Decided by Board December 20, 1979
(1) The Third Circuit Court of Appeals, in its decision in Brea-Garcia v. INS, 531 F.2d 693 (3 Cir. 1976), adopted a test to define "adultery" which refers exclusively to the definition contained in state civil law.
(2) Insofar as Matter of Trujillo, 15 I N. Dec. 453 (BIA 1977), implies that a definition of adultery other than that found in state civil law is applicable in the Third Circuit, that case is over-ruled.
(3) Matter of P----, 7 I N. Dec. 376 (BIA 1956), is modified to the extent that it holds that both state civil and criminal definitions of adultery apply in determining adultery for purposes of good moral character.
(4) Where the respondent began cohabiting with another woman while he was married, he committed adultery under the civil law of New Jersey as found in Brea-Garcia v. INS, 531 F.2d 693 (3 Cir. 1976), and cannot be found to be a person of good moral character under the provisions of section 101(f)(2) of the Immigration and Nationality Act, 8 U.S.C. 1101(f)(2), and his application for voluntary departure is denied.
Order: Act of 1952 — Sec. 241(a)(1) [ 8 U.S.C. 1251(a)(1)] — Excludable at time of entry under section 212(a)(20), I N Act ( 8 U.S.C. 1182(a)(20)) — Not in possession of a valid immigrant visa
ON BEHALF OF RESPONDENT: Robert Frank, Esquire, Levy Rubin, 744 Broad Street, Newark, New Jersey 07102
ON BEHALF OF SERVICE: Sydney B. Rosenberg, Trial Attorney
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
In a decision dated February 6, 1978, we dismissed the appeal of the respondent, a native and citizen of El Salvador, from an order of an immigration judge finding him deportable and denying him the privilege of voluntary departure in lieu of deportation. The respondent has moved to reopen deportation proceedings. The motion, which is opposed by the Service, will be denied. However, we are reopening the case on our own motion in order to clarify our position concerning the definition of adultery to be applied in cases arising in the jurisdiction of the Third Circuit Court of Appeals.
The respondent seeks reinstatement of voluntary departure based upon his marriage to a lawful permanent resident who has filed a visa petition on his behalf and his legitimation of their United States citizen child who was born out of wedlock.
A motion to reopen deportation proceedings to apply for discretionary relief will not be granted unless it establishes prima facie eligibility for that relief. Tenorio-Martinez v. INS, 546 F.2d 810 (9 Cir. 1976); Matter of Lam, 14 I N. Dec. 98 (BIA 1972).
The respondent requests reinstatement of voluntary departure yet he has never been accorded that privilege. In our February 6, 1978, decision dismissing the appeal, we affirmed the finding of the immigration judge that the respondent was ineligible for voluntary departure due to a lack of good moral character and, furthermore, that he did not merit a favorable exercise of discretion. The finding of a lack of good moral character was based upon the respondent's relationship with the woman who is now his wife. The respondent who entered the United States on October 13, 1975, testified that he began living with this woman in New Jersey in August of 1976 although at that time he was still married to a woman in El Salvador and that his wife had filed for divorce in June of 1976. The Board held that the type of conduct that qualifies as "adultery" under section 101(f)(2), is that which has destroyed a viable marriage, citing Matter of Trujillo, 15 I N. Dec. 453 (BIA 1977), and concluded that although the respondent's conduct may not have strictly qualified as adultery under that standard, it nevertheless constituted a lack of good moral character.
The standard of adultery that we are bound to apply in cases arising in New Jersey is that adopted by the Third Circuit Court of Appeals in Brea-Garcia v. INS, 531 F.2d 693 (3 Cir. 1976). The majority in Brea-Garcia held that the term "adultery" as it appears in section 101(f)(2) must be construed exclusively with reference to state civil law. Under New Jersey law, adultery as a ground for divorce is defined as "voluntary sexual intercourse of a married person with one not the husband or wife of that person." This definition and not the "destruction of an existing viable marriage" test is the standard to be used to determine whether, in cases arising in New Jersey, an alien's meretricious conduct qualifies as "adultery" under section 101(f)(2) and thus statutorily precludes him or her from establishing good moral character. Insofar as Matter of Trujillo, supra, would imply that the standard set forth therein is applicable within the Third Circuit, it is hereby overruled. However, this is the law of the Circuit and the Board is bound to apply this standard in cases arising within its jurisdiction.
The majority in Brea-Garcia v. INS, supra, specifically declined to follow the lead of several other federal appellate courts in formulating a uniform federal standard of adultery rather than relying upon the vagaries of state law. The definition of adultery as "extramarital intercourse that tends to destroy an existing viable marriage" has been adopted, with minor variations, by the Ninth and District of Columbia Circuit Courts of Appeals. See Moon Ho Kim v. INS, 514 F.2d 179 (D.C. Cir. 1975); Wadman v. INS, 329 F.2d 812 (9 Cir. 1964). However, the Brea-Garcia court implicitly acceded to the finding of the immigration judge in the proceedings below that a viable marriage was apparently destroyed in the respondent's case. 531 F.2d at 698.
Brea-Garcia v. INS, supra, addressed only New Jersey law. Thus, the particular definition of adultery to be applied to cases arising in other states within the Third Circuit would presumably require consideration of the civil law of the particular state.
To the extent that Matter of P----, 7 I N. Dec. 376 (BIA 1956) (holding that adultery is to be determined with reference to New Jersey criminal and civil law), is inconsistent with Brea-Garcia v. INS, supra, it is accordingly modified.
Viewing the respondent's conduct with reference to New Jersey civil law — the standard applied in Brea-Garcia — it is evident that the respondent, who began cohabiting with a woman while he was still married to another, did commit adultery. Therefore, he is precluded from establishing good moral character under section 101(f)(2) and, as a result, is statutorily ineligible for voluntary departure.
The respondent's subsequent marriage to the woman with whom he had been cohabiting does not erase the prior adulterous relationship with its resulting birth out of wedlock. See Brea-Garcia v. INS, supra, at 698.
The motion to reopen for reinstatement of voluntary departure must, of course, be denied since he is statutorily ineligible for voluntary departure. The family ties that he has acquired here do not entitle him to any type of relief from deportation that the Board is authorized to grant.
ORDER: The motion is denied.