Case Update (9 Sept 2022): Macfadyen v. DHS; Nigerian divorce documents insufficient to demonstrate Nigerian divorce occurred

Sep 26

Ms. Macfadyen is a Nigerian national. She entered the U.S. in October 2001 on a B-2 visitor visa, overstayed it, was placed in removal proceedings in January 2003, filed for asylum, had her asylum application denied, and was ordered removed to Nigeria in February 2006. During removal proceedings, she married Mr. King, a U.S. citizen, in Detroit in October 2017. Prior to her marriage to Mr. King, Ms. Macfadyen was married to Richard Macfadyen, from whom she secured a divorce by the Nigerian State High Court in June 2014.

When Mr. King filed his Form I-130, seeking to classify his new wife as his "immediate relative spouse" in January 2018, he was obligated to provide not only proof of his marriage, but proof of the termination of all prior marriages. He provided certain documents that he purported to grant Ms. Macfadyen a divorce in Nigeria, but the USCIS found that the documents "appear to be fraudulent." It relied on information regarding the procedures for divorces in Nigeria that is reflected in the Department of State's Foreign Affairs Manual Reciprocity Schedule for Nigeria. Mr. King was given an additional opportunity to supplement the divorce documents. Apparently, he submitted the same documents, but with stamps affixed on May 31, 2019 by the High Court in Enugu State that said "true copy." The USCIS was not persuaded that these documents were valid, however, because apparently Mr. King's attorney had also prepared a cover letter, and the Court in Enugu State also stamped the attorney's letter as a "true copy." The agency then denied Mr. King's request. He appealed, died while the appeal was pending, and then Ms. Macfadyen filed an I-360 Widow's Petition.

Ultimately, the U.S. District Court for the ED Michigan granted the government's motion for summary judgment. Even though the state of Michigan impliedly understood Ms. Macfadyen to be divorced, because it permitted her to marry Mr. King, the USCIS is not obligated to recognize a marriage as valid simply because state law may. The denial of the application was within the discretion of the agency, and the court will apply a narrow standard in reviewing any agency determination, and is not permitted to substitute its own judgment for that of the agency, even if it disagrees.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/