Schmidt v. United States

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: L. HAND, and SWAN and CLARK, Circuit
• Citation: Schmidt v. United States, 177 F.2d 450 (2nd Cir. 1949)
• Decision Date: 24 October 1949
• Docket Number: No. 15,Docket 21325.,15
• Parties: SCHMIDT v. UNITED STATES

177 F.2d 450 (1949)

SCHMIDT v. UNITED STATES

No. 15, Docket 21325.

United States Court of Appeals Second Circuit.

Argued October 6, 1949.

Decided October 24, 1949.

Edward L. Dubroff, Brooklyn, N. Y., for petitioner.

John F. X. McGohey, U. S. Attorney, New York City, John F. Ryan, New York City argued for respondent.

Before L. HAND, Chief Judge and SWAN and CLARK, Circuit Judges.

L. HAND, Chief Judge.

The petitioner has appealed from an order denying his petition for naturalization on the ground that he had failed to establish that he was a person of "good moral character" for the five years preceding the filing of the petition on July 5, 1944. He was a native of Germany, at that time thirty-nine years old, who had been admitted to the United States for permanent residence on January 17, 1939. He was a teacher of French and German in the College of the City of New York and was in every way qualified as a citizen, except that, in a moment of what may have been unnecessary frankness, he verified an affidavit before the examiner, which contained the following passage. "Now and then I engaged in an act in sexual intercourse with women. These women have been single and unmarried women. As to the frequency of these acts I can only state that they occurred now and then. My last such act took place about half a year ago with an unmarried woman." The only question in the case is whether by this admission the alien showed that he was not a person of "good moral character."

In United States ex rel. Iorio v. Day,¹ a deportation case where the Commissioner of Immigration had held that a violation of the Prohibition Law was "a crime involving moral turpitude", we said that it was "impossible to decide at all without some estimate, necessarily based on conjecture, as to what people generally feel." The phrase, "good moral character", in the Naturalization Law 8 U.S.C.A. § 155, is of the same kind, and makes the same demand. It is true that in Estrin v. United States² we held that a single act of adultery, unexplained and unpalliated, was alone enough to prevent the alien's naturalization; but we refused to say whether under the "common standards of morality" there might not be "extenuating circumstances" for such a single lapse. In Petitions of Rudder et al.³ the question arose as to what those circumstances might be. Each of several aliens had been living for years with a single woman in an adulterous union, which apparently had not been concupiscent. Either the alien or the woman had been unable, for one reason or another, to get a divorce. We admitted them all because we did not "believe that the present sentiment of the community views as morally reprehensible such faithful and long continued relationships under the circumstances here disclosed." In United States v. Rubia⁴ the alien was admitted upon substantially the same facts, save that he had had a good war record. In United States v. Francioso⁵ we admitted an alien who had married, and was living with his niece under circumstances where we thought that "the moral feelings, now prevalent generally in this country" would not "be outraged because Francioso continued to live" with his wife and with four children whom he had had by her. The last case in which we passed on the clause was Repouille v. United States⁶ where the alien, in order to relieve his family of crushing expense, had killed his child who was a hopeless bed-ridden idiot. We thought that such conduct did not conform to "the generally accepted moral conventions current at the time"; but we added: "Left at large as we are, without means of verifying our conclusion, and without authority to substitute our individual beliefs, the outcome must needs be tentative; and not much is gained by discussion." In two very recent cases⁷ the Third Circuit by an...