0300-414059.
Decided by Board December 5, 1955.
Good moral character — Adultery — Section 100, Penal Code of the State of New York.
(1) Although an alien may have been unaware that his paramour was still married to another person, his illicit cohabitation with his paramour within the statutory period constitutes adultery and precludes a showing of good moral character under section 101 (f) of the Immigration and Nationality Act. ( Matter of R---- L----, 0300-257135, Int. Dec. No. 676, distinguished.)
(2) Section 101 (f) (2) makes no requirement that the adultery referred to therein must meet the test of criminal adultery. Hence, the criteria for determining whether adultery has been committed in the criminal sense are not necessarily applicable in determining whether adultery has been committed within the meaning of section 101 (f) (2).
CHARGES:
Warrant: Act of 1952 — Failed to comply — Seaman.
BEFORE THE BOARD
Discussion: Respondent is 27 years old, married, male, a native and citizen of China, who last entered the United States on December 7, 1950, as a seaman. He claims that it was his intention to reship within the period of his temporary stay, but he did not do so. His deportability on the charge stated in the warrrant of arrest is conceded.
The special inquiry officer denied voluntary departure to the respondent on the ground that he is ineligible for that form of relief because of inability to establish good moral character during the past five years. The special inquiry officer found that respondent committed adultery within the statutory period and is, therefore, precluded by section 101 (f) (2) of the act from showing good moral character. The respondent appeals to this Board from that decision.
Respondent was married on June 29, 1953, in New York City to a native of Puerto Rico and citizen of the United States. He testified that he started living with her in 1951, and their first child was born July 8, 1952. Their second child was born December 28, 1953, and at the time of the hearing his wife was again pregnant. He testified at all times throughout the hearing, and counsel maintains, that the alien did not know that his wife was married to someone else at the time he started to live with her. He stated that she told him that she had been divorced in Puerto Rico from her first husband, but that he did not marry her at that time because he did not have enough money to marry. Her husband did obtain a divorce from her in Puerto Rico, and she and respondent were married on June 29, 1953. Respondent testified that his wife's divorce decree became final "a couple of months" before they were married, and that he, respondent, did not know that she had not been divorced previously, until she informed him that a decree had been obtained. She was not present at the hearing.
Section 100 of the Penal Law of the State of New York is as follows:
Aultery defined — Adultery is a sexual intercourse of two persons, either of whom is married to a third person.
It is the contention of counsel that under the criminal law of New York adultery can be proved only if the defendant "had knowledge" that he was committing adultery, and that since respondent did not have "knowledge" that his paramour was then married to another, he committed no act of adultery of a criminal nature. We held in Matter of G----, 0300-185403 (January 6, 1955, unrep.), that section 101 (f) (2) makes no requirement that the adultery referred to there must meet the test of criminal adultery. See also Matter of M----, A-6496225, Int. Dec. No. 709 (July 20, 1955), and Matter of C----, A-8877411, Int. Dec. No. 714 (August 5, 1955), to the same effect.
The New York cases have created one limitation upon the application of section 100, that in order to constitute adultery the act must be the voluntary act of the parties. There is a distinction between the kind of "voluntariness" covered by the cases and that referred to by counsel. In People v. Hall, 49 N.Y.S. (2d) 309 (1944) the court held that where the wife had been raped she was not guilty of adultery. In Laudo v. Laudo, 177 N.Y.S. 396 (1919), the court held that where the wife was insane at the time of her adulterous acts the husband had no grounds for divorce. Neither of these women had committed a voluntary act. There is no question here but that the cohabitation of the alien and his present wife prior to their marirage was intentional and voluntary in the sense that they knew and intended their acts.
The instant case must also be distinguished from Matter of R---- L----, 0300/257135, Int. Dec. No. 676 (December 21, 1954), wherein an alien married a man in New York, but separated from him as soon as she found that he was still married to someone else. We concluded in that case that the respondent was innocent of any illegal act, that her innocence would be a defense in a criminal proceeding for adultery under the law of New York, and that the absence of intent to commit any crime should be recognized in determining her eligibility for discretionary relief in an adminstrative proceeding. The primary distinction between Matter of R---- L----, ( supra), and the present case is that the alien there had entered into a ceremonial marriage in good faith, not knowing that her husband was under a disability to marry. Therefore she was not precluded from establishing good moral character. There are a number of cases holding that when such conduct proceeds under the color of marriage ceremony, and where the alien believes the marriage to be valid, the alien has not committed adultery and does have the good moral character necessary to a grant of naturalization ( Petition of R----, 56 F. Supp. 969 (D.C. Mass., 1944); In re Schlau, 136 F. (2d) 480 (C.C.A. 2, 1943), 41 F. Supp. 161 (D.C.N.Y., 1941); United States v. Koehler, 71 F. Supp. 967 (D.C.N.J., 1947); Commonwealth v. Munson, (1879), 127 Mass. 459, 34 Am. Rep. 411; Geisselman v. Geisselman, 154 Md. 453, 107 A. 185; and State v. Audette, 81 Vt. 400, 70 A. 833, 18 LRA (NS) 527, 130 Am. St. Rep. 1061). But there is dissent even from this reasonable view ( United States v. Zaltzman, 19 F. Supp. 305 (D.C.N.Y., 1937); In re Spiegel, 24 F. (2d) 605 (D.C.N.Y., 1928); Petition of Axelrod, 25 F. Supp. 415 (D.C.N.Y., 1938)). We cannot find the respondent comes under the rule of Matter of R---- L----, Int. Dec. No. 676, because he lived with the woman for several years out of wedlock with no ceremonial marriage whatever.
Commonwealth v. Elwell, 43 Mass. (2 Met.) 190, 35 Am. Dec. 398, states the rule which seems sound, that where illicit sexual intercourse takes place between two persons, the fact that one was ignorant that the other was married to a third person is no defense to a charge of adultery. The court said:
When a man does that which, by the common law or by statute, is unlawful, and in pursuing his criminal purpose, does that which constitutes another and different offense, he shall be held responsible for all the legal consequences of such criminal act.
The court held, therefore, that it was not necessary to allege that the defendant knew that the woman with whom the unlawful act was committed was a married woman, and his ignorance of the fact that makes it a greater wrong will not relieve him from the legal penalty. The same result was reached in State v. Cutshall, 109 N.C. 764, 14 S.E. 107, 26 Am. St. Rep. 599. Knowledge and intent are difficult to prove, say the cases, because they are facts within the defendant's mind, and he cannot require the Government to prove those facts.
Mr. Justice Holmes described this identical situation in Commonwealth v. Smith, 166 Mass. 370, 44 N.E. 503 (S. Ct. Mass., 1896):
It (the law) may say that, if a man will have connection with a woman to whom he is not married, he must take the chance of her turning out to be married to someone else. Commonwealth v. Elwell, 2 Metc. (Mass.) 190. See Commonwealth v. Murphy, 166 Mass. 66, 42 N.E. 504.Commonwealth v. Murphy, quoted above, held that a defendant was guilty of statutory rape, even though he did not know that the girl was under 16 years of age. The court stated:
It is a familiar rule that, if one intentionally commits a crime, he is responsible criminally for the consequence of his act, if the offense proves to be different from that which he intended.
Since the passage of the 1952 act, the rule of Petition of Rudder et al., 159 F. (2d) 695 (C.C.A. 2, 1947), that aliens who have lived together out of wedlock may adjust their relationship through marriage, and thereby be eligible for a finding of good moral character, is no longer the law. Cases decided since the passage of the 1952 act wherein the alien was denied a finding of good moral character because he had lived out of wedlock are Petition of Benitez, 113 F. Supp. 105 (D.C.N.Y., 1953); and Petition of McNab, 121 F. Supp. 939 (D.C. La., 1954). In United States ex rel. Zacharias v. Shaughnessy, 221 F. (2d) 578 (C.A. 2, 1955), the court referred to the 1952 act definition of good moral character stating, "Anyone guilty of adultery is automatically excluded" from a grant of voluntary departure, which was the only relief requested in that case. The court stated that of course Zacharias' relations with his wife before their marriage and while she was still married to another man constituted adultery under both the penal law of New York and under the general common law definition.
For discussion of "moral lapses" as they affect a finding of good moral character before the passage of the 1952 act, see United States v. Unger, 26 F. (2d) 114 (D.C.N.Y., 1928); United States v. Wexler, 8 F. (2d) 880 (D.C.N.Y., 1925); In re Falck, 24 F. Supp. 672 (D.C., 1938); United States v. Cloutier, 87 F. Supp. 848 (D.C. Mich., 1949); Estrin v. United States, 80 F. (2d) 105 (C.C.A. 2, 1935); Johnson v. United States, 186 F. (2d) 588 (C.A. 2, 1951); Petition of F----, 73 F. Supp. 655 (D.C.N.Y., 1947); In re Matura, 87 F. Supp. 429 (D.C.N.Y., 1949); Calo v. U.S., 400 Ill. 329 ( 79 N.E. (2d) 619 (S. Ct. Ill., 1948)).
The court returned the case to this Board for reconsideration on the ground that Zacharias' wife had applied for a visa for him before the passage of the 1952 act, and therefore he had acquired rights under the 1917 act which were preserved by the savings clause, section 405 (a), of the 1952 act and permitted adjudication under the good moral character standards of the earlier law. We can find no such rights for the alien here.
It is our opinion that the Immigration and Nationality Act and the reported decisions require us to hold that respondent is precluded from showing good moral character for the required statutory period, because he lived in adultery during this period, even though he has testified that he was not aware that his paramour was still married to another.
Order: It is ordered that the appeal be and it hereby is dismissed.