The opinion of the court was delivered by: DAWSON
These contested petitions for naturalization raise the question whether adultery committed by petitioners before the effective date of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq. but within the five-year period preceding the filing of the petitions for naturalization constitute per se a bar to naturalization because of the definition of good moral character contained in the 1952 Act, although it would not have been a bar per se under the preceding Act; and if not what considerations should be used by the Court at the present time in determining whether such adultery was an indication that petitioners had not established good moral character.
The petitioners are husband and wife.
The husband, formerly a Latvian, but now alleged to be stateless, had been a seaman. Deportation proceedings were instituted against him in 1951. As a result of these proceedings, he was granted suspension of deportation and a record of lawful entry for permanent residence was established as of March 15, 1949.
The wife, a native of Hungary, has resided permanently in the United States since her lawful admission for permanent residence on December 28, 1908.
The two petitioners met early in 1944. At that time, the female petitioner was married, but separated from her then husband. In 1945, while the female petitioner was still married, the two petitioners began to live together in New York as husband and wife. The former husband of the female petitioner, as a result thereof, started divorce proceedings against her in New York in 1951, charging that she had committed adultery with the male petitioner. The divorce proceeding was not contested, and on April 7, 1952, a final decree of divorce of the female petitioner was obtained by her then husband. Thereafter, on June 7, 1952, the petitioners were married in New Jersey.
The male petitioner filed his petition for naturalization on March 7, 1955. The female petitioner filed her petition for naturalization on April 23, 1954.
The petitions are opposed by the Naturalization Examiner on the ground that during the five-year period preceding the filing of the petitions, the petitioners had not been persons of good moral character within the definition of that term contained in the Immigration and Nationality Act of 1952, since during that five-year period, they had been guilty of adultery.
Section 316 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1427(a), makes it a prerequisite to naturalization that each petitioner:
'* * * for at least five years and during the five years immediately preceding the date of filing his petition * * * (3) * * * has been and still is a person of good moral character, * * *.'
The Act further provides in 8 U.S.C.A. § 1101(f):
'(f) For the purposes of this Act --
'No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was --
'(2) one who during such period has committed ...