In re Escalona, A17 848 730.

• Decision Date: 06 February 1970
• Docket Number: No. A17 848 730.,A17 848 730.
• Parties: In the Matter of the Petition for Naturalization of Vicente Escalona ESCALONA.
• Court: U.S. District Court — District of Guam

311 F. Supp. 648

In the Matter of the Petition for Naturalization of Vicente Escalona ESCALONA.

No. A17 848 730.

District Court of Guam.

February 6, 1970.

DUENAS, District Judge.

MEMORANDUM OF DECISION

Petitioner, Vicente Escalona Escalona, who was lawfully admitted to the United States for permanent residence on February 14, 1969, filed his petition for expeditious naturalization under section 329(a) of the Immigration and Nationality Act, as amended 8 U.S.C. § 1440 (a).

This court has examined said petition in the above cause together with the findings of fact, conclusions of law and recommendation by the designated naturalization examiner and the petitioner's affidavit and certification of his military service attached thereto.

The statute (8 U.S.C. § 1440) concerning the requirements for naturalization of members of the United States armed forces during World War II is explicit. It provides, in part,—

"(a) Any person who, * * * has served honorably in an active-duty status in the military, air, or naval forces of the United States during * * * a period beginning September 1, 1939, and ending December 31, 1946, * * *, and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment or induction such person shall have been in the United States, or the Canal Zone, America Samoa, or Swains Island, whether or not he has been lawfully admitted to the United States for permanent residence, or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions: * * *" (Emphasis supplied.)

Said statute further provides, in part, —

"(b) (4) service in the military, air, or naval forces of the United States shall be proved by a duly authenticated certification from the executive department under which the petitioner served * * * which shall state whether the petitioner served honorably in an active-duty status during * * * a period beginning September 1, 1939, and ending December 31, 1946, * * * and was separated from such service under honorable conditions; * * *". (Emphasis supplied.)

Further, 8 CFR Section 329.2 provides in part, —

"Petition. A person of the class described in section 329 * * * of the Act shall submit an application to file a petition for naturalization on Form N-400. The certification required by section 329(b) (4) of the Act to prove service shall be requested by the applicant on Form N-426, in triplicate, and submitted to the (Immigration and Naturalization) Service with Form N-400. * * *" (Emphasis supplied.)

The petitioner testified in connection with the filing of his petition for naturalization that, having served in the Philippine Army Guerrilla Forces (Gold Area, FL, 6th Military District) from March 25, 1944 to June 26, 1945, he served in the Armed Forces of the United States.

Briefly summarizing a statement which the petitioner made in his affidavit dated April 8, 1968 in connection with his petition for naturalization: He was inducted as 1st LT by a Captain Mariano A. Tibay, Commanding Officer, Gold Area, FL, 6th Military District, and was assigned platoon leader of Company I. He participated in intelligence, sabotage, patrolling, and training of men. In March 1945 he landed at Batangas mainland and participated in the operations of the 158th RCT and 11th Airborne Division, USA, in Bauen Areas. On June 26, 1945 the petitioner requested to be released from military duties for a civilian job. He has had no other military service.

The Guam office of the Immigration and Naturalization Service requested the United States Department of the Army, because the petitioner claimed service in the military and not in any other branches of service, to determine on Form N-426 from its official records whether or not the unit in which military service was rendered by the petitioner was in fact ordered into the service of the armed forces of the United States pursuant to the order of the President of the United States of July 26, 1941.

The United States Department of Army, as required by section 1440(b) (4), supra, certified that the petitioner had "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces."

Since the petitioner has had no military service other than during the period from September 1, 1939 to December 31, 1946, the foremost issue is whether the petitioner had served in the military service of the United States during the aforementioned period, so as to qualify for expeditious naturalization. Qualifying service in the military forces of the United States is the designated statutory prerequisite.

The solution to that issue is dependent upon the question of who or what agency is authorized by law to determine that a person such as the petitioner herein has had qualifying military service and in what manner it is accomplished. The Immigration and Nationality Act under which the petitioner seeks benefits of expeditious naturalization and Title 8 of the Code of Federal Regulations are explicit on these two points at hand.

As provided for in section 1440 (b) (4), supra, the determination of whether the petitioner did or did not have qualifying service is made by the executive department under which he served, if he did. And according to section 329.2 of Title 8 of the Code of Federal Regulations, the certification required by said section 1440(b) (4) of the Act to prove service "shall be * * on Form N-426," a form prescribed by the Attorney General pursuant to his statutory authority. Sec. 103(a), Immigration and Nationality Act, 8 U.S.C. 1103(a). This form and all other forms so prescribed are given the force of regulations. 8 CFR 103.2(a) These administrative regulations generally have the force and effect of law. Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956); Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Bilbao-Bastido v. INS, 409 F.2d 820, 822 (9th Cir. 1969), cert. petition pending ("presumptively valid").

Qualifying service. (a) Philippine Scouts. Section 37 of the Act of February 2, 1901 31 Stat. 748, 758, authorized the President of the United States to enlist Filipino natives, to be organized...