A-2752014
Decided by Board January 18, 1956
Good moral character — Section 101 (f) (2), Immigration and Nationality Act — Adultery, Illinois.
(1) An alien who remarried on the assumption that his first wife had obtained a divorce when, in 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 him to ascertain whether his first marriage had, in fact, terminated before contracting a second marriage. (See Matter of U----, A-6586642, Int. Dec. No. 839, overruling this holding.)
(2) Where an alien is single and the other party to sexual intercourse is married, there may be a question in some cases whether the alien's conduct constitutes adultery. (See Matter of M----, A-6496225, 6 IN Dec. 660.) However, where the alien himself is married and has sexual relations with a woman not his wife, adultery has been committed in accordance with the common understanding of the word.
CHARGE:
Warrant: Act of 1952 — Convicted of violation of law governing sale of narcotic drug.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent is a 53-year-old male, native and citizen of Japan, who last entered the United States on March 13, 1924, at which time he was lawfully admitted for permanent residence. On January 28, 1937, he was convicted of violating the California Narcotic Act in connection with a sale of morphine and he was incarcerated at San Quentin until May 28, 1940. Counsel does not contest the finding of deportability, the only question involved being whether the respondent is statutorily eligible for suspension of deportation.
The special inquiry officer concluded that the respondent was not eligible for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act because he had committed adultery within the 10-year period and was, therefore, precluded from establishing good moral character by the provisions of section 101 (f) (2) of the same act. The facts bearing on the alleged adultery are as follows.
The respondent married his first wife on August 1, 1930, at West-port, Oregon. In 1935 his first wife returned to Japan with their child, stating that she would get a divorce and remain in Japan. The respondent testified that he continued to believe that his first wife had procured a divorce until recently when he secured his family register from Japan which did not show his first marriage or that any divorce had been granted. In the meantime, he married his present wife on May 6, 1947. Upon learning that the first marriage had not been terminated, divorce proceedings were instituted and a divorce was granted on May 19, 1955. On May 25, 1955, he remarried his present wife. The special inquiry officer's conclusion that the respondent committed adultery was based on his cohabitation with his present wife from 1947 until May 19, 1955.
The contentions in counsel's brief and at the oral argument have been carefully considered. One of these is that the criminal laws of Illinois contain a specific provision preventing prosecution for adultery in cases where the offending parties marry, thus precluding criminal prosecution of the respondent. We previously considered that Illinois statutory provision and rejected the argument in Matter of C----, A-8877411, 6 IN Dec. 675 (decided August 5, 1955), which opinion had not yet been distributed to the field offices of the Service when the special inquiry officer prepared his decision. We there considered Turner v. Turner, 185 Ill. App. 62, which counsel cited in support of his argument on this point. Application of Murra, 178 F. (2d) 670 (C.A. 7, 1950), which was also cited, is not analogous because that case involved sexual relations between two unmarried persons for a short period prior to their marriage. In Matter of C----, supra, we said that although that alien's marriage apparently prevented criminal prosecution for adultery under the Illinois law, the marriage could not cure the adultery for the purpose of section 101 (f) (2) of the Immigration and Nationality Act. We have reconsidered the matter in the light of counsel's argument but adhere to our previous opinion concerning that question.
Counsel also contends that the word "adultery" as used in section 101 (f) (2) of the Immigration and Nationality Act must be limited to such conduct as would constitute adultery under the criminal laws of Illinois and not merely adultery under the civil law of that State. We must reject this argument on the basis of our decision in Matter of M----, A-6496225, 6 IN Dec. 660 (July 20, 1955), dealing with the provisions of the law of Minnesota under which there is a specific distinction between criminal and civil adultery.
With respect to counsel's contention that there cannot be criminal or civil adultery in Illinois without criminal intent, he has stated that we have reached that conclusion with respect to New York law, citing decision in Matter of R---- L----, 0300/257135. That case is now reported as Matter of R---- L----, 0300/257135, 6 IN Dec. 463 (1954). It involved a female alien who married in good faith. Later she learned that her husband's prior marriage had not been terminated whereupon she separated from him. Since the female alien was single and did not know that her husband's marriage had not terminated, we concluded that she was innocent of the offense of adultery. However, we do not consider that case to be controlling since the adultery here pertains to the respondent's own prior marriage and the question of whether it had terminated was one concerning which he should have made inquiry.
Counsel has cited Petition of Schlau, 41 F. Supp. 161 (S.D.N.Y., 1941), reversed and remanded In re Schlau, 136 F. (2d) 480 (C.C.A. 2, 1943). Schlau had actually obtained a rabbinical divorce and the court concluded that, since he believed in good faith that there had been a valid divorce, his relations with his second wife were not criminally adulterous. In the respondent's case, there was not even an invalid divorce but he merely assumed that his first wife had obtained one. In addition, we have previously pointed out that the decisive question is not whether a criminal prosecution for adultery could be maintained.
The special inquiry officer and counsel for the respondent have discussed Gordon v. Gordon, 141 Ill. 160, 30 N.E. 446, and Meyer v. Meyer, 343 Ill. App. 544. The special inquiry officer relied on the former which was a decision of the Supreme Court of Illinois in 1892 holding that a woman, who mistakenly believed that she had been divorced and who married and cohabited with another person, was guilty of adultery. Counsel relies on Meyer v. Meyer, a decision of the Appellate Court of Illinois in 1951, in which the court distinguished the factual situation there involved from the situation existing in Gordon v. Gordon, supra. Meyer obtained a divorce on January 18, 1943, married his second wife on May 1, 1944, and his first wife filed a petition on July 11, 1944, to have the divorce decree annulled in which proceeding she was successful. In Meyer's subsequent suit for divorce, the court held that he was not guilty of adultery since he had contracted his second marriage in reliance on the court decree terminating his first marriage. We do not consider that the facts in the respondent's case are analogous because he did not contract the second marriage on the basis even of an invalid divorce decree.
We agree with counsel that, if the respondent's case were being considered under the Immigration Act of 1917, we would not be precluded from making a finding of good moral character. We believe it is equally clear that section 101 (f) of the Immigration and Nationality Act was intended to work a change in the prior administrative practice. We do not think it is necessary to resort to precise and technical definitions of adultery. It is a well-settled rule of statutory construction that words are ordinarily to be given their usual and commonly understood meaning ( Crane v. Commissioner of Internal Revenue, 331 U.S. 1, 6 (1947); Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618 (1944)). Where an alien is single and the other party to the sexual intercourse is married, there may be a question in some cases whether the alien's conduct constitutes adultery. However, where the alien himself is married and has sexual relations with a woman not his wife, we believe that adultery has been committed in accordance with the common understanding of the word.
Counsel's strongest argument is that the respondent believed that his first marriage had terminated when he contracted the second marriage. Nevertheless, we believe it was incumbent upon him to ascertain whether his first marriage had, in fact, terminated before contracting a second marriage. We doubt that his erroneous belief, even if he established good faith, would afford him a defense in a prosecution for bigamy. His daughter by the first marriage has been living in Japan and is being supported by the respondent. While counsel stated that the respondent's daughter lives with the respondent's aunt, no claim has been advanced that the whereabouts of the respondent's first wife is unknown, and there is nothing to indicate that the respondent would have had any difficulty in ascertaining, either directly from his first wife or through his daughter, whether the first marriage had been terminated. After careful review of the record, it is our considered opinion that the respondent must be held to be a person who, during the 10 years preceding his application, has committed adultery and that he is, therefore, precluded from establishing good moral character by the provisions of section 101 (f) (2) of the Immigration and Nationality Act. Accordingly, suspension of deportation must be denied and we need not determine whether respondent meets the other statutory qualifications or whether, as a matter of administrative discretion, such relief should be granted in this case.
Order: It is ordered that the appeal be and the same is hereby dismissed.