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February 2, 1965


The opinion of the court was delivered by: Marovitz, District Judge.

This matter arises pursuant to a petition for naturalization filed by one Vilhelms Briedis. The designated naturalization examiner has submitted findings of fact and conclusions of law, along with his recommendation that the petition be denied inasmuch as petitioner has failed to establish that he was a person of good moral character during the period required by law.

The petitioner, 66 years old, a native and national of Latvia, was lawfully admitted into the United States for permanent residence on May 12, 1949. On April 25, 1963, he filed the instant petition for naturalization under the provisions of Section 316(a) of the Immigration and Nationality Act (Sec. 1427, Title 8 U.S.C.).

Pursuant to that filing petitioner was accorded two preliminary examinations, the factual findings of which are not contested, and will be adopted by this Court. In essence, the naturalization examiner found that some time after immigrating to this Country, petitioner sought to obtain a divorce from his first wife who remained in Eastern Europe. In December, 1960, while these divorce proceedings were pending, petitioner began to cohabit with his present wife, Florence McMann, and engaged in sexual intercourse with her. On October 15, 1961, petitioner was legally divorced. Thereafter, on December 15, 1961, he married his present wife.

The naturalization examiner concluded that on this record petitioner had failed to establish the good moral character required for naturalization. In support thereof, the examiner relied on Section 101(f)(2) of the Immigration and Nationality Act, (Sec. 1101(f)(2), Title 8 U.S.C.). That Section provides:

  "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 — * * *
    (2) one who during such period has committed

Section 1427, Title 8 U.S.C. requires the petitioner to establish such good moral character during the five-year period immediately preceding the date of filing his petition.

The naturalization authorities assert that historical definitions of adultery have no bearing on the ability of a petitioner to establish his good moral character under Section 101(f)(2). On matters of substantive law, they contend, "where there are no guiding federal statutes, federal courts must follow state statutes, and this, in effect, means there is no longer an applicable federal common law." Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This approach, we submit, would lead to an absurb patchwork result, resting a petitioner's right to United States citizenship upon the whims and idiosyncrasies of individual state legislatures. This would be singularly contra to the express purpose of Article I, Section 8 of the United States Constitution, which empowers Congress "to establish an uniform Rule of Naturalization." Indeed, Section 101(f)(2) was enacted in 1952 to make more uniform the requirements to be met in establishing good moral character.

If the policy urged upon us is to be justified at all, it would have to be on the grounds that Congress sought by the 1952 statute to make good moral character dependent upon each state's legislative judgment of the common conscience and standards of the community it governs, the community in which the petitioner would reside. Accepting this principle, arguendo, we find that Section 46, Chapter 38, Ill.Rev.Stats., the applicable state law during the period in question, provided:

  "If any man and woman shall live together in an open
  state of adultery, or fornication, or adultery and
  fornication, every such person shall be fined not
  exceeding $500, or confined in the County jail not
  exceeding one year. * * *"

There is little question but that the petitioner had committed adultery within the language of the above section during the statutory period. But it must also be noted that the State of Illinois had in effect at the same time a statutory policy to forgive parties living in an open state of adultery in the event they should intermarry. See Application of Murra (7th Cir., 1949) 178 F.2d 670, 678. That is, a further provision of Section 46, Chap. 38, Ill.Rev.Stats., barred prosecution for criminal adultery of parties who later intermarry. While the Court will not indulge in the illusion that such provision voided the adultery in question ab initio, we are of the opinion that it does express the state's judgment of community conscience and moral standards referred to above. If we are required to apply the statutory law of the forum state in which we sit, then we must do so in full, and not in piecemeal fashion. A reading of the Illinois statutes reveals that the state during the period in question would not have considered petitioner's acts so morally reprehensible as to subject him to criminal prosecution. Similarly, applying the standard set forth above, this Court would be loathe to deny citizenship to petitioner on the same ground.

We are convinced, however, that the better view is to develop a uniform federal standard when interpreting a statute relating to the federal right to citizenship. Indeed, we are of the opinion that Congress, acting under Article I, Section 8, of the Constitution, intended this result. A learned review by Judge Wilfred Feinberg in Petition for Naturalization of O___ N___, (D.C.N.Y., 1964), 233 F. Supp. 504 comes to the conclusion that the legislative history of the 1952 Act is more ambiguous than its language. While the Court there came to the ultimate conclusion that Congress did not intend extenuating circumstances to be considered under the Act, we cannot agree. The term "adultery" is not defined in this statute, or in any other federal enactment. The evils in applying the patchwork standards of each state have already been noted, (although we believe petitioner is not hurt by the Illinois statute in light of the provision barring prosecution of parties who later intermarry). The remaining alternative, which we today adopt, is that Congress intended the term, "adultery" to be read in the moral sense in which it is used. We are of the opinion that Congress intended to establish a uniform standard by codifying both those decisions in federal courts denying naturalization on grounds of morally reprehensible adultery, and those taking into consideration the extenuating circumstances which make the adultery at issue merely technical, and not a threat to public morality. Through a growing body of federal case law, Congress could then effect a uniform standard to be applied across the nation on what constitutes "adultery" within the framework of "good moral character" in which it is used.

While this approach was disapproved in Petition for Naturalization of O___ N___, supra, it was adopted in Dickhoff v. Shaughnessy, (D.C.N.Y., 1956) 142 F. Supp. 535. Although that case dealt with deportation proceedings, the language clearly applies to the case at bar. The Court there, while discussing legislative history, stated:

  "Senator McCarran, chairman of the Judiciary
  Committee, and sponsor of this bill which continued
  the old law's provisions as to good moral character
  and added the exclusion of those guilty of adultery,
  in speaking of provisions of the old law carried into
  his bill, stated: `There has been built up a body of
  judicial and administrative interpretation of those
  provisions upon which we can rely.' 98 Cong. Rec.
  5089. * * * ...

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