Michael Adjei v. Alejandro Mayorkas ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1615
MICHAEL ANTWI ADJEI,
Petitioner – Appellant,
v.
ALEJANDRO N. MAYORKAS, in his official capacity as Secretary of Homeland
Security; TRACY RENAUD, in her official capacity as Acting Director, United States
Citizenship and Immigration Services; KIMBERLY ZANOTTI, in her official capacity as
Field Office Director, USCIS Washington Field Office,
Respondents – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:20-cv-01098-LO-JFA)
Argued: October 27, 2022 Decided: February 7, 2023
Before WILKINSON and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Reversed and remanded with instructions by published opinion. Senior Judge Motz wrote
the majority opinion, in which Judge Heytens joined. Judge Wilkinson wrote a dissenting
opinion.
ARGUED: Annigje Johanna Buwalda, JUST LAW INTERNATIONAL P.C., Fairfax,
Virginia, for Appellant. Catherine M. Yang, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jason West, JUST LAW
INTERNATIONAL P.C., Fairfax, Virginia, for Appellant. Raj Parekh, Acting United
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States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellees.
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DIANA GRIBBON MOTZ, Senior Circuit Judge:
We consider here whether the Commonwealth of Virginia would recognize a
divorce granted by a foreign nation to its own citizens when neither spouse was domiciled
in that nation at the time of the divorce. The question arises from Michael Antwi Adjei’s
marriage to Barbara Boateng after Boateng and Kingsley Kwame Gyasi — both Ghanaian
citizens — divorced pursuant to Ghanaian customary law. At the time of the divorce,
Boateng and Gyasi were lawful permanent residents of the United States and neither was
present or domiciled in Ghana. Based on his marriage to Boateng, Adjei became a lawful
permanent resident of the United States. But when Adjei applied to become a naturalized
citizen, United States Citizenship and Immigration Services (USCIS) determined that he
and Boateng were not validly married. USCIS reasoned that under controlling Virginia
law, the Commonwealth would not recognize a divorce granted by a nation where neither
spouse was domiciled at the time of the divorce. Adjei sought review of the decision in
the district court, which granted summary judgment to USCIS. Adjei then brought this
appeal. We conclude that, as a matter of comity, Virginia would recognize this otherwise
valid divorce, granted by a foreign nation to its own citizens, regardless of the citizens’
domicile at the time. We therefore reverse and remand with instructions to grant Adjei’s
naturalization application.
I.
Adjei, a native and citizen of Ghana, entered the United States in 1996. He met
Janet (now Barbara) Boateng, also a native and citizen of Ghana, on December 31, 1999,
and the couple married in Virginia in April of 2001.
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Boateng had been married before. In 1996, she and Kingsley Kwame Gyasi were
married in Accra, Ghana, under Ghanaian customary law. A few years later, Gyasi
received a diversity visa, which permitted Gyasi and Boateng to immigrate to the United
States as lawful permanent residents. See Nyaga v. Ashcroft, 323 F.3d 906, 907–08 (11th
Cir. 2003) (explaining the diversity visa program). They were admitted to the United States
and settled in Northern Virginia in June of 1999. Sometime later, their relationship broke
down. Gyasi moved to Minnesota in search of better employment opportunities and the
couple agreed to divorce.
In accordance with Ghanaian customary law, Boateng and Gyasi contacted their
respective families in Ghana, and the heads of each household performed a ceremonial
divorce on January 6, 2000. Although both Boateng and Gyasi were citizens of Ghana,
neither was present or domiciled in Ghana at the time of the divorce. A year later (on
April 5, 2001) the head of Boateng’s family and the head of Gyasi’s family filed a
declaration attesting to this divorce. The Circuit Court of Tema, Ghana, subsequently
affirmed the validity of Boateng’s divorce under Ghanaian law.
Three weeks after the declaration was filed and more than a year after Boateng’s
divorce, Boateng and Adjei married in Virginia. Boateng then filed an I-130 petition
requesting USCIS issue an immigrant visa to Adjei, her new husband. USCIS granted
Boateng’s petition in March 2005. Adjei then applied for an adjustment to permanent
resident status. USCIS granted his request in January 2010.
In 2014, Adjei applied to become a naturalized citizen of the United States. USCIS
denied his application, determining Adjei had not, in fact, lawfully obtained permanent
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resident status. USCIS ultimately offered a single basis for its decision: Virginia, it
believed, would not recognize Boateng’s divorce from Gyasi because neither spouse was
domiciled in Ghana at the time of the divorce.
Adjei sought reversal of the denial of his naturalization application in the Eastern
District of Virginia. Both Adjei, on the one hand, and the Secretary of the Department of
Homeland Security, the Director of USCIS, and the Director of USCIS’ Washington Field
Office (collectively, USCIS), on the other, moved for summary judgment. The parties
agreed there were no disputed issues of material fact and that the case turned entirely on
whether the Commonwealth of Virginia would recognize Boateng’s divorce from Gyasi.
The district court granted summary judgment to USCIS, reasoning that Virginia would not
recognize a divorce granted by a jurisdiction where neither spouse was domiciled at the
time of divorce. Adjei timely filed this appeal.
II.
“Courts review a decision denying a naturalization application de novo.” Dung
Phan v. Holder, 667 F.3d 448, 451 (4th Cir. 2012) (citing 8 U.S.C § 1421(c)). We review
cross-motions for summary judgment under the same standard, considering “each motion
separately on its own merits to determine whether either of the parties deserves judgment
as a matter of law.” White Coat Waste Project v. Greater Richmond Transit Co., 35 F.4th
179, 189 n.2 (4th Cir. 2022) (quoting Bacon v. City of Richmond, 475 F.3d 633, 637–38
(4th Cir. 2007)).
To be eligible for naturalization, an applicant must demonstrate he was “lawfully
admitted for permanent residence.” Injeti v. USCIS, 737 F.3d 311, 315 (4th Cir. 2013)
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(quoting 8 U.S.C. § 1427(a)). 1 Deferring to the Board of Immigration Appeals’
interpretation of the term “lawfully,” we have held that an applicant for naturalization must
do more than simply show he was granted lawful permanent resident status. Id. at 316.
Rather, he must “demonstrate that the grant of that status was ‘in substantive compliance
with the immigration laws.’” Id. (quoting Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217
(9th Cir. 2010)).
Adjei obtained an immigrant visa and became eligible to apply for lawful permanent
resident status through his marriage to Boateng. A spousal petition for an immigrant visa
must “provide evidence of the claimed relationship,” including “proof of the legal
termination of all previous marriages” of both the petitioning spouse and the spouse for
whom the visa is sought. 8 C.F.R. § 204.2(a)(2). When the legality of the claimed marriage
turns on an earlier divorce, USCIS “look[s] to the law of the state where the subsequent
marriage was celebrated” to determine the validity of the divorce. Jahed v. Acri, 468 F.3d
230, 235 (4th Cir. 2006) (alteration in original) (quoting Matter of Hosseinian, 19 I. & N.
Dec. 453, 455 (BIA 1987)). In this case that is Virginia — where Boateng’s subsequent
marriage to Adjei was celebrated.
To determine whether Virginia would recognize Boateng’s divorce from Gyasi, we
“look first and foremost to the law of the state’s highest court, giving appropriate effect to
all its implications.” Stahle v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016) (quoting
1
Boateng herself became a United States citizen in 2005. Accordingly, when Adjei
applied for naturalization, he indicated he was subject to the shorter continuous residency
period set out in 8 U.S.C. § 1430(a). But that provision, like § 1427(a), requires the
applicant to have been “lawfully admitted for permanent residence.”
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Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir. 1998)). That court
need not have decided the precise question at issue. Rather, it suffices if its decisions,
fairly read, direct “a particular conclusion.” Assicurazioni, 160 F.3d at 1002.
III.
An out-of-state divorce may be recognized in Virginia either under the Full Faith
and Credit Clause of the United States Constitution or as a matter of comity.
The Full Faith and Credit Clause, U.S. Const. art. IV § 1, commands “each state to
recognize and give effect to valid judgments rendered by the courts of its sister States.”
V.L. v. E.L., 577 U.S. 404, 406–07 (2016). Thus, when a state with jurisdiction to do so
grants a divorce “in accord with the requirements of procedural due process,” the
Constitution compels that all other states recognize it. Williams v. State of N.C. (Williams
I), 317 U.S. 287, 303 (1942). This is true even if the divorce offends the public policy of
the recognizing state. Estin v. Estin, 334 U.S. 541, 546 (1948).
Comity, on the other hand, “is not a matter of obligation.” McFarland v.
McFarland, 19 S.E.2d 77, 83 (Va. 1942). Instead, “[i]t is a matter of favor or courtesy,
based on justice and good will.” Id. It is the recognition one sovereign extends to the acts
of another, “having due regard both to international duty and convenience, and to the rights
of its own citizens or of other persons who are under the protection of its laws.” Hilton v.
Guyot, 159 U.S. 113, 164 (1895).
Of course, the Full Faith and Credit Clause does not apply to the judgments of
foreign nations. Jaffe v. Accredited Sur. & Cas. Co., 294 F.3d 584, 591 (4th Cir. 2002).
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Thus, as Adjei recognizes, Boateng’s Ghanaian divorce is valid in Virginia only if Virginia
would recognize it as a matter of comity.
IV.
The Supreme Court of Virginia has emphasized the importance of comity for
fostering good relations between sovereigns and promoting judicial economy. 2 Am.
Online, Inc. v. Nam Tai Elecs., Inc., 571 S.E.2d 128, 132 (Va. 2002). Nevertheless, the
court has announced four principles that “must be considered” before extending comity to
the act of another sovereign. Id. at 133. The Commonwealth will only grant comity to an
act of another sovereign if (1) the other sovereign had jurisdiction “to enforce its order
within its own judicatory domain,” (2) the relevant law of the other sovereign is
“reasonably comparable to that of Virginia,” (3) the decree was not obtained through fraud,
and (4) enforcement of the other sovereign’s decree would not be “contrary to the public
policy of Virginia.” Id.
The first and third requirements are not at issue here. As to the first, USCIS
acknowledges that Boateng and Gyasi’s divorce is valid in Ghana. Reply Mem. Supp.
Resp.’s Mot. Summ. J. at 2 n.2. In fact, a Ghanaian court has expressly confirmed the
validity of the divorce under Ghanaian law. There is thus no question Ghana had
jurisdiction to enforce the divorce “within its own judicatory domain.” Am. Online, 571
2
Boateng’s divorce from her first husband was accomplished via Ghanaian
customary law, rather than by court order, but neither party argues a declaration sufficient
to dissolve a divorce under Ghanaian law should be treated differently from a divorce
granted by a Ghanaian court for the purposes of comity. See Restatement (Third) of
Foreign Relations Law § 484 n.6 (1987) (explaining that “the same rules of recognition”
generally apply to nonjudicial divorces as to judicial divorces).
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S.E.2d at 133. As to the third requirement, no party suggests that the divorce was obtained
through, or tainted by, fraud. Accordingly, recognition of the divorce in Virginia turns
entirely on the second and fourth America Online requirements. We consider each of them
in turn.
A.
With respect to the second America Online requirement, we must determine whether
the law of Ghana, which grants divorces to its citizens even when those citizens are
domiciled outside of Ghana, is “reasonably comparable to the law of Virginia.” Am.
Online, 571 S.E.2d at 133.
Virginia, like most of her sister states, will only grant a divorce if at least one spouse
is domiciled in Virginia at the time of the divorce. Va. Code Ann. § 20-97; Blackson v.
Blackson, 579 S.E.2d 704, 709 (Va. Ct. App. 2003). Moreover, Virginia will not recognize
a divorce granted by a sister state unless one spouse was domiciled in that state at the time
of the divorce. Howe v. Howe, 18 S.E.2d 294, 298 (Va. 1942). Relying on Howe, USCIS
argues that Virginia also would not recognize a divorce granted by a foreign nation unless
one spouse was domiciled in the foreign nation at the time of the divorce. Resp. Br. at 14–
15.
But when the Howe court rejected Arkansas’ authority to grant a divorce to a man
domiciled in North Carolina, it reasoned that “[f]or the purposes of citizenship,” the man
had no more relation to Arkansas than any temporary visitor would have. 18 S.E.2d at 296.
Rather, he “stood exactly as he would have stood had he gone to hunt bear in the canebrakes
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of that State.” Id. In doing so, Howe emphasized the power of both domicile and
citizenship to provide a sovereign authority over its own people. See id. at 296–97.
Moreover, no Virginia appellate court has ever refused to recognize a divorce
obtained in a foreign country by citizens of that country because neither spouse was
domiciled there at the time of the divorce. This is unsurprising, given that the concerns
that have animated the Supreme Court of Virginia’s treatment of divorces granted by a
sister state when neither spouse was domiciled in that state simply are not present when a
foreign nation grants a divorce to its own citizens. Virginia considers divorces granted by
a sister state to two non-domiciliaries problematic because a state in which neither party is
domiciled usually lacks a connection to the parties that would justify its exercise of control
over the spouses’ marital status. See Evans v. Asphalt Rds. & Materials Co., 72 S.E.2d
321, 326–27 (Va. 1952). In Howe, for example, the court explained that the North Carolina
man who sought a divorce in Arkansas without intending to remain in Arkansas was no
more than a “sojourner” in that state. 18 S.E.2d at 297.
This concern does not exist when a foreign nation, like Ghana, grants a divorce,
valid under its own laws, to its own citizens. As several courts have explained, “a
country . . . may have a legitimate interest in the marital status of the parties, even though
it does not accept the common law jurisdictional concept of domicile.” Scott v. Scott, 331
P.2d 641, 644 (Cal. 1958) (Traynor, J., concurring); see also Perrin v. Perrin, 408 F.2d
107, 110–11 (3d Cir. 1969) (“[D]omicile is not intrinsically an indispensable prerequisite
to jurisdiction[.]”). Indeed, the Restatement of Foreign Relations Law suggests a foreign
nation has an interest in the marital status of its citizens, even if they are not currently
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domiciled in that nation. Restatement (Third) of Foreign Relations Law § 484 n.1 (1987)
(noting that “other substantial connections between the rendering state and a party, for
example nationality, may suffice to justify recognition of a divorce”). Several international
agreements similarly recognize that citizenship in the country where the divorce is sought,
like domicile and habitual residence, provides a legitimate and independent basis upon
which a country may grant a divorce. See Hague Convention on the Recognition of
Divorces and Legal Separations art. 2(3), June 1, 1970, 978 U.N.T.S. 393; Council
Regulation 2019/1111, art. 3(b), 2019 O.J. (L 178) 19.
The dissent disputes the relevance of these authorities while ignoring that the
Supreme Court of Virginia itself recognized the connection between citizenship and a
sovereign’s authority to grant a divorce more than eighty years ago. Rather than accept the
significance of the Howe court’s reasoning, the dissent relies on cases that emphasize the
importance of domicile to each state’s jurisdiction to grant a divorce. But this gets it
backwards. The domicile requirement rests on each state’s “right to regulate the domestic
affairs of [its] citizens.” Rhonda Wasserman, Divorce and Domicile: Time to Sever the
Knot, 39 Wm. & Mary L. Rev. 1, 17 (1997); see also Michael M. O’Hear, Note, “Some of
the Most Embarrassing Questions”: Extraterritorial Divorces and the Problem of
Jurisdiction Before Pennoyer, 104 Yale L.J. 1507, 1525 (1995). In fact, in the influential
early case Ditson v. Ditson, the Supreme Court of Rhode Island expressly grounded each
state’s right to control the marital status of its domiciliaries on the more general principle
that each “country or nation” has a “right . . . to determine the status of one of its own
citizens.” 4 R.I. 87, 87 (1856). It follows that when citizenship does not depend on
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domicile, neither does “the right of a . . . nation to determine the status of one of its own
citizens.” Id.; see also Restatement (Third) of Foreign Relations Law §§ 402(2), 421(2)(d).
Citizenship in a nation, like domicile in a state, “implies a nexus between person
and place of such permanence as to control the creation of legal relations.” Williams v.
State of N.C. (Williams II), 325 U.S. 226, 229 (1945); see also Evans, 72 S.E.2d at 324.
Thus, the citizenship of both parties in a nation provides that nation with a jurisdictional
basis for granting the parties a divorce that seems “reasonably comparable” to the
relationship between a state and its domiciliaries. For these reasons, we believe that, if
faced with the question, the Supreme Court of Virginia would consider Boateng and
Gyasi’s citizenship in Ghana, the nation in which the divorce was granted, to be an
acceptable alternative to domicile. 3
3
In Jahed v. Acri, we predicted that Virginia would not recognize a Pakistani
divorce granted to Afghan citizens who were domiciled in the United States at the time of
the divorce. 468 F.3d at 236 n.5. This is entirely consistent with our holding today.
Because Jahed’s parents were not citizens of Pakistan, citizenship did not offer an
alternative basis for jurisdiction. The same is true for American citizens who obtain
divorces abroad — domicile remains critical to the validity of a divorce granted by one
nation not to its own citizens, but to citizens of another nation. See Harrison v. Harrison,
214 F.2d 571, 573 (4th Cir. 1954).
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B.
We turn to the fourth America Online requirement: whether recognition of a
divorce obtained in the absence of domicile would be contrary to the public policy of the
Commonwealth.
USCIS maintains that Virginia Code § 20-97 compels the conclusion that any
divorce issued in the absence of domicile violates the public policy of Virginia. See Resp.
Br. at 17. The relevant portion of § 20-97 provides only that:
No suit for annulling a marriage or for divorce shall be maintainable, unless
one of the parties was at the time of the filing of the suit and had been for at
least six months preceding the filing of the suit an actual bona fide resident
and domiciliary of the Commonwealth.
Va. Code Ann. § 20-97. This statute simply establishes that domicile is required for
Virginia’s own courts to grant a divorce. It does not prohibit the recognition of out-of-state
divorce decrees granted in the absence of domicile.
Nor does it follow that Virginia would refuse to recognize, as a matter of comity, a
divorce issued by a foreign nation simply because Virginia itself would not grant a divorce
under similar circumstances. Cf. McFarland, 19 S.E.2d at 84 (“[L]ack of reciprocity is not
generally regarded as a basis for the denial of comity.”). This is especially true where, as
here, the basis for the foreign nation’s jurisdiction to grant the divorce is the divorcing
parties’ citizenship in that nation, a basis that has no independent analogue in the domestic
context. Of course, Virginia could, as some states do, expressly forbid the recognition of
all out-of-state divorces where both spouses are domiciled in the state where recognition is
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sought. See, e.g., Neb. Rev. Stat. § 42-341; N.H. Rev. Stat. Ann. § 459:1. But Virginia
law does not so provide. 4
Furthermore, the Supreme Court of Virginia has repeatedly recognized that the
public policy of Virginia favors recognizing divorces whenever possible, so that one’s
marital status does not change with one’s location. See Newport v. Newport, 245 S.E.2d
134, 139 (Va. 1978); Humphreys v. Humphreys, 123 S.E. 554, 561 (Va. 1924). And where,
as here, the divorce is followed by a subsequent marriage, the Commonwealth’s interest in
uniformity in marital status is reinforced by an even more foundational aspect of its public
policy: “uphold[ing] the validity of the marriage status as for the best interest of society.”
Levick v. MacDougall, 805 S.E.2d 775, 778 (Va. 2017) (quoting Needam v. Needam, 33
S.E.2d 288, 290 (Va. 1945)).
The importance of recognizing out-of-state divorces has only increased with
advances in transportation. More than 50 years ago, in an often-cited opinion, New York’s
highest court explained that in “a highly mobile era . . . it is needful on pragmatic grounds
to regard the marriage itself as moving from place to place.” Rosenstiel v. Rosenstiel, 209
N.E.2d 709, 712 (N.Y. 1965). The world has become even smaller and more mobile since
then. See Ann Laquer Estin, Marriage and Divorce Conflicts in International Perspective,
4
Indeed, § 20-97 itself indicates that domicile, at least in the traditional sense, is not
an invariable requirement for recognition of a divorce in Virginia. Traditionally, “[t]o
change domiciles, a person must intend to make the new place her home.” Jahed, 468 F.3d
at 236; Howe, 18 S.E.2d at 297. But to accommodate members of the Armed Services
serving a tour in Virginia, even those who do not intend to make Virginia their home, the
Commonwealth presumes, for purposes of jurisdiction to grant a divorce, that those
stationed in the Commonwealth for six months are domiciled in Virginia. Va. Code Ann.
§ 20-97.
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27 Duke J. Comp. & Int’l L. 485, 516 (2017) (explaining that “[g]lobalization has
heightened the importance of a durable and portable family status”).
Given these precedents, we believe when, absent any fraud, a couple has married
relying on a consensual divorce granted by a foreign nation to its citizens and in accordance
with its laws, Virginia public policy would favor recognition of the divorce upon which
the second marriage’s legitimacy depends.
V.
In sum, Boateng and Gyasi’s divorce satisfies each of the preconditions Virginia
has imposed on the doctrine of comity. A divorce obtained in a foreign nation by its own
citizens is not invalid in Virginia simply because these citizens were not domiciled in their
home country at the time of the divorce. Their citizenship in that country provides an
adequate relationship between person and place to justify the foreign nation’s exercise of
control over their marital status. Thus, as a matter of comity — which requires “due regard
both to international duty and convenience, and to the rights . . . of other persons who are
under the protection of its laws,” Hilton, 159 U.S. at 164 — we believe Virginia would
recognize Boateng’s divorce from her first husband. 5
5
In Annan v. Lynch, 202 F. Supp. 3d 596, 597, 604–06 (E.D. Va. 2016), the district
court recognized a Ghanaian customary divorce under similar circumstances because it
satisfied the test set out in Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974). While we agree
with the holding in Annan, we do not agree with its rationale. Matter of Ma applies only
when there has been no subsequent marriage, and neither Matter of Ma nor the cases it
relied on apply Virginia law. The Annan court should have looked to the requirements for
recognition set out in America Online.
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In so holding, we emphasize a critical difference between Virginia’s obligations
under the Full Faith and Credit Clause and its discretion when extending comity. A state
may not disregard a judgment rendered by a sister state simply because it disagrees with
the “policies reflected in the judgment.” Baker by Thomas v. Gen. Motors Corp., 522 U.S.
222, 233 (1998) (quoting Estin, 334 U.S. at 546). In that context, focusing on the domicile
of the spouses — and thus on the divorcing state’s jurisdiction over their marital status —
is the only effective means for a state to ensure that its social policies are not undermined
by proceedings in a sister state with no legitimate interest in the marriage. Williams II, 325
U.S. at 230. By contrast, the Commonwealth may refuse to recognize a foreign divorce as
a matter of comity if the divorce or the manner in which it was obtained offends Virginia
law or public policy. We reject only USCIS’s argument that, pursuant to present Virginia
law, the Commonwealth would refuse to recognize a divorce granted by foreign nation to
its own citizens simply because neither was domiciled in the foreign nation at the time of
the divorce.
Accordingly, we reverse the judgment of the district court and remand with
instructions to grant Adjei’s application for naturalization.
REVERSED AND REMANDED WITH INSTRUCTIONS
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WILKINSON, Circuit Judge, dissenting:
At issue is whether the Commonwealth of Virginia would recognize a divorce
granted by a foreign country, Ghana, to two Ghanaian citizens who were neither domiciled
nor present there at the time of the divorce. Michael Adjei seeks to establish the validity of
his wife’s prior Ghanaian divorce in order to demonstrate that he properly became a lawful
permanent resident based on his marriage to her and is therefore eligible for naturalization.
The majority does not dispute that Virginia has long refused to recognize divorces
granted by other states unless at least one spouse was domiciled in the divorcing
jurisdiction. Nor does it dispute that Virginia itself will not grant a divorce unless at least
one spouse is a domiciliary of the Commonwealth. Instead, the majority hypothesizes that
Virginia would extend comity to a foreign country’s divorce decree as long as the spouses
were citizens of that country. Maj. Op. at 12. The majority surmises based on a hodgepodge
of non-Virginia sources that the Virginia Supreme Court would hold that citizenship, even
without domicile, creates a sufficient relationship with the divorcing country to justify that
country’s exercise of jurisdiction. Id. at 9–12.
Not so. The majority has concocted a pre-Erie federal-common-law amalgam that
ventures far afield from present Virginia law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64(1938). Nothing in Virginia’s current law or precedent suggests that it would abandon the
age-old proposition that the “judicial power to grant a divorce . . . is founded on
domicil[e].” Williams v. North Carolina (Williams II), 325 U.S. 226, 229 (1945); see Evans
v. Asphalt Roads & Materials Co., 72 S.E.2d 321, 324–26 (Va. 1952). There is no
indication that Virginia would recognize non-domiciliary divorces—i.e., divorces granted
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by jurisdictions in which neither spouse is domiciled. I would not get ahead of the Virginia
Supreme Court and purport to transform Virginia’s law in this way.
Because this case concerns an alien seeking American citizenship, all “doubts
should be resolved in favor of the United States and against the claimant.” Berenyi v. Dist.
Dir., INS, 385 U.S. 630, 637 (1967) (quotation marks omitted). It is at the very least
doubtful that Virginia would extend comity to a divorce granted by a foreign country to
non-domiciliaries. I would therefore hold that the petitioner has not carried his burden to
show that Virginia would recognize the Ghanaian divorce at issue.
I.
A.
The Supreme Court has explained that “[u]nder our system of law, judicial power
to grant a divorce—jurisdiction, strictly speaking—is founded on domicil[e].” Williams II,
325 U.S. at 229. The word “domicile” comes from the Latin domus, meaning home.
“Domicil[e] implies a nexus between person and place of such permanence as to control
the creation of legal relations and responsibilities of the utmost significance.” Id. That is
why a spouse’s domicile in a state gives the state power “to dissolve a marriage
wheresoever contracted.” Id. at 229–30; see also Williams v. North Carolina (Williams I),
317 U.S. 287, 297 (1942) (explaining that domicile is “essential in order to give the court
jurisdiction which will entitle the divorce decree to extraterritorial effect”). “The framers
of the Constitution were familiar with this jurisdictional prerequisite, and since 1789
neither this Court nor any other court in the English-speaking world has questioned it.”
Williams II, 325 U.S. at 229.
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The Supreme Court of Virginia has proven no exception. Virginia, taking its cue
from the United States Supreme Court, has recognized that it is the “[d]omicile of one party
to the divorce proceeding” that “creates an adequate relationship with the state to justify
its exercise of power over the marital relation.” Evans, 72 S.E.2d at 324, 326 (citing, inter
alia, Williams I, 317 U.S. at 298). “It is well settled that each state has exclusive control
over the marital status of those domiciled within its borders.” Id. at 324 (emphasis added).
Because domicile ensures the existence of a connection between the spouses and the state
strong enough to justify that state’s jurisdiction over the marriage, the “fact of domicile” is
the “controlling question.” Id. (citing Humphreys v. Humphreys, 123 S.E. 554, 559–60
(Va. 1924), and McFarland v. McFarland, 19 S.E.2d 77, 81–82 (Va. 1942)).
B.
Virginia’s view that domicile creates an adequate relationship with the state to
support the state’s jurisdiction over the marriage is exemplified by its caselaw and its own
requirements for granting a divorce.
First, the Virginia caselaw. The majority cannot muster a single example of a
Virginia court recognizing a non-domiciliary divorce granted by another state or country.
To the contrary, the Virginia Supreme Court has refused to recognize a foreign divorce
explicitly because domicile was lacking. See Howe v. Howe, 18 S.E.2d 294, 300 (Va. 1942)
(refusing to extend comity to a divorce granted by Arkansas because “Dr. Howe was never
domiciled in Arkansas” and therefore its “courts were without jurisdiction”).
Second, Virginia’s own divorce statute. Virginia has long required that at least one
spouse be domiciled in the Commonwealth before granting a divorce. See Towson v.
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Towson, 102 S.E. 48, 52 (Va. 1920) (“Section 2259 of the Code (1904) declares that no
suit for divorce shall be maintainable in the courts of this commonwealth unless one of the
parties has been domiciled in the state for at least one year preceding the commencement
of the suit.”). Today, no suit for divorce may be maintained in Virginia unless at least one
spouse has been “for at least six months preceding the filing of the suit an actual bona fide
resident and domiciliary of the Commonwealth.” Va. Code § 20-97. This requirement is
further evidence that Virginia views domicile as a prerequisite to jurisdiction to grant a
divorce. 1
The majority muses that because Virginia’s underlying concern is with the existence
of an adequate connection between the spouses and the state to justify jurisdiction over the
marriage, the Virginia Supreme Court would recognize citizenship as an “acceptable
alternative to domicile.” Maj. Op. at 9–12. The majority asserts that citizenship in a foreign
state “implies a nexus between person and place of such permanence as to control the
creation of legal relations.” Id. at 12 (quoting Williams II, 325 U.S. at 229). But that
sentence from Williams II expressly uses the term “domicil[e],” not citizenship. Tellingly,
1
The majority emphasizes that because § 20-97 presumes that members of the
armed forces stationed in Virginia for at least six months are domiciled in the
Commonwealth, that statute indicates that domicile in the traditional sense is not an
invariable requirement for jurisdiction to grant a divorce. Maj. Op. at 14 n.4. But this
narrow dispensation for military servicemembers proves the rule that domicile is generally
required for jurisdiction. In fact, § 20-97 emphasizes domicile’s importance by granting
servicemembers a presumption of domicile when it just as easily could have exempted
them from the domicile requirement altogether. Moreover, this presumption is evidence of
the general importance of domicile to jurisdiction everywhere: If servicemembers stationed
in Virginia for at least six months could not obtain divorces in the Commonwealth, they
would have difficulty obtaining divorces anywhere given the likely difficulty of proving
domicile in any other state while they were stationed in Virginia.
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the majority cites no Virginia case for the proposition that citizenship without domicile is
an adequate basis for jurisdiction. The majority instead grasps at straws like a California
Supreme Court concurrence, a Third Circuit case, a Restatement of Foreign Relations Law,
and a Hague Convention on divorces. See id. at 10–11. All good sources to be sure, but
what relevance does this disparate assemblage bear to Virginia law?
Surprisingly, the majority cites Howe for the proposition that the Virginia Supreme
Court has recognized a connection between citizenship and a sovereign’s authority to grant
a divorce. Maj. Op. at 9–11. It builds its case on just a single use of the word “citizenship”
in that opinion, in the following context: “One would have to be incredibly credulous to
believe that Dr. Howe went to Arkansas intending to establish a domicile there. For the
purposes of citizenship he stood exactly as he would have stood had he gone to hunt bear
in the canebrakes of that State.” Howe, 18 S.E.2d at 296. This passage does not begin to
support the proposition that citizenship without domicile in the international context is
sufficient to create jurisdiction to grant a divorce. In contrast to this stray reference to
citizenship, the Howe opinion mentions “domicile” twenty-six times, stating that “[e]ach
state has exclusive control of the matrimonial status of those domiciled within its borders,”
Dr. Howe “must have at least acquired an Arkansas domicile,” “statutory requirements for
domiciliary residence are jurisdictional,” and “[s]ince Dr. Howe was never domiciled in
Arkansas, its courts were without jurisdiction.” Id. at 297, 300 (emphasis added). I am
surprised that the majority relies on a decision that so disproves its point.
There are additional reasons to be skeptical. Virginia’s caselaw emphasizes that
domicile creates a relationship sufficient to support jurisdiction and, crucially, we have
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recognized that domicile goes beyond mere citizenship: “As a general matter, a domicile is
understood to be ‘a person’s true, fixed, principal and permanent home.’” Jahed v. Acri,
468 F.3d 230, 236 (4th Cir. 2006) (quoting Black’s Law Dictionary 523 (8th ed. 2004)).
Someone may have multiple citizenships by operation of law, but as a factual matter a
“person can have only one domicile.” 23 Va. Admin Code § 10-110-30(B). It is hardly
implausible therefore that domicile constitutes a connection that is strong enough to
support jurisdiction but citizenship does not: Domicile, not citizenship, refers to a person’s
one “fixed, principal and permanent home,” so only domicile “implies a nexus between
person and place of such permanence as to control the creation of legal relations.” Williams
II, 325 U.S. at 229 (emphasis added).
The instant case is Exhibit A. While the relevant parties, Barbara Boateng and
Kingsley Gyasi, were citizens of Ghana at the time of the decree, neither the petitioner nor
the majority contends that they were domiciliaries of Ghana. They had moved to and
became lawful permanent residents of the United States. As such, Virginia would view
their state of residence—not Ghana—as having “exclusive control over the[ir] marital
status” because they are “domiciled within its borders.” Evans, 72 S.E.2d at 324. It is
therefore highly doubtful that Virginia would view Ghana as having jurisdiction to grant a
divorce to these United States domiciliaries.
II.
Why would Virginia extend comity to a Ghanaian divorce decree that it views as
beyond Ghana’s power to grant? Comity is the recognition that a sovereign gives to
another’s acts “having due regard both to international duty and convenience, and to the
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rights of its own citizens, or of other persons who are under the protection of its laws.”
Hilton v. Guyot, 159 U.S. 113, 164 (1895). Because comity is “a matter of favor or
courtesy” and the “control and recognition of marriage is left to each State in its sovereign
capacity,” “no State is bound by comity to give effect in its courts to the divorce laws of
another State repugnant to its own laws and public policy.” McFarland, 19 S.E.2d at 82–
83.
The majority recognizes these principles and cites Virginia’s general test for
whether to extend comity. Maj. Op. at 6–7. Under that test, (1) “the foreign court must have
personal and subject matter jurisdiction to enforce its order within its own judicatory
domain”; (2) “the procedural and substantive law applied by the foreign court must be
reasonably comparable to that of Virginia”; (3) “the foreign court’s order must not have
been falsely or fraudulently obtained”; and (4) “enforcement of the foreign court’s order
must not be contrary to the public policy of Virginia, or prejudice the rights of Virginia or
her citizens.” Am. Online, Inc. v. Nam Tai Elecs., Inc., 571 S.E.2d 128, 133 (Va. 2002).
The majority’s application of this test is questionable at best.
Begin with the requirement that Ghana’s “procedural and substantive law” of
divorce must be “reasonably comparable to that of Virginia.” Id. The majority mentions
but skims over the key procedural difference between Ghanaian and Virginia divorce law:
Virginia requires at least one spouse to be domiciled in the state for at least six months,
Va. Code § 20-97, but Ghana has no such requirement. Indeed, Ghanaian law apparently
does not require either spouse to be present in the country at the time of divorce—or even
to have set foot in the country for years. Given the tight link that Virginia caselaw has
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drawn between domicile and jurisdiction to grant a divorce, this is no small difference.
Moreover, Ghanaian law allows parties to divorce based on a tribal ceremony in which the
spouses do not even participate, as long as the spouses’ family members are involved. See
In re Kodwo, 24 I&N Dec. 479, 481–82 (BIA 2008). Virginia has no similar procedure.
These differences are significant and cast doubt on whether the Virginia Supreme Court
would find Ghana’s divorce law reasonably comparable to Virginia’s.
It is also likely that the Virginia Supreme Court would find that extending comity
to the Ghanaian divorce decree would contravene Virginia’s public policy. As explained
in Part I, Virginia’s precedents and divorce statute reflect the view that domicile is essential
to a jurisdiction’s power to grant a divorce. It is not citizenship but domicile—where the
spouses make their principal and permanent home—that signals the existence of a
sufficient nexus with the jurisdiction to justify its exercise of power over the marriage. See
Evans, 72 S.E.2d at 326. In other words, Virginia’s public policy holds that the power to
grant a divorce is based on territorial control over the land upon which the spouses live:
“each state has exclusive control over the marital status of those domiciled within its
borders.” Id. at 324 (emphasis added).
Because the power to grant a divorce belongs exclusively to the state in which the
spouses currently reside, it would contravene Virginia public policy to recognize a
Ghanaian divorce granted to non-domiciliaries—a divorce decree that, in Virginia’s view,
Ghana was powerless to grant. Respect for the sovereignty of the state in which the spouses
are domiciled requires this conclusion. See McFarland, 19 S.E.2d at 82–83. Moreover,
enabling another jurisdiction to exercise power to end the marriage threatens to introduce
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additional unpredictability and jurisdictional conflict into the sphere of family relations—
a result Virginia has taken pains to avoid.
III.
Ultimately, because this case concerns an applicant for American citizenship, all
“doubts should be resolved in favor of the United States and against the claimant.” Berenyi,
385 U.S. at 637 (quotation marks omitted) (explaining that “it has been universally
accepted that the burden is on the alien applicant to show his eligibility for citizenship in
every respect”). Given Virginia’s view on the relationship between domicile and the power
to grant a divorce and how this public policy would affect the comity analysis, it is doubtful
that the Virginia Supreme Court would extend comity to the Ghanaian divorce at issue
here. Petitioner has thus failed to carry his burden.
Family relations lie at the heart of state sovereignty and state-court competency.
States have a sovereign interest in the “control and recognition of marriage,” McFarland,
19 S.E.2d at 82, and state tribunals have developed a “special proficiency . . . over the past
century and a half” in handling divorces, Ankenbrandt v. Richards, 504 U.S. 689, 704
(1992). It is certainly within the prerogative of the Commonwealth of Virginia to steer
Virginia law down the path that the majority favors, away from the state’s paramount
emphasis on domicile. Because I would wait for the Virginia Supreme Court to effect any
such fundamental shift in Virginia law, I respectfully dissent.
As federal judges, we must give effect to Virginia law and policy as they currently
stand, not move state law in our preferred direction. Federal common law once gave federal
courts this open range freedom, see Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), and I am
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sorry to see the majority revert. Its decision is a throwback to a discredited era, to a day
when wisdom reigned supreme on the bench, not in the given law and structure of our
federal system. Declaring that Virginia would recognize non-domiciliary divorces in
foreign jurisdictions is a step that lies far beyond our legal authority to take. I would affirm
the judgment of the district court.
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