A-3552163
Decided by Board April 2, 1956
Good moral character — Adultery, New York — Discretionary relief, section 244, Immigration and Nationality Act.
(1) Where an illicit relationship begins in New York in 1943, 15 years after the respondent last heard from his wife and he is granted a divorce decree in 1952 based on section 7-a of the Domestic Relations Law of New York (which provides that a divorce may be granted a deserted spouse upon affirmative showing that the deserting spouse has been absent for the past 5 years without being known to the petitioner to be living, etc.), adultery has not been committed under New York law, death being presumed to have occurred 7 years after the wife was last heard from in 1928.
(2) Accordingly, respondent is not precluded from establishing good moral character by the limitations set forth in section 101 (f) (2) of the Immigration and Nationality Act and may be found statutorily eligible for suspension of deportation under the act. However, in view of the facts in this case, the maximum discretionary relief warranted is the grant of voluntary departure with preexamination.
CHARGE:
Warrant: Act of 1952 — Stowaway (1917 act).
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by a special inquiry officer, November 7, 1955, directing his deportation on the charge stated above. The alien's representative has not filed a brief in support of the appeal. The principal issue before us concerns the denial of discretionary relief which would permit respondent to adjust his status and reside lawfully in the United States.
The record relates to a native and citizen of Venezuela, male, married, now approximately 55 years of age, who last entered the United States at the port of Philadelphia, Pennsylvania, on September 2, 1924. He arrived as a stowaway and was admitted as a citizen on the strength of a consular certificate purporting to show that the respondent was a native of Puerto Rico and a citizen of the United States. The evidence of record affirmatively establishes respondent's deportability on the charge stated in the warrant of arrest.
Discretionary relief has been denied on the basis of a finding by the special inquiry officer that respondent has committed adultery during the 7 years immediately preceding the filing of his application for suspension of deportation and, therefore, is statutorily precluded from establishing good moral character by section 101 (f) (2) of the Immigration and Nationality Act. The record shows that the respondent was married in Philadelphia, Pennsylvania, during 1926. He resided with his wife for approximately 2 years (1928). It is his allegation that she then left him. He became acquainted with one M---- R---- in 1942. He commenced having sexual relations with her in 1943. As a result of the illicit sexual relationship a child was born in New York City in 1945 and a second child in the same city in 1946. There is an affirmative showing that the respondent secured a divorce from his first wife in New York City on December 2, 1952. This was an interlocutory decree which became final in March of 1953. Thereafter he married M---- R---- on March 25, 1953. The respondent admits that he had extramarital relations with his wife prior to their marriage on March 25, 1953.
The special inquiry officer is of the opinion that the relationship described above amounts to the crime of adultery as defined by section 100 of the Penal Law of New York. We have held that since the determination of an individual's good moral character for the purpose of granting discretionary relief in a deportation proceeding is a civil, not a criminal, matter, the civil definition of adultery applies and a person within this category is precluded from establishing good moral character under section 101 (f) (2) of the Immigration and Nationality Act ( Matter of M----, A-6496225, 6 IN Dec. 660, B.I.A., July 20, 1955). The question to be determined is whether respondent's extramarital relations with his present wife between December 31, 1947, and their marriage on March 25, 1953, amounts to adultery under the Civil Code of the State of New York. Adultery, as such, is not defined by the Civil Code. However, there is a provision of the Domestic Relations Law applicable to the facts presented in this case.
Section 100 of the Penal Law of New York defines adultery as follows: "Adultery is the sexual intercourse of two persons, either of whom is married to a third person."
Respondent filed his application for suspension of deportation on December 31, 1954.
The respondent's marriage to his first wife was dissolved by an interlocutory decree of divorce entered by the Supreme Court of the State of New York on December 2, 1952. The interlocutory decree became final as of course on March 2, 1953. The divorce was granted under the provisions of section 7-a of article 2 of the Domestic Relations Law of New York. Since we are concerned with a determination of whether respondent's extramarital relations with his present wife amounts to adultery under the Civil Code of New York, we must consider the effect of this decree in light of the statutory presumption of death set forth in section 7-a ( supra) of the New York Code.
Section 7-a of article 2 of the Domestic Relations Law (New York) provides in substance that a divorce may be granted a deserted spouse upon an affirmative showing that the deserting spouse has been absent for the past 5 successive years without being known to the petitioner to be living during that time, that after diligent search no evidence has been found that the deserting spouse is living and that the petitioner believes the deserting spouse to be dead.
A leading case on this subject is Application of Schepis, 89 N.Y.S. (2d) 193 (1949). The petitioner in the Schepis case, as the father of a deceased unmarried veteran, made application under the New York Bonus Act for the payment of said bonus to him as next of kin. The Bonus Act (Chapter 547, Laws of 1947) defines next of kin in the order of priority as widow, widower, children, mother, father, brothers and sisters. The petitioner submitted as proof of death of his deceased son's mother a decree of divorce obtained July 11, 1937, under section 7-a of article 2 of the Domestic Relations Law. The Commissioner of Taxation and Finance ruled that a dissolution of marriage under section 7-a ( supra) was not sufficient proof of the death of petitioner's wife (deceased veteran's mother) and under the Bonus Act the petitioner's claim must be rejected unless he (petitioner) submits:
Either a death certificate for his former wife, an affidavit from any person with direct knowledge of the demise of his former wife, or a copy of an order of a court of record declaring her to be dead.
The Supreme Court reversed the ruling of the Commissioner of Taxation and Finance. It said:
The aforementioned order of this court dissolving the marriage was a determination that the mother of the deceased veteran was dead. It is upon this basis that the proceeding is founded and that the dissolution is authorized by the statute and the order of dissolution is made. It is a presumption of death, predicated upon proof warranting such a finding by the court and this presumption continues as an adjudicated fact until the order is set aside. * * * The order of this court cannot be collaterally attacked except for lack of jurisdiction. The petitioner is, therefore, entitled to an order directing the payment to him of the veteran's bonus unless there is some maintainable defense to prevent it, interposed. (P. 195.)
Where it has been determined that the presumption of death be applied, as it has in this case, it becomes necessary to determine the date of death. The general rule followed by the courts of New York with regard to this subject appears to be that in the absence of a controversy, occurrence or hazard from which it may be concluded death occurred, an absence for the period provided by statute creates a presumption that death took place at the end of that period ( In re Morrisroe's Estate, 58 N.Y.S. (2d) 585, 587 (1945); Connor v. New York Life Insurance Company, 179 App. Div. 596, 166 N.Y.S. 985 (1917)).
The law indulges in presumptions from the necessities of the case in the absence of sufficient evidence to establish the fact to be proved ( In re Meehan's Estate, 135 N.Y.S. 723, 725 (1912)). The respondent in the instant case had not seen or heard from his first wife for 15 years when he began having relations with his present wife. The probability of the death of his first wife has been transformed into a legal certainty by a divorce decree he obtained on December 2, 1952, under section 7-a of the Domestic Relations Law ( Application of Schepis, supra). This decree, in light of the general rule followed by the New York courts when interpreting statutory presumption of death, is an adjudication that she died at the end of the statutory period (Ibid, DiClaudio v. DiClaudio, 132 N.Y.S. (2d) 602 (1954)). Respondent, therefore, under section 7-a of the Domestic Relations Law, was in an unmarried status in 1943 when he began having relations with his present wife. Respondent's first wife deserted him in 1928.
Relying on the precedents cited above, we find as a matter of law that respondent was in an unmarried status in 1943 when he commenced relations with his present wife. Under the Civil Code of the State of New York respondent as a matter of law did not commit adultery during the 7-year period immediately preceding the filing of his application for suspension of deportation on December 31, 1954, because the Supreme Court of the State of New York has declared his first wife legally dead prior to December 31, 1947, and his present wife was a femme sole during the period of extramarital cohabitation. His present marriage cannot be collaterally attacked except for fraud or lack of jurisdiction. His children born out of wedlock are now legitimate ( Gehm v. United States, 83 F. Supp. 1003 (D.C.N.Y., 1949)).
The foregoing consideration is for the purpose of determining whether respondent comes within the limitations set forth in section 101 (f) (2) of the Immigration and Nationality Act so as to preclude him from establishing good moral character for the purposes of his application for suspension of deportation under section 244 (a) (1) of the same act. Respondent concedes extramarital relations with his wife prior to their marriage and during the statutory period good moral character is required to be established. It is our opinion that under the judicial precedents cited above respondent as a matter of law did not commit adultery during the 7 years immediately preceding the filing of his application for discretionary relief. Accordingly, we hold that respondent is not precluded from establishing good moral character by the limitations set forth in section 101 (f) (2) of the Immigration and Nationality Act.
This finding of statutory eligibility raises the question of whether the facts and circumstances of the case warrant the exercise of the discretion respondent seeks. Respondent is employed as a cook earning approximately $45 a week. He has assets of approximately $1,000 consisting of furniture and personal effects. He is the sole support of his wife and two children. He was arrested and convicted of a "policy" violation in 1943 for which he received a fine of $50. Respondent's wife is a native-born citizen of the United States. His native-born children are now 10 and 11 years of age, respectively. Respondent has resided in the United States for more than 31 years. Affidavits and other documentary evidence indicate that he is well regarded in his community. After careful consideration of the foregoing factors, we are of the opinion that the maximum relief warranted is the grant of voluntary departure under section 244 (e) of the Immigration and Nationality Act together with preexamination pursuant to 8 CFR 485. It will be so ordered.
Order: It is ordered that the order entered by the special inquiry officer on November 7, 1955, be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 6 months, and under such conditions as the officer in charge of the district deems appropriate.
It is further ordered that preexamination be granted in connection with the foregoing.
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.