The opinion of the court was delivered by: FRANKEL
The Immigration and Nationality Act of 1952, like its predecessors, requires aliens to demonstrate "good moral character" in order to qualify for citizenship, 8 U.S.C. § 1427(a)(3), or for other benefits, id., §§ 1254, 1259(c), 1435(b), 1438(b)(1), and 1439(e). In its application to the substantial fraction of us who are neither beasts nor angels, the required judgment is not necessarily an easy one. Notions of "character" and "morality" are, to say it briefly, diverse. They are compounded of complex, rarely articulated, and subjective premises. But it offends widely cherished ideals to have the law reflect only the private vagaries of the judges. And so the courts, often acknowledging large vestiges of doubt, have done what they could to "divine [something] * * * so tenebrous and impalpable as the common conscience * * *." Schmidt v. United States, 177 F.2d 450, 452 (2d Cir. 1949).
Congress in the 1952 Act sought to ease the burden by providing "standards as an aid for determining whether a person is one of good moral character" for the several pertinent statutory purposes. S.Rep.No.1137, 82d Cong., 2d Sess. 6 (1952). Defining the concept by exclusion rather than inclusion, the legislators, in section 101(f) of the Act, 8 U.S.C. § 1101(f), described eight categories of conduct that would preclude a finding of good moral character.
The second of these, declaring that "one who * * * has committed adultery" during the relevant period must be found to lack good moral character, is the subject of present concern.
Two applicants for citizenship are before the court. Each must show, among other things, that he "has been [for the five years preceding his petition] and still is a person of good moral character * * *." 8 U.S.C. § 1427(a).
Both appear qualified in all respects except that they have committed acts during the five-year period that are claimed by the Immigration and Naturalization Service to constitute adultery within the meaning of the statutory proscription. Upon the facts, and for the reasons, outlined below, it is concluded that both petitions must be denied.
Petitioner Russo was born 38 years ago in Italy. He was admitted into this country for permanent residence on February 2, 1954. He filed his petition for naturalization on March 5, 1964.
On September 29, 1952, while still living in Italy, petitioner married a woman several years his senior. The couple's life together was loveless, discordant, and short. About two months after the wedding day, Russo's wife left him and came to the United States. When he followed her here a little over a year later, there was an unsuccessful effort to salvage the marriage. The parties lived together for a month or so, then parted again, and have lived as strangers from each other ever since. There are no children of the marriage. Mrs. Russo supports herself as a matter of preference, and makes no demands of any kind upon petitioner. She has no interest, however, in remarriage, and no disposition to seek a divorce. Russo has lacked financial means to seek an out-of-state divorce and has lacked grounds for a New York divorce.
He has worked steadily in the printing trade over the years of his residence here. He has never been arrested or otherwise in conflict with the law, either here or in Italy. His health is good. He answered affirmatively when the Examiner saw fit to inquire whether he had "a normal sexual appetite." Asked why he sought citizenship, he said: "Because I love this country."
He acknowledges, however, that in the dozen years or so since his abortive marital experience, he has had sexual relations with several women. One of these was a married woman with children; with her, for a period of some four months less than five years ago, he had sexual relations about once a week. Another relationship, apparently with an unmarried woman, was of comparable character and duration. Otherwise, he reports, his sexual encounters have been with women he has seen "only once in a lifetime, * * * for nothing else but for sexual need." Referring generally to the five years before his petition was filed, he says his intimacies with women have been rare: "Not once a year. * * * I can stay away a long time from women, because I have strong will, will power."
Petitioner Weeks is a native of France, 27 years old. He became a lawful permanent resident of this country at the age of five. He, too, has been generally lawabiding, with no arrests and a record of gainful employment as a statistical worker and entertainer. His marriage, though legally intact, has been even more fleeting as a practical reality than Russo's. He was married on January 30, 1964, to an Israeli citizen who was here as a tourist. His wife left him less than two weeks later, returned to Israel, and has remained there. His brief states that her parents have told him steps are being taken to terminate the marriage.
Weeks acknowledged in an affidavit sworn September 22, 1965, that he had had sexual relations with four women during the preceding year - once each with three of them, twice with the fourth. He named three of his partners, all from Albany, and stated they were unmarried. He could not remember the name of the fourth woman, whom he had been with about a year earlier in New York City, and he did not say whether or not she was married.
Despite its seeming simplicity and the apparent purpose of its framers to simplify, the declaration in § 101(f)(2) of the 1952 Act that adultery destroys good moral character has engendered some travail and contrariety of opinion in the courts. The statute gives no definition of "adultery," which turns out, despite its familiarity, to have a considerable variety of meanings.
The Immigration and Naturalization Service, in the cases at bar as well as others, has adapted to this difficulty by the flexible expedient of making the determination upon the law of the place where the arguably adulterous conduct occurs. This is proper, it has been said, because of the "belief that Congress' desire that there be uniformity related not to the method to be used in determining whether adultery had been committed, but related rather to the desire that all persons who had committed adultery should be barred from the prizes of the law." Matter of Pitzoff, 10 I. & M. Dec. 35, 37 (1962). It is open to question whether that explanation concerning the insignificance of "method," which could be thought to be the heart of the matter, is in its own terms a resoundingly satisfactory rationale. The question becomes sharper, and has been answered adversely to the quoted administrative view, when considered with the pertinent language of the Constitution (Art. I, § 8, cl. 4) empowering Congress to "establish an uniform Rule of Naturalization * * *". In re Briedis, 238 F. Supp. 149, 151 (N.D.Ill.1965); In re Edgar, supra, 253 F. Supp. at 953.
Further uncertainty in following the laconic mandate of § 101(f)(2) has arisen because it is unclear whether the Congress intended to codify or to discard pre-1952 case law touching adultery and moral character for immigration and naturalization purposes. That earlier position, at least in this Circuit, had been that "technical" adultery, in the form of conduct "that the present sentiment of the community [does not view] * * * as morally reprehensible," would not bar a finding of good moral character. Petitions of Rudder et al., 159 F.2d 695, 698 (2d Cir. 1947). The cases since 1952 go both ways in deciding whether the doctrine of "extenuating circumstances" remains applicable now that the statute expressly denounces adultery as antithetical to good moral character. E.g., compare Petition for Naturalization of O. N., 233 F. Supp. 504 (S.D.N.Y.1964), and ...