A petition for naturalization was submitted by Johanna Helen Greulich, who is a native and national of Germany, and seeks naturalization under the general provisions of the Immigration and Nationality Act. There is no dispute as to the facts which are set forth hereafter.
The petitioner and Stephen Gayer were married in this State in 1928 and lived together in that union until 1931, when they separated. In 1934 the husband, while working in Florida, consulted an attorney in that state concerning a divorce. He was advised to secure a Mexican decree and referred to an attorney in El Paso, Texas, journeyed there, and without appearing personally in Mexico commenced the action from that location. The petitioner executed a voluntary consent of the waiver of jurisdiction before a notary public in New Jersey. She was not apprised of her husband's non-appearance in Mexico. In April 1935 the petitioner received a copy of the Mexican decree of divorce which is now in evidence, and at about that time learned that Mr. Gayer had remarried within a week of the date of the divorce. The petitioner married John Greulich in August 1938, over three years later, and continues in that relationship to the present time. That she remarried in good faith and in the honest belief she was legally free to do so is not in dispute.
The record discloses that petitioner had filed a previous petition in December 1942, which was denied without prejudice, the court having accepted petitioner's written motion for denial of such petition. On February 15, 1954 she filed the petition for naturalization which is presently before the court. The designated naturalization examiner has recommended the granting of the petition and the admission of petitioner to citizenship. The Acting Regional Commissioner, Southeast Region, has concluded that under the provisions
of the Immigration and Nationality Act the petitioner may not be naturalized.
The issue presented is whether the petitioner has established good moral character for the statutory period which began on February 15, 1949, in view of the provisions of section 101(f)(2) of the Immigration and Nationality Act (McCarren Act, 1952). Section 101(f), supra , in its pertinent part, is quoted herewith:
"(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 adultery; * * *."
It has been held in this State that a Mexican mailorder divorce is a nullity. Tonti v. Chadwick , 1 N.J. 531 (1949). The designated examiner, however, has concluded that petitioner's second and continuing marriage relationship should not be deemed criminally adulterous thereby. It is contended that adultery must be criminal in kind in order to come within the prescribed norms of conduct under the McCarren Act (8 U.S.C.A., section 1101 (f)(2)).
In support of this view the examiner refers to the decisional law prior to the passage of the McCarren Act, maintaining, as he does, that it remains unchanged. By way of example there is cited Petition of Smith , 71 F. Supp. 968 (D.C. 1947), wherein there is found a situation paralleling in many respects the facts in the instant case. In commenting there upon the question of adultery occasioned by a second marriage after a mail-order divorce the court, 71 F. Supp. , at page 973, stated:
"At the base of the petitioner's difficulty lies the subject of divorce, fraught as it is with great confusion and uncertainty in these United States and almost totally lacking in unanimity among them. Through it all is woven the ecclesiastical strands of a sacrament and as well the temporal strands of a contract. Looking then to the character of the man, it is noted that he has been governed by a natural desire for the marital ...