Interim Decision #2104
MATTER OF YEE
In Deportation Proceedings
A-11468455
Decided by Board November 8, 1971
(1) While a determination as to the commission of the substantive offense of
adultery is dependent upon the law of the state in which the act occurred,
local peculiarities of criminal procedure are not determinative. Hence, notwithstanding the law of Iowa (the State in which the acts took place)
does not provide for a criminal conviction for adultery unless the spouse
prosecutes and respondent's wife elected not to prosecute him, the conduct
of respondent, who fathered two illegitimate children by a single girl
while legally married to another woman, constitutes adultery. Therefore,
he is precluded by the provisions of section 101(f) (2) of the Immigration
and Nationality Act from a finding of good moral character during the requisite period for the purpose of establishing statutory eligibility for suspension of deportation [Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964), distinguished; in the instant case, respondent was not separated from his
wife during the period in which he engaged in the adulterous acts].
(2) Respondent, who entered the United States as a nonimmigrant student
and who is charged with deportability under section 241(a) (9) of the Act
in that after entry he failed to comply with the conditions of his nonimmigrant status, is ineligible for the benefits of section 241(f) of the Act.
[Lee Fook Chuey v. INS,
439 F.2d 244 (C.A. 9, 1971), does not govern
outside that circuit; until the matter has been definitively resolved, the
opinion of the Attorney General in Matter of Lee, Int. Dec. No. 1960
(1969), will be followed.]
CHARGE:
Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9))—Nonimmigrant—failed to comply with conditions of status.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Walter W. Rothschild, Esquire Irving A. Appleman
227A East Fifth Street Appellate Trial Attorney
Waterloo, Iowa 50703
The special inquiry officer, in his decision dated December 18,
1970, found the respondent deportable as charged, denied his
application for suspension of deportation under section 244 of the
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Interim Decision #2104
Immigration and Nationality Act and denied his application for
voluntary departure. From that order the respondent appeals.
Since then he has filed an application for termination of proceedings under section 241 (f) of the Act. The appeal will be dismissed and the application for relief under section 241 (f) will be
denied.
The record relates to a 32-year-old married male alien, a native
of China and citizen of Canada. He entered the United States on
June 11, 1961 with a nonimmigrant visa as a student authorized
to remain until April 15, 1962. The record indicates that the
respondent attended school only until June 27, 1961, thereafter
taking unauthorized employment. Deportability was conceded and
the record in any event contains clear, convincing and unequivocal evidence of deportability.
The proceedings were subsequently reopened to permit the
respondent to make application for suspension of deportation
under section 244(a) (1) of the Immigration and Nationality Act.
The statutory prerequisites for the granting of that relief are (a)
physical presence in the United States for a continuous period of
seven years immediately preceding the date of application, (b)
good moral character during that period, and (c) a finding that
deportation would result in hardship to the alien or to his spouse,
parent or child, who is a United States citizen or lawful permanent resident. The special inquiry officer found that the respondent had met all criteria except for establishing good moral character for the requisite period.
The special inquiry officer held that the respondent could not
establish good moral character for the requisite period inasmuch
is he had fathered two illegitimate children by a single girl while
egally married to another woman. The special inquiry officer
'ound that this constituted adultery and that, according to section
01 (f) (2) of the Act, a person who has committed adultery
luring the requisite period is barred from a finding of good
noral character. We agree with the special inquiry officer and
Lphold his conclusion.
The contention of counsel is that the respondent's conduct did
of constitute adultery within the contemplation of the Immigraion and Nationality Act because the law of the state in which
he acts took place, Iowa, does not provide for a criminal convicLon for adultery unless the spouse prosecutes, and the respondnt's spouse in this case elected not to prosecute him. Section
02.1 of the Iowa Statutes, cited in counsel's brief, clearly pro-
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Interim Decision #2104
vides, however, that "when the crime is committed by parties
only one of whom is married both shall be punished."
It is true that a determination as to whether there has been the
commission of adultery is dependent upon the law of the state in
which the act occurred, Matter of Pitzoff, 10 I. & N. Dec. 35
(BIA, 1962) ; Dickhoff v. Shaughnessy,
142 F. Supp. 535
(S.D.N.Y., 1956). However, we are of the opinion that this rule
relates only to the issue of the existence of the substantive
offense, and not to questions of local pecularities of criminal procedure. Otherwise, the Congressional desire for uniformity of
application of the Immigration and Nationality Act would be
frustrated.
Counsel's reference to the case of Wadman v. INS,
329 F.2d
812 (9 Cir., 1964) is inapposite. In that case the court declined to
find adultery where the extramarital intercourse was not of such
a nature as to tend to destroy an existing marital relationship. In
Wadman the alien's wife had deserted him and left the country.
This is readily distinguishable from the present case, because the
respondent was not separated from his wife during the period in
which he engaged in such acts.
We accordingly agree with the decision of the special inquiry
officer to deny suspension of deportation because the respondent
could not establish good moral character for the requisite period.
We also approve his decision to deny voluntary departure for
failure to establish good moral character for the five years immediately preceding his application.
On April 23, 1971, the respondent's counsel submitted an application for termination of proceedings pursuant to section 241 (f)
of the Act. 1 His application was discussed during oral argument.
Counsel pointed out that the respondent has four legitimate
United States citizen children in addition to his two illegitimate
ones. It is counsel's claim that the fraud necessary to bring section 241 (f) into play is contained in the fact that the respondent,
who had entered as a nonimmigrant, actually concealed his intention to remain in the United States as an immigrant. The fact
that the respondent had used an assumed name under which he
Section 241(f). The provisions of this section relating to the deportation
of aliens within the United States on the ground that they were excludable
at the time of entry as aliens who have sought to procure, or have procured
visas or other documentation, or entry into the United States by fraud or
misrepresentation shall not apply to an alien otherwise admissible at the
time of entry who is the spouse, parent, or a child of a United States citizen
or of an alien lawfully admitted for permanent residence.
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terim Decision #2104
quired Canadian citizenship is not germane to the resolution of
is appeal.
During oral argument counsel acknowledged that the respondit had not been charged with excludability under section
L2 (a) (20) as an immigrant without a visa nor under section
L2 (a) (19) for fraud or misrepresentation. He pointed to the
Ise of Lee Fook Chuey v. INS, 439 F.2d 244 (9 Cir., 1971), as
uthority for the proposition that the specific charge lodged
gainst the alien is not important. Indeed, that case does purport
) include any deportation charges resulting directly from misrepesentation regardless of the section of the Act under which it is
rought, provided the alien was "otherwise admissible" as proided in 241(f).
The Lee Fook Chuey decision has been endorsed and followed
two subsequent decisions of the Ninth Circuit, United States v.
)suan-Picos, 433 F.2d 907 (9 Cir., 1971), and Vitales v. INS, 443
â– '.2d 343 (9 Cir., 1971). A certiorari petition has been filed to
•eview the latter, INS v. Vitales, No. 71-431. Thus, the Ninth
circuit's construction of section 241(f) may soon be definitively
•eviewed. We are aware of no other circuit which has followed
,he Ninth Circuit's holding in Lee Fook Chuey. Until the matter
'Las been definitively resolved, we are bound to accept the Attorney
3eneral's decision in Matter of Lee [Fook Chuey], Interim Deci-
3ion No. 1960 (A.G., 1969). In fact, another court, in Gambino v.
INS,
419 F.2d 1355 (2 Cir., 1970), cert. denied
399 U.S. 905, specifically endorsed the Attorney General's holding in Matter of Lee
[Fook Chuey], supra.
The Attorney General's holding in Matter of Lee [Fook
Chuey], supra, was that an alien who entered the United States
without inspection upon a knowingly false claim of United States
citizenship, thereby circumventing the visa-issuing process, is
ineligible for relief under section 241 (f), since he is not "otherwise admissible" at time of entry. The Attorney General's opinion
is consistent with two court decisions, Ferrante v. INS,
399 F.2d
98 (6 Cir., 1968), and Tsaconas v. INS,
397 F.2d 946 (6 Cir.,
1968), both of which denied section 241(f) relief to 'aliens who
had entered as nonimmigrants.
The case of Muslemi v. INS,
408 F.2d 1196 (9 Cir., 1969), is
relied upon by counsel in support of his claim that section 241(f)
relief is available to a nonimmigrant. However, as the appellate
trial attorney correctly pointed out, in that case the charge was
not that the immigrant had violated the conditions of his nonimmigrant status, as is charged in the present case, but that he
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Interim Decision #2104
entered without an immigrant visa. We note that the court
merely remanded the Muslemi case for an administrative determination of whether the alien was "otherwise admissible" at the
time of his entry.
There is an additional reason why we are not bound to follow
the Ninth Circuit's holding in the Lee Fook Chuey case, supra. As
we stated in Matter of Amado and Monteiro, Interim Decision
No. 1951 (BIA, 1969), "the fact that a lower federal court has
rejected a legal conclusion of this Board does not require us to
recede from that conclusion in other jurisdictions." The same
principle would apply with at least equal vigor to an opinion of
the Attorney General, such as the Attorney General's decision in
Matter of Lee [Fook Chuey], supra.
Hence, we shall affirm the special inquiry officer's decision to
deny the respondent suspension of deportation and voluntary
departure. We also shall deny his application for termination of
proceedings under section 241 (f). The appeal will be dismissed
and the following order will be entered.
ORDER: The appeal is dismissed.
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