Brea-Garcia v. Immigration and Naturalization Service

• Decision Date: 12 March 1976
• Docket Number: BREA-GARCI,P,No. 75--1599,75--1599
• Citation: 531 F.2d 693
• Parties: Rafael Antonioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE (by its District Director at Newark, New Jersey), Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 693

531 F.2d 693

33 A.L.R.Fed. 110

Rafael Antonio BREA-GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE (by its District Director at Newark, New Jersey), Respondent.

No. 75--1599.

United States Court of Appeals Third Circuit.

Argued Dec. 10, 1975.

Decided Feb. 25, 1976.

As Amended March 12, 1976.

Raul F. Tous, Newark, N.J., Antonio C. Martinez, New York City, for petitioner.

B. Franklin Taylor, Jr., Acting Chief, James P. Morris, Chester J. Halicki, Attys., Dept. of Justice, Washington, D.C., for respondent.

Before SEITZ, Chief Judge, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Rafael Antonio Brea-Garcia, a deportable alien, seeks review of the denial of his application for voluntary departure on the ground that he had committed adultery and was therefore not of good moral character. Section 244(e) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254(e) (1971) ¹ allows the Attorney General to permit an alien subject to deportation proceedings to depart from this country voluntarily if the alien establishes that he has been a 'person of good moral character' for at least five years before his application. 'Good moral character' is not defined, except negatively in section 101(f), 8 U.S.C. § 1101(f) (1971), which lists classes of persons who shall not be regarded as having good moral character.

One such class includes anyone who 'has committed adultery.' ² The term 'adultery' is nowhere defined in the Act. That lack of definition is the crux of this petition for review. Brea-Garcia contends that a proper definition of adultery would not encompass his conduct so that he should be eligible to seek permission to depart voluntarily. We disagree and affirm the decision of the Board of Immigration Appeals.

I.

Brea-Garcia is a citizen of the Dominican Republic. His first wife, also a Dominican citizen, preceded him to the United States as a legal resident alien. Brea-Garcia, however, entered as a nonimmigrant student with permission to remain for about three years.

During the two and a half years he was living with his first wife in New Jersey, Brea-Garcia became sexually intimate with the woman to whom he is now married and fathered a child by her. Eventually, he left his wife and moved in with the other woman. His wife returned to the Dominican Republic and obtained a divorce on grounds of incompatibility. Although Brea-Garcia was then free to marry his paramour, he did not do so, and a second child was consequently born out of wedlock.

At about the time of the divorce, the Immigration and Naturalization Service instituted proceedings to deport Brea-Garcia for staying in the country beyond the permitted period. He did not contest his deportability but applied for permission to depart voluntarily under section 244(e) of the Immigration and Nationality Act.

The immigration judge found that Brea-Garcia's conduct constituted adultery for purposes of section 101(f)(2), and that he was thereby precluded from showing good moral character required for consideration of his application. Therefore, the immigration judge denied the application and entered a deportation order. Brea-Garcia appealed to the Board of Immigration Appeals.

While his appeal was pending, Brea-Garcia married the woman with whom he had been found to have committed adultery. Upon dismissal of his appeal by the Board of Immigration Appeals, he moved to reopen the proceedings in light of his marriage. The case, accordingly, was remanded to the immigration judge for further hearing and a new order.

Despite the marriage, the immigration judge stated that he had 'no choice but to re-enter an order of deportation' because of Brea-Garcia's adultery within the past five years. He observed that marriage to the present wife was delayed apparently so she could first obtain a visa as the unmarried child of a legal resident parent even though the delay resulted in a second birth out of wedlock. Thus, he concluded, the subsequent marriage should not operate as a remission of the adultery which had evidently destroyed Brea-Garcia's first marriage.

The Board of Immigration Appeals affirmed the decision and dismissed the appeal. Brea-Garcia next sought review in this court, pursuant to section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a) (1971).

II.

At the outset, we note that we are not here asked to overrule a discretionary administrative decision to deny voluntary departure as we were in Strantzalis v. INS, 465 F.2d 1016 (3d Cir. 1972), where the alien was statutorily eligible but was nonetheless denied voluntary departure. See also United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 7i, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957). In the instant case, the application was not even considered on the merits because the prerequisite of section 244(e) was deemed not satisfied. We must, therefore, determine whether the immigration judge erred as a matter of law in his construction of the statutory requirement as modified by section 101(f)(2).

Brea-Garcia's argument in this court is basically two-fold: (1) 'adultery' for section 101(f)(2) should be defined with reference to the criminal, rather than civil, law of the state where the conduct occurred, ³ and (2) a federal definition should then be superimposed on the state definition in order to insure minimal uniformity in the administration of federal immigration laws.

If his conduct were measured against New Jersey's criminal law, Brea-Garcia would not be guilty of adultery. New Jersey is among the few states which retain the common law definition of criminal adultery as extramarital sexual intercourse in which the female participant is married. ⁴ Dickhoff v. Shaughnessy, 142 F.Supp. 535, 539 (S.D.N.Y.1956); Petition of Smith, 71 F.Supp. 968, 970 (D.N.J.1947); State v. Lash, 16 N.J.L. 380 (1838).

As a ground for divorce, however, adultery under 2A N.J.S.A. 34--2 (1952) has been defined as 'voluntary sexual intercourse of a married person with one not the husband or wife of that person.' Johnson v. Johnson, 78 N.J.Eq. 507, 80 A. 119, 120 (Ch.N.J.1911). Thus, use of the New Jersey civil definition of adultery would sweep Brea-Garcia's conduct within the reach of section 101(f) (2).

We are constrained to hold that, in the absence of a federal definition of adultery, section 101(f)(2) must be construed with reference to state civil law. An examination of the classes which are deemed to lack good moral character reveals that Congress used the terms 'offense' and 'crime' when referring to a violation of criminal law in section 101(f)(3), (5), (7), and (8). The language of section 101(f)(2), 'has committed adultery,' by contrast is devoid of terms denoting a violation of criminal law, and therefore must be deemed to incorporate a state civil law definition of 'adultery.' ⁵

Moreover, deportation proceedings are civil, not criminal, in nature. Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Bufalino v. INS, 473 F.2d 728, 739 (3d Cir.) (Adams, J., concurring), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). The decision to deport rather than permit an application for voluntary departure thus may be based upon considerations derived from the civil law which do not rise to the level of criminal offenses. We hold that the immigration judge properly looked to the definition of adultery contained in the New Jersey civil law in applying section 101(f)(2).

III.

Even if a state civil law definition is adopted, Brea-Garcia urges that his conduct be further examined in light of uniform, federal standards. Reference to state law alone, according to Brea-Garcia, results in a hodge-podge of definitions of 'adultery' and renders federal treatment of aliens dependent upon the otherwise irrelevant circumstance of state of residence.

It is instructive to observe that, before passage of the Immigration and Nationality Act of 1952, determination of good moral character was even more of a patchwork than Brea-Garcia contends has been produced by reference to state law. Section 101(f) did not exist, so good moral character was entirely undefined. Case law had established that participation in an adulterous relationship did not necessarily preclude a showing of good moral character, so long as extenuating circumstances existed. Johnson v. United States, 186 F.2d 588 (2d Cir. 1951); Application of Murra, 178 F.2d 670 (7th Cir. 1949); Petitions of Rudder, 159 F.2d 695 (2d Cir. 1947); United States v. Rubia, 110 F.2d 92 (5th Cir. 1940). ⁶

The introduction of section 101(f) was interpreted by many courts and by the Immigration and Naturalization Service to be a legislative limitation on the discretion which had hitherto prevailed in the determination of good moral character. ⁷ Accordingly, anyone who had committed adultery, as defined by state law, was regarded as a matter of law as lacking good moral character. United States ex rel. Zacharias v. Shaughnessy, 221 F.2d 578, 579 (2d Cir. 1955); Gutierrez-Sosa v. Del Guercio, 247 F.2d 266 (9th Cir. 1957); In re C_ _ C_ _ J_ _ P_ _, 299 F.Supp. 767 (N.D.Ill.1969). See also Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961); Matter of P., 7 I & N 376 (1956).

Other courts were uncomfortable with the diversity of state definitions of adultery and disliked having the condition of an alien's moral character conclusively dictated by his chance decision as to which would be his state of residence. These courts refused to regard section 101(f)(2) as an automatic and unconditional barrier to relief under section 244(e) whenever an applicant had committed adultery under state law. Beginning with the Ninth Circuit, they evolved a variety of more liberal approaches to section 101(f)(2).

In Wadman v. INS, 329 F.2d 812, 817 (9th Cir. 1964), the Ninth Circuit Court of Appeals emphasized that loosening the statutory constraints on good moral character would...