A-8877411.
Decided by Board August 5, 1955.
Voluntary departure, section 244 (e) of Immigration and Nationality Act — Good moral character, section 101 (f) (2) of the act — Adultery, Illinois.
While the marriage of the parties involved in an adulterous relationship could prevent criminal prosecution for adultery under Illinois law, such marriage cannot cure the adultery for the purposes of section 101 (f) (2) of the Immigration and Nationality Act. Accordingly, the respondent is precluded from establishing the requisite good moral character and cannot be granted voluntary departure under section 244 (e) of the act.
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
BEFORE THE BOARD
Discussion: The issue presented by this appeal is whether respondent has established statutory eligibility for voluntary departure under section 244 (e) of the Immigration and Nationality Act, on an application submitted during the hearing on March 15, 1955. The special inquiry officer has denied relief on a finding that the respondent has committed the offense of adultery within the statutory period required for good moral character and is precluded from establishing eligibility for relief (section 101 (f) (2) of the Immigration and Nationality Act).
The respondent, a 33-year-old male alien, native and citizen of Cuba, last entered the United States at Miami, Florida, on August 4, 1950. He was admitted as a visitor for pleasure. No extension of the period of temporary stay was granted. He has remained up to the present time. Deportability is conceded. On December 3, 1950, he was married to a United States citizen. In December 1952 he and his spouse separated and in July 1954 he instituted divorce proceedings which were pending at the time of hearing on March 15, 1955. Respondent admitted that since February 1953 he and one L---- M---- C---- I---- (then an unmarried woman), lived together in Chicago, Illinois, and that he is the father of a son born to such woman on December 1, 1953. He has stated that his son, and the son's mother, reside with him and are supported by him. (L---- M---- C---- I---- is subject of similar proceedings, A-8877410.)
On May 13, 1955, counsel was heard in support of the appeal. He stated that the respondent was granted a decree of divorcement on April 15, 1955, dissolving the 1950 marriage; and that on April 16, 1955, he was married to the mother of his child. Documentary evidence of the divorce and the marriage has been submitted. Counsel contends that the evidence does not establish that respondent has committed adultery under the Illinois statutory law because there has been no open and notorious cohabitation as man and wife that would constitute the offense. Two criminal cases, one involving adultery and fornication, and one involving fornication, have been cited to support his contention.
In the case, People v. Miner, 58 Ill. 59 (1871), a man and a woman were charged in two counts in an indictment with adultery and fornication. A judgment of conviction of the male person in the lower court was reversed on appeal on the basis that the evidence barely created a presumption of illicit sexual intercourse and was insufficient; also, because the marriage of the convicted person was based on rumor and there was no satisfactory evidence that the female person was married. The evidence was found insufficient to establish the alleged crime or crimes. The court, in regard to the evidence necessary to establish the offense or offenses, stated: "* * * The living together must be open and notorious, as if the relationship of husband and wife existed. The illicit intercourse must be habitual * * *. Reputation and cohabitation are not sufficient." * * *
The case, People v. Searls, 13 Ill. 597 (1852), involved an indictment charging fornication. The court defined the elements of the offense by stating: "* * * The parties must dwell together openly and notoriously, upon terms as if the conjugal relation existed between them. In other words, they must cohabit together." * * *
The pertinent statute relating to the offense, adultery, is section 37.022 Illinois Criminal Code (Jones). Although the elements of the crime are not set forth in the statute, decisions of the Supreme Court of Illinois have construed the statute and defined the offenses therein, and have specified the evidence required for conviction. We have examined these decisions to ascertain the elements of adultery.
37.022 Adultery. If any man and woman shall live together in an open state of adultery or fornication, or adultery and fornication, every such person shall be fined not exceeding $500, or confined in the county jail not exceeding one year. For a second offense, such man or woman shall be severely punished twice as much as the former punishment, and for a third offense, treble, and thus increasing the punishment for each succeeding offense: Provided, however, that it shall be in the power of the party or parties offending, to prevent or suspend the prosecution by their intermarriage, if such marriage can be legally solemnized, and upon the payment of the costs of such prosecution. (Act of 1874.)
In the case, Lyman v. People, 198 Ill. 544; 64 N.E. 974 (1902) (Supreme Court) the court stated:
* * * Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife, whether the latter is married or single * * *. The offense of the married person is adultery, and of the unmarried person fornication * * *.
The statute pertinent in the instant matter was interpreted in the case, People v. Green, 276 Ill. 346; 114 N.E. 518 (1916), which involved an indictment against a married man and a single woman for adultery and fornication. In construing the statute the court stated:
In a sense the offense is joint, but the statute defines the crime as adultery where both parties are married or fornication where neither is married, and adultery and fornication where one is married and the other unmarried. The offense charged as to the plaintiff in error was adultery and as to the woman fornication.
To constitute adultery the parties must dwell together openly and notoriously, upon terms as if the conjugal relation exists. They must cohabit together and there must be illicit relations ( People v. Martin, 180 Ill. App. 578 (1913); and People v. Stern, 207 Ill. App. 154 (1917)).
We have carefully examined the evidence. The undisputed testimony of respondent establishes that from February 1953 to March 15, 1955, while he was lawfully married, he lived and cohabited with a woman not his wife and supported her, and that a child was born by the relationship. They were dwelling in the same house at the same address and the cohabitation was habitual. Despite the contention of counsel, we find that the evidence establishes that respondent has committed adultery.
Counsel asserts that should adultery have been committed, there is no offense now, because the respondent has married the woman involved; and that criminal prosecution may be prevented or suspended under the proviso to the applicable Illinois statute. A decision in a divorce proceeding is cited in support of this point. Reference has also been made to decisions on the issue of good moral character, which were made prior to the Immigration and Nationality Act.
The case, Turner v. Turner, 185 Ill. App. 62, a divorce proceeding predicated on alleged adultery, involved the question of competency of testimony of one of the parties, concerning acts of sexual intercourse with each other prior to the marriage. It was held that the party was incompetent to testify and a new trial was granted on the issue of adultery.
The standard of good moral character to be used in determining eligibility for discretionary relief depends on the provisions of the statute in effect at the time, and under which a request for relief is made. Thus, judicial and administrative decisions pertaining to the issue of good moral character, on applications for relief under the Immigration Act of 1917, as amended, where adulterous relationships existed but were terminated, are not controlling in resolving the issue in the instant case, which must be adjudicated under the provisions of the Immigration and Nationality Act.
We have stated that conviction for adultery is not necessary to establish that fact in administrative deportation proceedings ( Matter of R---- L----, 0300-257135, Int. Dec. No. 676 (1954)). Although respondent's marriage under the circumstances apparently could enable him to prevent criminal prosecution for adultery under Illinois law, if such action were contemplated, such marriage cannot cure the adultery for the purpose of section 101 (f) (2) of the Immigration and Nationality Act. The offense of adultery is complete even if it existed for a single day ( Lyman v. People, supra). Accordingly, we find that the respondent is precluded from establishing the requisite good moral character for the five-year period immediately preceding his application for relief under section 244 (e) of the Immigration and Nationality Act. The appeal will be dismissed.
Order: It is ordered that the appeal be dismissed.