0300-257135.
Decided by Board December 21, 1954.
Good moral character — Adultery — Section 101 (f) (2), Immigration and Nationality Act — Eligibility for voluntary departure, section 244 (e) of the 1952 act.
An alien who has sexual intercourse with a man whom she has ceremonially married, being ignorant of the fact that this man was already married to a third person, is not precluded from establishing good moral character under section 101 (f) (2) of the Immigration and Nationality Act and may be found eligible for voluntary departure under section 244 (e) of that act. (In New York, the jurisdiction where the act occurred, absence of any intent to commit a crime would be a defense in a criminal proceeding for adultery.)
CHARGE:
Warrant: Act of 1952 — After admission as nonimmigrant visitor for business under act of 1924 — Failed to comply.
BEFORE THE BOARD
Discussion: This appeal relates to a 34-year-old single female alien, a native and citizen of Colombia, and comes forward from a decision of a special inquiry officer on March 29, 1954. The alien has been found deportable, discretionary relief has been denied, and deportation has been directed on the warrant charge. The sole issue before this Board is whether voluntary departure may be granted. The special inquiry officer has found that the alien has lived in adultery for a period during the five years immediately preceding her application for discretionary relief and therefore she cannot establish good moral character during the period required by the provisions of section 244 (e) of the Immigration and Nationality Act in view of the limitations in section 101 (f) (2) of such act.
The respondent's only entry to the United States occurred at Miami, Florida, on May 9, 1948, at which time she was admitted as a visitor for business, a domestic. The period of temporary stay, as extended, expired on February 9, 1949. The respondent lived with a man out of wedlock in the United States for a period about 1951. The record does not establish that he was married. She has a child born by that relationship now age three years. On January 30, 1954, the respondent was married in the City of New York to a native of Puerto Rico, citizen of the United States. She alleges that she had no knowledge at the time that the man she was marrying was already married; and that she entered into the marriage contract in good faith. However, after the marriage, she heard that the man she had married on January 30, 1954, had a wife living. He admitted the facts in this proceeding and stated that his prior marriage had not been terminated. It appears that as soon as the respondent learned that she was not validly married, because her husband had a living wife, she separated from him.
The above facts are not disputed. The question to be resolved is whether the respondent, who alleges that she was innocent of any offense or wrong doing at the time she entered into a ceremonial marriage on January 30, 1954, and at the time she lived in a man and wife relationship after that date with the man to whom she was married, has committed adultery within the provisions of section 101 (f) (2) of the Immigration and Nationality Act. Counsel has argued that the respondent could not have been convicted of the crime of adultery because she was innocent of violation of any law for the reason that she did not know she was not legally married.
In the jurisdiction of the State of New York where this respondent lived in a man and wife relationship with a married man to whom she was not validly married, adultery is a crime. It is interesting to note the definition of that offense and the punishment prescribed therefor.
Section 100, New York Penal Laws: Adultery defined,
Adultery is sexual intercourse of two persons, either of whom is married to a third person.
Section 101 — Adultery a misdemeanor,
A person who commits adultery is guilty of a misdemeanor.
Section 102 — Punishment for adultery,
A person convicted of a violation of this article is punishable by imprisonment in a penitentiary or county jail, for not more than six months or by a fine of not more than $250, or by both.
Conviction of adultery is not necessary in order to establish that fact in deportation proceedings. We have carefully examined the New York Penal Laws and the annotations and digests of cases relating to adultery. We find no decision or interpretation of section 100 of the New York Penal Laws (defining adultery) holding that the statute is limited to married persons; or that in situations where an unmarried person is a party to the offense and without knowledge that the act (adultery) is being committed, the single person cannot be successfully prosecuted. The definition of the term "adultery" in the statute clearly embraces within its scope both parties. We have been unable to locate a decision in the applicable jurisdiction (New York State) which discusses the essential elements of the offense and, therefore, we cannot readily determine whether absence of intent requires an acquittal in a prosecution for adultery. The facts here are undisputed and establish that respondent separated from the man she had married as soon as she acquired knowledge that he was married to another woman. We find that innocence is a defense in a criminal action in New York State. That the act was not voluntary is an adequate defense to a charge of adultery ( People v. Hall, 49 N.Y.S. 309).
Section 103 of the New York Penal Laws reads:
* * * A conviction under this article cannot be had on the uncorroborated testimony of the person with whom the offense is charged to have been committed.
Intent is a question of fact to be proved in a criminal action ( Cowley v. People, 8 Ahb. N.C. 1; affirmed 83 N.Y. 464; and People v. Miller, 286 N.Y.S. 702). Under New York Criminal Procedure Law a misdemeanor may be charged by filing an information describing the offense sufficiently to notify the defendant of the nature of the crime ( People v. Le Face, 266 N.Y. 458; and People v. McCarthy, 260 N.Y. 358).
Section 389, Code of Criminal Procedure of New York, reads:
DEFENDANT PRESUMED INNOCENT, UNTIL CONTRARY PROVED. IN CASE OF REASONABLE DOUBT, ENTITLED TO ACQUITTAL. A defendant in a criminal action is presumed to be innocent, until the contrary be proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.
In Cowley v. People, supra, which was a criminal indictment for acts endangering the health of a child, it was decided that where an act is committed (or an omission made), being in itself illegal, the burden rests on the accused to establish that he acted honestly and without any intent to commit a crime.
The foregoing consideration is for the purpose of determining whether the respondent, who concedes the commission of a sexual intercourse act with a person whom she had ceremonially married without knowledge that he was already married to a third person, comes within the limitations in section 101 (f) (2) of the Immigration and Nationality Act, so as to preclude her from establishing good moral character for the purposes of her application for relief under section 244 (e) of such act. It is our opinion that the facts and circumstances in this case (the jurisdiction of the State of New York where the respondent's innocence would be a defense in a criminal proceeding for adultery) require that respondent's innocence of any illegal act, and absence of any intent to commit a crime be recognized in determining her eligibility for discretionary relief in this administrative proceeding. Viewing the factual situation in the light of the standards required for good moral character, we find that respondent measures up to those standards. Accordingly, we hold that respondent is not precluded from establishing good moral character by the limitations in section 101 (f) (2), Immigration and Nationality Act. The appeal will be sustained.
Section 101, Immigration and Nationality Act, provides in part:
(f) For the purposes of this Act —
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was — * * *
(2) one who during such period has committed adultery.
Good moral character is defined by the judiciary to be that which measures up to the standard of average citizens of the community in which the person lives ( Petition of De Leo, 75 F. Supp. 896 (Pa.); and Petition of Rudder et al, 159 F. (2d) 695 (N.Y.)). We have held that good moral character is not moral excellence. It is a concept of a person's natural worth derived from the sum total of all his activities in the community ( Matter of B----, 1 IN Dec. 611). A showing of good moral character is not barred because of certain extramarital acts ( Matter of C----, 3 IN Dec. 833). In determining whether discretionary relief should be granted in a particular case, all of the circumstances involved must be considered ( Matter of V---- I----, 3 IN Dec. 571, B.I.A., March 31, 1949).
Order: It is ordered that the appeal in this case be sustained and that the order for the deportation of the alien dated March 29, 1954, be withdrawn and that the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of her choice, within such period of time and under such conditions as the officer in charge of the District deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.