In re Laws, 77330.

• Decision Date: 10 November 1944
• Docket Number: No. 77330.,77330.
• Citation: 59 F. Supp. 179
• Parties: In re LAWS.
• Court: U.S. District Court — Northern District of California

59 F. Supp. 179

In re LAWS.

No. 77330.

District Court, N. D. California, S. D.

November 10, 1944.

Daniel H. Lyons, of San Francisco, Cal., for Department of Immigration and Naturalization.

No appearance for petitioner.

GOODMAN, District Judge.

Petitioner, a native of Norway, filed a petition for citizenship in this court on March 30, 1944. Therein he alleged that he has continuously resided in the United States since October 25, 1911, that on May 29, 1929 he married a citizen of the United States and that said marital status still obtains. Naturalization is sought under the provisions of Sec. 310(a) of the Nationality Act of 1940, 8 U.S.C.A. § 710(a), which in substance permits the naturalization of an alien, who married a citizen of the United States between September 21, 1922 and May 24, 1934, without the making of a declaration of intention and after only one year's residence in the United States instead of five years' residence, but subject to compliance with all other statutory requirements.

Upon the hearing of the petition it appeared that petitioner was convicted in Montana on May 29, 1940 of the crime of uttering fraudulent checks, and was sentenced to a term of imprisonment in Montana State Prison. He was paroled on November 29, 1940 and was discharged from parole on February 17, 1941. It further appeared that petitioner was arrested at St. Cloud in Minnesota in the year 1939 for uttering worthless checks, but made restitution and the charge was dismissed.

The naturalization examiner recommends the granting of the petition upon the ground that petitioner's showing of good moral character for one year preceding the filing of the petition justifies the bestowal of citizenship.

The Nationality Code provides for at least five years' continuous residence in the United States prior to the filing of a petition for naturalization and also requires that a petitioner prove that he has behaved as "a person of good moral character" during the same period. 54 Stat. 1142, 8 U.S.C.A. § 707 (a). As previously noted, only one year's residence is required if naturalization is sought, as in this case, under the provisions of sec. 310(a) of the Nationality Act of 1940, 8 U.S.C.A. § 710 (a).

Since petitioner was not discharged from his parole under his Montana sentence until February 17, 1941, he is not able to show five years' previous good behavior at the time of the filing of his petition. In re McNeil, D.C., 14 F.Supp. 394; decision of Judge St. Sure.

The question presented is: Since petitioner is only required to prove one year's continuous residence prior to the filing of the petition, need he prove more than one year's "good behavior?"

The examiner contends that, since by sec. 707(a) the period of "good behavior" is made coextensive with the period of residence (to-wit five years), by the same token, the period of "good behavior" when naturalization is sought under sec. 710(a), should be coextensive with the period of residence, to-wit, one year.

In my opinion, neither reason nor authority supports such a contention.

If there is any doubt at all as to whether petitioner can satisfy the statutory prerequisites, the issue must be decided against him, inasmuch as he has the burden of proof. United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed....