Petition of Menasche

• Decision Date: 24 September 1953
• Docket Number: No. 5308.,5308.
• Parties: Petition of MENASCHE.
• Court: U.S. District Court — District of Puerto Rico

115 F. Supp. 434

Petition of MENASCHE.

No. 5308.

United States District Court, D. Puerto Rico, San Juan Division.

September 24, 1953.

Thomas I. Nido, of the Firm Fiddler, Gonzalez & Nido, San Juan, Puerto Rico, for petitioner.

Eugene E. Cole, Chief of the Nationality & Status Section Immigration & Naturalization Service, Miami, Fla., for the government.

RUIZ-NAZARIO, District Judge.

The petition for Naturalization of Richard Isaac Menasche, petitioner herein, came up for final hearing under Sections 336(a), Chapter 2, Title III of the Immigration and Nationality Act of 1952, Title 8 U.S.C.A. § 1447(a), on August 17, 1953 at 9:30 o'clock in the morning. Documentary and oral evidence was adduced at said hearing and the case submitted to the Court on written memoranda filed by the parties, which have been the subject of due consideration by the Court.

The only question at issue is whether petitioner is bound to comply with the physical presence requirement of Section 316(a) of the Immigration and Nationality Act of 1952, Title 8 U.S.C.A. § 1427 (a).

The government concedes that if petitioner had filed his petition under the Nationality Act of 1940, he would have met the residence requirement for naturalization contained in Section 307(a) of said Act, Title 8 U.S.C.A. § 707(a) and that, were it not for the physical presence requirement of Section 316(a) of the Immigration and Nationality Act of 1952, Title 8 U.S.C.A. § 1427(a), he would be eligible to citizenship because of his meeting of all other requirements therefor under both acts.

Petitioner concedes that if he is compelled to meet said physical presence requirement of the Immigration and Nationality Act of 1952, he would not be yet eligible to citizenship, but claims that such requirement is inapplicable to him because the validity of his Declaration of Intention made on April 16th 1948 under the Nationality Act of 1940 and the proceeding initiated thereby, as well as the status, condition and right in process of acquisition derived therefrom and done or existing at the time the Immigration and Nationality Act of 1952 took effect, must be deemed to have continued in full force and unaffected by the adoption of the latter act, and that his naturalization must be, therefore, governed by the provisions of the Nationality Act of 1940, which pursuant to the Saving Clause, Section 405(a) of the 1952 Act, Title 8 U.S.C.A. § 1101 note was in that respect expressly left in full force and effect.

Thus, the problem is reduced to determining whether under the provisions of the aforesaid saving clause petitioner is or is not bound to comply with the physical presence requirement of the Immigration and Nationality Act of 1952.

The legislative history of the Immigration and Nationality Act of 1952 sheds no light for the solution of this problem.

The analogy of some judicial precedents invoked by petitioner affords, however, convincing reasons towards a just and equitable solution thereof.

In Petition of Sproule, D.C., 19 F.Supp. 995, 997, the court characterized "the declaration of intention" as "the first step in the process of naturalization", further stating that the "declarant" thereof "acquires an inchoate nationality" even though "he remains an alien until the naturalization is completed", and acknowledging that certain rights flow from a declaration of intention, subject, however, to a strict construction. (Emphasis supplied.)

See also Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, holding that, for certain purposes, the status of a declarant under a Declaration of Intention is sufficiently different from that of a nondeclarant.

Although it is true that a Declaration of Intention is no longer necessary in the process of naturalization under the Immigration and Nationality Act of 1952, it was, however, the initial step in said process under the Nationality Act of 1940 which was the only naturalization statute in force when petitioner took his first papers.

The Nationality Act of 1940 contained a saving clause, Section 347(a), Title 8 U.S.C.A. § 747(a), which was not as broad as the saving clause contained in the Nationality Act of 1952, Sec. 405(a), Title 8 U.S.C.A. § 1101 note.

The terms "status", "condition", "right in the process of acquisition", "liability", "obligation", "rights" did not appear in the former, while they were specifically added to the latter.

Construing the saving clause of the Nationality Act of 1940, the Court of Appeals for the Second Circuit held that the provisions thereof did not cover "a mere condition, unattended by any affirmative action by the alien or by anyone else." (Emphasis supplied.)

United States ex rel. Aberasturi v. Cain, 2 Cir., 147 F.2d 449, 452.

The term "condition" was one of the terms not appearing in the saving clause of the Nationality Act of 1940, there construed, but which was later specifically included in the saving clause of the Immigration and Nationality Act of 1952.

No doubt Judge Clark's dissenting opinion in the above case had much to do with the inclusion of said term in the latter act to avoid the narrow interpretation given to the saving clause of the former act in the majority opinion in said case.

Four years later, the Court of Appeals for the District of Columbia was called upon to construe the same saving clause of the 1940 Act, and in failing to agree with the holding of the Court of Appeals for the Second Circuit in United States ex rel. Aberasturi v. Cain, supra, it held that, although not specifically included in its language, said "saving clause must have referred to rights in process of acquisition." (Emphasis supplied.) Bertoldi v. McGrath, 86 U.S.App.D.C. 1, 178 F.2d 977, 979.

It is again significant that the phrase "rights in process of acquisition" which did not appear in the saving clause of the 1940 Act was later specifically included in the saving clause of the 1952 Act.

No doubt Congress, in adding said phrase to the saving clause of the Immigration and Nationality Act of 1952, gave considerable weight to the above decision, and had this, as well as Judge Clark's dissenting opinion in the United States ex rel. Aberasturi v. Cain case, supra, in mind, for including in the language of said clause the other terms to which reference has been made hereinabove and which do not appear in the saving clause of the 1940 Act.

The record in this case shows, and the government does not deny, that the petitioner falls under several of the situations contemplated in the saving clause of the 1952 Act, which, as above stated is much broader than that of the 1940 Act. For instance:

(a) He took out his first papers, i. e. signed and had issued to him his Declaration of Intention on April 16, 1948 and relied and rested on it to comply with the further requirements of the Nationality Act of 1940, then in full force and effect, and which, under the holding of the Court in Petition of Sproule, supra, was the first step in the process (proceedings) for naturalization, acquiring thereby an inchoate nationality and certain rights flowing therefrom. It cannot be denied that said Declaration of Intention and the proceeding initiated thereby were valid at the time the Immigration and Nationality Act of 1952 went into effect and, were it not for the enactment of this Act, would have ripened into naturalization upon petitioner's compliance with all the other requirements of the 1940 Act (which is conceded) and upon his subsequent filing of the petition for naturalization barely four months after the effective date of the 1952 Act.

(b) The proceedings for his naturalization had been long initiated and brought when the 1952 Act went into effect.

(c) He enjoyed at the time a status, condition and right in the process of acquisition, the existence of which cannot be denied.

The saving clause of the 1952 Act directs that nothing contained in said Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any such declaration of intention or proceeding; or to affect any proceedings brought, or any status, condition, right in process of acquisition, act, thing or matter such as those done, existing and enjoyed by petitioner, as heretofore discussed, at the time said act went into effect, and further provides that, as to all such proceedings, statutes (sic), conditions, rights, acts, things or matters, the statutes or parts of statutes repealed by said Act, are, unless otherwise specifically provided therein, thereby continued in force.

As regards the present controversy, the government concedes that there is nothing in said act specifically providing otherwise.

If, as the court said in Bertoldi v. McGrath, supra, the words of the saving clause in the 1940 Act, "were about as broad as language could be" in the matter of protecting the rights of the plaintiff therein, it can certainly be said here, with stronger force, that the same words plus such others as "status", "condition", "rights in process of acquisition" now contained in the saving clause of the 1952 Act, and which did not figure in the saving clause there construed, are actually as broad as language could be in the sense of affording protection to the petitioner herein.

Paraphrasing the opinion in said case, it can be more aptly stated here that said words "evince a clear intent on the part of Congress that the new act should take effect prospectively." I still more strongly think that the 1952 Act means "that rights partly accrued under the old act should not be disturbed by the new one. The opposite view would be, to take an extreme illustration, that if," an alien had lawfully entered this country and had filed his declaration of intention 4 years and 364 days prior to the effective date of the Nationality Act of 1952 and complied prior thereto with all the...