Interim Decision #1237 

MATTER Or num. 

In DEPORTATION Proceedings 

A-12470682 

Decided by Board August 29,190 

(1) Respondent, a single female, who engaged in a meretricious husband-wife 

relationship with a married man in the State of Oregon, is not deemed to have 

committed adultery under the law of that State. 

(2) Notwithstanding respondent is not precluded from establishing good moral 

character by the provisions of section 101(1) (2) of the Immigration and Nationality Act and is not statutorily ineligible for the discretionary relief of 

voluntary departure, her illicit sexual relations with a married man, maintained with full knowledge of her paramour's marital status, justify denial 

of such relief as a matter of administrative discretion. 

CHmean: Act of 1952—Section 241(a) (2) (8 U.S.O. 1251(a) (2) 3—Remained 

longer—visitor. 

This is an appeal from the order of the special inquiry officer finding respondent deportable upon the ground stated above and denying 

her application for Voluntary departure. The appeal will be 

dismissed. 

Respondent, a 19-year-old single female, a native of Bulgaria and 

citizen of Germany, last a resident of Canada, was admitted to the 

United States on January 24, 1962, as a visitor for a period ending on 

January 31, 1962. She failed to obtain an extension of her stay and 

has remained in the United States without authority. She is clearly 

deportable as charged. 

Respondent requested voluntary departure. The special inquiry 

officer found her ineligible as a matter of law and also stated that had 

she been eligible for the relief, he would have denied it as a matter of 

discretion because she lacked good moral character. The finding of 

statutory ineligibility for voluntary departure is based upon the fact 

that the respondent lived in a husband and wife relationship with a 

married man while in the United States. 

The record reveals that the respondent's paramour left his wife in 

New York and came to Canada where he met respondent and began 

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Interim Decision #1237 

the relationship with her apparently in late 1961. He came to the 

United States about January 1962, the respondent joined him shortly 

thereafter and they commenced living together_ The man testified 

thit he had been separated from his wife for about a year, that neither 

he nor his wife saw any possibility of reconciliation, and that both 

desired a divorce. The respondent and her partner stated they intended to marry. 

Section 244(e) of the Act (8 U.S.O. 1254(e) ) under which the respondent applied for voluntary departure requires the applicant to 

establish good moral character for five years. Section 101(f) (2) of 

the Act (8 U.S.C. 1101(f) (2) ) provides that no person shall be found 

to be a person. of good moral character who during the period for which 

good moral character must be established "has committed adultery." 

In finding that respondent had committed adultery and was, therefore, statutorily ineligible for the relief requested, the special inquiry 

officer relied upon the fact that in the State of Oregon a. single female 

who has illicit sexual intercourse with a married man may be prosecuted for adultery (State v. Case, 61 Oreg. 265). Counsel is of the 

belief that it is improper to apply a state standard since a federal law 

is involved. He contends that in the absence of a federal statutory 

definition, the common law definition should obtain, and points to 

the fact that under the common law adultery could be committed only 

where the woman was married. Admitting that there is no ease directly on the point, he relies upon Evans v. Murff, 135 F. Supp. 907 

(D.C. Md. 1955) ; Diakhoff v. Shaughnessy, 142 F. Supp. 535 (S.D. 

N.Y. 1956) ; and United States v. Shaughnessy, 221 F. 2d 578 (2d Cir. 

1955). 

Under the common law, both parties committed adultery, if a married woman engaged in sexual relations with a man other than her 

husband whether the man was married or single. Under ecclesiastical 

law, adultery existed as to the married person, whether male or female, 

who engaged in sexual relations with one other than the lawful spouse. 

It mattered not that the unlawful partner was married or single; 

however, if the unlawful partner was single, the single person's crime 

was not adultery, but fornication. In most jurisdictions in the United 

States, the common law definition has been enlarged by statute to 

provide that adultery is committed by a married person who has sexual 

intercourse with some person other than the lawful spouse. It is in 

this last sense that adultery is popularly defined. An unmarried partner in the illicit affair is in some states guilty of adultery while in 

other states the single person cannot be convicted of adultery (2 C.J.S. 

Adultery secs. 1 and 11). 

We find no clear-cut judicial holding that a federal standard based 

upon the common law definition of adultery should apply in constru86 
Interim Decision *1237 

ing section 101(f) (2) of the Act. U.S. ex rel. Zacharias v. Shaughnessy, 221 F. 2d. 578 (24 Cir. 1955) (single man—married woman) 

holds that the provisions of the Act concerning good moral character 

did not apply to Zacharias because of the existence of a savings clause. 

The courts' comments concerning adultery are dicta. Furthermore, 

it is to be noted that the court held adultery existed under either the 

common law or the law of New York where the acts of adultery were 

committed. Dickhoff v. Shaughnessy, 142 F. Supp. 535, S.D.N.Y. 

(1956) (married man—single woman) concerned a commission of 

adultery that was artificial in that it was the result of a divorced 

man remarrying without knowledge that his divorce was invalid. No 

federal definition of adultery was attempted, the court holding that 

adultery, if adultery had been committed, could be found only by 

reason of the New York statutes. The court pointed out that if the 

common law were relied upon, there would have been no adultery (142 

F. Supp. at 539). (The court also stated that Congress desired to rely 

upon the past judicial interpretations as to good moral character (142 

,F. Supp. at 539.) Evans v. Murff, 135 F. Supp. 907 (I). Md. 1955) 

(single man—married woman) holds that Congress intended that the 

definition of adultery be the same throughout the country and that 

Congress probably intended to apply the common law to the definition of adultery rather than the ecclesiastical. However, it is noted 

that the court found that in the case before it that adultery had probably been committed under the laws of Maryland. Moreover, by reserving the question as to whether adultery is committed by a married 

man. who has sexual intercourse with an unmarried woman, the court 

indicated that the common law definition may not control (135 F. 

Supp. at 911). 

The history of the legislation reveals no indication that Congress 

desired that the common law standard bo imposed or that there be a 

departure from the administrative and judicial reliance upon state 

law in determining whether adultery existed. The committee of 

Congress upon whose recommendation the Act was based recommended 

that "more uniform regulations should be employed * * * to the end 

that a higher general standard of goods (sio) morals and personal 

and political conduct are (sic) established" and comment was made 

concerning the "confusion" which existed because all aliens who had 

committed adultery were not treated alike by both courts and administrative officials (S. Rapt. No. 1515, 81st Cong. 2d Sess. 699-701 (1950), 

see, S. Rept. No. 1137, 82nd Cong. 2d Sees. 6 (1052) ). It is our belief 

that Congress' desire that there be uniformity related not to the 

method to be used in. determining whether adultery had been committed, but related rather to the desire that all persons who had committed adultery should be barred from the prizes of the law. This 

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Interim Decision #1237 

provision is in consonance with the finding of the court in Dickhoff 

that Congress -wished to rely upon past judicial interpretations as 

to good moral character and it takes cognizance of the fact that 

Congress has not criticized the long established administrative practice (based upon the judicial rulings) in which a determination as 

to whether there had been the commission of adultery was made 

dependent upon the law of the state in which the act occurred. 

It appears to us, therefore, that to determine the issue before us, 

we must decide whether respondent has committed adultery under 

the civil or criminal laws of Oregon. State v. Case, 61 Oreg. 265, 122 

P. 304 (1912), relied upon by the special inquiry officer concerned a 

married man who had been indicted for committing adultery with a 

single woman. She also, had been indicted for adultery. The case 

appears to hold that although the single woman could not commit 

adultery, she could be convicted of adultery because she was an 

accomplice of the person who had violated the laws of the state concerning the commission of adultery. Since the woman was an accomplice, she could be indicted as a principal and convicted of adultery. 

For an analogy, the court gave the example of a person who because 

he had aided a man and woman to commit bigamy, could under the 

laws of Oregon be himself convicted for bigamy. As far as the law 

of Oregon is concerned, it is only technically and artificially that 

adultery has occurred in relation to the single woman. We do not 

believe that Case is authority for holding that within the framework 

of the immigration laws, a single female who has engaged in sexual 

relations with a married man in Oregon has committed adultery. The 

respondent is, therefore, in our opinion not statutorily ineligible for 

the relief requested. 

Counsel contends that if the respondent is not statutorily ineligible 

for relief, she should be found to be of good moral character although 

she lived with a married man. Counsel is of the belief that consideration must be given to the fact that the respondent had been brought 

up in Europe where a different standard allegedly relates to such 

matters and he also asks that consideration be given to the fact that 

the parties intended getting married. Counsel requests that he be permitted to produce expert witnesses who would testify as to the general 

moral attitude of the community concerning respondent's conduct. 

The examining officer in a brief opposes these contentions. 

Whether a person is of good moral character or not, is to be judged 

by standards prevailing in the United States. The declaration of 

Congress concerning the denial of relief to a person who has committed 

adultery represents the moral feeling prevalent generally in the 'United 

States (Petitions of F-G and E-E-0-, let F. Supp. '782 

1956)). It is an indication of the attitude to be taken to illicit rela38 
Interim Decision #1237 

tions by a single woman with a married man. We agree with the 

special inquiry officer, that the meretricious relationship maintained 

by the respondent, with the full knowledge that her paramour was 

a married man, that he had not been divorced, and that he could not 

get a. final divorce because he could not satisfy residential requirements (p. 22) justifies a denial of relief as a discretionary matter. 

Prior to the service upon counsel on April 24, 1962 of the special 

inquiry officer's order, he had inquired of the District Director at 

Portland, Oregon concerning inclusion into the record of a copy of a 

divorce decree obtained in Mexico on April 11, 1962 by the respondent's 

paramour from his wife. The legal papers submitted with the divorce 

were entitled "Motion to Reopen" and were served upon the District 

Director who aoknowledged receipt in writing on April 24, 1962. 

(Whether the motion was filed before or after service upon. counsel 

on the same day of the special inquiry officer's order is not clear, but 

the matter is immaterial.) There is no indication that the fee for the 

filing of the motion to reopen was paid (8 CFR 103.5). On April 30, 

the District Director apparently returned the motion papers to counsel. 

On May 1, counsel wrote a letter to the special inquiry officer attaching 

the motion and divorce decree and explaining that the purpose of his 

action was to have the record completed for the benefit of the Board in 

consideration of the appeal to the Board he had filed on May 1, 1962. 

On May 2, 1962, the special inquiry officer wrote to counsel stating 

that the only way the divorce decree could be made a part of the record 

was by motion to reopen and since such a motion had not been properly submitted, the divorce decree was being attached to the record 

for the information of the Board in considering the appeal which 

counsel had filed. 

Counsel complains that his motion was not properly forwarded to 

the special inquiry officer. Counsel's contentions are not justified. 

After the hearing had been closed and before an appeal to the Board 

had been filed counsel could make the divorce decree a part of the 

record only by obtaining a reopening of proceedings from the special 

inquiry officer. The motion to reopen was not filed with a fee and was 

therefore, properly returned to counsel (8 CFR 103.5). Of course in 

connection with an appeal, and without the payment of a, fee in addition to that paid for filing the appeal, the Board can be requested 

to reopen proceedings to receive new evidence. In the instant case a 

request for such action would not have been granted since no purpose 

would be served in making the divorce decree a part of the record; 

the divorce decree does not excuse the conduct which occurred before 

the decree was obtained (see Matter of CL—, 6 I. &. N. Dec. 675). 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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