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October 1, 1968


The opinion of the court was delivered by: Robert D. Morgan, District Judge.


The Examiner's findings of fact in these two cases, both formal and informal, are parallel insofar as the issues presented are concerned. They are not contested and are adopted by the Court, except as the contrary is hereinafter clearly shown in relation to findings of "adultery."

The facts show that petitioners have been husband and wife since October 31, 1966; but that they have lived together as husband and wife since 1947 and have three children, now aged 19, 17 and 8, who have lived with them since birth and are dependent upon them. Petitioners were admitted to the United States for permanent residence in 1958, and apparently since have maintained a normal and responsible home and family, with no outward appearance of legal defect.

Both petitioners had prior unsuccessful marriages. Mrs. E_____ was married in Australia in late 1946, but there was a permanent separation after a few months and she returned to England in February, 1947. That marriage was ended by divorce on February 3, 1948. Since 1944 Mr. E_____ has not lived with the wife he married in 1941. They separated by agreement, in England, and he contributed to the support of a son of that marriage through the son's minority. Though Mr. E_____ often suggested it to his first wife, he was not divorced until October 13, 1966, when she finally obtained a divorce against him in England, where she had lived continuously. Petitioners were married within the month after that divorce and thus rendered their children clearly legitimate under Illinois law (Ch. 3, Ill.Rev.Stat. § 12) and fully legalized the stable family they had really established almost twenty years earlier.

It is thus apparent that for about the first eighteen of the past twenty-one years, while petitioners lived together and were raising this family, the "husband" also had a wife in England. This included about four of the five years prior to filing both petitions for naturalization on May 25, 1967. It is equally apparent that this was not generally known. The Examiner states conclusions of law that both petitioners here "committed adultery" during the critical period but that both have established the requisite good moral character.

Section 316(a) of the Immigration and Nationality Act (8 U.S.C. § 1427) provides:

  "No person, except as otherwise provided in this
  title, shall be naturalized unless such
  petitioner * * * has resided continuously, after
  being lawfully admitted for permanent residence,
  within the United States for at least five
  years * * * and (3) during all the periods referred
  to in this subsection has been and still is a person
  of good moral character * * *."

Section 101(f)(2) of the Immigration and Nationality Act (8 U.S.C. § 1101(f)(2) 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 adultery * * *."

Federal law does not define adultery. This latter specific prohibition, however, came into the Federal statute with the 1952 Act. Prior to that the courts in a case such as this, involving a stable family with some possible adultery based on a prior marriage which was in existence only as a matter of law, had little difficulty in finding good moral character in spite of such "adultery." See Petitions of Rudder, 159 F.2d 695 (2nd Cir. 1947).

Since the 1952 Act, however, we have the view of the so-called "Mother Court," that under the statute there is simply no room for extenuating circumstances or judicial discretion, Petition for Naturalization of O_____ N_____, 233 F. Supp. 504 (S.D.N.Y. 1964) and In re Zunker, 283 F. Supp. 793 (S.D.N.Y. 1968). We also have what might thus far be called the midwestern and western view which, while finding what clearly would be called adultery in the New York cases, refuses to interpret the statute or to find congressional intent to prevent naturalization (or support a deportation order) under the other circumstances found which are favorable to good moral character. Wadman v. Immigration and Naturalization Service, 329 F.2d 812 (9th Cir. 1964); In re Briedis, 238 F. Supp. 149 (N.D.Ill. 1965); and In re Edgar, 253 F. Supp. 951 (E.D.Mich. 1966). In the latter case the Court even concluded that adultery had been committed under the Michigan statute. These views are in direct conflict and would quite obviously lead to opposite results in both cases at bar.

Once there is a sound conclusion that adultery has been "committed" within the period involved, it is most difficult to argue with the reasoning of the Southern District of New York cases (supra). The language of Section 101(f)(2) seems crystal clear in that respect. Therefore, the question here appears to be one of law: Have petitioners "committed adultery" within the meaning of the Immigration and Nationality Act? This Court does not believe that they have.

It is generally assumed that, in adopting Section 101(f) of the 1952 Act, Congress sought to make more uniform nationally the determinations of good moral character in naturalization cases. That it has not succeeded, at least with respect to Section 101(f)(2), is indicated by the opposing cases cited above. That it cannot achieve uniformity on this point without a Congressional definition of adultery or a controlling definition thereof by the Supreme Court seems equally apparent.

In the absence of a controlling definition, it is difficult to see how a court or a Naturalization Examiner can conclude that a person has not committed adultery if the facts clearly show violation of an applicable state criminal statute on the subject. Certainly state conviction of the crime of adultery would seem to be conclusive of the issue; but conviction can hardly be considered a prerequisite on the naturalization question of good moral character, if the facts are clear. Violation of a state criminal statute in a manner which the Federal Act says shall preclude finding of good moral ...

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