United States v. Shaughnessy, 187

• Decision Date: 13 April 1955
• Docket Number: Docket 23413.,No. 187,187
• 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.
• Court: U.S. Court of Appeals — Second Circuit

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.

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.

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.

We can dispose quickly of Zacharias' contention that his admitted sexual relations with Eugenia while she was still married to another man did not constitute adultery. Under both the law of the state where the acts occurred, see N.Y. Penal Law, McK.Consol.Laws, c. 40, § 100, and the general common-law definition, Zacharias is guilty of adultery, even though he himself was single at the time. Miller, Handbook of Criminal Law § 136 (1934); 2 C.J.S., Adultery, §§ 1, 2, 3, 4, pages 472-474. There is no reason to suppose that Congress in enacting 8 U.S.C. § 1101(f) (2) intended to adopt the contrary definition of ecclesiastic law which is the rule in only a minority of states.

We turn then to the crucial question of the applicability of 8 U.S.C. § 1101(f) (2) to Zacharias. Did the filing of the petition for issuance of an immigration visa by his American wife give Zacharias "any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing," at the time the 1952 Act went into effect? If so, under § 405(a) of that legislation, 8 U.S.C. § 1101 note, his case must be governed by prior statutes unless otherwise specifically provided.

The Supreme Court has recently had occasion to discuss the scope of § 405 (a). Shomberg v. United States, 75 S.Ct. 509; United States v. Menasche, 75 S.Ct. 513. It stressed that the present version of § 405(a) was an extension of former savings clauses embodying "congressional acceptance of the principle that the statutory status quo was to continue even as to rights not fully matured." 75 S.Ct. 518. The Court further said: "The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well-established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress." 75 S.Ct. 518.

In United States v. Menasche, supra, it was held — affirming the reasoned decisions in Petition of Menasche, D.C. Puerto Rico, 115 F.Supp. 434, and United States v. Menasche, 1 Cir., 210 F.2d 809 — that a preliminary petition for naturalization should be given effect despite the petitioner's absence from the country, which would have been fatal to his application for citizenship under the 1952 Act. The Court's...