Dicicco v. U.S. Dept. of Justice I.N.S., 88-1199

• Decision Date: 26 April 1989
• Docket Number: No. 88-1199,88-1199
• Citation: 873 F.2d 910
• Parties: Giovanni DICICCO, Petitioner-Appellant, v. U.S. DEPARTMENT OF JUSTICE IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 910

873 F.2d 910

Giovanni DICICCO, Petitioner-Appellant, v. U.S. DEPARTMENT OF JUSTICE IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee.

No. 88-1199.

United States Court of Appeals Sixth Circuit.

Argued Feb. 23, 1989.

Decided April 26, 1989.

David K. Wenger (argued), Detroit, Mich., for Giovanni Dicicco.

L. Michael Wicks, Asst. U.S. Atty. (argued), Andrew Balanger, I.N.S., Detroit, Mich., for I.N.S.

Before KEITH, JONES and GUY, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Petitioner, Giovanni Dicicco, appeals the district court's order denying his petition for naturalization. The district court concluded, as the designated naturalization examiner did before him, that Dicicco is permanently barred from naturalization under section 315 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1426, because of his discharge from military service on the basis of alienage. Dicicco concedes that he received a discharge based on alienage, but claims that his lack of proficiency with the English language precluded him from knowingly and intelligently acquiring that discharge with its attendant permanent bar to United States citizenship. For the reasons that follow, we must affirm.

Petitioner, Dicicco, lawfully immigrated to the United States for permanent residence from Italy in 1966 when he was nineteen years old. At that time he had a sixth or seventh grade education. Dicicco, his friends, and family spoke only Italian. He worked with other Italian-speaking men, laying cement floors for basements in houses. Dicicco was inducted into the army in July 1968 after an unsuccessful attempt, approximately four months earlier, to be voluntarily inducted. He allegedly was rejected by the army initially because of his lack of proficiency with the English language. ¹ Dicicco's limitations with the English language were attested to by his American wife, Karen Dicicco, and his long-time friend, Mike Bacitto, who also immigrated from Italy and subsequently became a naturalized citizen. Dicicco explains his subsequent acceptance by the army by noting that the standards of induction were lowered pursuant to "McNamara's Project 100,000"--a project designed to secure needed manpower for the war.

Dicicco served in the army for eleven months. According to his affidavit, Dicicco was severely hampered by his difficulties with English. He was unable to complete written army forms, but successfully completed eight weeks of basic training by emulating others and because he had no physical impairments. Dicicco was rated "excellent" following his basic training and admitted some improvement with English language "army words." He was subsequently sent to Fort Jackson and placed in a mechanic's class but was unable to complete an administered test because, unbeknown to the lieutenant who scolded him for "screwing up," he could not read or write English. Dicicco's language barrier left him frustrated, lonesome, and friendless. At least two of his supervisors suggested that he did not belong in the army. Concerned that his language barrier might cause him to make a serious mistake, Dicicco began seeking a discharge. On a leave taken prior to being shipped to Germany, Dicicco learned that his mother had conferred with representatives in the Italian Consulate about his difficulties and was advised that they would check into it. ²

While in Germany, Dicicco's difficulties continued until May 19, 1969, when he was summoned by army officials to an office where he was presented with prepared discharge papers authorizing his discharge on the basis of his alien status. Although he admittedly was advised that whether to take the discharge was entirely his decision, he allegedly had no idea that taking the discharge would preclude him from becoming a United States citizen. Dicicco thought that the basis for his discharge was his difficulties with English. He voluntarily took the discharge. Dicicco claims to have trusted the army officials who had prepared the papers because he did not know what the papers said and did not know enough English to ask questions. He received an honorable discharge on May 30, 1969.

Dicicco contends that he thought he acquired citizenship incident to serving in the army and notes that his discharge papers indicate that he is a United States citizen. When he subsequently discovered that he was not a citizen, Dicicco postponed taking the citizenship test for over fourteen years because he felt he could not write or speak English sufficiently to pass.

Dicicco married in 1971, and has two children. He began taking correspondence courses and, after eight years, received his high school equivalency degree. He filed a petition for naturalization in March 1984. A naturalization examiner reviewed his petition and recommended its denial solely on the basis of 8 U.S.C. Sec. 1426, which bars naturalization for persons discharged from military service on the basis of alienage. The district court, following an evidentiary hearing, denied Dicicco's petition for naturalization. Dicicco now appeals.

I.

As an initial matter, we note that naturalization proceedings are essentially judicial proceedings, Tutun v. United States, 270 U.S. 568, 575-76, 46 S.Ct. 425, 426, 70 L.Ed. 738 (1926), and that exclusive jurisdiction to naturalize persons as United States citizens is vested in various federal and state courts. 8 U.S.C. Sec. 1421. Thus, although 8 U.S.C. Sec. 1446(a) requires, absent a waiver, an employee of the Immigration and Naturalization Service or of the United States designated by the Attorney General to conduct preliminary examinations upon naturalization petitions pending before a naturalization court and to make recommendations on petitions to such courts, it is the court that bears responsibility for decisions granting or denying a petition for naturalization. 8 U.S.C. Sec. 1446(d); In re Kwong Hai Chew, 278 F.Supp. 44 (S.D.N.Y.1967).

In accordance with Federal Rule of Civil Procedure 52(a), we must accept the factual findings of the district court unless they are clearly erroneous:

"[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 542, 92 L.Ed. 746] (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.

.... When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841] (1985)....

Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

In Taylor and Gaskin, Inc. v. Chris-Craft Industries, 732 F.2d 1273 (6th Cir.1984), however, we noted that "[t]his court may review de novo findings of ultimate facts which result from the application of legal principles to subsidiary factual determinations; moreover, conclusions of law are excluded from the clearly erroneous standard of Rule 52(a), and are therefore also subject to the de novo review of this court." Id. at 1277 (citation omitted).

II.

It is not disputed that 8 U.S.C. Sec. 1426 bars citizenship for persons who receive a military discharge based on alienage. Section 1426 states:

Sec. 1426. Citizenship denied alien relieved of service in armed forces because of alienage; conclusiveness of records

(a) Notwithstanding the provisions of section 405(b) of this Act, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.

(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.

It is also not disputed that Dicicco obtained his discharge by signing a "REQUEST BY PERMANENT RESIDENT ALIEN FOR RELIEF FROM TRAINING AND SERVICE IN THE ARMED FORCES OF THE UNITED STATES BECAUSE OF ALIEN STATUS." That form reiterates the provisions of 8 U.S.C. Sec. 1426 barring eligibility for citizenship for persons obtaining a discharge from military service based on alienage. What is disputed is whether Dicicco's lack of proficiency with the English language precluded him from knowingly and intelligently waiving his eligibility for naturalization when he elected to be discharged from military service.

In Moser v. United States, 341 U.S. 41, 47, 71 S.Ct. 553, 556, 95 L.Ed. 729 (1951), the Supreme Court held that a Swiss native was not barred from citizenship notwithstanding his having procured an exemption from military service on the basis of alienage. In that case, the exemption was sought pursuant to an 1850 treaty between the United States and Switzerland freeing citizens of each country residing or established in the other country from personal military service. When petitioner was classified in the United States as I-A, he sought deferment in accordance with the 1850 treaty. At that time, section 3(a) of the Selective Training and Service Act, as amended, 50 U.S.C.App. Sec. 303(a), allowed aliens to be exempt from military service but...