In re Ellingsen

• Decision Date: 11 June 1924
• Docket Number: 5873.
• Citation: 300 F. 225
• Parties: In re ELLINGSEN.
• Court: U.S. Court of Appeals — Ninth Circuit

300 F. 225

In re ELLINGSEN.

No. 5873.

United States District Court, N.D. California.

June 11, 1924

Emanuel Ellingsen, in pro. per.

F. S Becker, of San Francisco, Cal., U.S. Naturalization Examiner for the United States.

KERRIGAN District Judge.

This is a petition for naturalization, filed under the seventh subdivision of section 4 of the Act of June 29, 1906, as amended by the Act of May 9, 1918. Comp. St. 1918, Comp. St Ann. Supp. 1919, Sec. 4352. The petitioner has been employed as a deck hand on ferryboats operating on the Bay of San Francisco for upwards of five years. He admits that he would have no difficulty in proving by witnesses five years' residence within the United States. For this reason the representative of the Bureau of Naturalization contends that petitioner is not entitled to file under subdivision 7, but must file under the general provisions of section 2 of the Naturalization Act. 34 Stat. 596.

That part of subdivision 7 pertinent to this inquiry provides as follows:

' * * * Or any alien * * * who has enlisted or entered or may hereafter enlist in or enter the armies of the United States, * * * or who has served for three years on board of any vessel of the United States government, or for three years on board of merchant or fishing vessels of the United States of more than twenty tons burden, and while still in the service on a reenlistment or reappointment, or within six months after an honorable discharge or separation therefrom, * * * may, on presentation of the required declaration of intention petition for naturalization without proof of the required five years' residence within the United States if upon examination by the representative of the Bureau of Naturalization, in accordance with the requirements of this subdivision it is shown that such residence cannot be established; * * * and any petition for naturalization filed under the provisions of this subdivision may be heard immediately, notwithstanding the law prohibits the hearing of a petition for naturalization during thirty days preceding any election in the jurisdiction of the court.'

As it appeared from his examination before the Naturalization Examiner that petitioner was able to prove five years' residence within the United States, he must now make such proof. There is no escape from the language of the statute, wherein it is clearly stated that seamen may petition 'without proof of the required five years' residence within the United States if upon examination by the representative of the Bureau of Naturalization * * * it is shown that such residence cannot be established. ' But as there are other privileges given to seamen in subdivision 7, besides that of petitioning without proof of five years' residence, the further question arises: Can a seaman file his petition under this subdivision, even though he is able to prove five years' residence. I am of the opinion that he can, and that, fairly construed, this subdivision means (1) that a seaman, as well as the other classes mentioned in this subdivision, may file his petition under the seventh subdivision and get an immediate hearing; and (2) that he need not prove residence within the United States for five years, unless upon examination it appears that he is able to do so.

A careful consideration of the report of the committee which reported this bill to Congress will show that the legislative intent is best subserved by such an interpretation. This section being ambiguous and obscure, in so far as we cannot tell whether petitioner's inability to prove five years' residence is in every case an absolute condition to filing under this subdivision, we are entitled to look to the...