114.1,G.S.111.1 .LIG,A.C1V11 .VVJ
MATTER OF TRUJILLO
In Deportation Proceedings
A.-16031874
Decided by Board February 14, 1977
Respondent would not be precluded from showing that he was a person of good moral
character within the meaning of section 101(f)(2) of the Immigration and Nationality Act
notwithstanding involvement in an adulterous relationship, where the relationship did
not destroy a prior existing viable marriage. See Wadman v. INS, 329 F.2d 812 (9 Cir.
1964). Brea-Garcia v. INS,
531 F.2d 693 (3 Cir. 1976) distinguished.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Crewman—remained
longer
ON BEHALF OF RESPONDENT: Pro se
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
In a decision dated September 13, 1976, an immigration judge found
the respondent deportable, denied his application for voluntary departure, and ordered his deportation to El Salvador. The respondent has
admitted the allegations in the Order to Show Cause, but has appealed
from the decision denying voluntary departure. The appeal will be
sustained and the respondent will be allowed to depart the United
States voluntarily.
The respondent is a 32-year-old native and citizen of El Salvador who
entered the United States as a crewman on October 28, 1974. He was
authorized to remain as long as the vessel on which he arrived remained
in port, in no event to exceed 29 days. He failed to depart and had
remained without authorization. Deportability under section 241(a)(1) of
the Act, as a crewman who has remained longer than authorized, has
therefore been established by clear, convincing, and unequivocal evidence.
The immigration judge found the respondent ineligible for the
privilege of voluntary departure because he was foreclosed from establishing the requisite good moral character under section 101(1)(2) of the
Act. This section precludes anyone who has committed adultery within
the required period from establishing good moral character during that
period.
453
interim vecision lrzeoao
At the hearing, the respondent testified that he was living with a
woman, a United States citizen, who was married to someone else, but
that she had been separated from her husband for over three years. We
have received documentation which shows that this woman received a
divorce from her prior husband on July 27, 1976. Subsequently, she
married the respondent on September 20, 1976, and bore him a United
States citizen child on October 17, 1976. These facts are attested to in a
sworn statement executed by the respondent and his United States
citizen wife—notarized and dated January L9, 1977.
The alleged adultery, in this case, took place in the same jurisdiction,
New Jersey, as that discussed in the case of Brea Garcia v. INS, 531
-
F.2d 693 (3,Cir. 1976). In Brea Garcia, supra, the court found that the
-
immigration judge may properly look to the definition of adultery contained in the New Jersey civil law in applying section 101(f)(2) of the
Immigration and Nationality Act. The factual situation before us is
quite different from that which confronted the Court of Appeals in
Ewa Garcia, supra. There the court stated:
-
In the instant case, the conduct was neither isolated nor inconsequential. The immigration judge found that 'a viable marriage was apparently destroyed by respondent's
113rea-Galciaj adulterous relationship.' Brea-Garcia, supra, at 608.
Here, however, there is nothing in this record to indicate that the
respondent's wife's first marriage was destroyed by her relationship
with the respondent. On the contrary, the record shows that the respondent's wife had been separated from her husband for almost three
years and a divorce was in fact obtained prior to the time the respondent
was issued an Order to Show Cause on August 31, 1976. Moreover, as
the respondent didnot enter the United States until October, 1974, it is
unlikely that he began any relationship with his present wife until well
after she had separated from her prior husband. Thus, the case before
us is distinguishable from Brea
Garcia, supra.
-
Our decision follows the position taken by the Court of Appeals for the
Ninth Circuit in Wadman v. INS, 329 F.2d 812 (9 Cir. 1964). In the
Wadman case, the court defined adultery as "that extramarital intercourse which tends to destroy an existing marriage; which evidences
disregard of marital vows and responsibilities."
Wadman, supra, at 817.
Several other Federal courts have supported his position. Moon Ho Kiln
v. INS,
514 F.2d 179 (D.C. Cir. 1975); Petition. of Schroers,
336 F. Supp.
1348 (S.D.N.Y. 1971); In re Edgar,
253 F. Supp. 951 (E.D. Mich. 196G),
Irt re Briedis,
238 F. Supp. 149 (N.D. Ill. 1965).
The respondent's relationship with his present wife does not seem to
have destroyed a prior existing viable marriage. Her marriage Was
apparently "dead" before she ever met the respondent and she did
obtain a divorce before the respondent was issued an Order to Shu -w
454
Interim Decision #`2635
Cause. Thus, his actions did not constitute adultery within the meaning
of section 101(f)(2) of the Act.
On appeal, the respondent raises the possibility of an application for
adjustment of status. However, he entered the United States as a
crewman and is therefore ineligible for that relief under section 245(a) of
the Act.
The respondent does not appear to be otherwise ineligible for the
privilege of voluntary departure. Inasmuch as he, allegedly, is the sole
support of his United States citizen wife and their citizen child, the
respondent has established sufficient equities upon which to base a
favorable grant of discretionary relief. Accordingly, we shall sustain the
appeal,
ORDER: The appeal is sustained.
FURTHER ORDER: The outstanding order of deportation is withdrawn and the respondent is hereby permitted to depart from the
United States voluntarily without expense to the Government, to any
country of his choice, within 30 days from the date of this order or any
extension beyond that time as may be granted by the District Director.
In the event of failure so to depart, the order of deportation will be
reinstated and executed.
455
