In re Linklater

• Decision Date: 26 January 1925
• Docket Number: No. 6050.,6050.
• Citation: 3 F.2d 691
• Parties: In re LINKLATER.
• Court: U.S. District Court — Panama Canal Zone

3 F.2d 691 (1925)

In re LINKLATER.

No. 6050.

District Court, N. D. California, Second Division.

January 26, 1925.

M. R. Bevington, District Director for Naturalization, of San Francisco, Cal., for United States.

John H. Ankele, Jr., of San Francisco, Cal., amicus curiæ.

PARTRIDGE, District Judge.

This is an application to be admitted as a citizen. The applicant filed his petition September 5, 1924, supported by a nunc pro tunc certificate of arrival dated April 29, 1924. This certificate of arrival gives the date of arrival as August 9, 1920. Petitioner exhibited discharges showing over three years' honorable service on American merchant vessels; service commencing August 18, 1920, and ending August 8, 1924.

The Chief Naturalization Examiner submits that there are involved four distinct questions of law, upon none of which is there a definite holding by any court, nor anything, indeed, which can really be construed as authority. The first question propounded is: "Can an alien who is illegally in the United States under the immigration law be treated as lawfully here under the naturalization laws?" Strictly speaking, however, it cannot be said that Linklater is illegally in the United States under the immigration laws. Is it to be assumed that the Secretary of Labor would issue a nunc pro tunc certificate to an alien who was illegally landed? On the contrary, the fair assumption is that his examination showed a lawful entrance into the country. This assumption finds further support in the affidavit attached to the petition, in which Linklater makes oath that upon his arrival he was examined by the immigration authorities, and permitted to land in pursuit of his calling, and that he shipped continuously on American merchant vessels from the time of his first arrival to the present. The contention of the naturalization bureau, therefore, that he was a "deserting seaman," has no support in the record, and is negatived both by the presumption which attaches to the act of the department in issuing his certificate, as well as the express averments of his oath.

Neither can it be said that the very question asked has received no judicial consideration.

The question of a nunc pro tunc certificate was considered by Judge Tuttle of the Eastern District of Michigan in Re Page, 206 F. 1004. It was held that the certificate, although issued long after the arrival, was sufficient to satisfy the statute; the court using this language:

"When the Department of Commerce and Labor see fit to issue a certificate showing the entry of an alien, they ought not to be heard to say in opposition to the admission of the alien to citizenship that, while the certificate is genuine and states the truth, the court ought not to give any weight to it because the official issuing it did not have proper proof before him."

Judge Orr of the Western District of Pennsylvania held, in Re Schmidt, 207 F. 678, that even where the certificate of arrival shows on its face that the petitioner was a deserter from a ship on his arrival, all that was required to be included in the certificate was the "date, place and manner of his arrival," saying:

"It does not seem to us that the naturalization laws and the immigration laws are so interdependent that, because an alien has entered this country in violation of the immigration laws, he should not be admitted to citizenship by virtue of the naturalization laws after the proper judicial action contemplated by the latter has been had. The immigration laws by their provisions recognize that immigrants come to the United States other than through a port of entry or in the regular channel provided by said laws and the general rules of the department. This is plain from the provision that within a period of three years they may be deported. That a man may have come into this country in violation of the immigration laws is a fact perhaps to be considered by the court in reaching the conclusions required before the alien may be admitted to citizenship; but it is not a ground for his exclusion from citizenship, else it would have been so provided in the acts of Congress."

So, Judge Thompson of the Eastern District of Pennsylvania, in Re McPhee, 209

F. 143, concurs in the reasoning and holding of Judge Orr.

In re Schmidt is also approved by Judge Chatfield of the Eastern District of New York in Re Pick, 209 F. 999.

Prior to the Act of June 29, 1906 (34 Stat. 595), the naturalization laws did not concern themselves at all about how a person got into the country. Practically all foreigners (except, of course, Chinese) were free to enter as they chose, and five years' residence was in practical effect all that was required for citizenship. However, so many frauds in naturalization were practiced, that a new statute was passed, subdivision 2 of section 4 (Comp. St. § 4352), which provides:

"At the time of filing his petition there shall be filed with the clerk of the court a certificate from the Department of Commerce and Labor, if the petitioner arrives in the United States after the passage of this act, stating the date, place, and manner of his arrival in the United States. * * *"

This subdivision received an authoritative interpretation in U. S. v. Ness, 245 U. S. 319, 38 S. Ct. 118, 62 L. Ed. 321, where the Supreme Court points out the four purposes of the certificate as follows:

"* * * Section 6 prohibits courts from taking final action upon any petition until ninety days after such notice has been given. That period is provided so that the examiners of the Bureau of Naturalization and others may have opportunity for adequately investigating whether reasons exist for denial of the petition. The certificate of arrival is the natural starting point for this investigation. It aids in ascertaining (a) whether the petitioner was within any of the classes of aliens who are excluded from admission by sections 2 and 38 of the Immigration Act of February 20, 1907 34 Stat. at L. 898, chap. 1134, Comp. Stat. 1916, ss. 4344, 4387; (b) whether he is among those who are excluded from naturalization under section 7 of the Naturalization Act — for political beliefs or practices; (c) whether he is the same person whose declaration of intention to become a citizen is also attached to the petition under section 4, subdivision second; (d) whether the minimum period of five years' continuous residence prescribed by section 4, subdivision 4, has been complied with. The certificate of arrival is in practice deemed so important that in the regulations issued by the Secretary of Labor under section 28 `for properly carrying into execution the various provisions' of the act, the clerk of court is advised that he `should not commence the execution of the petition until he has received the certificate of arrival."

It is contended by the petitioner that the Supreme Court did not consider that one of the purposes of the certificate was to prevent the naturalization of persons illegally entered. The first of Mr. Justice Brandeis' subdivisions, however, seems to have had that very thing in mind. But it is one thing to say that the certificate would "aid in ascertaining" that fact, and to say that that fact, by very virtue of its existence, would prevent naturalization in all cases, and still less to argue that a seaman who landed for the purpose of shipping...