Nicola Montemurro v. Immigration and Zaturalization Service

At his deportation proceeding Nicola Montemurro, an Italian national, applied for an adjustment of status from non-immigrant visitor to that of an alien lawfully admitted for permanent residence. ( 8 U.S.C. § 1255 ). His application was rested upon the contention that he was the “spouse” of one Maria Elcira Ardiles, an Argentine national who had previously been lawfully admitted into the United States for permanent residence, and was therefore “a special immigrant” within the meaning of 8 U.S.C. § 1101 (a) (27) (A), entitled to such adjustment and to the preference priority provided by 8 U.S.C. § 1153 (a) (2).

The Special Inquiry Officer, declining to recognize as valid a Mexican divorce which Montemurro had secured from his wife Anna immediately before marrying Maria, concluded that Montemurro was not the latter woman’s spouse. He rejected Montemurro’s application and ordered him deported.

The Board of Immigration Appeals agreed with the Inquiry Officer and dismissed the appeal. The matter is here on Montemurro’s petition to judicially review that order. (8 U.S.C. § 1105a).

The burden rested upon Montemurro to establish eligibility for adjustment of status (C.F.R. 242.17(d));…