A-3601059
Decided by Board April 20, 1956
Good moral character — Adultery — Texas.
Under the laws of Texas, sexual intercourse between a man and a woman when either is lawfully married to some other person constitutes adultery. Therefore, the respondent, one of the parties thereto, is statutorily ineligible under section 101 (f) (2) of the Immigration and Nationality Act for suspension of deportation. The subsequent marriage of the parties involved does not remove the statutory bar.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (11) — Conviction of law relating to illicit narcotic drugs.
BEFORE THE BOARD
Discussion: Respondent is 48 years old, married, male, a citizen of Mexico by birth. He claims to have entered the United States in 1923, and not to have left the United States since that time. The special inquiry officer denied discretionary relief on the ground that respondent has not shown himself to be a person of good moral character during the period required by the statute. The special inquiry officer ordered respondent deported on the charge stated in the warrant of arrest, and respondent appeals from that order.
Respondent presented a certificate of birth issued by an official of the Civil Register at Villa Acuna, Coah., Mexico, which indicates that one of his sisters appeared at the office of the Civil Register at that place on October 18, 1949, and presented a man whom she declared to be the legitimate son of G---- R----. Respondent denies that he did appear with his sister or that he was in Coahuila, Mexico, in 1949. He states that he was at Del Rio, a town on the border, and she sent the birth certificate to him at Del Rio.
Respondent's deportability on the warrant charge is established by Government exhibits 3 and 4, certified copies of conviction and sentence showing that respondent was charged with the possession and sale of marijuana, two offenses, both on July 21, 1933, pleaded guilty, and was convicted. Apparently counsel does not contest the finding of deportability. It is our conclusion that the respondent is deportable on the charge stated in the warrant of arrest.
Respondent applies for suspension of deportation on the ground that he is married to a United States citizen and that he is the father of two United States citizen children to whom he contributes support. Counsel pleads that respondent has lived in the United States since he was 15 years of age, that the events which form the basis of the charge took place 23 years ago, that respondent has had no arrests for misdemeanors or for more serious charges during the past 5 years, and that since 1950 he has improved his behavior. Most of counsel's brief on appeal is devoted to disparaging the testimony of respondent's present wife, H---- B---- R----.
Respondent would have to establish his eligibility for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act, because he is deportable under section 241 (a) (11) of the act. In order to establish eligibility under section 244 (a) (5), he would have to show good moral character for the past 10 years. Good moral character for 5 years or 7 years is not sufficient for a person who is deportable for a violation of law relating to illicit traffic in narcotic drugs.
Respondent is not eligible for suspension of deportation under the Immigration and Nationality Act because of the provisions of section 101 (f) (2) of that statute which provide 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 has committed adultery. Without looking any further into respondent's record, he is precluded from demonstrating good moral character by the existence of this provision of the law alone.
The record shows that respondent and his present wife both admit that he is the father of Y---- S---- R----, born at Dallas, Texas, on February 25, 1953. At that time H---- R---- was still married to J---- R---- M----. She filed suit for divorce from M---- on April 13, 1953, and the divorce was granted on May 22, 1953, according to the record of the District Court, Dallas County, Dallas, Texas (Government exhibit 7, report of investigation by Immigration and Naturalization Service investigator). H---- R---- had first testified that she was divorced from J---- M---- in August 1952, but the court records demonstrate that her testimony in this respect was not accurate. Later she stated in a sworn statement taken at the Immigration and Naturalization Service offices on December 13, 1955, that at the time Y---- was born, "I was married to another man, but I wasn't living with him." She was asked where she obtained the money to pay the hospital bill incurred by her at the time of the birth of the child, and she stated that she received an allotment from her husband and paid the hospital bill of $42 with that. Government exhibit 7 shows that the hospital bill was paid by a Government check, and that H---- R----'s husband's name at that time was shown as Sgt. J---- R---- M----, United States Army.
H---- R---- also stated that she and respondent were living together at the time the baby was born, and that he and she were running the Blue Light Cafe, which was in her name, because respondent couldn't get a license to sell liquor. The records of the Texas State Liquor Control Board show that a license was issued to H---- M---- for that cafe on April 22, 1952. The license was issued under the condition that respondent would not be allowed on the premises, but Mrs. R---- states that he continued to work there. Respondent's exhibit 2 shows that respondent registered the birth of Y---- under his own signature on May 26, 1955, and gave his own name as the father of the child. He also testified that he is the father of this child.
The law of Texas provides as follows:
Vernon's Penal Code, Article 499: "Adultery" is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman when either is lawfully married to some other person.
Civil adultery in Texas is defined in Lawler v. Lawler, 15 S.W. 2d 684 (Texas Civ.App. 1929):
"Adultery" in a divorce suit means voluntary sexual intercourse of a married person with one not a husband or wife of the offender.
We find that under the law of Texas respondent committed adultery in living with his present wife while she was still married to another. We have held consistently that marriage does not cure the prior adultery for the purposes of section 101 (f) (2) of the Immigration and Nationality Act. Without examining respondent's other arrests and without discussing whether or not he could fulfill the other requirements of the statute for a grant of suspension of deportation, it is clear that he is precluded by law from showing good moral character necessary for any grant of relief under the Immigration and Nationality Act.
Order: It is ordered that the appeal be and it hereby is dismissed.