A-2530906
Decided by Board December 18, 1956
Crime involving moral turpitude — Atrocious assault and battery, New Jersey — Good moral character — Adultery, New Jersey.
(1) Atrocious assault and battery in violation of New Jersey Statutes Annotated, chapter 90, section 2A: 90-1, is a crime involving moral turpitude.
(2) Adultery under the New Jersey law regulating divorce is committed by the voluntary sexual intercourse of a married person with one not the husband or wife of that person. An offender is precluded from establishing good moral character under section 101 (f) (2) of the act.
CHARGES:
Order To Show Cause: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Two crimes after entry, to wit: Assault with intent to kill, and atrocious assault and battery.
Lodged: Act of 1952 — Section 241 (a) (4) ( 8 U.S.C. 1251 (a) (4)) — Two crimes after entry, to wit: Atrocious assault and battery (twice).
BEFORE THE BOARD
Discussion: Respondent, a 62-year-old married male alien, native and citizen of Italy, who was admitted to this country for permanent residence on June 7, 1907 (last entry), appeals from a decision of a special inquiry officer on July 31, 1956, which directed deportation on the charge lodged in the hearing. The warrant charge, which is not descriptive of both crimes involved, is not sustained.
Counsel, in his presentation of argument, has commingled the factors relating to deportability with the hardship factors pertaining to discretionary relief. Apparently the appeal is directed to the request for relief from deportation. The hardship factors have been set forth. In the event the appeal cannot be sustained, counsel believes that an application for pardon may be granted to cover 1 of the convictions.
Deportability is predicated on the respondent's conviction for 2 crimes after entry, namely, atrocious assault and battery in violation of the criminal statutory law of the State of New Jersey. The first conviction occurred on March 25, 1914, and sentence to confinement in New Jersey Reformatory was pronounced April 29, 1914. The respondent had been indicted for assault with intent to kill, but after he withdrew a plea of not guilty, he was permitted to enter a plea of "nonvult" to the crime, atrocious assault and battery, a lesser offense. He was then about 20 years of age. The court record before us fails to show whether or not he was represented by counsel. He was tried as an adult. The second conviction occurred on October 21, 1932, after the respondent's plea of guilty to atrocious assault and battery. He was sentenced November 4, 1932, to a term of 18 months and to pay costs. Subsequently, sentence was reconsidered and postponed and the respondent was placed on probation.
Atrocious assault and battery is defined in New Jersey Statutes Annotated, chapter 90, section 2A:90-1, as a high misdemeanor:
Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor. (R.S. 2: 110-1)
Maiming or wounding by an assault and battery is unquestionably a crime of violence and definitely involves the element of moral turpitude. The leading case in the jurisdiction where respondent was convicted is State v. Capawanna, 118 N.J.L. 429, 193 A. 902 (1937) (affirmed by the Supreme Court, per curiam, 119 N.J.L. 337, 196 A. 679). That decision holds that the offense may be committed with an instrument, weapon or with the fists; and that the crime is complete when the victim is either maimed or wounded. That decision also sets forth the elements of the offense which are "maiming or wounding * * * by an assault and battery that is savagely brutal or outrageously or inhumanly cruel or violent." It follows that deportability is clearly established, in that, respondent has been convicted twice after entry of crimes involving moral turpitude not arising from a single scheme of criminal misconduct.
The application for maximum relief is under current law ( 8 U.S.C. 1254 (a) (5)). The special inquiry officer has set forth the pertinent factors revealed by the evidence. Notwithstanding the hardships involved, a conclusion has been reached that the respondent has committed adultery and is precluded from establishing good moral character during the preceding 10 years by the limitations in section 101 (f) (2), Immigration and Nationality Act ( 8 U.S.C. 1101 (f) (2)).
Respondent was first married in 1914 and separated from his spouse and children about 1934. Between 1940 and 1950 he had intimate relations with a woman to whom he has never been married. A child was born by the extra-marital relations in 1941. The mother of the child died in 1950. Under New Jersey Statutes Annotated, chapter 88, section 2A:88-1, adultery is prohibited and the punishment is that which is provided for misdemeanors:
Any person who commits adultery is guilty of a misdemeanor. (R.S. 2: 106-1)
Punishment for misdemeanor is provided in section 2A:85-7:
Any person found guilty of a crime which by any statute is declared to be a misdemeanor, and for which no punishment is specifically provided, shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 3 years, or both. (R.S. 2: 103-6).
The foregoing criminal statute prohibiting adultery in the jurisdiction of New Jersey has been considered and defined by New Jersey courts and the Federal court. Under such statute, a married man having sexual intercourse with an unmarried woman does not commit the crime of adultery ( State v. Lash, 16 N.J.L. 380). In other words, adultery, under the criminal law of New Jersey, depends on sexual relations with a married woman ( Petition of Smith, 71 F. Supp. 968 (1947)). Therefore, the crime can be committed only when the woman is the wife of another man, and illicit sexual intercourse by a married man with a single woman is fornication, and not adultery ( Criminal Laws of New Jersey by O'Regan and Schlosser, vol. I).
Since the offense of adultery under the criminal law of New Jersey requires a showing that the female party to the sexual intercourse be a married woman, we must look to the record to determine whether the mother of the respondent's illegitimate child was married or unmarried. Admittedly respondent is married.
Under New Jersey criminal law, where the facts show that adultery has been committed, both parties to the offense are guilty, that is, both the married woman and the man (regardless of his marital status), are guilty of adultery; and each is equally guilty. In other words, when the offense is adultery in the woman it is the same in the man, whether he is married or single. ( Criminal Laws of New Jersey by O'Regan and Schlosser, vol. I.)
This record fails to show definitely that J---- or J---- O'H---- (also known as J---- or J---- P----) was married during the period from 1940 to 1950. However, the testimony is not without conflict. Respondent stated on January 19, 1956, that the mother of his illegitimate son had been married to O'H----, and that her maiden name was D----; and that J----'s husband was deceased. He stated on another occasion that J----'s husband had been killed. His sister testified that she had heard that J----'s husband left her. In the absence of clear and positive evidence that J---- O'H---- was a married woman (between 1940 and 1950), we make no finding that the respondent has committed adultery as that offense is defined by the pertinent criminal statute.
Adultery is a ground for divorce under New Jersey civil law (sec. 2A: 34-2, New Jersey Statutes Annotated). The term adultery, as defined by the courts, is voluntary sexual intercourse of a married person with one not the husband or wife of that person ( Johnson v. Johnson, 78 N.J. Eq. 507, 80 A. 119; and Leech v. Leech, 82 N.J. Eq. 472, 89 A. 51). A married man having sexual intercourse with a woman not his wife commits acts of adultery that constitute a ground for divorce, regardless of the marital status of the woman (single or married) ( Reitemeyer v. Reitemeyer, 140 N.J. Eq. 393, 54 A. (2d) 726 (1947)). We recognize, in this an administrative deportation proceeding, adultery as defined by the civil law (as well as the criminal law) for the purposes of adjudicating an application for discretionary relief. Accordingly, we find that respondent is precluded from establishing good moral character during the preceding 10 years by the provisions of section 101 (f) (2), Immigration and Nationality Act, as one who has committed adultery.
Matter of W---- Y---- S----, 0300-414059, 6 IN Dec. 801; and Matter of M----, A-6496225, 6 IN Dec. 660.
It is unnecessary to discuss the hardships and sympathetic factors urged by counsel. They are conceded. Relief cannot be granted at this time. The appeal will be dismissed.
Order: It is ordered that the application for suspension of deportation be denied.
It is further ordered that the appeal in this case be dismissed.