A-1370090
Decided by Board September 14, 1951
"Good moral character" — Requisite for eligibility for relief from deportation — Section 19 (c) of the Immigration Act of February 5, 1917, as amended.
An alien, seeking to adjust his immigration status here under Sec. 19 (c) of the Immigration Act of February 5, 1917, as amended, to enable him to bring his wife from abroad to reside with him here, is found under the circumstances not to have established that he was a person of good moral character for the required statutory period of five years, in view of the adulterous relationship he had maintained here during this period with a woman other than his wife, such lapses from common standards of morality being casual, concupiscent, promiscuous, and adulterous.
CHARGE:
Warrant: Act of 1924 — Remained longer.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on March 26, 1951, directing the deportation of the above-captioned alien from the United States on the charge set forth in the warrant of arrest. Counsel's exceptions are directed to the denial of discretionary relief. Deportability is not at issue.
The respondent, a native of the Island of Syme, Dodecanese Islands, of Greek descent, male, now 61 years of age, last entered the United States as a seaman on December 16, 1926, at the port of Baltimore, Md. A warrant for his arrest on the charge that he had remained longer than permitted by the Immigration Act of 1924 was issued December 8, 1931. He has been under immigration proceedings since that time.
The respondent has filed formal application for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended. He has resided in this country since 1926. He owns and operates a restaurant, earning approximately $40 to $50 a week. His assets consist of the business goodwill and fixtures valued at $2,000, together with cash in the bank amounting to $3,500, a $500 appearance bond and approximately $300 in war bonds. He supports his wife and children who are residing in Egypt.
Respondent has no criminal record, as evidenced by reports from local police authorities and from the Federal Bureau of Investigation. He presented affidavits of two United States citizens attesting to his good moral character. An independent investigation conducted by officers of the Service developed nothing derogatory as to his character or loyalty to the Government of the United States.
The respondent's application for discretionary relief presents only one problem. The evidence establishes that he now resides alone but his testimony indicates that he maintained an apartment with one Mrs. G---- N---- for approximately 13 months until December 1947. During that time the parties indulged in sexual relationships with each other. The intimate relations commenced several years prior to their maintaining a single apartment. The Acting Assistant Commissioner finds that the respondent has not established good moral character requisite for suspension of deportation by reason of the adulterous relationship referred to above.
Two points are urged in counsel's brief filed in behalf of the respondent. (1) The Government's laches should redound to the benefit of the alien on all doubtful questions. (2) The alien has proved good moral character for the 5 years preceding the hearing of February 6, 1950. No authorities have been cited by counsel in support of the first point. Authorities cited in support of the second will be considered hereinafter.
We concede that the proceedings herein have been pending for approximately 20 years. Respondent was originally ordered deported to Egypt at Government expense on September 1, 1932. The Egyptian authorities refused to grant travel documents for the reason that he was of Greek origin. The original order was amended November 14, 1932, to provide for his deportation to Greece. The Greek authorities, however, refused to issue a passport on the ground that he was not registered in the community claimed by him. He was released on his own recognizance to depart voluntarily or reship foreign under the warrant of deportation on November 22, 1932. The State Department continued its effort to secure travel documents throughout the year 1933 but was not successful.
Soon after the cessation of hostilities in Europe (World War II, June 1945) efforts were resumed to deport the respondent. It appears that he was again taken into custody. A memorandum in the form of a motion to reopen was filed in his behalf by Attorney Albert L. Singer on August 21, 1945. His deportation was stayed for 30 days pending action on the motion. This Board on August 27, 1945, granted the motion to reopen and directed the withdrawal of the outstanding order and warrant of deportation. Thereafter voluntary departure and preexamination were authorized but the respondent was unable to avail himself of those privileges. The proceeding was ordered reopened on March 23, 1949, to permit him to apply for suspension of deportation under the 1948 amendment to section 19 (c) of the Immigration Act of 1917. The case is now before us pursuant to this order.
Deportation is the exercise of a right existing in all sovereign governments to say whom of aliens they will allow to remain in their borders. The Immigration Act of 1924 places no limitation on this right. Since 1945 the respondent has been allowed to remain as an act of grace to permit him an opportunity to pursue administratively his request for discretionary relief. Prior to 1945 circumstances beyond the control of the sovereign prevented his removal from our borders. Under the circumstances, we see no basis for counsel's argument that the laches of the Government should redound to the benefit of the alien on the doubtful questions at issue for the apparent reason that there has been no laches. Furthermore, the great weight of authority is to the effect that the equitable doctrine of laches does not run against the Government, ( U.S. v. Dalles Military Road Co., 140 U.S. 599, 632, 35 L. Ed. 560-571 (May 25, 1891), and cases cited therein).
The Acting Assistant Commissioner finds that the adultery committed by the respondent within the 5 years immediately preceding his application for discretionary relief automatically precludes a finding of good moral character as required by section 19 (c) of the Immigration Act of 1917, as amended. This is the sole issue before us because in other respects it appears that the respondent meets the statutory requirements for the discretionary relief he seeks. This Board in Matter of O----, A-3889600, 2 IN Dec. 840 (A.G. Dec. 18, 1947), discussed fully its views regarding the relation between adultery and good moral character under section 19 (c) of the 1917 act. We said in that case, "* * * adultery may evidence lack of good moral character but * * * it does not under all circumstances necessarily require such a finding * * * a man's character is the sum total of what he has done and should not be based upon one phase of a man's life."
We supported our position with factual resumes of some 10 cases in which rulings of the Attorney General, action by this Board, decisions by the Commissioner and decisions in naturalization cues held that a favorable finding was not unwarranted despite the relationship within the statutory period.
Matter of L----, A-5643477 (approved Attorney General, September 11, 1946); Matter of J---- W----J----, A-3192373 (approved Attorney General, June 17, 1947); Matter of D----P----, A-4514630 (approved Acting Attorney General, August 15, 1947); Matter of B----, 56130/885 (November 23, 1943); Matter of H----, A-4359810 (March 14, 1947); Matter of P----, A-5946976 (March 20, 1947); Matter of F----, (now D----), A-5444981 (C.O., July 30, 1946); Matter of B----, J----, M---- and J----, discussed in Petitions of Rudder et al., 159 F. (2d) 695 (C.C.A. 2, January 27, 1947).
Reference to Matter of O---- ( supra), and the cases discussed therein reveals several consistent factors which we deem important. We find no evidence in any of them that the relationship under consideration had its inception in lust. The cohabitation took the form of a long-term, faithful relationship between two persons who considered themselves as husband and wife. No third person appears to have been injured and no family appears to have been broken up. The public was not offended since it was evident that they were considered by their friends and neighbors as upright, reputable persons.
The question for us to decide, therefore is whether the facts of the case at bar come within the pattern outlined above. The respondent has been married since 1914. As stated above, his wife and four children reside in Egypt. He has not seen his family for 25 years. He has supported them by sending $100 every 2 to 2½ months, He testified on July 27, 1947, "I want to go back to Egypt to my wife and children * * *. I want to depart voluntarily * * * I don't want to be deported" He was questioned on August 11, 1949, as to whether he intended to bring his wife and family to the United States if granted the privilege of remaining permanently, and he replied in the affirmative. He testified on February 6, 1950, as follows: "I want to legalize myself so I can take a trip to see my wife and my children whom I have not seen for 25 years. I cannot make this trip without the proper papers."
The facts concerning his relationship with the woman not his wife are briefly these. He originally came in contact with the woman as a neighbor in the apartment where he lived. He helped her during an illness through the solicitation of the janitor. During the early part of 1947 the respondent and the woman moved into the same apartment in another building. He testified on this occasion as follows:
Q. Are you answering the questions put to you on this occasion through sense of embarrassment and therefore concealing the true facts?
A. If I had anything to do with her once in a while, I paid for it.
Q. Do you wish to change your testimony concerning the period of your residence with Mrs. N---- and the question of your sleeping with her?
A. I slept with her occasionally for approximately the past 4 years, not 7 years. What I said to true that the only time we lived In the same apartment together was when we moved to 321 West 40th Street.
Q. During the period in which you claim that you shared the name apartment with her, did you sleep with her regularly?
A. Yes.
The respondent now maintains (February 6, 1950), that although he and Mrs. N---- resided together in the same apartment for 13 months, the relationship was not that of man and wife. His testimony in this regard is as follows:
Q. During the time you lived In the same apartment with Mrs. N---- you had sexual relations with her. Isn't that so?
A. Yes.
Q. At frequent Intervals?
A. No; not frequent.
Q. About how often?
A. Two or three times a month.
Q. During the entire year of 1947?
A. Yes.
Q. Did those relations continue after you moved to another address?
A. Absolutely not.
Q. Did the relations with her begin before you occupied the same apartment with Mrs. N----?
A. Yes; when we bad separate apartments In the same house.
Q. When did you first begin having sexual relations with Mrs. N----?
A. About 15 months before we moved Into the same apartment.
Q. In other words, then, you had sexual relations with Mrs. N---- for about 28 months altogether. Is that correct?
A. Yes.
Q. Did you ever hold her out as your wife?
A. No.
Q. Did you ever support her?
A. No.
* * * * * * *
Q. And you are aware too, are you not, that she claims to have lived with you as husband and wife for about 7 years?
A. I know she said that, but it is not true. She used to work for me, and then we fired her from the place just before the inspector went around for the interviews. So, she was just being spiteful. I did not live with her as husband and wife, and I did not know her for 7 years. I used to go to bed with her but It only lasted for about 4 years.
We have always been of the opinion that adultery should not be considered lightly in the case of an alien seeking discretionary relief. However, in the cases referred to in Matter of O---- ( supra), the existing marriage had already failed and deportation would not benefit the lawful spouse, wherever she may be. The respondent's removal would not cause extreme hardship to the woman with whom he lived because that relationship had long since terminated. Here the relationship, by the respondent's own admission, had its inception in lust. The cohabitation did not take the form of a long-term, faithful relationship. Certainly the respondent, by his own admission, did not consider the relationship as one of man and wife. We have here a married man who acknowledges the continued existence of his marriage while separated from his wife. He is desirous of adjusting his immigration status in order to reside physically with her. Nevertheless, he blandly admits casual and promiscuous adultery. We do not think such conduct conforms to the generally accepted moral conventions current at this or any other time.
Counsel is of the opinion that this case falls within the doctrine of recent cases decided by certain of our circuit courts of appeals wherein the issue concerned the good moral character of applicants for citizenship. This Board, of course, is not bound to construe section 19 (c) of the Immigration Act of 1917 on the basis of court decisions involving section 307 (a) of the Nationality Act of 1940. Nevertheless, we believe that such decisions should be given great weight. We note in those cases cited by counsel in which there is an opinion; namely, the Murra and Schmidt cases, that there are factual differences which distinguish them from the case at bar. The petitioner for citizenship in the Schmidt case was unmarried. He admitted occasional intimacies with "single and unmarried women" during the statutory period. The court pointed out that the relationships were "casual, concupiscent, and promiscuous, but not adulterous." The petitioner in the Murra case lived with his second wife for 4 or 5 weeks prior to their marriage. The court in approving the petition said, among other things, "* * * whatever may be thought of petitioner's transgression against the moral code, he did all within his power to rectify the wrong by making the woman his lawful wife and he has subsequently, so far as the record discloses, lived in the approved manner as husband and wife." The respondent herein is neither unmarried nor did he attempt to rectify his transgression in an approved manner.
Schmidt v. U.S., 177 F. (2d) 450; U.S. v. Manfredi, 168 F. (2d) 752; U.S. v. Palombella, 168 F. (2d) 90; Application of Murra, 178 F. (2d) 670; Petition of Burke, 185 F. (2d) 678.
The cases referred to above clearly indicate that there might be extenuating circumstances under which a single lapse from marital fidelity should be not deemed to outweigh an alien's general habits of conforming to the common standards of morality. But hers we find no extenuating circumstances for the respondent's lapses. By his own admission they were casual, concupiscent, promiscuous, and adulterous. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.