A-6194692
Decided by Board January 4, 1950
Suspension of deportation — Section 19 (c) (2) of the Immigration Act of 1917, as amended — Sufficiency of showing as to "serious" economic detriment — Good moral character.
1. In a low income-bracket family, a showing may be made that "serious" economic detriment (within the meaning of section 19 (c) (2) of the Immigration Act of 1917, as amended) will result to the citizen spouse, notwithstanding the fact that the citizen spouse is employed also.
2. A showing of "good moral character", required before suspension of deportation may be granted, is not barred because of certain extramarital misconduct, in view of the circumstances noted herein.
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Lodged: Act of 1917 — Admits crime prior to entry: Rape, second degree
BEFORE THE BOARD
Discussion as to Deportability: Respondent is a native and citizen of Mexico, 30 years of age. He last entered the United States from Mexico at Laredo, Tex., on March 8, 1946, and was admitted as a visitor for a period of 2 months. At the time of his last entry, it was his intention to reside permanently in the United States. The facts sustain a finding of deportability.
Discussion as to Eligibility for Suspension of Deportation:
Respondent has requested suspension of deportation on the ground that deportation would result in serious economic detriment to his United States citizen wife. At the time of his last entry into the United States, respondent was already married to a United States citizen woman. He had been admitted into the United States previously as a contract railroad worker. He married C---- S---- in New York City on September 11, 1945. She is a native-born United States citizen, having been born in Puerto Rico. They have no children.
Respondent is employed and at the time of the hearing was earning $37 a week. His wife has been employed since 1942 and is earning $40 a week. They work for the same employer. The Presiding Inspector found that deportation of respondent would result in serious economic detriment to his wife. The Assistant Commissioner's opinion conceded that respondent's wife would suffer some economic detriment in the event of his deportation, but not sufficient economic detriment to justify suspension in view of what that opinion terms "respondent's immoral conduct while in this country."
In Matter of J----, 5-223513 (Dec. 30, 1946), and in Matter of K----, 2-440423 (Dec. 30, 1946), we held that serious economic detriment results where there is a 50-percent reduction in the family income as a result of the deportation of an alien who is one of the wage earners. In Matter of M----, 2872733 (July 17, 1946), we held that deportation of the alien would result in serious economic detriment to a family in a low-income bracket notwithstanding the fact that the citizen wife was employed. In Matter of P----, 3810352 (July 15, 1946) we held that even though the wife would have some liquid assets at her disposal it did not mean that there would be no serious economic detriment resulting to her from the alien's deportation. In Matter of B----, 1317192 (June 21, 1946), it was held where deportation of the alien would result in a reduction of the family income from $80 to $36, a serious economic detriment would result to the wife. In all of these cases, it took the earnings of both the husband and wife to support the home. It is our opinion that the present case falls in this category, and we find that deportation of respondent would result in serious economic detriment to his United States citizen wife.
The Presiding Inspector recommended that respondent be denied suspension of deportation on the ground that he had failed to demonstrate good moral character during the past 5 years, and the Assistant Commissioner concurred in that finding. The facts with respect to respondent's conduct during the past 5 years are as follows: During September 1945, for a period of 8 days in New York City, he lived with a girl who was not more than 17 years of age. During this period he had sexual intercourse with her on a number of occasions. He stated that he was not aware of the fact that under the laws of New York he was committing the crime of statutory rape by these acts. He testified that the age of consent in Mexico is 16 years. The Presiding Inspector found that respondent had admitted that he had committed a crime prior to entry. The Assistant Commissioner found that this matter had been presented to a grand jury in New York City but that the jury refused to return a true bill. Since the grand jury dismissed the case, the Assistant Commissioner found that respondent's admission should not be used as a basis for sustaining the criminal charge, citing Matter of I----, A-4312827 (May 22, 1946). The lodged charge was not sustained.
Respondent testified that he had planned to marry the girl referred to above, and that the arrangements had been made for their marriage, but she decided that she did not want to marry him. Therefore, he immediately married the woman who is presently his wife. He has lived with his wife for 4 years, and so far as this record shows he has been faithful to her.
Respondent is the father of an illegitimate child now aged 11 years, who lives in Mexico. The Central Office found that "in view of the respondent's generally loose conduct" a grant of suspension of deportation was unjustified. Counsel points out that the record contains no proof of the exact age of the girl concerned in the statutory rape charge, and that since no indictment was found against him that it may be assumed that nothing adverse was shown.
Good moral character is defined by the courts to be: "That which measures up to the standard of average citizens of the community in which the alien lives ( In re Petition of De Leo, 75 Fed. Supp. 896 (W.D. Pa., 1948; also Petitions of Rudder et al., 159 F. (2d) 695 (C.C.A. 2d)). This Board has held that "good moral character" is not synonymous with moral excellence ( Matter of B----, 56130/885 (June 15, 1947); Matter of M----, 56152/402 (Mar. 31, 1944)).
In Matter of J----, 1163558, (Nov. 18, 1947), approved by Attorney General December 18, 1947 we held that adultery within a 5-year period does not necessarily preclude a finding of good moral character. We believe that the acts and conduct of appellant do not preclude a finding of good moral character under the liberalized view of the above-cited cases. The record shows that respondent is a good worker and is commended as to his reputation, character, and honesty. He is living harmoniously with his wife. Judging from his conduct during the 4 years of his marriage, he is deserving of a grant of suspension of deportation at this time on the grounds that his deportation would result in serious economic detriment to his United States citizen wife.
Suspension of Deportation — Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the alien is not ineligible for naturalization in the United States;
(2) That the alien has been of good moral character for the preceding 5 years;
(3) That deportation of the alien would result in serious economic detriment to his wife, a citizen of the United States;
(4) That after full inquiry no facts have been developed which would indicate that the alien is deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.Suspension of Deportation — Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the alien is eligible for suspension of deportation under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.Order: It is ordered that deportation of the alien be suspended under the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That the order entered by the Assistant Commissioner on August 12, 1949, be, and the same is, hereby withdrawn.
It is further ordered, That if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the alien, a nonquota immigrant, be not charged to any quota.