Posusta v. United States
| Decision Date | 06 January 1961 |
| Docket Number | No. 116,Docket 26249.,116 |
| Citation | 285 F.2d 533 |
| Parties | Marie POSUSTA, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward L. Dubroff, Brooklyn, N. Y., for appellant.
Michael S. Fawer, Malcolm Richard Wilkey, Asst. Atty. Gen., Kenneth C. Shelver, Atty., Dept. of Justice, Washington, D. C. (S. Hazard Gillespie, Jr., U. S. Atty., S. D. New York, New York City, of counsel), for appellee.
Before CLARK, FRIENDLY and HAND, Circuit Judges.
This is an appeal from an order of the District Court for the Southern District of New York denying a petition of Marie Posusta to be naturalized. The petitioner is a Czechoslovakian by birth and was admitted into the United States for permanent residence in 1952. She married Posusta in this country on January 24, 1959, and filed her petition on April 20 of that year. The question is whether she had proved that she was a person of "good moral character" from April 20, 1954 to April 20, 1959. The facts are as follows.
She had become Posusta's paramour in Czechoslovakia some time in 1936 when she was about nineteen, and she bore him one child in August, 1940, and another in January, 1947. Posusta had himself married a woman, named Krausova, on December 30, 1939, by whom he had previously had a child. It is to be assumed that the petitioner's relations with Posusta remained the same from 1937 or 1938, until he took his wife and her child with him to France in 1948. The petitioner followed them with her two children, and later took them to this country in 1952. After a visit back to France in January, 1953, she returned to the United States in July, 1954, Posusta having preceded her in May of that year. His marriage with Krausova ended in a divorce in March, 1954, so that there was not, and indeed could not have been, any adultery between them after April 20, 1954 — five years before the petition was filed. On October 27, 1954, he and the petitioner took out a marriage license, and, although they did not marry until January 24, 1959, they continued their former relation with occasional interruptions.
Their explanation for the delay in marrying after Posusta had been divorced, was that he "wanted to take charge of" the education of Krausova's son which he thought he "could do better than" Krausova, and that, if he married again, "she would not give me the child at all." This child was apparently still a minor which to some extent confirms the avowed reason for their failure to marry for more than five years after they had the license. Moreover, the judge appears to have accepted this explanation of the delay. Upon this record the Naturalization Examiner recommended that the petition be granted, but the Regional Commissioner found otherwise, and Judge Levet agreed with him, and dismissed the petition on the ground that the petitioner had not proved that she was a person of "good moral character" for five years before she filed her petition.
Section 1101 of Title 8 of the U.S.C.A. states eight specific conditions which an alien must satisfy in order to be naturalized, and then concludes that, although he may not be within any of the prohibited classes, he may nevertheless be denied naturalization if he "is or was not of good moral character." Much has been written as to the scope of that phrase, and, as was inevitable, there has been disagreement as to its meaning. However, it is settled that the test is not the personal moral principles of the individual judge or court before whom the applicant may come; the decision is to be based upon what he or it believes to be the ethical standards current at the time. United States ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920, 921; Repouille v. United States, 2 Cir., 165 F.2d 152, 153; United States v. Francioso, 2 Cir., 164 F.2d 163; Schmidt v. United States, 2 Cir., 177 F.2d 450, 451, 452; Johnson v. United States, 2 Cir., 186 F.2d 588, 590, 22 A.L.R.2d 240.
Moreover, a person may have a "good moral character" though he has been delinquent upon occasion in the past; it is enough if he shows that he does not transgress the accepted canons more often than is usual. In this respect this differs from the eight previously specified disqualifications which are...
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