decided as amended march 12 1976.: February 25, 1976.
APPEAL FROM THE BOARD OF IMMIGRATION APPEALS.
Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges. Gibbons, Circuit Judge, concurring.
Rafael Antonio Brea-Garcia, a deportable alien, seeks review of the denial of his application for voluntary departure on the ground that he had committed adultery and was therefore not of good moral character. Section 244(e) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254(e) (1971)*fn1 allows the Attorney General to permit an alien subject to deportation proceedings to depart from this country voluntarily if the alien establishes that he has been a "person of good moral character" for at least five years before his application. "Good moral character" is not defined, except negatively in section 101(f), 8 U.S.C. § 1101(f) (1971), which lists classes of persons who shall not be regarded as having good moral character.
One such class includes anyone who "has committed adultery," section 101(f)(2).*fn2 The term "adultery" is nowhere defined in the Act. That lack of definition is the crux of this petition for review. Brea-Garcia contends that a proper definition of adultery would not encompass his conduct so that he should be eligible to seek permission to depart voluntarily. We disagree and affirm the decision of the Board of Immigration Appeals.
Brea-Garcia is a citizen of the Dominican Republic. His first wife, also a Dominican citizen, preceded him to the United States as a legal resident alien. Brea-Garcia, however, entered as a nonimmigrant student with permission to remain for about three years.
During the two and a half years he was living with his first wife in New Jersey, Brea-Garcia became sexually intimate with the woman to whom he is now married and fathered a child by her. Eventually, he left his wife and moved in with the other woman. His wife returned to the Dominican Republic and obtained a divorce on grounds of incompatibility. Although Brea-Garcia was then free to marry his paramour, he did not do so, and a second child was consequently born out of wedlock.
At about the time of the divorce, the Immigration and Naturalization Service instituted proceedings to deport Brea-Garcia for staying in the country beyond the permitted period. He did not contest his deportability but applied for permission to depart voluntarily under section 244(e) of the Immigration and Nationality Act.
The immigration judge found that Brea-Garcia's conduct constituted adultery for purposes of section 101(f)(2), and that he was thereby precluded from showing good moral character required for consideration of his application. Therefore, the immigration judge denied the application and entered a deportation order. Brea-Garcia appealed to the Board of Immigration Appeals.
While his appeal was pending, Brea-Garcia married the woman with whom he had been found to have committed adultery. Upon dismissal of his appeal by the Board of Immigration Appeals, he moved to reopen the proceedings in light of his marriage. The case, accordingly, was remanded to the immigration judge for further hearing and a new order.
Despite the marriage, the immigration judge stated that he had "no choice but to re-enter an order of deportation" because of Brea-Garcia's adultery within the past five years. He observed that marriage to the present wife was delayed apparently so she could first obtain a visa as the unmarried child of a legal resident parent even though the delay resulted in a second birth out of wedlock. Thus, he concluded, the subsequent marriage should not operate as a remission of the adultery which had evidently destroyed Brea-Garcia's first marriage.
The Board of Immigration Appeals affirmed the decision and dismissed the appeal. Brea-Garcia next sought review in this court, pursuant to section 106(a) of the Immigration ...