Bertoldi v. McGrath, 10224

• Decision Date: 05 December 1949
• Docket Number: No. 10224,10224
• Citation: 178 F.2d 977,86 US App. DC 1
• Parties: BERTOLDI v. McGRATH, Atty. Gen., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

86 US App. DC 1, 178 F.2d 977 (1949)

BERTOLDI v. McGRATH, Atty. Gen., et al.

No. 10224

United States Court of Appeals District of Columbia Circuit.

Argued October 11, 1949.

Decided December 5, 1949.

Mr. Irving Jaffe, Washington, D. C., with whom Mr. Jack Wasserman, Washington, D. C., appeared on the brief, for appellant.

Mr. Joseph M. Howard, Assistant United States Attorney, Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Mr. Ross O'Donoghue, Assistant United States Attorney, Washington, D. C., appeared on the brief, for appellees.

Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.

PRETTYMAN, Circuit Judge.

This is an appeal from a judgment of the United States District for the District of Columbia. Appellant brought a civil action for a declaratory judgment, and the court dismissed the complaint for failure to state a cause of action.

The plaintiff prayed that the court declare her to be an American citizen. She was born in Italy November 2, 1921. Her father entered the United States for permanent residence and was duly naturalized on September 10, 1929. At that time the plaintiff was eight years old and still lived in Italy. On April 3, 1937, when she was fifteen years old, she was lawfully admitted to the United States for permanent residence. Thereafter, she remained in the United States for more than five years.

In 1937, when the plaintiff was admitted to this country, the Naturalization Act of March 2, 1907, as amended May 24, 1934,¹ was in effect. That act provided that a child born without the United States of alien parents should be deemed a citizen of the United States by virtue of the naturalization of either the father or the mother, with two provisos. The first proviso was that the naturalization of the parent should take place during the minority of the child. The second proviso was that the citizenship of the child should begin five years after the child began to reside permanently in the United States. Thus, if that act remained in force, this plaintiff automatically became a citizen on April 3, 1942.

However, on January 13, 1941, the Nationality Act of 1940² became effective. It changed the provisions as to citizenship of a child born without the United States of alien parents and conditioned such citizenship upon the naturalization of both parents (if both are living) instead of only one.³ This would deprive the plaintiff of her citizenship, unless the saving clauses in the new statute preserved it.

Section 347(a) of the Nationality Act of 1940⁴ provides: "Nothing contained in either chapter III dealing with Nationality Through Naturalization or in chapter V of this Act, unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, 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 act, thing, 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, acts, things, or matters, the statutes or parts of statutes repealed by this Act, are hereby continued in force and effect."

The question is whether this plaintiff's partly completed process of becoming a citizen was a proceeding, act, thing, or matter done or existing on January 13, 1941, when the new act became effective. The Immigration and Naturalization Service of the Department of Justice interpreted the act in accordance with the present plaintiff's contentions.⁵ The State Department in 1946 issued her a passport as an American citizen, for the purpose of a trip to Italy, and she was permitted to reenter this country as a citizen in possession of an American passport.

We are of opinion that the initial interpretation of the Department of Justice was correct. Certainly the words of the saving clause in the 1940 statute — prosecution, suit, action, proceedings, act, thing, or matter — were about as broad as language could be. They evince a clear intent on the part of Congress that the new act should take effect prospectively. We think that the act meant that rights partly accrued under the old act should not be disturbed by the new. The opposite view would be, to take an extreme illustration, that if a foreign-born child of a naturalized father had come to this country with the expectation of remaining permanently, and had been here for four years and 364 days on January 12, 1941, his slowly ripening citizenship would have been struck down. We think that Congress intended, by the saving clause, to prevent that sort of result.

However, on January 4, 1945, the Circuit Court of Appeals for the Second Circuit handed down its decision in United States ex rel. Aberasturi v. Cain,⁶ in which that court (Circuit Judge Clark dissenting) declined to adopt the interpretation of the Department and held that the relator in that case, who was in the same situation as is the plaintiff in the present case, had merely an "inchoate citizenship" during the five years of residence after entry into this country...