The opinion of the court was delivered by: KAUFMAN
Petitioner makes application for the granting of his petition for naturalization. The Immigration and Naturalization Service objects to the granting on the ground that petitioner has failed to establish good moral character during the period required by law. Petitioner has filed his petition under Section 701, as amended by Section 324A, Nationality Act of 1940, 8 U.S.C.A. §§ 1001, 724a.
Petitioner is 38 years old, a married male, a native and citizen of Yugoslavia, and was admitted to the United States for permanent residence on November 26, 1946. His petition for naturalization shows that his wife and child both live in Yugoslavia. The question to be determined is whether he has established that he has been a person of good moral character during the period required by law, that is, since at least December 30, 1946.
A deportation hearing was conducted on August 9, 1939 at Ellis Island at which time petitioner stated that he arrived in the United States on or about April 15, 1937, as a stowaway; that he had been married in Yugoslavia on September 26, 1929, and that his wife and two children born of that marriage were living in Yugoslavia. (one child has since been killed). Under a warrant of deportation issued September 25, 1940, petitioner was ordered deported to Yugoslavia on the ground that at the time he entered the United States he was not in possession of an unexpired immigration visa. Deportation could not be effected, however, because of the war in Europe.
The Central Office of the Naturalization and Immigration Service on August 3, 1945, granted petitioner the privilege of voluntary departure and pre-examination. He thereupon re-entered the United States for permanent residence on November 26, 1946.
Petitioner appeared before an officer of the Immigration and Naturalization Service on June 23, 1945 and testified that he was married in Yugoslavia in 1929; that the marriage had never been terminated; that outside of one brother he had no close relatives in the United States, and no one in the United States was dependent upon him for support.
It appears, however, that the Naturalization and Immigration Service received information which has been placed in the record on this hearing that the petitioner had started to live with a woman named Rose Longo, also known as Rose Long, and so referred to hereafter, as his wife in 1944, and had been living with her continuously since then. Two children have been born to this woman and the petitioner.
Rose Long was examined on April 25, 1947, before an officer of the Naturalization and Immigration Service, and stated that she was married to Manuel Fernandez, also known as Manuel Vega, on June 17, 1933, and separated from her husband more than five years previous to April 25, 1947; that her marriage had never been legally terminated; (Fernandez is now confined to the Matteawan State Hospital for criminally insane); that she had a child named Richard born of the relationship with the petitioner on June 29, 1946. That she started living with the petitioner in 1944, and since then had sexual relations with him regularly until 'just before the birth of our baby.' She further testified that she had been using the name of Matura since approximately 1945. On May 29, 1947, petitioner again testified before an officer of the Naturalization and Immigration Service and stated that he had two children with his wife in Yugoslavia, one of whom was killed; that, in addition, he had a child, Richard Matura, born June 29, 1946 in the United States, which he failed to mention previously because 'I want to get my citizen paper'. Petitioner further stated that he was living with Rose Long in the United States, that he had had sexual relations with her and 'I want to marry her and live with her until I die'; that he lived with her as man and wife since October 1944; that Rose Long is a married woman not divorced from her husband; that she holds herself out as his wife in the neighborhood. Petitioner admitted that he lied when he testified on June 23, 1945 in a deportation proceeding that he was living by himself, and did so because of fear that he would not be naturalized. He also admitted on September 9, 1947, before an officer of the Naturalization and Immigration Service that he did not testify accurately and had failed to reveal to the American Consul on November 26, 1946, in connection with his application for an Immigration visa and in connection with his alien registration, the fact that he was living with Rose Long, and had a child named Richard, who were both dependent upon him for support. He testified further that Rose Long was the only one he considered his wife and he wanted to straighten out his status because he wanted to become an American citizen. On May 25, 1948, petitioner stated before an officer of the Naturalization and Immigration Service that he loved Rose Long and their child Richard; that he was going to do everything he could for them, and was anxious to adjust his status. He stated further that he intended to get a divorce from his wife in Yugoslavia and legally marry Rose Long in the United States. There are now two children born of the relationship between petitioner and Rose Long.
The petitioner's position may be summarized by stating that he married in Yugoslavia at the age of 16. The petitioner came to this country as a stowaway in 1937. He immediately obtained a position as a longshoreman and became a member of the International Longshoremen's Association. He worked steadily as a longshoreman until his induction in the United States Army, where he served as a private. He states that in 1944, upon his release from the Army, he was advised that his wife and children had been killed by a bomb, although nothing is submitted to corroborate this belief. This was later proven to be false. One child was killed.
The question, therefore, presented to this Court is whether the petitioner living with a woman in the United States as husband and wife, but without establishing the legality of the marriage and as a result of which relationship children are born, should be admitted to naturalization, when it appears that he abandoned his family in Yugoslavia and failed to disclose, under the circumstances in the instant case, the existence of his wife and child in Yugoslavia; furthermore, whether perjury concerning these facts on deportation proceedings should be sufficient to deprive petitioner of naturalization.
The solution to the question has given this Court considerable concern. Were this Court to be permitted to answer the question presented in the instant case based upon its own concepts of morality, it would be simple to conclude that naturalization should be denied. However, the cases which have come before the higher courts indicate a trend of liberalism in naturalization cases, which appears to nullify any individual feeling which the Court might have upon the subject matter. The most recent pronouncement on the subject was by the United States Court of Appeals for the Second Circuit, on October 24, 1949, in Schmidt v. United States of America, 177 F.2d 450. In that case, the court had before it the question as to whether to grant naturalization to a person who admitted in an affidavit before the Examiner that 'now and then I engaged in an act of sexual intercourse with women. These women have been single and unmarried women. As to the frequency of these acts I can only state that they occurred now and then. My last such act took place about half a year ago with an unmarried woman.'
The Court of Appeals, though candidly admitting that the law on the subject was not free from doubt, answered in the negative the question of whether an unmarried man must live completely celibate or forfeit his claim to a good moral character.
In United States v. Manfredi, 1948, 168 F.2d 752, the Third Circuit by a divided court of all its six judges, admitted an unmarried man to citizenship, though he admitted that he had occasional meretricious relations with single women for pay, and in United States v. Palombella, 1948, 168 F.2d 903, the same circuit by an equally divided court held that an alien who had a wife and children in Italy, from whom he had apparently not been legally separated, and who had had occasional meretricious relations with single women for pay, should likewise be admitted.
In Petitions of Rudder and three others, 2 Cir., 1947, 159 F.2d 695, the question arose as to what the common standards of morality would be on the facts presented. Each of the four aliens had been living with a woman in an adulterous union. Either the alien or the woman had been unable to get a divorce. All were admitted to naturalization because the Court of Appeals in this Circuit believed that the present sentiment of the community did not view as morally reprehensible such faithful and long relationships as were disclosed under the circumstances. See also United States v. Francisco, 2 Cir., 1947, 164 F.2d 163.
Previously in Estrin v. United States, 1935, 80 F.2d 105, the Court of Appeals for the Second Circuit denied naturalization because of a single act of adultery ...