United States v. Shaughnessy, No. 187

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: CLARK, , HINCKS, Circuit , and SMITH
• Citation: 221 F.2d 578
• Parties: UNITED STATES of America ex rel. Dimitrios Georges ZACHARIAS, Relator-Appellant, v. Edward J. SHAUGHNESSY, District Director of Immigration and Naturalization Service, Port of New York, Respondent-Appellee.
• Docket Number: Docket 23413.,No. 187
• Decision Date: 13 April 1955

221 F.2d 578 (1955)

UNITED STATES of America ex rel. Dimitrios Georges ZACHARIAS, Relator-Appellant,
v.
Edward J. SHAUGHNESSY, District Director of Immigration and Naturalization Service, Port of New York, Respondent-Appellee.

No. 187, Docket 23413.

United States Court of Appeals Second Circuit.

Argued February 9, 1955.

Decided April 13, 1955.

221 F.2d 579

Jay Nicholas Long, New York City, for relator-appellant.

Harold J. Raby, Asst. U. S. Atty. for Southern Dist. of N. Y., New York City (J. Edward Lumbard, U. S. Atty., Maurice N. Nessen, Asst. U. S. Atty., and Lester Friedman, Atty., Immigration & Naturalization Service, U. S. Dept. of Justice, New York City, on the brief), for respondent-appellee.

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District Judge.

CLARK, Chief Judge.

The main issue on this appeal is the eligibility for voluntary departure under 8 U.S.C. § 1254(e) of a concededly deportable alien seaman. Both the Board of Immigration Appeals and the district court have denied this privilege as a matter of law because of relator Zacharias' lack of the good moral character requisite under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(f) (2). Zacharias admitted having sexual relations with his present wife several months before she obtained her divorce from a prior husband. Under the 1952 definition of good moral character, anyone guilty of adultery is automatically excluded. While Zacharias denies that his conduct constitutes adultery, the main focus of his appeal is directed to the inapplicability of the 1952 Act to his case, since, under the prior legislation, adultery would not be conclusive of lack of good moral character. Petitions of Rudder, 2 Cir., 159 F.2d 695; and see Application of Murra, 7 Cir., 178 F.2d 670. He argues that the savings clause in § 405 of the 1952 Act, 8 U.S.C. § 1101 note, should govern to make the prior law applicable because of a petition for an immigration visa filed on his behalf more than three months before December 24, 1952, when the new legislation went into effect. His writ of habeas corpus having been discharged by the district court, he now appeals to this court.

The essential facts are not in dispute. Zacharias, a Greek citizen by naturalization, entered the United States on shore leave from the S.S. "Burco Trader" on December 16, 1951, and has remained here ever since. Hence he is clearly deportable under whatever immigration act may apply. See 8 U.S.C. § 215 (1946 Ed.) and 8 U.S.C. § 1251(a) (9) (1952 Ed.). He married his present wife, Eugenia Chiamis, a native-born American citizen, on August 13, 1952, some four months after they had begun to live together, and some two and a half months after her divorce. On September 3, 1952, Mrs. Zacharias filed the preliminary papers for an immigration visa for her husband, so that he might legally reenter the country from Canada. This application was approved by the New York office of the Immigration and Naturalization Service on January 5, 1953, and forwarded by them to Montreal. There no further action was taken until October 6, 1954 — after deportation had been ordered — when the application was denied on the ground that Zacharias was ineligible for a visa under 8 U.S.C. § 1182(a) (28) (C). This denial was presumably based on his brief affiliation, then necessary for earning a livelihood as a Greek seaman, with a Greek labor union, the Federation of Greek Maritime Unions, which was subsequently labeled a Communist front. The facts relating to this membership were fully explored in the present deportation proceedings, and no particular weight was apparently ascribed to them.

221 F.2d 580

In the interim between the filing of the visa application and its denial, despite a request for pre-examination and voluntary departure pursuant thereto on April 10, 1953, the deportation proceedings now before us were initiated and concluded on the administrative level. On June 23, 1954, the Board of Immigration Appeals affirmed Zacharias' statutory ineligibility for voluntary departure because of adultery. The Board considered and rejected his contention that the 1952 Act did not apply to his case.

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