Interim Decision #1237

Interim Decision #1237

MATTER Or num.

In DEPORTATION Proceedings

A-12470682

Decided by Board August 29,190

(1) Respondent, a single female, who engaged in a meretricious husband-wife

relationship with a married man in the State of Oregon, is not deemed to have

committed adultery under the law of that State.

(2) Notwithstanding respondent is not precluded from establishing good moral

character by the provisions of section 101(1) (2) of the Immigration and Nationality Act and is not statutorily ineligible for the discretionary relief of

voluntary departure, her illicit sexual relations with a married man, maintained with full knowledge of her paramour's marital status, justify denial

of such relief as a matter of administrative discretion.

CHmean: Act of 1952—Section 241(a) (2) (8 U.S.O. 1251(a) (2) 3—Remained

longer—visitor.

This is an appeal from the order of the special inquiry officer finding respondent deportable upon the ground stated above and denying

her application for Voluntary departure. The appeal will be

dismissed.

Respondent, a 19-year-old single female, a native of Bulgaria and

citizen of Germany, last a resident of Canada, was admitted to the

United States on January 24, 1962, as a visitor for a period ending on

January 31, 1962. She failed to obtain an extension of her stay and

has remained in the United States without authority. She is clearly

deportable as charged.

Respondent requested voluntary departure. The special inquiry

officer found her ineligible as a matter of law and also stated that had

she been eligible for the relief, he would have denied it as a matter of

discretion because she lacked good moral character. The finding of

statutory ineligibility for voluntary departure is based upon the fact

that the respondent lived in a husband and wife relationship with a

married man while in the United States.

The record reveals that the respondent's paramour left his wife in

New York and came to Canada where he met respondent and began

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the relationship with her apparently in late 1961. He came to the

United States about January 1962, the respondent joined him shortly

thereafter and they commenced living together_ The man testified

thit he had been separated from his wife for about a year, that neither

he nor his wife saw any possibility of reconciliation, and that both

desired a divorce. The respondent and her partner stated they intended to marry.

Section 244(e) of the Act (8 U.S.O. 1254(e) ) under which the respondent applied for voluntary departure requires the applicant to

establish good moral character for five years. Section 101(f) (2) of

the Act (8 U.S.C. 1101(f) (2) ) provides that no person shall be found

to be a person. of good moral character who during the period for which

good moral character must be established "has committed adultery."

In finding that respondent had committed adultery and was, therefore, statutorily ineligible for the relief requested, the special inquiry

officer relied upon the fact that in the State of Oregon a. single female

who has illicit sexual intercourse with a married man may be prosecuted for adultery (State v. Case, 61 Oreg. 265). Counsel is of the

belief that it is improper to apply a state standard since a federal law

is involved. He contends that in the absence of a federal statutory

definition, the common law definition should obtain, and points to

the fact that under the common law adultery could be committed only

where the woman was married. Admitting that there is no ease directly on the point, he relies upon Evans v. Murff, 135 F. Supp. 907

(D.C. Md. 1955) ; Diakhoff v. Shaughnessy, 142 F. Supp. 535 (S.D.

N.Y. 1956) ; and United States v. Shaughnessy, 221 F. 2d 578 (2d Cir.

1955).

Under the common law, both parties committed adultery, if a married woman engaged in sexual relations with a man other than her

husband whether the man was married or single. Under ecclesiastical

law, adultery existed as to the married person, whether male or female,

who engaged in sexual relations with one other than the lawful spouse.

It mattered not that the unlawful partner was married or single;

however, if the unlawful partner was single, the single person's crime

was not adultery, but fornication. In most jurisdictions in the United

States, the common law definition has been enlarged by statute to

provide that adultery is committed by a married person who has sexual

intercourse with some person other than the lawful spouse. It is in

this last sense that adultery is popularly defined. An unmarried partner in the illicit affair is in some states guilty of adultery while in

other states the single person cannot be convicted of adultery (2 C.J.S.

Adultery secs. 1 and 11).

We find no clear-cut judicial holding that a federal standard based

upon the common law definition of adultery should apply in constru86

Interim Decision *1237

ing section 101(f) (2) of the Act. U.S. ex rel. Zacharias v. Shaughnessy, 221 F. 2d. 578 (24 Cir. 1955) (single man—married woman)

holds that the provisions of the Act concerning good moral character

did not apply to Zacharias because of the existence of a savings clause.

The courts' comments concerning adultery are dicta. Furthermore,

it is to be noted that the court held adultery existed under either the

common law or the law of New York where the acts of adultery were

committed. Dickhoff v. Shaughnessy, 142 F. Supp. 535, S.D.N.Y.

(1956) (married man single woman) concerned a commission of

adultery that was artificial in that it was the result of a divorced

—

man remarrying without knowledge that his divorce was invalid. No

federal definition of adultery was attempted, the court holding that

adultery, if adultery had been committed, could be found only by

reason of the New York statutes. The court pointed out that if the

common law were relied upon, there would have been no adultery (142

F. Supp. at 539). (The court also stated that Congress desired to rely

upon the past judicial interpretations as to good moral character (142

,F. Supp. at 539.) Evans v. Murff, 135 F. Supp. 907 (I). Md. 1955)

(single man—married woman) holds that Congress intended that the

definition of adultery be the same throughout the country and that

Congress probably intended to apply the common law to the definition of adultery rather than the ecclesiastical. However, it is noted

that the court found that in the case before it that adultery had probably been committed under the laws of Maryland. Moreover, by reserving the question as to whether adultery is committed by a married

man. who has sexual intercourse with an unmarried woman, the court

indicated that the common law definition may not control (135 F.

Supp. at 911).

The history of the legislation reveals no indication that Congress

desired that the common law standard bo imposed or that there be a

departure from the administrative and judicial reliance upon state

law in determining whether adultery existed. The committee of

Congress upon whose recommendation the Act was based recommended

that "more uniform regulations should be employed * * * to the end

that a higher general standard of goods (sio) morals and personal

and political conduct are (sic) established" and comment was made

concerning the "confusion" which existed because all aliens who had

committed adultery were not treated alike by both courts and administrative officials (S. Rapt. No. 1515, 81st Cong. 2d Sess. 699-701 (1950),

see, S. Rept. No. 1137, 82nd Cong. 2d Sees. 6 (1052) ). It is our belief

that Congress' desire that there be uniformity related not to the

method to be used in. determining whether adultery had been committed, but related rather to the desire that all persons who had committed adultery should be barred from the prizes of the law. This

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provision is in consonance with the finding of the court in Dickhoff

that Congress -wished to rely upon past judicial interpretations as

to good moral character and it takes cognizance of the fact that

Congress has not criticized the long established administrative practice (based upon the judicial rulings) in which a determination as

to whether there had been the commission of adultery was made

dependent upon the law of the state in which the act occurred.

It appears to us, therefore, that to determine the issue before us,

we must decide whether respondent has committed adultery under

the civil or criminal laws of Oregon. State v. Case, 61 Oreg. 265, 122

P. 304 (1912), relied upon by the special inquiry officer concerned a

married man who had been indicted for committing adultery with a

single woman. She also, had been indicted for adultery. The case

appears to hold that although the single woman could not commit

adultery, she could be convicted of adultery because she was an

accomplice of the person who had violated the laws of the state concerning the commission of adultery. Since the woman was an accomplice, she could be indicted as a principal and convicted of adultery.

For an analogy, the court gave the example of a person who because

he had aided a man and woman to commit bigamy, could under the

laws of Oregon be himself convicted for bigamy. As far as the law

of Oregon is concerned, it is only technically and artificially that

adultery has occurred in relation to the single woman. We do not

believe that Case is authority for holding that within the framework

of the immigration laws, a single female who has engaged in sexual

relations with a married man in Oregon has committed adultery. The

respondent is, therefore, in our opinion not statutorily ineligible for

the relief requested.

Counsel contends that if the respondent is not statutorily ineligible

for relief, she should be found to be of good moral character although

she lived with a married man. Counsel is of the belief that consideration must be given to the fact that the respondent had been brought

up in Europe where a different standard allegedly relates to such

matters and he also asks that consideration be given to the fact that

the parties intended getting married. Counsel requests that he be permitted to produce expert witnesses who would testify as to the general

moral attitude of the community concerning respondent's conduct.

The examining officer in a brief opposes these contentions.

Whether a person is of good moral character or not, is to be judged

by standards prevailing in the United States. The declaration of

Congress concerning the denial of relief to a person who has committed

adultery represents the moral feeling prevalent generally in the 'United

States (Petitions of F G and E E 0 , let F. Supp. '782

1956)). It is an indication of the attitude to be taken to illicit rela-

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Interim Decision #1237

tions by a single woman with a married man. We agree with the

special inquiry officer, that the meretricious relationship maintained

by the respondent, with the full knowledge that her paramour was

a married man, that he had not been divorced, and that he could not

get a. final divorce because he could not satisfy residential requirements (p. 22) justifies a denial of relief as a discretionary matter.

Prior to the service upon counsel on April 24, 1962 of the special

inquiry officer's order, he had inquired of the District Director at

Portland, Oregon concerning inclusion into the record of a copy of a

divorce decree obtained in Mexico on April 11, 1962 by the respondent's

paramour from his wife. The legal papers submitted with the divorce

were entitled "Motion to Reopen" and were served upon the District

Director who aoknowledged receipt in writing on April 24, 1962.

(Whether the motion was filed before or after service upon. counsel

on the same day of the special inquiry officer's order is not clear, but

the matter is immaterial.) There is no indication that the fee for the

filing of the motion to reopen was paid (8 CFR 103.5). On April 30,

the District Director apparently returned the motion papers to counsel.

On May 1, counsel wrote a letter to the special inquiry officer attaching

the motion and divorce decree and explaining that the purpose of his

action was to have the record completed for the benefit of the Board in

consideration of the appeal to the Board he had filed on May 1, 1962.

On May 2, 1962, the special inquiry officer wrote to counsel stating

that the only way the divorce decree could be made a part of the record

was by motion to reopen and since such a motion had not been properly submitted, the divorce decree was being attached to the record

for the information of the Board in considering the appeal which

counsel had filed.

Counsel complains that his motion was not properly forwarded to

the special inquiry officer. Counsel's contentions are not justified.

After the hearing had been closed and before an appeal to the Board

had been filed counsel could make the divorce decree a part of the

record only by obtaining a reopening of proceedings from the special

inquiry officer. The motion to reopen was not filed with a fee and was

therefore, properly returned to counsel (8 CFR 103.5). Of course in

connection with an appeal, and without the payment of a, fee in addition to that paid for filing the appeal, the Board can be requested

to reopen proceedings to receive new evidence. In the instant case a

request for such action would not have been granted since no purpose

would be served in making the divorce decree a part of the record;

the divorce decree does not excuse the conduct which occurred before

the decree was obtained (see Matter of CL—, 6 I. &. N. Dec. 675).

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

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