A-3889600.
Decided by Central Office, April 7, 1947. Decided by Board, November 18, 1947. Ruling by Attorney General, December 18, 1947.
Discretionary relief — Section 19 (c) of the Immigration Act of 1917, as amended — Good moral character — Adultery.
A terminated "adulterous" relationship, carried on during the 5-year period the alien is required to show good moral character under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, need not bar him from making such a showing as to moral character, where such relationship injured no one, no family was broken up, the public was not offended, and the alien had no other blemish on his record.
CHARGE:
Warrant: Act of 1924 — Remained longer — seaman.
BEFORE THE CENTRAL OFFICE
Discussion: This case relates to a 39-year-old native and citizen of Russia, who has been found both by this Service and the Board of Immigration Appeals to be deportable on the above-designated charge. This Service determined that the respondent had not been a person of good moral character within the requisite statutory period and, consequently, entered an order of deportation. The Board found to the contrary and granted the alien's application for voluntary departure and preexamination.
The matter for determination at this time is, therefore, whether the order of the Board of Immigration Appeals, dated March 17, 1947, granting the respondent discretionary relief should be reviewed by the Attorney General.
The information of record shows that the respondent and one S---- M---- commenced to live together in New York in 1932 as man and wife; that this relationship continued until about September 1945, when they separated presumably because of the pendency of these proceedings; that they lived until recently in Connecticut where they appeared to have been held in due respect by the community. S---- M---- testified at the hearing that she was married to H---- B---- in 1923; that he deserted her in 1931; that she lived in an extra-marital relationship with the respondent from 1932-1945; that she had neither seen nor heard from her husband since he deserted her. The respondent testified that he took S---- M---- into his home shortly after her husband had deserted her; that he was then aware of the fact that she was married; that they held themselves out as man and wife both in New York and Connecticut; that no efforts were undertaken to ascertain whether the marriage was terminated or to have Mrs. B---- obtain a divorce from her husband.
On the basis of the above facts, the Board of Immigration Appeals has decided that the respondent is not precluded from establishing good moral character during the 5-year period and, therefore, that he is eligible for discretionary relief as set forth in section 19 (c) (1) of the Immigration Act of 1917, as amended. The Board has found that the relationship between the respondent and Mrs. B---- "does not appear to have been one which sprang from a desire for lust or unforgiveable immorality, but was bona fide in its inception and was conducted on a long-term, faithful relationship between two persons who considered themselves husband and wife and who were so considered by their neighbors."
It is the view of this Service that the relationship between the respondent and Mrs. B---- (S---- M----) was immoral and adulterous in nature and that such relationship, maintained during the statutory period, bars the alien from discretionary relief. The observation may be made at this time — taking issue with the Board of Immigration Appeals — that the status between the parties was not "bona fide in its inception," since both parties were then aware of the existence of the prior marriage. Moreover, they took no steps during a period of 13 years to arrange for the legal dissolution of said marriage and for the adjustment of their own unlawful status. Alien's counsel has contended that while residing in Connecticut Mrs. B---- could easily have obtained a divorce on the grounds of separation and nonsupport, had she consulted her attorney for that purpose. The question remains as to why this was not done if the parties actually sought in good faith to establish a husband-wife relationship.
Section 19 (c) of the Immigration Act of 1917, as amended, provides that suspension of deportation or voluntary departure may be granted to a deportable alien "who has proved good moral character for the past 5 years."
Cf., In re Schlau, 136 F. (2d) 480 and Petition of Rudder, 56 F. Supp. 969, which involved the question of good moral character where the parties in good faith entered into what they believed to be a legal marriage, which in fact, for some technicality was subsequently found to be invalid. This Service in such cases has followed the view that good moral character could be established despite the invalidity of the marriage.
We are confronted in the instant case with the fact that the alien has committed adultery during a substantial part of the statutory period. Conceding that the relationship was not motivated by lust and that it developed in the course of the years an aura of respectability, the fact remains that adultery is not only recognized as immoral but it is also made a crime everywhere in the United States. In a case decided in 1935, the Government opposed the granting of citizenship to the petitioner on the ground that he had committed a single act of adultery within the statutory period. The Second Circuit Court of Appeals denied the petition for naturalization, finding that the alien had not behaved as a person of good moral character. The Court stated therein, "no argument is needed to support the assertion that it (adultery) is offensive to the general accepted moral standards of the community" ( Estrin v. U.S., 80 F. (2d) 105). Again in U.S. v. Unger, 26 F. (2d) 114 (D.C., N.Y.), it was held that granting citizenship to an applicant who had committed adultery within the 5-year period was illegal and it was ordered that the certificate of naturalization be canceled. "Under the accepted standards in this country, a person committing adultery is an immoral person, and * * * the applicant has failed to show * * * good moral character for the 5 years preceding the granting of citizenship papers * * *". (To the same effect, U.S. v. Wexler, 8 F. (2d) 881, D.C.N.Y.; In re Falck, 24 F. Supp. 673.)
Section 6223, General Statutes of Connecticut, Revision of 1930, provides a term of imprisonment up to 5 years for the commission of adultery.
If good moral character cannot be found in a case where a single act of adultery has been committed, ( Estrin v. U.S., supra), it can hardly be said that such a finding may be made as to a relationship, as in the instant case, which perpetuates the adulterous state.
In re Paoli, 49 F. Supp. 28, and In re Hopp, 179 F. 561, cited by the Board of Immigration Appeals, hold that good moral character is that which "measures up as good among the people of the community * * * up to the standard of the average citizen * * * such a reputation as will pass muster with the average man". (In neither of these cases was the question of adultery or illicit relationship involved.) While it is true that the morals of a society do not remain static, there is no evidence to show that the standards of morality in the United States have moved to the point where adultery is tolerated as an incident of average behavior. Accepting the yardstick that good moral character is that which measures up to the conduct of the average person, it cannot be refuted that adultery offends the universally accepted standards of morality.
The Citizenship Certificate Unit of this Service has considered hundreds of naturalization cases in which a petitioner knowingly lived in an illicit relationship during the statutory period without having legalized his status. The Service recommendation has been uniformly for denial in such cases on the ground that good moral character had not been established and the courts, with a single exception, have denied such petitions.
The recent decision by the Second Circuit Court of Appeals, January 27, 1947, Charles Jannibelli et al. appears to be unique and is contrary to the well defined trend of the innumerable precedents followed by this Service. For this reason, it has been recommended that the Department institute appellate proceedings thereto.
This Service contends that it could not have been, and was not, the intention of Congress, in providing relief for deportable aliens under section 19 (c) of the Immigration Act of 1917, to accept a standard of moral character which is below the average of the community. Therefore, we are persuaded that an illicit relationship during the prescribed period, grounded in adultery, must bar the alien from establishing good moral character in compliance with the statute and that the respondent's application for discretionary relief should be denied.
Order: It is ordered that pursuant to 8 C.F.R. 90.3, the case be returned to the Board of Immigration Appeals for reconsideration, and, in the event that the Board does not see fit to withdraw its prior order granting the privileges of voluntary departure and preexamination, for certification to the Attorney General.
Discussion: On March 17, 1947, this Board granted the alien herein the privilege of voluntary departure and preexamination. The Service in an opinion dated April 7, 1947, disagreed with the Board's order and asked that the case be certified to the Attorney General for his consideration.
Section 19 (c) of the Immigration Act of February 5, 1917, provides that the Attorney General may permit an alien to depart voluntarily from this country in lieu of deportation or suspend the deportation of an alien who, among other things, "has proved good moral character for the preceding five years." The sole point at issue in this case is whether the record shows that the respondent has been a person of good moral character for the preceding 5 years.
This alien, a native and citizen of Russia, has resided in the United States since September 7, 1926, a period of over 20 years. From 1932 to 1945 he lived in a man and wife relationship with a married woman who had been deserted by her husband in 1931.
The Service takes the view "that an illicit relationship during the prescribed period, grounded in adultery, must bar the alien from establishing good moral character in compliance with the statute and that the respondent's application for discretionary relief should be denied". In other words, the Service believes that regardless of the facts and circumstances in a particular situation a person who has lived in adultery for any part of the statutory 5-year period must be found to lack good moral character and, therefore, any type of discretionary relief under 19 (c) of the Immigration Act of 1917 must be denied. The Board, however, is of the view that adultery may evidence lack of good moral character but that it does not under all circumstances necessarily require such a finding. The Board believes that a man's character is the sum total of what he has done and should not be based on one phase of a man's life.
The Board's position is in accord with previous rulings by the Attorney General in cases involving adulterous relationships within the statutory 5-year period. Furthermore, the Service's position is contrary to these rulings by the Attorney General and contrary to previous decisions both by the Board and by the Service itself. If the position of the Service is adopted, the previous decisions of the Attorney General must be overruled and it will result in a departure from a long-standing policy followed by the Board and the Service. The Service's position would result in great hardship in many cases involving family ties and long residences.
ATTORNEY GENERAL RULINGS
For rulings by the Attorney General on cases involving fornication during the statutory 5-year period see Matter of B----, 4312834 (approved by the Attorney General on August 26, 1946); and Matter of H---- G----, 5759030 (approved by the Attorney General on December 30, 1946). In the first case the alien lived 13 years with a man out of wedlock before she married him and obtained suspension of deportation on the basis of that marriage. In the second case the alien, for 1 year prior to his marriage to a citizen in 1944, lived in an illicit relationship with another woman.
On September 11, 1946, the Attorney General approved the Board's grant of suspension of deportation in the Matter of L----, A-5643477. That case involved an alien who had been married in Italy in 1920 and had two children by this marriage. He had separated from his wife in 1929 and had since that year supported these children except during the war years when it was impossible for him to send money to Italy. However, since 1929 he had lived with a woman, a citizen of the United States, and they had three children who were also citizens of this country. Alien secured a divorce in November 1945 and married the second woman in December of the same year.
It should be noted that the alien in this case lived in an adulterous relationship with his wife for 4 years of the statutory 5-year period.
On June 17, 1947, in the Matter of J---- W---- J----, A-3192373, the Attorney General approved a decision of the Board to suspend an alien's deportation even though the alien admitted that, prior to his marriage to a native-born citizen in October 1945, he had lived from 1935 to 1943 as man and wife with an entirely different woman who was separated from her husband but not divorced. The Commissioner had denied this alien's application for suspension of deportation on the ground that this alien had failed to establish that he had been a person of good moral character during the preceding 5 years because of the adulterous relationship within the statutory period. Regardless of the view taken by the Commissioner, the Attorney General approved the Board's decision.
It should be emphasized in connection with this case that the woman whom the alien married in 1945 was a different person from the woman with whom he had been living from 1935 to 1943.
Except for the fact that in the J---- case the alien eventually legally married another person after terminating his adulterous relationship, the facts of the present case are very similar. As a matter of fact if the alien in the present case would marry another woman, the two cases would be almost identical. The Board does not believe that this difference between the two cases is significant as far as good moral character is concerned.
Matter of D---- P----, A-4514630, approved by the Acting Attorney General on August 15, 1947, is the latest Attorney General decision involving this issue. In this case the alien involved was convicted in North Carolina in January 1945 of fornication and adultery and was sentenced to 6 months' imprisonment and fined $25. The jail sentence was suspended and he was placed on probation for a period of 2 years. In January 1946 the alien and the woman involved in the criminal prosecution were married after she obtained a divorce. The Acting Attorney General approved the decision of the Board suspending the alien's deportation.
BOARD DECISIONS
For decisions by the Board in cases involving fornication see Matter of O----, 1329381 (Jan. 16, 1947). In this case the alien lived illicitly with his wife prior to their marriage in October 1944. A child was born to them in 1943. In addition, the alien, prior to his marriage in October 1944, carried on a meretricious relationship with a divorced woman with whom he lived in New York City as man and wife. The Board on September 10, 1946, directed that the alien be deported to Germany. The Board reconsidered the case on motion of counsel for the alien and granted him voluntary departure and preexamination.
The Board does not see any difference as far as good moral character is concerned between fornication and adultery where the marriage has already failed as has been the situation in all of these cases.
In the Matter of B----, 56130/885, dated November 23, 1943, the Board granted the alien, a native of Canada, voluntary departure even though he had an illicit relationship with a married woman which began in 1937 and continued intermittently until 1941. In that decision the Board said:
The issue is whether we can make the finding required by section 19 (c) of the Immigration Act of 1917, as amended, that the respondent has been of good moral character for the preceding 5 years. The term is elusive and difficult of definition. We do not think it should be construed to mean moral excellence or that it is destroyed by a single lapse. Rather do we think it is a concept of a person's natural worth derived from the sum total of all his actions in the community. On the entire record in the case we think a favorable finding is not unwarranted. The application for voluntary departure is granted.Matter of H----, 4359810, (Mar. 14, 1947). The alien was married in Germany in 1921. In 1930 he came to the United States as a seaman. He began living with a woman not his wife sometime in 1930. At the deportation hearing the alien testified that he thought his wife was dead. However, he produced no affirmative proof of this fact. On October 30, 1946, the Commissioner deferred action in the case for a period of 6 months to permit the alien to adjust his marital status However, unbeknown to the Commissioner, the woman with whom the alien had been living had died on July 11, 1946. On February 4, 1947, the Commissioner ordered deportation. The Board disagreed. The Board assumed that there had been no common-law marriage entered into between the alien and the woman with whom he had been living in New York. The Board granted voluntary departure and preexamination. Concerning the adulterous relationship the Board said:
We are of the opinion that the respondent is not precluded from establishing that he is a person of good moral character, despite the relationship which continued until July 11, 1946, when the woman with whom he was living as man and wife died. The respondent's good behavior and conduct is amply established by the record. The relationship which he began in 1930 did not have its inception in lust and continued in a long-term, faithful relationship between two persons who considered themselves as husband and wife and who were considered by their neighbors as upright and reputable persons.
The respondent believed his first wife to be deceased and formal legalization of the relationship in question has been precluded only by the death of one of the parties. This reasoning is supported by judicial holdings in many cases involving similar situations (see decision of the United States Circuit Court of Appeals, 2d Circuit, dated Jan. 27, 1947, involving a petition for naturalization of R---- and three other persons (see also In re Paoli, 49 F. Supp. 128; In re Hopp, 179 Fed. 561; Turley v. United States, 31 F. (2d) 696; Matter of B----, 56130/885, Nov. 23, 1943; Matter of M----, 55964/176 (renumbered, 5982929), April 17, 1944; Matter of A----, 56052/439 (renumbered, A-3595874), Dec. 28, 1943; compare Estrin v. United States, 80 F. (2d) 105 (C.C.A. 2d)). Matter of P----, 5946976 (Mar. 20, 1947). The alien separated from her husband in 1933. In 1938 she began to live with another man. At the same time she went through a marriage ceremony with him. On September 21, 1946, the Commissioner deferred action to permit the alien to adjust her marital status. Again, as in the H---- case, the man with whom the alien had been living had died on December 3, 1944. On February 2, 1947, the Commissioner ordered deportation on the theory that the alien could not establish her good moral character. The Board disagreed and said:
We cannot agree that under the circumstances a finding of bad moral character against the adult respondent is justified. Since we find otherwise, we shall enter an order granting both the privilege of voluntary departure.
SERVICE'S DECISIONS
For decisions of the Service involving fornication see Matter of B----, 4312834 (approved by the Attorney General on August 26, 1946) in which the Commissioner granted alien's application for voluntary departure and preexamination even though alien had lived in fornication with a man for 13 years.
Matter of F---- (now D----), 5444981 (C.O. July 30, 1946). The alien was married in 1909 to a Canadian. In 1927 she began to live in the United States with another man not her husband. On February 19, 1942, the Board ordered her deportation. Thereafter, on April 23, 1946, the alien obtained an interlocutory decree of divorce from her husband. This decree was to become final in 1 year. At that time she intended to marry the man with whom she was then living. The Commissioner granted the alien a stay of deportation until May 15, 1947, and directed that a report be forwarded from the field with respect to the alien's marital status at that time. The report was forwarded from the field in accordance with the Commissioner's order on July 30, 1946, and it disclosed that the alien was married to the man with whom she had been living on April 29, 1947. On July 8, 1947, the Commissioner recommended that the hearing be reopened to permit the alien to file an application for discretionary relief. The Board has taken no action upon the Commissioner's recommendation pending consideration of this case by the Attorney General.
In the Matter of H----, discussed above, the Commissioner first deferred action in the case for a period of 6 months to permit the alien to adjust his marital status even though the alien was involved in an adulterous relationship with a woman who was not his wife for approximately 15 years.
In the Matter of P----, discussed above, the Commissioner deferred action to permit the alien to adjust his marital status looking toward future discretionary relief under 19 (c).
These two cases illustrate the common practice of the Service and the Board to permit aliens to adjust their marital status and, if adjusted, to grant discretionary relief under 19 (c) of the Immigration Act of 1917. This of course requires the finding of good moral character, even though the aliens involved, prior to their marriages, have lived in adulterous relationships. If the position of the Service is adopted in this case this practice of allowing aliens to adjust their marital relationship will have to be discontinued.
NATURALIZATION CASES
Under section 307 (a) an alien may not be naturalized unless he has proven himself to be "a person of good moral character." The courts have been called upon to define the meaning of these words in cases involving aliens who have been involved in adulterous relationships in the years just preceding their petitions for citizenship. At first the courts were quite severe on such aliens. The Commissioner has cited a number of these cases in his opinion. However, the recent trend of court decisions has been much more liberal as illustrated by the latest decision by the U.S. Court of Appeals for the Second Circuit in the Matter of Petitions of Rudder, et al, 159 F. (2d) 695 (1947) involving four petitions for naturalization.
The petitioners (Rudder, Johnson, Mengler, and Jannibelli) were all involved in adulterous marital tangles.
Rudder began living with a woman in 1941, at which time she was a married woman, and they married in 1945, after her first husband died.
Johnson married a woman in 1924 before a year had expired from the date of divorce from her first husband, the New York statute prohibiting remarriage within the State without first obtaining permission to do so from the court.
In 1936 Mengler began living with his "wife," who was then a married woman separated from her husband, from whom she secured a divorce in Florida in June 1943. She then, in 1943, married Mengler. A son had been born to them in 1939.
Janibelli was married in 1909 in Brooklyn and had four children. He separated from his wife in 1934, after a long period of incompatibility, and maintained an adulterous relationship with an unmarried woman who was known to the neighbors and others as his "wife." His wife refused to seek, or permit him to seek, a divorce.
The issue before the court was whether these four petitioners had been persons of good moral character during the preceding 5 years as required by section 307 (a) of the Nationality Act of 1940. The court, in deciding in favor of all four petitioners, regardless of the adulterous relationships involved, said:
* * *. What we are here asked to do is to brand as immoral long-term, faithful relationships between couples who consider themselves and are considered by their neighbors as upright and decent husbands and wives and would willingly have made legitimate their status if they could. * * * We do not believe that the present sentiment of the community views as morally reprehensive such faithful and long-continued relationships under the circumstances here disclosed. And the court decisions, following as they should the mores of the time, show an increasingly liberal trend in naturalization cases. * * *
Because of the permanence, stability and apparent respectability of the relationships involved in the cases at bar, we think the trial judge did not err in ruling that the several petitioners were not disqualified for citizenship.
Although the Board 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, nevertheless it believes that such decisions should be given great weight. In fact, the standards required of an alien to become a citizen should be set at a higher level than the standards used to permit an alien to adjust his immigration status so that he may be able to reside in this country. The effect of deportation causes much greater hardship on an individual than the denial of citizenship and can possibly destroy everything for which the man has to live, such as his family, friends, or career.
In the Matter of E----, 56107/653 (June 29, 1945), the Attorney General said: "I feel, however, that this Department, in making administrative decisions on questions of law should be guided by the decisions of the appellate courts on any point that has been judicially determined."
ALIEN'S CHARACTER
Up to this point in this opinion only the legal points involved in this case have been discussed. It now becomes pertinent to examine the record to determine whether the character of this man, who has lived here for 20 years, precludes any relief under 19 (c) of the 1917 Act.
The alien, unmarried, in 1932 began living in a man-and-wife relationship with S---- M----, a married woman and a naturalized citizen whose husband had deserted her in 1931. S---- M---- and the alien lived together 12½ years. Part of the time the alien's naturalized citizen father lived with them. This relationship was terminated in September 1945 because of these deportation proceedings.
The alien testified that, when he began living in 1932 with S---- M----, he knew that her husband had deserted her. She was at that time a sick woman with "a lot of debts to pay" which he paid. Alien testified that S---- M---- had no brothers or sisters or anyone in this country and he tried to help her as much as possible. He took her to a doctor because she had "something like a nervous breakdown" and paid those doctor's bills.
From the beginning of this relationship alien told other people that they were man and wife "to protect her reputation." Neither of them made any effort to find out whether or not S---- M----'s marriage had been terminated in any way.
In oral argument before the Board on July 8, 1946, alien's attorney asked the Board to give the alien time in which to adjust his marital status by an Enoch Arden divorce on the part of S---- M---- followed by a marriage between S---- M---- and the alien. The Board on August 1, 1946, gave him sixty days in which to file a petition for divorce in New York but on November 13, 1946, the attorney informed the Board that since S---- M----'s husband is still alive, it would be impossible to secure the divorce in New York. He asks that the Board pass upon the case as it now stands.
The alien has contributed regularly to the support of his father, who is in ill health suffering from high blood pressure, arterio-sclerosis, enlargement of the heart, and endomyocarditis. Alien's father's physician states that the father should not work at all, but in view of his and his son's financial circumstances (the son can only give him partial support), the father may do periodic light work from 2 to 3 hours a day, besides, rest, diet, and medicine. Alien's father testified in October 1945 that the alien had given him about $150 over the period of the last 12 months. In response to the question as to whether his son's deportation would result in serious hardship to him, alien's father testified as follows:
My condition no good. I can't work steady. My son help. It will be big trouble if my son go out of this country. If my son out of this country I go in water because, you see, I have 220 more blood pressure. I can't work. I work because I working all my life. I like work. I don't like to ask my son. It is terrible if my son out.
Alien's father is employed as a messenger in the International Nickel Co. and receives $23.50 per week. Alien's sister, who lives with his father, is employed only part of the time because of ill health. Alien testified that his sister's health would not permit her to obtain employment which was sufficient to take care of their father.
Alien testified that his mother lived in Europe for 7 years after he came to the United States in 1926 and during that time he supported her. Alien sent $300 to Russia to have his mother and sisters come to the United States to join his father. Alien's mother and two sister left Russia and went to Athens, Greece, where one of the sisters became ill and died after 3 years of illness. His mother made an application for a visa in Greece during which time the alien supported her and the surviving sister. Alien said that "the nervous strain of waiting for the visas to come here and the anticipated pleasure of joining her husband in the United States was such a shock to my mother that she died in Greece before being able to come here." The money that he had sent to them before his mother's death was returned to him but alien testified that he sent some more money to Greece so that his mother and sister who died there could be buried after which the younger sister came to the United States in 1935.
Alien has complied with the Alien Registration Act of 1940 and the Selective Training and Service Act of 1940. He was not called for military service although he did not request any relief thereform. Alien has no criminal record. A letter from his employer, the United States Electrical Motors, Inc., states that "We consider him to be of good character." An independent character investigation conducted on May 3, 1945, by the Service covering six witnesses was entirely favorable to him as far as his loyalty and character are concerned. The Patrol Inspector who conducted this investigation ended his report with the following comment:
As a result of this investigation it appears to the undersigned that the subject is a person of good moral character and worthy of consideration in his application for suspension of deportation.
CONCLUSION
It is the conclusion of the Board that, considering all the above facts concerning the alien's character, the record shows that he has been a person of good moral character regardless of his now terminated adulterous relationship with S---- M----. S---- M---- and this alien held themselves out as man and wife and, as the Service's independent character investigation shows, they were respected by their friends and acquaintances. The alien's employer said that "he has good character"; and the Service's own investigator ended his report by stating that he considered that "the subject is a person of good moral character." The record shows that the alien is a person who has been faithful to his parents and to his sisters in that he did everything possible to bring his mother and two sisters to this country so that they could live with his father. Deportation of this alien would cause his permanent separation from his father and sister, his only remaining close relatives.
It also appears that the alien took in S---- M---- when she was destitute and in ill health; that he paid her debts and did what he could to help her. To his father and sister the alien made no secret of the fact that he was not married to S---- M---- although for the protection of her reputation he told others that they were man and wife.
The Board does not believe that adultery should be lightly considered. Where such a relationship is carried on in such a manner as to affect innocent third parties, results in the breaking up of an existing marital relationship, or is carried on so flagrantly as to become a public scandal, the Board believes that it would be very difficult, if not impossible, for the alien to prove that he has been a person of good moral character. But where, as in this case, no one was injured, no family was broken up, and the public was not offended, the Board believes that this alien, without another blemish on his record, can be found to be a person of good moral character.
Order: It is ordered that no change be made in the order of March 17, 1947.
(Suspension of deportation denied, but voluntary departure and pre-examination granted.)
The deicision and order of the majority of the Board of Immigration Appeals, dated November 18, 1947, are hereby approved.
Discussion: The majority of the Board is of the opinion that the respondent has established good moral character for the past five years and that its decision of March 17, 1947, granting preexamination should be affirmed. It is my view that the decision of the central office represents the weight of authority both as to law and the proper exercise of discretion, and that its decision that the alien should be deported should be affirmed.
Two points are involved: (1) Does the commission of adultery regardless of other factors (within the 5-year period as provided in section 19 (c) (1) of the act of February 5, 1917, as amended,) in and of itself preclude a finding of good moral character, and (2) if this is decided in the negative, are the extenuating factors in the instant case sufficient to justify the decision of the majority? It is my contention that adultery in and of itself is sufficient to justify a conclusion that the respondent lacks good moral character but if this is decided in the negative, it is my further contention that the extenuating factors are insufficient to justify granting relief.
I do not believe that the majority decision properly represents the weight of authority on either the law or the question of discretion. The majority states without qualification that the decision of the central office is against the weight of authority and it contends that its position with regard to adultery in and of itself being insufficient to reach a conclusion of lack of good moral character is well settled by prior departmental decisions and the courts. With this I take issue. Neither the courts, the Board, nor the Service have been consistent in dealing with this question and in fact it is my opinion that the inconsistency is of such moment as to justify bringing the question before the Attorney General.
An excellent discussion of the entire question is contained in the Monthly Review of the Immigration and Naturalization Service in the issue of August 1947, page 18, to which attention is called. It is true that the cases cited therein involve naturalization matters exclusively. However, the Rudder case, 159 F. (2d) 795, relied upon so heavily by the majority, likewise involves naturalization. The position to be followed by the naturalization examiners in cases of this character is stated in the last paragraph of this article on page 21 and is to the effect that except in the Second Circuit "the Service has adopted the policy of recommending favorably petitioners who have regulated their conduct by valid marriage ceremonies. However, because of the view prevailing in other jurisdictions, the Service will continue to recommend denial in all cases in which there has been no termination of the illegal status by valid marriages * * *."
Memorandum to the Commissioner from Joseph Savoretti, Assistant Commissioner under date of June 5, 1947, wherein the Rudder case is discussed and stating that "the Acting Solicitor General declined to authorize the issuance of a petition for certiorari to the Supreme Court to review the decision. In transmitting this decision the Assistant Attorney General stated that this determination should not affect the usual Service policy in other circuits of interposing obection to the naturalization of persons living in irregular marital situations and recommending appeals in appropriate cases."
The majority opinion mentions several decisions involving the question of adultery which have been ruled upon by the Attorney General and which it is alleged supports its views ( Matter of J---- W---- J----, A-3192373, decision of June 17, 1947; Matter of L----, A-5643477, decision of Sept. 11, 1946; Matter of P----, A-4514630, of Aug. 15, 1947; and decisions of the Board not ruled on by the Attorney General; Matter of B----, 56130/885, of Nov. 23, 1943; Matter of H----, 4359810 (Mar. 14, 1947); Matter of P----, 5946976 (Mar. 20, 1947); and the Service's decision Matter of F----, 5444981, of July 30, 1946).
In the J---- case it is true that the respondent had lived in an illicit relationship for a period of several years. At the time the case was considered by this Board the relationship was terminated and the respondent lawfully married. It is also indicated that the respondent while living in this illicit relationship was of the opinion that the woman involved was qualified to contract a legal marriage and that as soon as he discovered to the contrary he terminated the relationship. In the L---- case, supra, the marital status was adjusted in December 1945. In the Board decision of September 11, 1946, the moral background based upon the respondent's marital status was referred to only factually without mention of adultery. In the P---- case it is true that the respondent was on January 5, 1945, in Winston-Salem, N.C., convicted of fornication and adultery. However, the woman whom he subsequently married, which marital relationship formed the basis of the suspension proceeding, is the same woman who was involved in the conviction of adultery. Respondent denies that he had any knowledge of his wife's prior marriage and had no such knowledge at the time of his marriage to her on February 24, 1945. (Respondent's wife received a final decree of divorce on March 2, 1945, and they were subsequently remarried on January 20, 1946.) It would, therefore, appear that respondent was the innocent victim of his wife's deception and to that extent he should benefit from the policy of the Board and the Service that subsequent marriage is sufficient to overcome the prior relationship with which the courts generally are in accord. In the B---- case, supra, the Board in effect admitting that its decision might be questioned, provided in its order that if the alien subsequently applied for admission and "is found inadmissible under section 3 of the Immigration Act of 1917 as one who admits the commission of a crime involving moral turpitude, to wit: Adultery, that the case be referred to this Board for consideration under the seventh proviso to section 3 of said Act."
Further indicating the Board's inconsistency see Matter of P----, A-1514413. In this case respondent had resided in the United States since 1929. He is married to a citizen of the United States and has five citizen minor children. No criminal record is involved. He had difficulties with his wife, was estranged from her, and during a part of 1945 cohabited with another woman. Thereafter he became reconciled with his wife, who on August 14, 1947, filed an affidavit in his behalf to the effect that they were living together, had been living together since the early part of 1945 and that he had supported her and their five children and that during this entire period he stayed home every night and helped with the children. Notwithstanding these strong favorable factors, the Board on September 11, 1947, entered an order denying a reopening for discretionary relief and in effect directing that deportation be proceeded with.
In the Matter of H----, supra, not only did the respondent believe that his first wife was dead and that he was in a position to contract a valid marriage but furthermore at the time of consideration of this case by this Board the woman with whom he had been living had died. The F---- case is presently pending before this Board and no decision has been entered.
The salient facts in these cases have been summarized as briefly as possible for subsequent comparison with the facts in the instant case. It is true that in these cases adultery (although in some cases technical) was involved and that subsequently the cases were adjusted. However, in view of the Bannister case, A-4705512, Civ. 41-46 U.S.D.C. So. Dist. N.Y. 4/29/47, and the Mogus case, decided in the United States District Court for the Western District of Pennsylvania on July 16, 1947, infra, and also in view of the Departmental policy as indicated in the memorandum of June 5, 1947, from Mr. Savoretti to Mr. Carusi (see),fn9 it can only be stated that the question is presently in such a state of confusion as to necessitate Departmental clarification. In the Mogus case the petitioner for naturalization came to this country in 1913 from Yugoslavia. He had married in 1911 and had a son born of this marriage two or three months after he arrived in this country. The petitioner last communicated with his wife in 1918 and from then on he failed to provide for his son's support. In commenting upon whether the petitioner could prove good moral character for the preceding five years, the court stated "good moral character which an alien seeking naturalization must prove results from acts and conduct of an individual, and is of such a character as measures up to the standards of average citizens of the community in which the alien resides. What is of good moral character within the meaning of the statute is not easy of determination in all cases. The standard may vary from one generation to the other. A husband and father has not only a moral and marital obligation in the eyes of God to provide for a wife and child, but an absolute legal obligation to make or provide proper maintenance and care. * * * however, from the year 1918 to the present time, the petitioner, for reasons which he was unable to explain, has done nothing in an effort to contribute to the support of his wife and child, and in fact has not communicated with her during this period of time. * * * I, therefore, believe that the petitioner has not established good moral character as provided by the Nationality Act." Although the question of support of children is not involved in the present case, it is involved in the petition of J---- J----, A-1163558, which is an accompanying case and is involved in this general discussion.
A very recent case E---- B---- B----, A-4705512, decided by the United States District Court, Southern District of New York, April 29, 1947, involves facts very similar to the cases discussed by the majority but a contrary conclusion was reached by the Central Office, by this Board, and by the court. In the B---- case the respondent, an alien of the British West Indies, subject of Great Britain and already married, began living with a married woman in 1940. The relationship was apparently permanent in character and both parties desired to adjust it by divorce and remarriage. All other factors in the case were excellent. The Board on December 14, 1945, authorized reopening of the case "to permit the introduction of evidence on whether the respondent has taken steps to legalize his marital status." The reopened hearing showed that due to financial reasons no steps had been taken to adjust their marital status and the order of the Central Office directing deportation to the British West Indies was affirmed by the Board of Immigration Appeals on November 19, 1946. Habeas corpus proceedings were instituted in the United States District Court for the Southern District of New York, Civ. 41-46, and on April 29, 1947, the writ was dismissed. Careful study of this case indicates that the marital factors involved were certainly no worse than in this case, and it had the permanency which is an essential in the Rudder case.
See also case of Max Oscar Farbman, No. 522478, U.S. Dist. Ct. So. Dist. of N.Y. decided by Judge Rifkind on October 1, 1947, in which the court stated:
"The petitioner has admitted an act of adultery within the statutory period during which it is incumbent upon him to establish that he has been a person of good moral character (8 U.S.C.A. § 707 (a). His application for naturalization must, therefore, be denied. Estrin v. U.S., C.C.A. 2, 1935, 80 F. 2d 105; Petitions of Rudder, C.C.A. 2, 1947, 159 Fed. 2d 695)."
Considering the instant case, the record shows that the respondent, single, entered into an extramarital relationship with a married woman in 1932. He knew that she had a husband living from whom she was not divorced, and the alien was living with her at the time of the hearing held on March 21, 1945. In a hearing held on October 23, 1945, he testified that they had had an argument about two months prior thereto and had separated. It is also interesting to note that in Form I-55 executed on October 18, 1943, which he subsequently used to support his application for suspension of deportation, he stated under oath — questions 18, 19, and 57 thereof — that he was married to S---- M----, that he had married her on November 26, 1932, that he had known her for 30 years and that she was his wife, when in fact, he had known her but 11 years, she was not his wife, and she had a prior existing marriage which had not been terminated. As indicated in his testimony on page 23, and previously referred to, he thought so little of the relationship that when he became suspicious that it might be a bar to adjustment of his status he found it convenient to quarrel with her and separate.
Even if it be decided that adultery in and of itself is insufficient upon which to reach a finding of lack of good moral character within the crucial 5-year period, the instant case lacks the permanency and stability which is the controlling feature in the Rudder cases, supra, at page 698, 159 F. (2d) 698, so heavily relied upon by the majority:
Because of the permanence, stability and apparent respectability of the relationships involved in the cases at bar, we think the trial judge did not err in ruling that the several petitioners were not disqualified for citizenship.
In our case there is neither permanency, stability, nor respectability. The respondent at the slightest indication that the relationship might be a liability to him saw fit to trump up a quarrel and separate. We may be justified in concluding that at that time no lust was involved, but to state that no lust was involved at the inception of the relationship or at any time thereafter is attempting to draw a conclusion which would from the most tolerant viewpoint be unwarranted. Then, too, it must be pointed out that the court in the Rudder case specifically stated that it reaffirmed its decision in the Estrin case, 80 F. (2d) 105 wherein a single act of adultery within the 5-year period was held to bar naturalization on the ground of lack of good moral character.,
See In re Paoli, 49 Fed. Supp. 128, Dist. Court No. Dist. Cal. at page 130 wherein the court quoted In re Spencer, 22 Fed. Cas., p. 921, "What is good moral character within the meaning of the statute may not be easy of determination in all cases. The standard may vary from one generation to another, and probably the average man of the country is as high as it can be set." Upon this reasoning I cannot adhere to the conclusion of the majority that the respondent's conduct is the standard of the average man of these United States.
See also footnote 11.
The majority on pages 7, 8, and 9 of its decision discusses in great detail the hardship that would be involved in the respondent's deportation and the favorable factors involved. There are few expulsion cases that are utterly devoid of merit or would involve no hardship in the event of deportation. But that is not the issue here. The conclusion to be reached is whether the respondent for the preceding 5 years has been a person of good moral character within the meaning of section 19 (c) (1) of the 1917 act, as amended, and questions of hardship, the alien's philanthropies, etc., have no place in that decision. If and when that is decided in the affirmative, then those factors have their proper place in deciding whether the alien should have his deportation suspended, be granted voluntary departure, or be deported.
For the reasons stated in the foregoing it is submitted that —
1. The respondent's commission of adultery within the 5-year period precludes a finding of good moral character;
2. That in the event I am not supported in this conclusion, the respondent's general character will not support a conclusion of good moral character which would justify this Board in granting him favorable discretion.
As the order of the Board is contrary to the recommendation of the Service, and as there is also a dissent, in accordance with section 90, title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.