A-6816388
Decided by Board April 20, 1948
Entry for an immoral purpose — Concubinage — Excludability under section 3 of the Immigration Act of 1917 — Primary purpose in coming — Applicability of "concubinage" as to a visitor.
(1) Concubinage involves cohabitation as husband and wife on a more than temporary basis, and a "visitor" could not "cohabit" here with her flance.
(2) To support the exclusion ground of coming for an "immoral purpose" to wit, concubinage, it must appear that this was the primary purpose for coming here. (See 1 IN Dec. 373.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Coming for immoral purpose, to wit: Concubinage.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Acting Commissioner affirming the appellant's exclusion on the ground above stated.
Appellant is a 21-year-old native and citizen of Canada. She seeks admission to the United States for 2 days in order to visit her fiance in Mount Vernon, Wash. Her fiance is a sailor in the United States Navy and is apparently stationed in Mount Vernon. He has served in the Navy for the past 10 years. They had planned to be married in the United States on December 3, 1947. Appellant's foster parents had raised no objection to the marriage.
During the hearing appellant frankly admitted that she had been having relations with her fiance on occasions when he visited her in Canada on week ends. In answer to the question as to whether she would continue to have relations with him if admitted to the United States as a visitor she testified:
Q. Will you continue your relations in Mount Vernon with him, that is, your intimate relations with him in Mount Vernon, the same as Vancouver?
A. Yes.
Q. That is, you expect to have sexual intercourse with him over the weekend in Mount Vernon, do you?
A. I imagine so; yes.
The Board of Special Inquiry at Blaine, Wash., found that appellant was coming to the United States for an immoral purpose, to wit: Concubinage. The Acting Commissioner agreed with this finding. Accordingly, he affirmed the excluding decision of the Board of Special Inquiry.
The Supreme Court of the United States in Hansen v. Haff, 291 U.S. 559 (1934), held that the words "immoral purpose" as used in section 3 of the act of February 5, 1917, relate to activities which are of like character with prostitution. It went on to say that "extra-marital relations, short of concubinage, fall short of that description." Hansen v. Haff, supra, 562.
Concubinage is generally understood to be a loose or informal marital relationship not sanctioned by law. Cohabitation is an element of the relationship. King v. United States, 55 F. (2d) 1058 (C.C.A. 10, 1932); see also United States v. Bitty, 208 U.S. 393, 403 (1908). And cohabitation does not include immoral conduct. It involves more than illicit intercourse. It does not contemplate a mere sojourn, visit, or living together for a temporary period. It applies to those people living together permanently in the same dwelling house as husband and wife without the formality of marriage. See United States v. Bitty, supra; Robinson v. United States, 33 F. (2d) 545, 547 (W.D. La., 1929); Le Blanc v. Yawn, 99 Fla. 328.
In the Bitty case the Supreme Court was concerned with the construction of the words "other immoral purpose" as used in section 3 of the act of March 20, 1907, punishing the importation of alien women for the purpose of prostitution, or for any other immoral purpose. In its decision the court said, "The statute in question * * * was intended to keep out of this country immigrants whose permanent residence here would not be desirable or for the common good. * * *" [Italics supplied.]
Appellant is coming to the United States as a visitor. Both the Board of Special Inquiry and the Service found her to be a bona fide visitor. Otherwise appellant would have been excluded as an immigrant not in possession of an immigration visa. As a visitor, appellant will not and, in fact, cannot "cohabit" with her fiance in the United States. She may have illicit relations with him, but, as we have shown above, this is not cohabitation. A fortiori, it is not concubinage.
One more legal point remains. In the Hansen v. Haff case, the Supreme Court carefully pointed out that the purpose of the entry, to be for an immoral purpose, must be " only that she might live in a state of concubinage." [Italics supplied.] It then went on to say, "people not of good moral character like others, travel from place to place and change their residence. But to say that because they indulge in illegal or immoral acts, they travel for that purpose is to emphasize that which is incidental and ignore what is of primary significance."
This record, we think, shows that appellant's primary reason for coming to the United States is to visit with her fiance. To say that she seeks entry only to engage in sexual activities is, we think, on this record, "to emphasize that which is incidental and ignore what is of primary significance."
Order: The appeal is sustained and the alien admitted as a visitor for 2 days.