Interim Decision #2746 

MATTER OF CIENFUEGOS 

In Deportation Proceedings 

A.-22123177 

Decided by Board December 20, 1979 

(1) The Third Circuit Court of Appeals, in its decision in Brea-Garcia v. INS, 531 F.2d 

693 (3 Cir. 1976), adopted a test to define "adultery" which refers exclusively to the 

definition contained in state civil law. 

(2) Insofar as Matter of Trajillo,151&NDec. 453 (BIA 1977), implies that a definition of 

adultery other than that found in state civil law is applicable in the Third Circuit, that 

case is over-ruled. 

(3) Matter of P—, 7 I&N Dec. 376 (BIA 1956), is modified to the extent that it holds that 

both state civil and criminal definitions of adultery apply in determining adultery for 

purposes of good moral character. 

(4) Where the respondent began cohabiting with another woman while he was married, 

he committed adultery under the civil law of New Jersey as found in Brea-Garcia v. 

INS, 531 F2d 698 (8 Cir. 1976), and cannot be found to be a person of good moral 

character under the provisions of section 101(f)(2) of the Immigration and Nationality 

Act, 8 U.S.C. 1101(f)(2), and his application for voluntary departure is denied. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1) 1[8 U.S.C. 1251(a)(1))—Excludable at time of entry 

under section 212(a)(20), I&N Act (S IJ.S.G.1182(a)(20)) —Not 

in possession of a valid immigrant visa 

ON BEHALF OF RESPONDENT Robert Frank, Esquire 

Levy & Rubin 

744 Broad Street 

Newark, New Jersey 07102 

ON BEHALF OF SERVICE: Sydney B. Rosenberg 

Trial Attorney 

By: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members 

In a decision dated February 6, 1978, we dismissed the appeal of the 

respondent, a native and citizen of El Salvador, from an order of an 

immigration judge finding him deportable and denying him the 

privilege of voluntary departure in lieu of deportation. The respondent 

has moved to reopen deportation proceedings. The motion, which is 

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opposed by the Service, will be denied. However, we are reopening the 

case on our own motion in order to clarify our position concerning the 

definition of adultery to be applied in cases arising in the jurisdiction 

of the Third Circuit Court of Appeals. 

The respondent seeks reinstatement of voluntary departure based 

upon his marriage to a lawful permanent resident who has filed a visa 

petition on his behalf and his legitimation of their United States 

citizen child who was born out of wedlock. 

A motion to reopen deportation proceedings to apply for discretionary relief will not be granted unless it establishes prima fade eligibility for that relief. Tenorio-Martinez v. INS, 546 F.2d 810 (9 Cir. 

1976); Matter of Lam, 14 I&N Dec. 98 (BIA 1972). 

The respondent requests reinstatement of voluntary departure yet 

he has never been accorded that privilege. In our February 6, 1978, 

decision dismissing the appeal, we affirmed the finding of the immigration judge that the respondent was ineligible for voluntary departure 

due to a lack of good moral character and, furthermore, that he did not 

merit a favorable exercise of discretion. The finding of a lack of good 

moral character was based upon the respondent's relationship with 

the woman who is now his wife. The respondent who entered the 

United States on October 13, 1975, testified that he began living with 

this woman in New Jersey in August of 1976 although at that time he 

was still married to a woman in El Salvador and that his wife had filed 

for divorce in June of 1976. The Board held that the type of conduct 

that qualifies as "adultery" under section 101(0(2), is that which has 

destroyed a viable marriage, citing Matter of Trujillo,15 I&N Dec. 453 

(BIA 1977), and concluded that although the respondent's conduct may 

not have strictly qualified as adultery under that standard, it nevertheless constituted a lack of good moral character. 

The standard of adultery that we are bound to apply in cases arising 

in New Jersey is that adopted by the Third Circuit Court of Appeals in 

Brea-Garcia v. INS, 531 F.2d 693 (3 Cir. 1976). The majority in BreaGarcia held that the term "adultery" as it appears in section 101(0(2) 

must be construed exclusively with reference to state civil law. Under 

New Jersey law, adultery as a ground for divorce is defined as "voluntary sexual intercourse of a married person with one not the husband 

or wife of that person." This definition and not the "destruction of an 

existing viable marriage" test' is the standard to be used to determine 

The majority in Brea-Garcia v. INS, supra, specifically declined to follow the lead of 

several other federal appellate courts in formulating a uniform federal standard of 

adultery rather than relying upon the vagaries of state law. The definition of adultery as 

"extramarital intercourse that tends to destroy an existing viable marriage" has been 

adopted, with minor variations, by the Ninth and District of Columbia Circuit Courts of 

Appeals. See MOM Ho Kim v. INS, 514 F2d 179 (D.C. Cir. 1975); Kaman v. INS, 329 

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Interim Decision #2746 

whether, in cases arising in New Jersey, an alien's meretricious conduct qualifies as "adultery" under section 101(f)(2) and thus statutorily 

precludes him or her from establishing good moral character. 2Insofar 

as Matter of Trujillo, supra, would imply that the standard set forth 

therein is applicable within the Third Circuit, it is hereby overruled.° 

However, this is the law of the Circuit and the Board is bound to apply 

this standard in eases arising within its jurisdiction. 

Viewing the respondent's conduct with reference to New Jersey civil 

law—the standard applied in Brea-Garcia—it is evident that the 

respondent, who began cohabiting with a woman while he was still 

married to another, did commit adultery.' Therefore, he is precluded 

from establishing good moral character under section 101(f)(2) and, as 

a result, is statutorily ineligible for voluntary departure. 

The motion to reopen for reinstatement of voluntary departure 

must, of course, be denied since he is statutorily ineligible for voluntary departure. The family ties that he has acquired here do not entitle 

him to any type of relief from deportation that the Board is authorized 

to grant 

ORDER The motion is denied. 

F.2d 812 (9 Cir. 1964). However, the BrearGarcia, court implicitly acceded to the finding 

of the immigration judge in the proceedings below that a viable marriage was apparently destroyed in the respondent's case. 531 F.2d at 698. 

Brea-Garcia v. INS, supra, addressed only New Jersey law_ Thus, the particular 

definition of adultery to be applied to cases arising in other states within the Third 

Circuit would presumably require consideration of the civil law of the particular state. 

To the extent that Matter of P—, 7 UN Dec. 376 (BIA 1956) (holding that adultery is 

to be determined with reference to New Jersey criminal and civil law), is inconsistent 

with Brea-Garcia v. INS, supra, it is accordingly modified. 

The respondent's subsequent marriage to the woman with whom he had been 

cohabiting does not erase the prior adulterous relationship with its resulting birth out of 

wedlock See Brea-Garcia v. INS, supra, at 698. 

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Interim Decision #2747 

MATTER OF ESTRADA 

In Deportation Proceedings 

A-30422678 

Decided by Board December 20, 1979 

(1) The deportation of the respondent, who was deported under section 241(a)(13) of the 

Immigration and Nationality Act, 8 U.S.C. 1251(a)(13), as an alien who knowingly and 

for gain assisted, abetted or aided another alien to enter the United States illegally, is 

not rendered unlawful or violative of due process when a conviction for aiding and 

abetting the unlawful entry of an alien is set aside. A conviction is not necessary to a 

finding of deportability under section 241(a)(13), and the respondent's own testimony 

and affidavit regarding his role in bringing aliens into the United States constituted 

sufficient evidence of deportability. Mendez v. INS, 563 F.2d 956 (9 Cir. 1977) 

distinguished. 

(2) Where the respondent's deportation was neither illegal nor in contravention of due 

process, the Board is without jurisdiction to grant reopening or to order readmission. 

8 C.F.R. 3.2 

CHARGE: 

Order Act of 1952—Sec. 241(a)(13) [8 U.S.C. 1251(a)(13)]—Aiding and abetting the 

unlawful entry of aliens into the United States 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Raymond Campos, Esquire Jane Gersbacher, Esquire 

304 South Broadway, Suite 310 Trial Attorney 

Los Angeles, California 90013 

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

The respondent has filed a motion to reopen his deportation proceedings, and is requesting that an order be entered to admit him as a 

lawful permanent resident. The motion will be denied. 

The respondent is a 25-year-old native and citizen of Mexico who was 

admitted to the United States as an immigrant on May 13, 1973. On 

August 16, 1976, an immigration judge found the respondent deportable under section 241(a)(13) of the Immigration and Nationality Act, 

8 U.S.C. 1251(a)(13), as an alien who knowingly and for gain assisted, 

abetted or aided an alien to enter the United States unlawfully. This 

Board affirmed the immigration judge's decision on October 27, 1977, 

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Interim Decision #2747 

and our decision was in turn affirmed by the Ninth Circuit Court of 

Appeals on June 28, 1978. A petition for rehearing was denied by the 

Ninth Circuit on July 24, 1978. The respondent was deported from the 

United States on August 17, 1978. 

After his deportation, the respondent filed a Motion to Vacate, Set 

Aside or Correct Sentence with the United States District Court, 

District of Arizona, which had on May 27, 1976, convicted him of aiding 

and abetting the unlawful entry of an alien into the United States. On 

April 18, 1979, the respondent's guilty plea was set aside, and on June 

21, 1979, the respondent's attorney was informed that the United 

States Attorney's office in Phoenix had decided not to proceed further 

in their case against the respondent. The instant motion, filed on 

August 10, 1979, is based primarily on the fact that the respondent's 

conviction was set aside. 

As pointed out in the Immigration and Naturalization Service's 

opposition to this motion, 8 C.F.R. 3.2 provides: 

A motion to reopen or a motion to reconsider shall not be made by or in behalf of a 

person who is the subject of deportation proceedings subsequcui. Lu hie departure from 

the United States. 

As this motion was made long after the respondent's deportation, 

deportation proceedings are no longer pending against the respondent, 

and we are thus without jurisdiction to reopen them. Cf. Matter of 

Palma, 14 I&N Dec. 486 (BIA 1973). 

In his motion, the respondent cites Mendez v. INS, 563 F.2d 956 (9 

Cir. 1977), wherein the Court held that if an alien's deportation is 

illegal or in contravention of due process, he may be readmitted with 

the same status he held prior to his departure, and will be permitted to 

pursue any administrative and judicial remedies to which he is entitled. Mendez, however, is clearly distinguishable from the present 

case. In Mendez, the alien was convicted of burglary and given a 

1 year's sentence, and so was found deportable under section 241(a)(4) 

of the Act, as an alien convicted of a crime involving moral turpitude 

with a sentence imposed of 1 year or longer. Prior to the deportation of 

the respondent in Mendez, his 1 year sentence was vacated, and a 9-

month sentence was imposed. A week after this reduction in sentence, 

the Service notified the respondent to appear for deportation, but did 

not notify his counsel. The respondent appeared as ordered, explained 

that a shorter sentence had been imposed, but was nevertheless deported the same day, without an opportunity to contact counsel. The 

Court found a violation of due process,on these facts, and ordered the 

respondent readmitted in order to pursue any possible remedies. 

In the present case, the respondent's conviction was set aside long 

after his deportation, not prior to it. Moreover, as the respondent here 

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was found deportable under a section of the Act which does not require 

a criminal conviction, it does, not appear that even a more timely 

setting aside of the conviction would have wiped out the grounds for 

his deportation.' The respondent's own testimony and affidavit regarding his role in bringing aliens into the United States illegally constitute clear, convincing, and unequivocal evidence of deportability. The 

conviction is not necessary to this finding. Finally, the respondent's 

counsel in this case had notice of the respondent's imminent deportation, and in fact filed an application for stay of deportation on his 

behalf.2 

We do not find that the respondent's departure on August 18, 1978, 

under an order of deportation, was in contravention of due process. As 

the deportation was lawful, we are constrained by 8 C.F.R. 3.2 to deny 

this motion for lack of jurisdiction. 

ORDER: The motion is denied. 

' Section 241(a)(13) of the Act provides for the deportation of any alien who 

(13)prior to, or at the time of any entry, or at any time within five years after entry, 

shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided 

any other alien to enter or to try to enter the United States in violation of law. 

As pointed out in the respondent's motion, the stay application was not denied until 

after the respondent's deportation. This is unfortunate, but we note that the respondent 

had no entitlement to a stay. 8 C.F.R. 234.4. 

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