Application of Shomberg

• Citation: 115 F. Supp. 336
• Parties: Application of SHOMBERG.
• Decision Date: 21 August 1953
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

115 F. Supp. 336

Application of SHOMBERG.

United States District Court, S. D. New York.

August 21, 1953.

Max Schultz, New York City (Alan Y. Cole, Washington, D. C., of counsel), for petitioner.

Louis Steinberg, District Counsel U. S. Department of Justice Immigration & Naturalization Service, Brooklyn, N. Y., Max Blau, Attorney U. S. Department of Justice Immigration & Naturalization Service, New York City, for the United States.

DIMOCK, District Judge.

Petitioner in this naturalization proceeding filed his petition on December 22, 1952. At that time there was in force section 329(c) of the Nationality Act of 1940, as added by section 27 of the Internal Security Act of 1950, 8 U. S.C. § 729(c), which prohibited naturalization where there was outstanding a final finding of deportability and prohibited final hearing in naturalization if a deportation proceeding was pending. Petitioner was not, however, liable to deportation at that time and was therefore, so far as this provision for priority of deportation proceedings was concerned, eligible for naturalization. Two days later, nevertheless, on December 24, 1952, the Immigration and Nationality Act of 1952 went into effect and, by its section 241(a) (4), created as a new ground for deportation the commission at any time of two felonies involving moral turpitude. Petitioner had committed two such felonies, one in 1913 and one in 1915. Pursuant to that section deportation proceedings were begun against him on June 23, 1953, and they are now pending undetermined.

Petitioner, in spite of the provision for priority of deportation proceedings, makes this motion for an order that his petition for naturalization filed on December 22, 1952 be brought on for final hearing forthwith and that the deportation proceeding be stayed pending determination of the naturalization proceeding.

The provision for priority of deportation proceedings grew out of the fact that there were cases where an alien subject to deportation was nevertheless eligible for naturalization. This led to a race between the Attorney General and the alien, the Attorney General seeking to deport the alien and the alien seeking to obtain naturalization. See United States v. Waskowski, 7 Cir., 1947, 158 F.2d 962; United States ex rel. Walther v. District Director of Immigration & Naturalization, 2 Cir., 1949, 175 F.2d 693; Petition of Kavadias, 7 Cir., 1949, 177 F.2d 497. Congress in 1950 gave the clear track to the Attorney General by adopting the priority section providing against naturalization after issuance of a warrant of deportation and staying naturalization proceedings pending deportation proceedings. See United States ex rel. Jankowski v. Shaughnessy, 2 Cir., 1951, 186 F.2d 580, 582. Since the adoption of the priority provision it is within the power of the Attorney General, by the institution or withholding of deportation proceedings against an alien who is subject to deportation, either to stay his naturalization proceedings and deport him or to let him proceed to the safe refuge of a certificate of naturalization.

The provision for priority of deportation proceedings was continued in section 318 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1429, which, so far as important here, reads as follows:

"Sec. 318. * * * Notwithstanding the provisions of section 405(b) * * * no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this, or any other Act; and no petition for naturalization shall be finally heard by a naturalization court if there is pending against the petitioner a deportation proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act".

Petitioner's ground for moving for a hearing of his naturalization petition despite the institution of deportation proceedings is a savings provision in the Immigration and Nationality Act of 1952, § 405, 8 U.S.C.A. § 1101 footnote, which, so far as important here, reads as follows:

"Sec. 405. (a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. * * *

"(b) Except as otherwise specifically provided in title III, any petition for naturalization heretofore filed which may be pending at the time this Act shall take effect shall be heard and determined in accordance with the requirements of law in effect when such petition was filed."

Petitioner takes the position that the new provision in the Act, section 241(a) (4), making the conviction of two felonies involving moral turpitude at any time a ground for deportation, by its terms permits a deportation proceeding against him to go to a final finding of deportability and thus, if section 318, the priority section, is given literal effect, prevents his naturalization and consequently "affects the validity of" his "petition for naturalization" and "affects" his "right" to naturalization "in process of acquisition".

Petitioner attempts to harmonize these to him discordant provisions by saying that it is only to proceedings based on warrants of deportation issued on grounds in existence prior to the 1952 Act that the priority afforded by section 318 applies. While that might have been an intelligible legislative scheme, Congress used no words to indicate that that was its intention. To read it into the statute would be judicial legislation.

Petitioner argues as an alternative that the priority section, in dealing with deportation proceedings, as distinguished from final findings of deportability, is subordinate to the provisions of section 405(b) which direct that the hearing and determination of naturalization petitions shall...