A-6586642
Decided by Board December 20, 1956
Good moral character — Adultery — Section 101 (f) (2), Immigration and Nationality Act.
Section 101 (f) (2) of the act does not preclude a finding of good moral character where respondent enters into a second marriage in good faith and in the honest belief that her first marriage had been lawfully dissolved when, in fact, it was not terminated until 6 years later. Hence, voluntary departure may be granted under section 244 (e) of the act. ( Matter of N----, A-2752014, Interim Decision No. 764, modified in part.)
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Immigrant-no immigrant visa.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer, August 31, 1956, directing her deportation on the charge stated above. Deportability on the stated charge appears to be conceded by counsel. Exceptions have been taken to the denial of discretionary relief.
The respondent, a native of England, a British subject, female, 40 years of age, divorced, last entered the United States at the port of New York on March 30, 1946. She was admitted as a nonquota immigrant under the Act of December 28, 1945 (8 U.S.C. 232-236), the war bride of a citizen of the United States then serving in the Armed Forces. The record establishes that when the respondent entered the United States on March 30, 1946, she was not the lawful wife of a citizen of the United States then serving in the Armed Forces. There was a legal impediment to her marriage on March 14, 1946, as her first husband did not obtain a final divorce until May 28, 1952. She was not entitled to admission under the Act of December 28, 1945, supra, and, therefore, was required to have a quota immigration visa for permanent residence. The charge stated in the order to show cause is sustained by the evidence of record.
The only issue presented is the denial of respondent's application for voluntary departure together with preexamination. Counsel informs forms us that preexamination is no longer an issue as an application for an immigrant visa has been made with the United States Consul at Nassau, British West Indies. The only obstacle to adjusting respondent's status is the deportation order which bars her return for permanent residence.
The special inquiry officer denies discretionary relief on the ground that respondent is precluded from establishing good moral character under the provisions of section 101 (f) (2) of the Immigration and Nationality Act ( 8 U.S.C. 1101) by reason of the adulterous relationship with her citizen husband prior to the divorce obtained by her first husband on May 28, 1952. The special inquiry officer concedes that except for the provisions of section 101 (f) (2), supra, he would find the respondent of good moral character and would grant her voluntary departure and preexamination. There is an affirmative showing that respondent married her citizen husband in good faith on the assumption that her first husband had obtained a divorce.
This Board in Matter of N----, A-2752014, Int. Dec. No. 764, January 18, 1956, held that an alien who remarried on the assumption that his first wife had obtained a divorce when, if fact, she had not, has committed adultery within the meaning of section 101 (f) (2) of the Immigration and Nationality Act, it being incumbent upon the alien to ascertain whether a prior marriage had, in fact, terminated before contracting a second marriage. The special inquiry officer concludes that under applicable regulations (8 CFR 6.1 (g)) he is bound by the Board's decision in Matter of N----, supra, notwithstanding the fact that the United States District Court for the Southern District of New York reached the opposite conclusion in the case of Dickhoff v. Shaughnessy, 142 F. Supp. 535.
We have carefully reviewed the issue of "technical adultery" committed under circumstances in which there is a showing that the second marriage was entered into in good faith on the assumption that a prior marriage had been lawfully dissolved. The position we took in Matter of N----, supra, has been modified by the District Court's decision in the case of Dickhoff v. Shaughnessy, supra. A uniform interpretation of this provision of the Immigration and Nationality Act of 1952 (section 101 (f) (2)) can best be served by adopting the ruling of the District Court.
It is noted that N---- brought an action against the District Director at Chicago, Illinois, and on August 31, 1956, the United States District Court for the Northern District of Illinois (Civil Action No. 56 C 291) dismissed the case without prejudice on the strength of a motion submitted by the alien to reconsider denial of discretionary relief. An order entered by this Board on October 1, 1956, withdrew the outstanding order and warrant of deportation and remanded the case to the Immigration Service for appropriate action.
Accordingly, we conclude that section 101 (f) (2) of the Immigration and Nationality Act does not preclude a finding of good moral character for the preceding five years in this particular instance by reason of the "technical adultery" of the respondent committed within the five-year period. An appropriate order granting voluntary departure in lieu of deportation will be entered.
Order: It is ordered that the outstanding order of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of her choice, within such period of time and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.