CIENFUEGOS

Interim Decision #2746

MATTER OF CIENFUEGOS

In Deportation Proceedings

A.-22123177

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 Trajillo,151&NDec. 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 F2d 698 (8 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.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) 1[8 U.S.C. 1251(a)(1))—Excludable at time of entry

under section 212(a)(20), I&N Act (S IJ.S.G.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

184

Interim Decision # 2746

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 discretion-

ary relief will not be granted unless it establishes prima fade eligi-

bility 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 immigra-

tion 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(0(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 never-

theless 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(0(2)

must be construed exclusively with reference to state civil law. Under

New Jersey law, adultery as a ground for divorce is defined as "volun-

tary 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

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 MOM Ho Kim v. INS, 514 F2d 179 (D.C. Cir. 1975); Kaman v. INS, 329

185

Interim Decision #2746

whether, in cases arising in New Jersey, an alien's meretricious con-

duct qualifies as "adultery" under section 101(f)(2) and thus statutorily

precludes him or her from establishing good moral character. 2 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 eases arising within its jurisdiction.

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 motion to reopen for reinstatement of voluntary departure

must, of course, be denied since he is statutorily ineligible for volun-

tary 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.

F.2d 812 (9 Cir. 1964). However, the BrearGarcia,court implicitly acceded to the finding

of the immigration judge in the proceedings below that a viable marriage was apparent-

ly 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 UN 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.

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.

186

Interim Decision #2747

MATTER OF ESTRADA

In Deportation Proceedings

A-30422678

Decided by Board December 20, 1979

(1) The deportation of the respondent, who was deported under section 241(a)(13) of the

Immigration and Nationality Act, 8 U.S.C. 1251(a)(13), as an alien who knowingly and

for gain assisted, abetted or aided another alien to enter the United States illegally, is

not rendered unlawful or violative of due process when a conviction for aiding and

abetting the unlawful entry of an alien is set aside. A conviction is not necessary to a

finding of deportability under section 241(a)(13), and the respondent's own testimony

and affidavit regarding his role in bringing aliens into the United States constituted

sufficient evidence of deportability. Mendez v. INS, 563 F.2d 956 (9 Cir. 1977)

distinguished.

(2) Where the respondent's deportation was neither illegal nor in contravention of due

process, the Board is without jurisdiction to grant reopening or to order readmission.

8 C.F.R. 3.2

CHARGE:

Order Act of 1952—Sec. 241(a)(13) [8 U.S.C. 1251(a)(13)]—Aiding and abetting the

unlawful entry of aliens into the United States

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Raymond Campos, Esquire Jane Gersbacher, Esquire

304 South Broadway, Suite 310 Trial Attorney

Los Angeles, California 90013

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The respondent has filed a motion to reopen his deportation proceed-

ings, and is requesting that an order be entered to admit him as a

lawful permanent resident. The motion will be denied.

The respondent is a 25-year-old native and citizen of Mexico who was

admitted to the United States as an immigrant on May 13, 1973. On

August 16, 1976, an immigration judge found the respondent deport-

able under section 241(a)(13) of the Immigration and Nationality Act,

8 U.S.C. 1251(a)(13), as an alien who knowingly and for gain assisted,

abetted or aided an alien to enter the United States unlawfully. This

Board affirmed the immigration judge's decision on October 27, 1977,

187

Interim Decision #2747

and our decision was in turn affirmed by the Ninth Circuit Court of

Appeals on June 28, 1978. A petition for rehearing was denied by the

Ninth Circuit on July 24, 1978. The respondent was deported from the

United States on August 17, 1978.

After his deportation, the respondent filed a Motion to Vacate, Set

Aside or Correct Sentence with the United States District Court,

District of Arizona, which had on May 27, 1976, convicted him of aiding

and abetting the unlawful entry of an alien into the United States. On

April 18, 1979, the respondent's guilty plea was set aside, and on June

21, 1979, the respondent's attorney was informed that the United

States Attorney's office in Phoenix had decided not to proceed further

in their case against the respondent. The instant motion, filed on

August 10, 1979, is based primarily on the fact that the respondent's

conviction was set aside.

As pointed out in the Immigration and Naturalization Service's

opposition to this motion, 8 C.F.R. 3.2 provides:

A motion to reopen or a motion to reconsider shall not be made by or in behalf of a

person who is the subject of deportation proceedings subsequcui. Lu hie departure from

the United States.

As this motion was made long after the respondent's deportation,

deportation proceedings are no longer pending against the respondent,

and we are thus without jurisdiction to reopen them. Cf. Matter of

Palma, 14 I&N Dec. 486 (BIA 1973).

In his motion, the respondent cites Mendez v. INS, 563 F.2d 956 (9

Cir. 1977), wherein the Court held that if an alien's deportation is

illegal or in contravention of due process, he may be readmitted with

the same status he held prior to his departure, and will be permitted to

pursue any administrative and judicial remedies to which he is en-

titled. Mendez, however, is clearly distinguishable from the present

case. In Mendez, the alien was convicted of burglary and given a

1 year's sentence, and so was found deportable under section 241(a)(4)

of the Act, as an alien convicted of a crime involving moral turpitude

with a sentence imposed of 1 year or longer. Prior to the deportation of

the respondent in Mendez, his 1 year sentence was vacated, and a 9-

month sentence was imposed. A week after this reduction in sentence,

the Service notified the respondent to appear for deportation, but did

not notify his counsel. The respondent appeared as ordered, explained

that a shorter sentence had been imposed, but was nevertheless de-

ported the same day, without an opportunity to contact counsel. The

Court found a violation of due process,on these facts, and ordered the

respondent readmitted in order to pursue any possible remedies.

In the present case, the respondent's conviction was set aside long

after his deportation, not prior to it. Moreover, as the respondent here

188

Interim Decision # 2747

was found deportable under a section of the Act which does not require

a criminal conviction, it does, not appear that even a more timely

setting aside of the conviction would have wiped out the grounds for

his deportation.' The respondent's own testimony and affidavit regard-

ing his role in bringing aliens into the United States illegally consti-

tute clear, convincing, and unequivocal evidence of deportability. The

conviction is not necessary to this finding. Finally, the respondent's

counsel in this case had notice of the respondent's imminent deporta-

tion, and in fact filed an application for stay of deportation on his

behalf.2

We do not find that the respondent's departure on August 18, 1978,

under an order of deportation, was in contravention of due process. As

the deportation was lawful, we are constrained by 8 C.F.R. 3.2 to deny

this motion for lack of jurisdiction.

ORDER: The motion is denied.

' Section 241(a)(13) of the Act provides for the deportation of any alien who

(13)prior to, or at the time of any entry, or at any time within five years after entry,

shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided

any other alien to enter or to try to enter the United States in violation of law.

As pointed out in the respondent's motion, the stay application was not denied until

after the respondent's deportation. This is unfortunate, but we note that the respondent

had no entitlement to a stay. 8 C.F.R. 234.4.

189