United States v. Menasche, 4798.
| Decision Date | 03 March 1954 |
| Docket Number | No. 4798.,4798. |
| Citation | 210 F.2d 809 |
| Parties | UNITED STATES v. MENASCHE. |
| Court | U.S. Court of Appeals — First Circuit |
Douglas P. Lillis, Acting District Counsel, Miami Dist., Immigration and Naturalization Service, Miami, Fla. (Ruben Rodriguez Antongiorgi, U. S. Atty. Dist. of Puerto Rico, San Juan, Puerto Rico, on brief), for appellant.
Tomas I. Nido, San Juan, Puerto Rico (Fiddler, Gonzalez & Nido, San Juan, Puerto Rico, on brief), for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
The petitioner-appellee, a native of Belgium and citizen of France, lawfully entered the United States for permanent residence on March 7, 1948, and on April 16 of the same year he filed his Declaration of Intention to become a citizen of the United States. His employment in an executive capacity by a wholly owned subsidiary of Columbia Pictures International, — an American corporation — necessitated his absence from the United States for periods of more than six months, but never for more than a year at a time, on several occasions during the following five years. On April 24, 1953, he filed his Petition for Naturalization in the court below.
The Naturalization Examiner designated to conduct the petitioner's preliminary examination found, and the United States does not deny, that in spite of the petitioner's absences he did not in fact abandon or otherwise forfeit his "residence" in the United States. On the other hand, the petitioner concedes, as he must, that his absences were of such frequency and duration that he was not physically present in the United States for at least one half of the five-year period immediately preceding the filing of his Petition for Naturalization. This, the Government contends, prevents the petitioner's naturalization under § 316(a)1 of the Immigration and Nationality Act, 66 Stat. 242, 8 U.S.C.A. § 1427(a), which was passed over presidential veto on June 27, 1952, and went into effect 180 days thereafter on December 24th. The petitioner, however, contends (the court below agreed and admitted the petitioner to citizenship) that his lack of physical presence in the United States is of no consequence for the reason that he is entitled to be naturalized under § 307 (a)2 of the Nationality Act of 1940, 54 Stat. 1142, which contains no requirement of physical presence in the United States prior to a petition for naturalization.
The answer to these conflicting contentions lies in the meaning of subsections (a) and (b) of § 405 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. § 1101 note, which in material part read:
Certainly if Menasche could have filed a petition for naturalization prior to the effective date of the 1952 Act he would have been entitled under the specific provisions of subsection (b) above to have had that petition heard and determined in accordance with the Nationality Act of 1940. United States v. Cunha, 209 F.2d 326, decided by this court January 8, 1954. And from the particularity of that provision the converse would seem to follow, that is, that all petitions for naturalization filed after the effective date of the Immigration and Nationality Act should be heard and determined in accordance with the provisions of that Act and not in accordance with the requirements of the statute which preceded it. Subsection (a) of § 405, however, is broad and sweeping in its terms. Indeed it is so comprehensive that subsection (b) seems redundant. See Shomberg v. United States, decided by the Court of Appeals for the Second Circuit January 25, 1954, 210 F.2d 82. But however that may be, subsection (a) provides categorically that "Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, * * * or to affect * * * any status, condition, right in process of acquisition italics ours * * * existing, at the time this Act shall take effect; but as to all such * * * rights * * * the statutes or parts of statutes repealed...
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United States v. Menasche
...condition, and right in process of acquisition preserved by § 405(a) of the new Act. 115 F.Supp. 434. The Court of Appeals affirmed. 210 F.2d 809. We granted certiorari because of the importance of the questions presented in this and the companion case of Shomberg v. United States, 348 U.S.......
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United States v. Shaughnessy, 187
...supra, it was held — affirming the reasoned decisions in Petition of Menasche, D.C. Puerto Rico, 115 F.Supp. 434, and United States v. Menasche, 1 Cir., 210 F.2d 809 — that a preliminary petition for naturalization should be given effect despite the petitioner's absence from the country, wh......
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Yanish v. Barber, Civ. A. No. 29013.
...United States v. Pringle, 4 Cir., 212 F.2d 878; Petition of Menasche, D.C.D.Puerto Rico, 115 F.Supp. 434, affirmed United States v. Menasche, 1 Cir., 210 F.2d 809; Application of Shomberg, D.C.S.D.N.Y., 115 F.Supp. 336, affirmed Shomberg v. United States, 2 Cir., 210 F.2d 82; United States ......
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Junso Fujii v. Dulles, Civ. No. 1261.
...cites in opposition to this argument the cases of Petition of Menasche, D.C.Puerto Rico, 1953, 115 F. Supp. 434, affirmed, 1 Cir., 1954, 210 F.2d 809; and In re Jocson, D.C.Hawaii 1954, 117 F.Supp. 528; wherein the Saving Clause was held to be applicable. There the plaintiffs had, as aliens......