A-10259724
Decided by Board December 7, 1956
Good moral character — Adultery — Section 101 (f) (2), Immigration and Nationality Act.
Good moral character is established notwithstanding respondent's cohabitation with a married woman where the evidence shows that respondent did not know of the existence of the marriage; the relationship was faithful, stable and long continuing; and respondent entered into marriage with the woman as soon as they were free to do so.
CHARGE:
Order To Show Cause: Act of 1952-Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1))-Excludable at time of entry-previously arrested and deported, consent to reapply not having been granted.
BEFORE THE BOARD
Discussion: Respondent is a 24-year-old married alien, a native and citizen of Ecuador. He admits his deportability on the charge stated in the order to show cause. The special inquiry officer ordered him deported from the United States, denying his application for any form of discretionary relief. The respondent appeals to this Board from that decision.
Respondent is a seaman who testified that he has made 40 or 50 trips to the United States as a crewman. Following an entry on or about May 19, 1952, he failed to depart, and he was deported from this country to Ecuador in June or July 1954, by airplane. He returned to the United States, again entering as a seaman, at Mobile, Alabama, on June 8, 1955.
The special inquiry officer found that respondent is not eligible for voluntary departure or any other form of discretionary relief, because he lived in an adulterous relationship from 1950 until the time of his deportation in 1954. Following his return to the United States on June 8, 1955, respondent made his way to New York and resumed his relationship with C---- L----. During the time respondent was absent from the United States, C---- L----'s first husband obtained a divorce from her in Puerto Rico. This divorce became final in October 1954. Respondent and C---- L---- entered into a valid marriage ceremony in New York City on July 18, 1955. Respondent testified that he has been living with his wife continuously since their marriage and that she depends upon him for support. He also supports her 2 children by her prior marriage, and he states that his wife is now pregnant by him. One of these children, a 4-year-old boy, bears respondent's name, although he is not respondent's blood son.
The special inquiry officer has found that respondent learned for the first time that his wife had been previously married when he was detained at Ellis Island in 1954 in deportation proceedings. Respondent testified in his hearings at that time, and again on July 17, 1956, that he had not known that his wife had been previously married until he was on Ellis Island in 1954. His wife testified on June 8, 1954, during a hearing at Ellis Island that she had never told respondent that she was already married, and that she had never taken her first husband's name. She testified that she married F---- R----, her first husband, in New York City, but returned to Puerto Rico to have her 2 children. Respondent testified that he had asked her repeatedly to marry him, and that she told him she could not marry him because she had some "problems" in Puerto Rico, but never told him what the problems were.
Until this time we have held consistently that an alien who lived out of wedlock with one who was married to another was guilty of adultery, even if he professed not to know that his paramour was already married. We held that he was chargeable with the consequences of his illegal relationship and, therefore, was precluded from showing good moral character, if he had committed adultery under the law of the jurisdiction. We made exceptions from this rule in cases where there was a ceremonial marriage, as in Matter of R---- L----, 0300-257135, 6 IN Dec. 463. In that case an alien married a man in New York, but separated from him as soon as she found that he was still married to someone else. We concluded that she was innocent of any illegal act, and that she had entered into the ceremonial marriage in good faith, not knowing that her husband was under a disability to marry. Therefore, we found that she was not precluded from establishing good moral character.
We now believe that another exception to the rule is indicated by Dickhoff v. Shaughnessy, 142 F. Supp. 535 (D.C.N.Y., 1956). The Court reviews the legislative history of section 101 (f) (2) ( 8 U.S.C. 1101 (f) (2)) and quotes from the statement of the House managers, at a conference between the two houses of Congress, as follows:
In composing the differences between the Senate and House versions, the conferees have refined the language so as to make it emphatically clear that the Attorney General may not * * * capriciously deport an alien solely on the basis of inconsequential unwitting infraction of the law. H. Rep. No. 2096, 82d Cong., 2d sess., p. 127. [Emphasis added.]
The court found three principles indicated by the legislative history of the new suspension provisions of the act: (1) to increase the Attorney General's discretionary authority to suspend deportations; (2) to retain definitions propounded in the case law; and (3) to prevent deportation for unwitting infractions of the law.
We have in the case now before us a "faithful, stable and long-continuing family relationship" such as that referred to in Dickhoff v. Shaughnessy, supra, and in Petitions of Rudder, 159 F. (2d) 695 (C.A. 2, 1947), the decision most often quoted in this connection. Respondent married the mother of his children as soon as it was possible for her to marry. The special inquiry officer has found that respondent did not know she was married when they were living together between 1950 and 1954, that she did not tell respondent until he was detained on Ellis Island that the reason she had refused to marry him was that she was already married and had a husband in Puerto Rico. Therefore, respondent was innocent of the fact that he was living in an adulterous relationship and should not be deported, in the words of the House Committee, "solely on the basis of an inconsequential, unwitting infraction of the law."
Respondent has lived in the United States less than five years. In such cases we cannot grant relief unless we take jurisdiction through certification. Therefore, we will remand this record to the special inquiry officer to reconsider respondent's application for voluntary departure.
Order: It is ordered that the outstanding order of deportation be and it is hereby withdrawn.
It is further ordered that the record be and it hereby is remanded to the special inquiry officer for reconsideration in accordance with the foregoing decision.