implementing my Pledge to Donate Royalty Payments to Charities Benefiting Refugees

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A fascinating set of unexpected consequences. I suspect you may get as many answers as there are immigration lawyers and judges.

    1. Her mistake was not coming over on her own tourist visa.

      Just sayin….

      1. Tourist visas still aren’t eligible for divorce.

  2. They should have seen this coming a mile away. I’ll bet that the ninth just invalidated a whole lot of marriages.

    But it seems like who counts as a state resident for purposes of divorce law is a question of state law, not federal.

    1. The Ninth Circuit has no power to invalidate marriages and the state courts in the Ninth Circuit (including California) generally have no problem saying the Ninth Circuit is wrong.

      1. That should limit the damage, but I’ll bet there are plenty of immigration cases where the validity of a local divorce is at issue.

      2. The Ninth Circuit wasn’t the one that tried to invalidate a marriage though, that was the United States Citizenship and Immigration Services (USCIS).

        The Ninth Circuit was the one that smacked down the USCIS saying “no, you don’t get to invalidate her divorce (and thus her marriage) like that”.

        1. I doubt it was half that clever. Its more likely the judges wanted to grant the citizenship and found a loophole they thought would pan out for them, and they didn’t realize how easily it could backfire in this way…because they weren’t thinking about it.

    2. 12inch — the Nevada Divorces come under the “full faith & credit” clause of the US Constitution — but I don’t see why ANY US Court has an obligation to recognize a ruling by a Korean court.

      If I remember this correctly, we recognize foreign birth and marriage certificates as having been presented to INS as application-to-enter documents and hence being de-facto INS documentation. But as to a subsequent Korean divorce of someone who has already been accepted (as a married person) into the country — IDK…

      The bias is the belief that she inherently has the right to file for divorce *somewhere* and I’m not sure she does. Likewise the 209A order — most cops aren’t going to care but her status in the country is technically dependent upon her status as a spouse….

  3. Link to Park v Barr is broken

  4. “The case is now on appeal to the Nevada Supreme Court.”

    IIUC the Nevada courts are not bound by the ninth circuit ruling, and having read the opinion, they should not be persuaded by it.

    1. Exactly – as I noted below, given the Nevada practice of adjudicating these matters and the bad consequences of following the 9th Circuit here, this trial court obviously should not have followed the 9th Circuit (whose ruling seems off for several reasons). Rather, I think the trial court was just playing a game of “let’s pwn the libtard suckers” without actually following the law and thinking of the consequences of its actions.

  5. The Nevada court is not bound by the Ninth Circuit’s interpretations of federal law and, given the clear historic practice of Nevada courts to adjudicate these matters as the trial court referenced, it should clearly should have not followed the Ninth Circuit. The Supreme Court could sort out the mess if it wanted to.

    This seems like an obvious “let’s pwn the libtards” ruling given the above.

  6. It seems to me that there is a very simple solution: immigration courts may be allowed to depend on the decisions of family courts regarding who is and isn’t married, but that dependency should be one one-way and one-way only: family courts should not be expected to worry about immigration status or law when doing their job.

    Or to put it another way… while I can accept an immigration court considering a person’s marital status when deciding cases, they should never be in the position to change a person’s marital status.

    That said, this is a view on how the law should be. To the degree that the law isn’t in compliance with this preference, that is an error to be fixed.

    1. >family courts should not be expected to worry about immigration status or law when doing their job.

      But the family court jurisdiction is dependent upon immigration status…

      1. But the family court jurisdiction is dependent upon immigration status…

        Ah, I see you skipped to reply, having not finished reading my comment.

        Here, I’ll re-print it for you:

        That said, this is a view on how the law should be. To the degree that the law isn’t in compliance with this preference, that is an error to be fixed.

  7. IANAL, but why is it at all problematic or wrong that people who are essentially tourists aren’t allowed to get divorced in the US?

    In the Korean case, they were here illegally, and knew it, so they got divorced in the jurisdiction that married them. All makes sense.

    Here, the answer is the same. Get divorced at a Saudi embassy, not a Nevada courthouse.

    If California or Nevada want to be in the business of granting divorces to foreign nationals, is there anything in the 9th circuit opinion that would prevent this? Let the states change their law, not the federal courts rewrite the immigration statutes.

    1. But US courts are required to respect Saudi law?!?!?

      1. If we recognize Saudi marriages, why wouldn’t we recognize Saudi divorces?

        But that wasn’t the point. The point was that Nevada doesn’t exercise jurisdiction over Saudi marriages between Saudis who aren’t Nevada residents.

        I don’t suppose there is any reason they couldn’t choose to do so. It’s just the observation that California (and Nevada?) restrict their divorces to current residents of the state.

        But it seems intuitive that Saudi marriages should ordinarily be dissolved in Saudi Arabia, and if you want to file for divorce in Nevada you should first become a resident of Nevada.

        Didn’t this get sorted out when gay couples first began getting divorced in states that did not yet recognize gay marriages?

      2. They respected it by granting the visa based on Saudi law.

        Based on the theory of the 9th’s opinion, two California student visa persons are ineligible to marry each other in California using a California marriage certificate.

  8. So couldn’t Nevada change its law to allow granting a divorce to anyone physically located in Nevada instead of just domiciled there? It seems like that has been the historical practice irregardless of the actual text of the law.

  9. I don’t know whose interpretation is right, but hopefully the law is such as to discourage forum-shopping divorces, and using U. S. courts for your divorce when you don’t meet the necessary domicile requirements seems wrong. But it may be legal for all I know.

    1. As a rule-of-thumb, I think the problem of “forum-shopping divorces” is best handled at the time of the divorce. Once both parties think they’re divorced and moved on with their lives (including re-marrying because, in good-faith, they think they’re divorced), it’s a super-dick move for a random lawyer to say “um, actually…”

      Court cases by “gotchas” shouldn’t be an accepted practice, and an immigration judge that lets a lawyer say “um, actually, the applicant committed bigamy because I want to argue her divorce never happened” should have a literal book thrown at their dumb-ass head.

      And again, I’m not saying this is how the law is, I’m saying this is how it should be. People shouldn’t live in fear that a lawyer is going to invalidate their divorces against their will, and any legal theory that supports such a fear is unethical on it’s face.

      1. Common-law divorce?

        Better to simply have clearer rules.

        1. Park didn’t try to get a “common law divorce”.

          She sought and received a divorce that everyone involved, (including the consulate granting it) thought was legit. It was a good enough divorce that when she later sought to get remarried no one, including the state of California, thought she was already married.

          By the time USCIS said “um, actually…” she’d been divorced for over five years.

          So no. I’m not arguing for “common law divorce”. I’m arguing that lawyers that pull these kinds of shenanigans are assholes who have no respect for the law or justice. The only reason Park was magically divorced (and presumably became guilty of the crime of bigamy) was because an asshole at USCIS decided it would be fun to fuck with this woman and abuse the law.

          That’s not a problem of unclear law, that’s a problem of an asshole in power.

          1. *Actually,* I said that “using U. S. courts for your divorce when you don’t meet the necessary domicile requirements seems wrong.” In the first case, California law recognized the Korean divorce because because one of the Korean parties was *not* domiciled in California.

            Thus, far from ascribing to Park a desire to get a common-law divorce, I note that she got a Korean divorce and California was OK with that because she *wasn’t* domiciled in California.

            Your argument wasn’t about Park’s status specifically or about Korean law – your point was “Once both parties think they’re divorced and moved on with their lives (including re-marrying because, in good-faith, they think they’re divorced), it’s a super-dick move for a random lawyer to say “um, actually…””

            Which I would call common-law divorce.

Please to post comments