BEFORE THE BOARD
Discussion: This record is before us on appeal from a decision of a special inquiry officer dated February 9, 1953, directing the exclusion of the appellants on the grounds indicated above.
The appellants are a 32-year-old female, native of Wales and British subject, and her five minor children who are from 8 months to 10 years old. One child was born in Wales, three in England and one in Canada. The father of the five children is J---- B----, with whom the adult female appellant has cohabited since March 1942, approximately 1 year prior to the birth of the oldest child, and it appears that they have held each other out as man and wife and have been so considered in the communities where they have resided. They lived together in Wales and England and since April 1952, in Canada.
The special inquiry officer also heard the testimony of J---- B---- who applied for admission at the same time. He testified that he had been married to R---- H---- on December 25, 1935; that in September 1939, he was called for service in the Royal Air Force; and that in January 1940 his wife deserted him and moved from his home. No children were born of this marriage. He does not know whether this marriage may have been terminated by death or divorce. Apparently his wife was still living in 1943 although she had been afflicted with cancer and may now be deceased. Because of this prior marriage, he has been unable to marry the adult female appellant. The special inquiry officer ordered that the adult male applicant be admitted to the United States for permanent residence on the theory that his primary purpose was to engage in his employment, the relationship with the adult female appellant being incidental to that purpose, and he found that she would not be applying for admission except for her desire to continue the relationship as the concubine of J---- B---- and ordered that she be excluded.
There was some claim to a common law marriage between J---- B---- and the adult female appellant. However, common law marriages have not been recognized in England since the act of 1753 and such marriages are also not recognized in Canada. It appears, therefore, that no common law or other marriage exists between these parties at this time.
Section 212(a)(13) provides for the exclusion of "aliens coming to the United States to engage in any immoral sexual act." J---- B---- and the adult female appellant have lived together for 11 years. They are the parents of five children and for all intents and purposes, they constitute a family unit as effectively as though the parents had been lawfully married. Both of the adult aliens have been entirely forthright in their testimony regarding their relationship. The adult male alien informed the consular officer concerning the facts and visas were, nevertheless, issued. J---- B---- acting upon the fact that such visas had been granted, disposed of his property in Canada, resigned his employment and accepted other employment in the United States. He would not have done so if he had had any reason to believe that the adult female appellant and the children would not be permitted to accompany him to the United States. It appears that his services will be of military advantage to this country.
We agree, with the special inquiry officer, that the purpose of the male alien in coming to the United States is to engage in his employment and that he is not excludable. In addition, we believe that the adult female appellant is not "coming to the United States to engage in immoral sexual acts" but that she is coming to the United States in order that there may be a continuation of this family unit as it has existed for many years in the past.
The provision of the Immigration and Nationality Act here involved as to exclusion of Mrs. B---- is section 212(a)(13), which provides for the exclusion of "aliens coming to the United States to engage in any immoral sexual act." The comparable provision in the Immigration Act of 1917 is in section 3, which provided for the exclusion of "prostitutes, or persons coming into the United States for the purpose of prostitution or for any other immoral purpose." Stated more succinctly, the 1917 act provided for the exclusion of persons coming into the United States for any immoral purpose. This part of the 1917 act was considered by the Supreme Court in Hansen v. Haff, 291 U.S. 559. That case involved a woman who was a legal resident of the United States and who made a trip abroad with a married man engaging in illicit sexual relations with him during this trip. Upon returning to the United States she was denied admission by the immigration authorities as one coming to the United States for an immoral purpose. In the course of its opinion, the Court stated:
Moreover, it cannot be said that the petitioner's entry was for the purpose of having such relations. The respondent argues that as she had indulged in misconduct before leaving, had continued that misconduct while on her trip abroad, and intended to continue it at least until she should arrive in Los Angeles, the Secretary of Labor was justified in disbelieving her statement that the relations would cease when she took up her residence in that city. This may be conceded; but it does not follow that her purpose in returning to the United States was to continue her irregular and improper conduct. The fact is that she was returning to her former residence, and nothing is disclosed to indicate that she did not intend, as she claimed, to resume her employment as a domestic. Her entry cannot be said to be with the purpose "only that she might live in a state of concubinage" * * *.
We feel that the reasoning of the Court in the Hansen case is applicable to the case now before us. In a word, the issue is whether Mrs. B---- is coming to the United States primarily for the purpose of engaging in immoral sexual acts. It is perfectly apparent that she is not. She with Mr. B---- and the children comprise a family unit. They have been living as a family unit, and are now entering the United States only because Mr. B---- has been offered a very substantial position as a jet engineer with the Ford Motor Co. To say under these circumstances that Mrs. B---- is coming to the United States primarily to engage in immoral sexual acts loses sight of the realities in this situation.
It should be noted that the special inquiry officer acted on the premise that to be inadmissible as an alien coming to the United States to engage in any immoral sexual act, this must be the primary purpose of the alien's migration. In the course of his opinion, he stated:
Upon consideration of the evidence presented at this hearing it is concluded that the applicant J---- B---- is admissible to the United States as an alien immigrant. Although he intends to continue in the United States the meretricious relationship with Miss R---- [Mrs. B----], it appears that his primary purpose in seeking entry to the United States is to engage in employment and take up permanent residence, and that the relationship with Miss R---- [Mrs. B----] is merely incidental to that purpose.
The language differences between the present act and the comparable provision in the act of 1917 in reference to this provision, we think unimportant.
In an earlier version of what became the Immigration and Nationality Act, S. 3455 of the 81st Congress, the comparable provision was as follows:
"Aliens coming to the United States solely, principally, or incidentally to engage in any illicit sexual act or any other immoral act.
As finally enacted into law, the phraseology "solely, principally, or incidentally" was eliminated. We also note that in clause 12 of section 212(a) of the Immigration and Nationality Act relating to prostitutes, the statute reads:
Aliens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution * * *.
The insertion in clause 12 of the language "principally, or incidentally" and the deliberate elimination of comparable language in clause 13, leads us to the conclusion that the language above quoted from the Hansen decision is still pertinent in applying the present law.
We have not lost sight of the committee reports on the bill, which eventually became the Immigration and Nationality Act, Report No. 1137 of the Senate committee on page 10 contains the following:
In addition to modifying certain of the exclusion clauses in existing law, the bill creates new classes of excludable aliens, as follows:
* * * * * * *
(2) Aliens coming to the United States solely, principally, or incidentally to engage in any immoral sexual act. This provision is designed to express clearly that if the alien intends to perform an illicit sexual act after entry, regardless of the other reason motivating his entry, he is to be excluded.
In the House Report No. 1365, (82d Cong.2d sess.), page 50, there is found the following:
In addition to modifying certain of the exclusion clauses in existing law, the bill creates new classes of excludable aliens, as follows:
* * * * * * *
(2) Aliens coming to the United States to engage in any immoral sexual act. This provision is designed to express clearly that if an alien intends to perform an illicit sexual act after entry, regardless of the other reasons motivating his entry, he is to be excluded (par. 13 of sec. 212 (a)).
These two quotations would be consistent with the language found in S. 3455 of the 81st Congress, above quoted, but clearly are at variance with the language finally adopted in the act. While committee reports are entitled to great weight in interpreting an act of Congress, the reports, however, cannot supersede the language of the act itself. As above indicated, somewhere during the course of the consideration of the bill, the provision relating to aliens coming to the United States "incidentally" was eliminated as to aliens coming to engage in an illicit sexual act, while specifically retained in regard to those coming to the United States for prostitution. This is a situation which we feel is controlling over and above observations in the reports which are inconsistent with the language in the measure as it finally became law.
We conclude under the circumstances existing in this case, Mrs. B---- is not coming to the United States primarily to engage in an "immoral sexual act."
In Petitions of Rudder et al., 159 F.(2d) 695 (C.C.A. 2, 1947), the Court affirmed the orders of the lower court admitting to citizenship certain petitioners for naturalization who had been living with persons to whom they were not married. The Court said:
What we are here asked to do is to brand as immoral long-term, faithful relationship between couples who consider themselves and are considered by their neighbors as upright and decent husbands and wives and would willingly have made ligitimate their status if they could * * * We do not believe that the present sentiment of the community views as morally reprehensible such faithful and long continued relationships under the circumstances here disclosed. And the Court decisions, following as they should the mores of the time, show an increasingly liberal trend in naturalization cases.
Under the circumstances of the record in the instant case, we believe that the rule stated in Petitions of Rudder, ( supra), applies and that, even if it could be said that the parties are coming to the United States to engage in sexual acts, such acts would not be immoral in this case. We conclude, therefore, that the adult female appellant is not inadmissible on the ground stated by the special inquiry officer.
J---- B---- is coming to the United States to accept a very substantial position as an engineer with the Ford Motor Co., and has a substantial salary. The record indicates that he had $5,000 in bank in Canada which he would bring with him. Under these circumstances, there is no basis for excluding the children as persons likely to become public charges, irrespective of whether the mother is admissible. Accordingly, we will sustain the appeals.
Order: It is ordered that the appeals be sustained and that the appellants be admitted to the United States for permanent residence.