The opinion of the court was delivered by: Robert D. Morgan, District Judge.
OPINION OF COURT UPON RECOMMENDATIONS OF NATURALIZATION EXAMINER
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)
"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.
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.
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 ...