Cirulli v. Licata

• Decision Date: 05 December 1950
• Docket Number: No. A--633,A--633
• Citation: 77 A.2d 288,10 N.J.Super. 449
• Parties: CIRULLI v. LICATA et al.
• Court: New Jersey Superior Court — Appellate Division

Page 449

10 N.J.Super. 449

77 A.2d 288

CIRULLI v. LICATA et al.

No. A--633.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 27, 1950.

Decided Dec. 5, 1950.

John B. Baratta, Atlantic City, argued the cause for appellants.

Harry Gottlieb, Atlantic City, argued the cause for respondent (Cassman & Gottlieb, Atlantic City, attorneys.)

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

Defendants appeal from a judgment on a jury verdict entered in Atlantic County Court in plaintiff's favor in an action for money loaned.

The error alleged is the denial by the trial court of defendants' motion for judgment made at the close of the case. Only one ground is pressed on this appeal, namely, that the proofs established the loan was made to further an illegal purpose to evade the immigration laws of the United States, thus barring plaintiff as a matter of law from recovery of the money loaned.

The proceeds of the loan were used to defray the cost of the wedding of plaintiff's grandson, Savanio Bollino, to defendants' granddaughter, Rose Gueriera. The couple were married February 20, 1949, by a Roman Catholic priest.

Defendants contend the marriage was arranged to prevent Bollino's deportation in fraud of the immigration laws. Bollino is an Italian national who entered the United States June 28, 1948, on a tourist visa expiring December 28, 1948. Plaintiff supplied the money for his round trip ticket.

The couple testified for the defendants. Bollino testified plaintiff and members of plaintiff's family had urged him to marry Rose; 'You stay here in this country and you get married and stay here with us.' Rose testified she had broken the engagement on at least six occasions and that each time plaintiff or a member of plaintiff's family begged her to marry Bollino; 'We want to keep him here. We will be such a happy family. Don't send him back. Marry him.' The other testimony on defendants' behalf portrayed plaintiff and her daughter, Amelia, as 'forcing' the marriage in a frantic effort to assure Bollino could remain in the United States.

If we assume what defendants contend, that the evidence conclusively shows plaintiff was party to a plan to have Bollino married to forestall his deportation, such purpose, on this record, was not illegal because it was clearly shown the marriage was bona fide. It was solemnized by the Roman Catholic Church; it has been a happy marriage, a child has been born to the couple, and both testified they are content with their bargain.

The act of an alien in entering into a bona fide marriage with the express purpose 'to avoid deportation' is not illegal. United States v. Dorto, 5 F.2d 596 (1 Cir. 1925). The law distinguishes between such a marriage and a marriage entered into not in good faith but as a mere sham, or pretense, formed for the purpose of 'evading' a judgment of deportation. Wong Hueng v. Elliott, 179 F. 110 (9 Cir., 1910); Hopkins v. Fachant, 130 F. 839 (9 Cir., 1904); U.S. ex rel. Lubbers v. Reimer, 22 F.Supp. 573 (D.C.N.Y.1938); U.S.C.A. Title 8, § 213(a).

Moreover, Bollino's marriage does not prevent his deportation. United States ex rel. Gagliardo v. Karnuth, 66 F.Supp. 969 (D.C.N.Y.1945); Kavadias v. Cross, 82 F.Supp. 716 (D.C.Ind.1948), 177 F.2d 497 (7th Cir.1949). It merely supplies the basis upon which in the event of deportation proceedings he may invoke the discretionary authority of the Attorney General of the United States to suspend the deportation order under U.S.C.A. Title 8, § 155(c), which empowers the Attorney General to suspend deportation of certain aliens who prove good moral character for the preceding five years if the Attorney General finds '(a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien.' Kansas, U.S. Immigration, Exclusion and Deportation (3d ed. 1938), p. 156; United States ex rel. Sage v. District Director of Immigration, 82 F.2d 630 (7 Cir.1936). In addition, if deportation is suspended for more than six months, the statute requires a report of the facts to be submitted to the Congress and unless the Congress, within the time limited by the statute, 'passes a concurrent resolution stating in substance that it favors the suspension of such deportation,' the Attorney General is required to deport the alien. This statute was in effect on the date of the loan, October 22, 1948.

It follows the proofs did not evidence a loan contract to be viewed in its setting as having the 'inherent tendency * * * to * * * the use of sinister or corrupt means to accomplish the end' sought, Stone v. William Steinen Mfg. Co., 133 N.J.L. 593, 45 A.2d 486, 487 (E. & A.1946); at best a case was made showing there was fair doubt as to such...