56061/650
Decided by the Board September 1, 1943. Approved by the Attorney General September 4, 1943.
Admission of crime — Incest — Bigamy (Mexico) — Seventh proviso to section 3, Immigration Act of 1917 — Exercise of discretion.
1. When an alien admitted the commission of the crime of incest but the record established that she went through a marriage ceremony with her brother but the marriage was never consummated, the crime of incest was not in fact committed, and, a crime not having been committed, the alien is not deportable on the ground of her admission.
2. When an alien admitted committing bigamy by having gone through a marriage ceremony with her brother in Mexico already having a husband and the first marriage being valid and subsisting, such acts constituting the crime of bigamy in Mexico, she is deportable on the ground of her admission.
3. When, as part of a scheme to effect illegal entry into the United States, an alien committed bigamy by contracting a paper marriage in order to have a nonquota status as the wife of a citizen, and when, during 16 years' residence in the United States, the alien has been law abiding and has a citizen son 15 years of age, admission under the discretionary authority contained in the seventh proviso to section 3 of the Immigration Act of 1917, as amended, is warranted.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
(Sam C----.)
Act of 1917 — Likely to become a public charge.
(Sarra C----.)
Act of 1917 — Admits commission of crime involving moral turpitude — bigamy and incest.
Mr. Louis E. Spiegler, Hebrew Sheltering and Immigrant Aid Society, for the appellants.
STATEMENT OF THE CASE: Preexamination was authorized in connection with the appellants' applications for issuance to them of immigration visas. A hearing was accorded the respondents before a board of special inquiry at New York, N.Y., on February 19, April 8, and May 4, 1943, in preexamination proceedings, when it was found that if the appellants were applying for admission to the United States in possession of appropriate immigration visas they would be inadmissible on the grounds above stated.
DISCUSSION: The appellants, husband and wife, were both born in Russia. In 1924 they left their native country, went to Cuba, remained there for approximately 6 months, and then entered Mexico. There they were married to each other on December 24, 1926.
The present finding of inadmissibility by the board of special inquiry in preexamination arises out of the means resorted to by the appellant, Sarra C----, when she came to the United States in 1927. Mrs. C----'s brother, Dr. S---- B----, a citizen of the United States, was visiting her and her husband. She suggested to her brother that he go through a marriage ceremony with her so that the necessary immigration papers could be obtained by which she could gain entry to the United States, quota exempt, as the wife of a citizen of the United States. This plan was put into effect. Sarra C----, in fact, went through a marriage ceremony with her brother in Lower California, Mexico, on July 5, 1927. Within 2 days after the ceremony, Dr. B---- returned to his home in Chicago. The necessary petition for an immigration visa was executed by Dr. B----, and in due course a nonquota immigration visa, as the wife of a citizen of the United States, was issued to the appellant, Sarra C----. With this visa she was admitted to the United States under the name of Sarra B---- at San Ysidro, Calif., on September 7, 1927. She was in fact then a quota immigrant, and this admission was unlawful. Upon admission to the United States, Sarra C---- proceeded to her brother's home in Chicago.
In October 1927, a month later, Sam C---- entered the United States from Tijuana, Mexico. His entry was effected without inspection for the reason, he says, that he had no immigration papers. Upon entering the country, he joined his wife in Chicago where she was living at her brother's residence.
At the April 1930 term of the Circuit Court of Cook County of the State of Illinois, a decree of divorce was obtained by Dr. S---- B---- on the ground of desertion. By that time the appellants had moved from Chicago to New York where they established a permanent residence.
There was made a part of the record a communication from the consulate general of Mexico in New York, in which he pointed out that in Mexico a marriage between brother and sister is void, but such a marriage has to be declared void by a judicial decree. In this case it is admitted that the only action to dissolve the marriage between Sarra and her brother was the divorce proceeding in Chicago.
Near the end of the hearing, the appellant, Sarra C----, was asked if she admitted "committing incest and being a party of an incestuous marriage, a crime involving moral turpitude." She answered, "Yes." Then she was asked if she admitted committing bigamy, a crime involving moral turpitude. She also answered, "Yes." The communication from the Mexican consulate general at New York also states that incest is prohibited by law in Mexico and is penalized by the penal code of 1871 with a fine of from 50 to 100 Mexican pesos. We are not given an exact definition of the crime of incest in Mexico. We may assume that, basically, it is similar to the crime of incest in the United States. It is defined in 31 C.J. 374, as follows:
Incest is a statutory crime, the definition of which varies in some details under the different statutes. But generally speaking it may be defined, under the various statutes, as the intermarriage, or carnal copulation or sexual intercourse, without marriage, either habitual or in a single instance, between a man and a woman related to each other in any of the degrees of consanguinity or affinity within which marriage is prohibited by law. The crime of incest is committed by adultery when the accused party is married.
The gravamen of the crime of incest is the unlawful carnal knowledge, and it is unlawful because of the relationship of the parties, without regard to the means by which the intercourse is accomplished.
In the sworn statement made by Sam C---- before the Special Inspections Division on October 10, 1942, he specifically stated that his wife and her brother did not live together as man and wife. A similar question was not put to the appellant, Sarra C----, but from her narration of the circumstances surrounding the marriage, the purpose for which it was entered into, it is apparent that it was one for record purposes only as an aid to gain admission to the United States, and was not consummated. That Sarra C---- joined her brother in Chicago immediately upon her entry is of no significance. It would be only natural and logical that a sister would join her brother after coming to a new country. It is, therefore, apparent that the crime of incest was not committed, and, since the crime was not committed, the admission of the commission of it is of no significance. The Central Office of the Immigration and Naturalization Service agrees with this conclusion.
It does appear, however, that the appellant, Sarra C----, by going through a marriage ceremony with her brother, while a valid subsisting marriage with the appellant, Sam C----, was in force and effect, committed the crime of bigamy under the laws of Mexico. Since there has been a clear and unequivocal admission of the commission of this offense, if she were to depart from the United States and apply for readmission, Sarra C---- would be inadmissible because of the admission of the commission of this crime.
The following provisions of the penal code were in effect in Lower California on July 5, 1927, the date of the second marriage:
Codigo Penal para el Distrito y Territorias Federales, December 7, 1871 (effective until September 2, 1929):
"ART. 831. A person who, having been united in legal matrimony with another person which has not been dissolved, contracts a new marriage under legal formalities commits the crime of bigamy.
"ART. 832. The crime of bigamy is committed at the moment the record of marriage is signed by the contracting parties."
If the record is made but not signed the offense is then reduced to an attempt and punished as such.
"ART. 833. A bigamist will be punished by 5 years imprisonment and a second class fine when the person with whom the new marriage is contracted is an unmarried individual and does not know the other party is married."
If the other party does have knowledge of the former marriage the punishment of 3 years imprisonment and a second-class fine will be imposed on both.
"ART. 834. Extenuating circumstances of the fourth class are the following:
"1. If the criminal has had genuine cause in the opinion of the judge to believe the former marriage dissolved.
"2. If there have been no children born of the former marriage.
"ART. 835. An aggravating circumstance of the fourth class is when the bigamist has had intercourse with the new spouse."
There is no evidence to support the board of special inquiry in finding the appellant, Sam C----, inadmissible as one likely to become a public charge. He has conducted fruit and vegetable stores from 1933 up to the present time. He claims assets amounting to over $8,000. A letter submitted by him from the Manufacturers Trust Co. says that he opened an account with that company on October 3, 1938, maintains an average balance "in high three figure proportions," and the balance at the close of business on December 22, 1942, was $1,272.27. In addition, the letter states that Sam C---- maintains a special interest account, and the balance as of December 22, 1942, was $1,257.17. Sam C---- is in good health, about 39 years of age, and it is apparent that he is not a person likely to become a public charge. The action of the board of special inquiry as to him must, therefore, be reversed.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellants are aliens, natives of the Union of Soviet Socialist Republics;
(2) That the appellant, Sam C----, entered the United States from Tijuana, Mexico, in October 1927, without inspection;
(3) That the appellant, Sam C----, has adequately maintained himself by operating a business in the United States since 1933 and has substantial bank accounts;
(4) That the appellant, Sarra C----, entered the United States on September 7, 1927, at San Ysidro, Calif., and was admitted as a nonquota immigrant as the wife of a citizen of the United States;
(5) That the appellants were married in Mexico on December 24, 1926;
(6) That the marriage between the appellants has never been dissolved;
(7) That the appellant, Sarra C----, was married to her brother, Dr. S---- B----, in Mexico, on July 5, 1927, and divorced from him in 1930;
(8) That the appellant, Sarra C----, did not engage in marital relations with her brother, Dr. S---- B----, whom she married in Mexico on July 5, 1927;
(9) That the appellant, Sarra C----, admits having committed the crime of bigamy on July 5, 1927.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of February 5, 1917, the appellant, Sam C----, is not inadmissible to the United States as a person likely to become a public charge;
(2) That under section 3 of the Immigration Act of February 5, 1917, the appellant, Sarra C----, is not inadmissible to the United States on the ground that she admits having committed a crime involving moral turpitude, to wit: incest;
(3) That under section 3 of the Immigration Act of February 5, 1917, the appellant, Sarra C----, is inadmissible to the United States on the ground that she admits having committed a crime involving moral turpitude, to wit: bigamy.
OTHER FACTORS: The remaining issue is whether, notwithstanding the admission of bigamy on the part of Sarra C----, her admission to the United States should be authorized under the discretionary power contained in the seventh proviso of section 3 of the Immigration Act of February 5, 1917. This proviso reads as follows:
That aliens returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years may be admitted in the discretion of the Attorney General, and under such conditions as he may prescribe.
It is clear from this record that the appellant, Sarra C----, has been domiciled in the United States from the time she entered in 1927 — a period of nearly 16 years. If she were to depart to obtain an immigration visa, it would likewise be clear that such absence would be of a temporary character. The issue is solely one of whether the record, in its entirety, has such appeal that discretion should be exercised in her favor.
The appellants have had one son born in this country, now 15 years of age. There are no arrests nor unfavorable features of any kind other than the basis for the present finding of inadmissibility. In this case the Department of State's review committee has given preliminary approval to an application for an immigration visa, both for Sarra C---- and her husband, Sam. A copy of a report by Special Agent Edgar A. Innes, of the Department of State, dated February 5, 1942, in the record in this case shows that the Department of State was fully aware of the bigamous marriage between Sarra C---- and her brother in 1927, and, notwithstanding this, considers the case of sufficient merit to grant advisory approval of the application for immigration visa. The Immigration and Naturalization Service has reviewed the entire record and thinks the case is one that commends itself for favorable discretionary action, and has so recommended.
It is our opinion that the case does merit favorable discretionary action. If the seventh proviso is not favorably exercised in this case, the logical step is a deportation proceeding, which would permanently separate Sarra C---- from her 15-year-old citizen son. We cannot ignore law-abiding residence of 16 years in this country as a factor strongly commending the case for favorable action. Any inference that the conduct of Sarra C---- was morally reprehensible, except so far as she engaged in the fraud to gain entry into the United States, is entirely unjustified.
The offense to be waived under the seventh proviso is bigamy committed over 16 years ago. Realistically, and so far as violation of the moral code is concerned, Sarra C----'s offense was the means utilized to effect entry into the United States in violation of our immigration laws. From the moral standpoint, this case is analogous to those whose deportation is directed by the Act of May 14, 1937 (8 U.S.C. 213(a)). Under this act, Congress provided for the deportation of an alien who obtained either a nonquota or a preference quota visa through fraud by contracting a marriage that subsequent to entry into the United States is judicially annulled retroactive as to the date of marriage. Although not technically deportable under this law because the marriage was not annulled retroactive to the date of marriage, from the standpoint of moral obloquy it is, substantially, what Congress was attempting to prevent in the Act of May 14, 1937. It is, however, significant that in the Alien Registration Act of 1940, when Congress amended section 19 of the Immigration Act of 1917 (sec. 155 (c) and (d), title 8 U.S.C.), so as to authorize suspension of deportation or voluntary departure without an order of deportation, with certain limitations, it did not exclude from consideration aliens deportable under the 1937 act. In subdivision (d) of section 19, as amended by the Alien Registration Act, Congress expressly enumerated certain provisions of law in which, if an alien were deportable thereunder, discretion could not be exercised. Congress did not include the Act of May 14, 1937, in this subsection. This is clear justification for the position that discretionary action may be taken, even though an alien were deportable under this act.
As we view the method by which the alien entered the country, we think she is no better or no worse than those made deportable by the act of 1937. Congress did not think that those who violated the act of 1937, by that fact alone, should be excluded from discretionary action under section 19. Neither do we think the manner by which Sarra C---- effected entry into the United States, which involved the commission of bigamy, places her without the class worthy of favorable discretionary action. In all cases in which resort to the seventh proviso is had, some defect or shortcoming is to be waived. In this case, if the seventh proviso is not favorably exercised, it will mean that Sarra C---- eventually will be deported and permanently separated from her 15-year-old citizen son in the United States, or the boy must leave the country of his citizenship — the only country he has ever known — and establish a new residence with his mother in Poland. In administering the immigration laws, we must not lightly dismiss the effect an order entered in an alien's case may have on citizens of this country.
In short, we think the wrong committed by Sarra C---- 16 years ago is not so atrocious that it cannot be expiated by many years of decent law-abiding living, nor so much so as to put her beyond the class that may benefit by the seventh proviso. When we weigh her misdeed in this light against the rights morally due the son, we think the balance clearly favors the exercise of discretionary action. If this be not so, moral indignation over an isolated act remote in point of time will be used to wreck the life of this 15-year old boy and permanently disrupt the home of his family now so well established in New York. A humane administration of the immigration laws cannot countenance such a result.
ORDER: As to Sam C----: It is ordered that the action of the board of special inquiry be reversed and that he be found admissable to the United States if and when in possession of an appropriate immigration visa.
As to Sarra C----: It is ordered that the action of the board of special inquiry, insofar as it finds her inadmissible as one who admits having committed the crime of incest, be reversed, and that it be affirmed insofar as it finds her inadmissible as to having admitted the commission of bigamy, but that if she applies for admission to the United States within 6 months from the date of this order, in possession of an appropriate immigration visa, she be admitted under the seventh proviso of section 3 of the Immigration Act of February 5, 1917, if then in all respects admissible, except for the admission of the commission of a crime involving moral turpitude, to wit: bigamy.
The opinion of the majority of the Board of Immigration Appeals in the above-described case is hereby affirmed, and it is therefore ordered that:
(1) Sam C---- be found admissible to the United States if and when he presents the appropriate immigration visa since the facts appearing in the record and hearings are inconsistent with the finding that he is a person likely to become a public charge.
(2) Sarra C---- be admitted under the seventh proviso of section 3 of the Immigration Act of February 5, 1917, if she applies for admission to the United States within 6 months from the date of this order in possession of an appropriate immigration visa.
The sole question in this case is whether the facts are such that the Attorney General would be justified in authorizing admission of the female appellant by exercise of the discretion that is vested in the Attorney General under the seventh proviso of section 3 of the Immigration Act of February 5, 1917. The majority take the view that this is a proper case for the exercise of such discretion, but I cannot bring myself to agree with that conclusion.
The female appellant is guilty of one of the most brazen and sordid violations of our immigration laws that could conceivably be committed, and which shocks both mind and conscience.
A careful reading and study of the record reveals the pertinent facts to be as hereinafter stated. The said appellant, a native of Russia, in 1924 went with her present husband from Russia to Cuba, they being unmarried at the time. They remained in Cuba 6 months and then went to Mexico together, were married there December 24, 1926, and the husband became a successful hardware merchant.
In the summer of 1927 they were visited by the brother of the appellant, a physician of Chicago, Ill., who was a naturalized citizen of the United States. He was a bachelor. It was then that they concocted the sordid scheme that the appellant marry her said brother and accompany him to the United States as his wife. They were married on July 5, 1927, at Tijuana, Lower California, Mexico, the appellant under the assumed name of Sonia Bellewitch and the brother in his true name. They then arranged to go to the United States, and the appellant fraudulently obtained a nonquota visa for entry into the United States as the wife of a citizen.
The record is replete with contradictions, but the salient facts referred to are for the most part established by documentary evidence.
The appellant testified that she went to the United States alone and arrived at the port of San Ysidro on September 7, 1927, and proceeded from there to Chicago to join her brother-husband. The real husband to whom she was first married testified:
A. Her brother came and got married to her and he took her with him.
Q. You mean to say that your wife's brother accompanied her to the United States?
A. Yes.
The appellant herself testified:
Q. Did you accompany your brother, your husband, to the United States?
A. No.
Q. It is indicated that you arrived at the port of San Ysidro on September 7, 1927. Do you understand?
A. Yes.
Q. Who traveled with you?
A. Myself.
Q. You were all alone?
A. All alone.
Q. Where did you first take up residence in the United States?
A. With my brother in Chicago.
Q. Were you met by any one when the train arrived at Chicago?
A. Yes.
Q. Who met you?
A. My brother.
The appellant testified that she and her brother-husband lived in the same house, 1503 Kedzie Avenue, Chicago, for about 3 months. The appellant testified:
Q. Have you children?
A. One boy.
Q. What is the child's name and age?
A. S---- B----, 15 years old.
It should be noted that the child was given and still bears the surname of the brother-husband. The child was born February 14, 1928.
The husband testified:
Q. Explain in your own words how you entered the United States?
A. I came to Tijuana, Mexico, and I lived there 4 or 5 months and after I crossed the border to San Diego. After I proceeded to Los Angeles, Calif., and to New York.
He made no mention of going to Chicago or the wife. He later testified:
Q. Where did you join the wife?
A. In Chicago.
Q. Where in Chicago?
A. 1503 Kedzie Avenue South.
Q. Who lived there?
A. Her brother.
Q. Your wife and her brother who was then her husband?
A. Yes.
Q. What is his name?
A. Dr. S---- B----.
Q. The appellant present, known as Sarra C----, was living with S---- B---- at 1503 Kedzie Avenue, Chicago, when you arrived there?
A. Yes.
There is discrepancy in period of time appellant lived with her brother in Chicago as testified to by her and by her first husband.
Three years later the brother obtained a divorce from his sister, the appellant, in the Circuit Court of Cook County, April Term, 1930, on the ground of desertion for more than 2 years, dissolving their incestuous marriage solemnized at Tijuana, Lower California, Mexico, July 5, 1927.
The foregoing is a brief recital of the facts revealing that the appellant contracted an incestuous and bigamous marriage with her brother. The marriage ceremony that was solemnized between the sister and brother required them to state that they were not related to each other, and it constituted the crime of incest under the laws of Mexico.
The acts and course of conduct of the appellant are extremely sordid and reprehensible under any and all circumstances. When committed deliberately for the express purpose of circumventing and violating our laws, they are doubly so.
The brother is a well-educated man, and a member of one of the noblest of the professions. He has for many years been a citizen of the United States. He is guilty of an offense that is inexcusable. He used his certificate of naturalization as a means of deceiving and defrauding the Government that had granted it to him. As nearly as can be learned, there is no statute under which he can be prosecuted or his certificate of naturalization canceled, even if such action had been timely. This is a situation that should be called to the attention of Congress and corrected by penal legislation. One can hardly conceive of a worse misuse and abuse of the privilege of naturalization than was committed by the brother in this case. Very likely he also perpetrated a gross fraud upon the court in Chicago when he obtained the divorce upon constructive service (based upon lack of knowledge of the whereabouts of the defendant) dissolving the incestuous marriage that he contracted with his own sister, and he withheld from the court the fact of his blood relationship to the defendant, of which there is no mention in the decree.
The writer realizes that there are many cases in which extenuating circumstances exist, cases in which aliens, due to poverty, ignorance, and misfortune, violate our laws. In those cases the Attorney General properly can and does exercise the discretion vested under the seventh proviso and condones the offense that has been committed. The cause of justice and humanity is thereby served. This is definitely not that type of case. The guilty parties were not driven to act as they did either from necessity or desperation. There is no valid justification for their vile conduct.
This case is somewhat similar, only it is much worse, than the so-called "gigolo" marriage cases of some years ago, in which aliens contracted fraudulent marriages to American citizens for the sole purpose of obtaining a vista to enter the United States. Such marriages were subsequently annulled after the alien had thereby successfully violated our immigration laws and in that illegal manner gained admission to the United States. They were glorified "paper marriages," which certainly did not mitigate the offense. This abuse became so prevalent that it led to the enactment by Congress of the Act of May 14, 1937, rendering subject to deportation all aliens who contracted such fradulent and annulled marriages. It is my understanding that this statute has been faithfully followed and deportation ordered in such cases, and that they have been considered to be of such unsavory character as to preclude granting of discretionary relief.
In the case of I---- M---- C---- (55981/434, June 15, 1939), this Board said ("gigolo" marriage case):
The Department in considering the case on March 24, 1939, gave consideration not only to the legal aspects of the case but also to the social and economic problem involved; namely, citizen wife and stepchild. No additional evidence has been offered by the attorney at this time which would serve to alter the conclusion previously reached that the Act of May 14, 1937, under which the alien was ordered deported, was enacted for the purpose of preventing the fraudulent admission of aliens who purposely enter into marriages with citizens to facilitate their entry into the United States and that unless deportation actually occurs in such cases the deterrent effect on the evil which brought about the enactment of the law will be wholly lost.
With this view I agree, and I submit that the contracting of an incestuous and bigamous marriage is a more heinous offense and should be treated accordingly.
It seems to me that to relieve the appellant from the legal consequences of her acts would be to discredit and cheapen our entire system of regulatory laws and defeat the very purpose for which they were designed by the Congress. We would be creating as a precedent the unsound doctrine that there is no limit to the extent of the trickery, deception, and violation of all laws, civil and criminal, to which the alien can resort in order to defy, flaunt, and break down our laws and enter our country illegally. It would seem that the seventh proviso of section 3 of the Immigration Act of February 5, 1917, should not be applied to so flagrant a case as this.