A-6496225.
Decided by Board July 20, 1955.
Good moral character — Section 101 (f) (2) of Immig ration and Nationality Act — Adultery, Minnesota.
While sexual intercourse between a married man and an unmarried woman does not constitute the crime of adultery under Minnesota criminal statutes, such intercourse is adultery under the statute regulating divorce. Since the determination of an individual's good moral character in a deportation proceeding for the purpose of granting discretionary relief 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.
CHARGE:
Warrant: Act of 1924 — Remained longer — Student.
BEFORE THE BOARD
Discussion: The facts in this case have been stated at length by the special inquiry officer in an opinion of April 29, 1955, and by the Acting Regional Commissioner, Northwest Region, in a separate opinion of May 18, 1955. The special inquiry officer ordered suspension of deportation for respondent on the ground that his deportation would result in exceptional and extremely unusual hardship to him and to his United States citizen spouse and his two children, one by his present marriage, and one by a prior marriage. The Acting Regional Commissioner found that discretionary relief must be denied respondent on the ground that he has not established good moral character during the past seven years. Due to the difference of opinion between these two officers, the case was certified to this Board for decision as provided in 8 C.F.R. 6.1 (c).
We will not restate the case in detail. The respondent, a native of Turkey, national of Greece, 33 years of age, made only one entry into the United States. He was admitted on November 20, 1946, as a student under section 4 (e) of the Immigration Act of 1924, as amended. His last extension of stay in the United States expired on August 16, 1948, and he has remained in the United States in deportable status since that time. On December 31, 1948, he married a United States citizen. Respondent was entitled to a preference quota visa at that time because of his marriage to a United States citizen, and if granted the privilege of voluntary departure and preexamination, could have obtained an immigration visa under the quota to which he was chargeable. However, he objected to the cost of departure to Canada under this procedure, and he declined to leave at that time. The Assistant Commissioner, Adjudications Division, Immigration and Naturalization Service, ordered suspension of deportation for the alien under section 19 (c) (2) of the Immigration Act of 1917, as amended, on April 26, 1951. However, Congress rejected this case for suspension in accordance with a policy to deny suspension when the alien might be issued an immigration visa abroad in accordance with the standard statutory procedure. Therefore, on November 28, 1952, the Chairman of the Board of Immigration Appeals and the Assistant Commissioner, Immigration and Naturalization Service, acting together, granted respondent voluntary departure from the United States. Respondent did not depart from the United States under this grant. A bill in his behalf was introduced in Congress on July 30, 1954, but apparently no action was taken on this measure.
It has been the policy of the Department of Justice and of this Board not to resubmit to Congress cases which have been once rejected for suspension. This case was submitted to Congress under the Immigration Act of 1917 which was somewhat more lenient in several of its provisions than the present Immigration Act of 1952. Respondent's situation has not changed since that time in any way so as to make his case more appealing to Congress. It is true that he did not at that time have a child, but he did have a United States citizen wife. The present controversy as to his moral character had not yet arisen. Therefore, for the reason of this well-established policy alone, we would not resubmit this case to Congress with a request for suspension even if the other unfavorable factors were not present.
Under the present law respondent is nonquota by reason of his marriage to a United States citizen; if it were not for his extra-marital affairs, he would have no difficulty in adjusting his immigration status in the United States by departing voluntarily, obtaining a nonquota visa and reentering according to law.
To be eligible for suspension of deportation respondent must establish that during the seven years preceding his application for suspension he was and is a person of good moral character (section 244 (a) (1)). To be eligible for voluntary departure he must make a similar showing "for at least five years immediately preceding his application for voluntary departure" (section 244 (e)).
Section 101 (f) of the Immigration and Nationality Act declares that no person shall be regarded as, or found to be a person of good moral character who, during the period for which good moral character is required to be established is or was one who during such period comitted adultery. It is stated in the opinions of both the special inquiry officer and the Acting Regional Commissioner that under Minnesota statutes, sexual intercourse between any man and a single woman does not constitute adultery but constitutes fornication, a lesser crime, that there is no evidence in the record that the women, other than his wife with whom respondent had sexual relations were married to other men, and therefore respondent is not precluded from establishing good moral character. The special inquiry officer then found respondent to be of good moral character and recommended a grant of suspension. The Acting Regional Commissioner found respondent to be not of good moral character aside from the specific provisions of section 101.
A study of the pertinent Minnesota statutes and cases persuades us that respondent did commit adultery even under the local law and is precluded from establishing good moral character. There are two concepts of adultery in that jurisdiction — one civil and one criminal. The Criminal Code for the State of Minnesota, Volume 40, Minn. Statutes declares:
617.15. When any married woman shall have sexual intercourse with a man, other than her husband, whether married or not, both shall be guilty of adultery and punished by imprisonment in the state prison for not more than two years, or by a fine of not more than $300.
617.16. Fornication — When any man and single woman have sexual intercourse with each other, each is guilty of fornication and shall be punished by imprisonment in the county jail for not more than 90 days, or by a fine of not more than $100.
While sexual intercourse between a married man and an unmarried woman does not constitute the crime of adultery in Minnesota, such intercourse is adultery within the statute regulating divorce. This rule is stated Vol. I, Dunnell Minn. Digest, 3d ed., par. 102, page 123, and at Vol VI, same par. 2775, page 96. The Supreme Court of Minnesota so held in State v. Armstrong, 4 Minn. 251, 335, saying:
When regarded in a civil light, as a violation of the marriage contract, no distinction is made between an illicit connection by a married man with a married or an unmarried woman. In either case, for the purpose of a divorce, he is guilty of adultery.
Pickett v. Pickett, 27 Minn. 299 (1880), followed this rule, stating:
There may be a reason for giving the word a restricted meaning in the statute punishing the act as a crime and which treats the act as one affecting the peace and good order of society, while the popular and more enlarged meaning is intended in the statute prescribing causes for divorce where the act is treated as one affecting the rights of husband and wife. * * * Sexual intercourse by the husband with an unmarried woman is as much a violation of the (marriage) contract and of the rights of the wife as it would be if committed with a married woman. The word "adultery" in its popular sense, would include this violation of the contract, whether committed with a married or an unmarried woman.
In Arp v. Arp. 229 Minn. 6 (June 10, 1949), it was admitted that the plaintiff had committed adultery, and the report shows that the "adultery" in that case was his living with an unmarried woman while he was still married to his first wife. After he was divorced he and his paramour were married. He did not even advance the contention that his living with an unmarried woman was not adultery. We conclude that the rule of Pickett v. Pickett is the law in Minnesota today in civil cases.
We are concerned with a civil, not a criminal matter, in determining respondent's good moral character for the purpose of granting discretionary relief from deportation, and we will use the civil definition of adultery rather than the criminal definition. Respondent's relations with unmarried women are as much a violation of the concept of "good moral character" as if the participating partners were married women. Therefore, it is our opinion that under the law of Minnesota respondent has committed adultery within the meaning of section 101 (f) of the Immigration and Nationality Act and, therefore, we cannot find him to be a person of good moral character during the past seven years. For this reason, in addition to the fact that the case has already been rejected by Congress for suspension of deportation, the special inquiry officer's order must be withdrawn.
Even if the law were not as we have described it, we conclude that on general grounds, as set forth by the Acting Regional Commissioner, respondent's conduct does not satisfy the requirements of statutory and case law defining good moral character. The record shows that a daughter by his first wife was born September 1, 1952. Another child by a paramour was conceived approximately the same time his first child was born, but because the mother went away and has not corresponded with him, he does not know whether the second child lived or not. Respondent's son by his present wife was conceived several months before their marriage and was born on October 23, 1954. Therefore, the record establishes that respondent sired three children by three different women, in approximately two years and two months, two of which were conceived out of wedlock. In addition, there was at least one other affair. Respondent has discussed quite freely what he terms his "romances." He maintains that the affairs described in the record discovered by the Immigration and Naturalization Service are the only ones he has had, both before he came to the United States and since he has been here. He asserts that his behavior during this period resulted from trouble with his first wife and her mother, and that the girl in each case was the aggressor, that he was pursued and seduced, being naive and unsophisticated. He admits that he was approximately 30 years of age during this period and the girls were all between 18 and 20, and, except for his first wife, either students or former students of his at the University of Minnesota.
In his oral statement before this Board and also during his immigration hearings respondent described incidents in which he assisted students at the University who were having difficulties with their studies or private problems to become better adjusted. Apparently this was part of his responsibility as a student counselor. Furthermore, we note in each instance he mentioned that the student was a girl.
The record contains affidavits and the testimony of friends and acquaintances that respondent is a person of the highest moral calibre. Several faculty members and his first wife testified as to his good reputation. The irresponsibility of his actions defeats the statements of his character witnesses.
Repondent states that he is unable to return to Greece, because he is under an indictment for failing to return to report to the army when he was called up for military service on June 30, 1947. An exhibit in the record from Athens dated December 1, 1954, states that he has been registered as one who is "unsubdued" and that refusal to respond to draft in wartime is punishable by death by court martial, and, in case of alleviating circumstances, by terms of prison up to five years. Respondent states that he did not return to Greece in response to the draft call because he had understood by that time that his immigration status would be adjusted in the United States, and he would be permitted to remain here permanently and become a citizen. He was called up in 1947. He did not marry a United States citizen until December 31, 1948, and he was not granted suspension of deportation until April 26, 1951. Therefore, his belief as early as 1947 that he would achieve adjustment of status in the United States appears to have been unfounded. It is noted also that he has never registered in the United States under the Selective Service Act. He states that at one time he inquired of "somebody at the University," with regard to his obligation to register and "he was not clear of my status with the immigration, so he proposed I wait." Apparently, he made no inquiry of any responsible authority as to his duty to register under the Selective Service Act.
Under section 243 (h) of the Immigration and Nationality Act the Attorney General is authorized to withhold deportation of an alien when in his opinion the alien would be subject to physical persecution if he were deported to that country. We have no authority to make determinations under this provision, but the alien is permitted a hearing on this subject before the Immigration and Naturalization Service. It should be noted, however, that "physical persecution" generally would not include indictment or sentence by a lawfully constituted authority in his native country for a crime committed under the laws of that state.
Having committed adultery under the law of the jurisdiction wherein he is resident, respondent is precluded by law (section 101 (f) (2) of the Immigration and Nationality Act) from establishing good moral character. Even if the law of Minnesota were not clear on the subject, we would find respondent not to be of good moral character because of his extra-marital activities within the past seven years. In addition, his application for suspension of deportation has been denied by the Congress on one occasion; such cases are not resubmitted, except under extraordinary circumstances, which do not exist here. In order to merit a grant of voluntary departure the alien must show good moral character for the past five years (section 244 (e), Immigration and Nationality Act). He cannot make this showing for the same reasons that he cannot show good moral character for the past seven years. For all of these reasons respondent is not eligible for suspension of deportation or for voluntary departure.
Order: It is ordered that the order of the special inquiry officer of April 29, 1955, be and the same is hereby withdrawn.
It is further ordered that the alien be deported from the United States in the manner provided by law on the charge contained in the warrant of arrest.