In re Naturalization of Bartkiw, 216261.

Decision Date29 November 1961
Docket NumberNo. 216261.,216261.
PartiesIn the matter of the NATURALIZATION OF Iryna Tytiana BARTKIW (nee Szerenga) as a citizen of the United States.
CourtU.S. District Court — Eastern District of Pennsylvania

Eugene E. Cole, Asst. District Director, Immigration & Naturalization Service, Philadelphia, Pa., for petitioner.

Charles V. Stoelker, Jr., Philadelphia, Pa., for respondent.

WOOD, District Judge.

1. Iryna Tytiana Bartkiw (nee Szerenga) filed her petition for naturalization, No. 216261, in the United States District Court for the Eastern District of Pennsylvania on May 10, 1960, in the name of Iryna Szerenga, she at that time being unmarried.

2. Iryna Szerenga came to this country on August 30, 1949, accompanied by her parents, sisters and brothers, as a displaced person from the Ukraine. She became twenty-one years of age on January 14, 1960. Her petition for naturalization was calendared for hearing by the Court on July 13, 1960, at which time she appeared before an interrogation officer of the Immigration and Naturalization Service.

She advised the Examiner at that time that she had been in Canada for several weeks prior thereto and had in the meantime married one Donald Bartkiw, a naturalized citizen of Canada.

3. They had become engaged in January of 1960 and were married on June 4, 1960, approximately six weeks prior to the above hearing. The Hearing Examiner approved her for citizenship and so advised the Court and she became a naturalized citizen by Order of the Court on July 13, 1960.

4. On August 10, 1960, respondent, having returned to Canada after the aforesaid hearing on July 13, 1960, applied for entry into the United States and it was then discovered that on or about June 13, 1960, she had applied to Canadian Immigration authorities for admission as a permanent resident.

Following the application to the Canadian authorities, she was given permanent residence status in Canada as of August 22, 1960.

5. When she made her application for permanent residence status on June 13, 1960, approximately one month before the naturalization proceedings in this Court, she was unaware of the legal implications involved and believed that in order to enter Canada with her husband it was necessary for her to make application for permanent residence there. The Court finds as a fact that there was no fraudulent intent on the part of the respondent to deceive either the authorities of the United States or of Canada in this respect.

6. The facts concerning her application for permanent residence status in Canada, her marriage, and her residence having become known as aforesaid to the authorities of the Immigration and Naturalization Service, there was filed with the Court on August 11, 1960 the motion under consideration. Hearings were held on August 29, 1960, and October 9, 1961, to give the respondent an opportunity to present evidence, argument and briefs on her behalf relative to the issues involved.

7. The respondent has stated that it has always been her intention to be a resident and a citizen of the United States, but that has been thwarted due to her marriage and the fact that her husband's employment requires him to live in Canada. She still is desirous of becoming a United States citizen.

8. Her husband has testified that if it were possible for him to do so and his wife were a United States citizen, he would seek employment in the United States where they would reside.

Discussion

The position of the Immigration and Naturalization Service in this case can be most succinctly stated as follows:

"* * * what we have here is an admission by this young lady that at the time she applied for citizenship she was engaged. Her fiance lived in Canada. She knew that she was going to go to Canada to live after she was married. She did in fact go to Canada to live after she was married. She has in fact resided in Canada since she was married, which is contrary to the statement which she made in her petition, that she intended to reside permanently in the United States." (NT 26)

Although we have concluded that there was no fraud or intentional act to deceive in any way on the part of the respondent, the above brief statement of facts is warranted by the evidence before us.

However, there are involved in the case two unusual legal problems. The Federal Rules of Civil Procedure, Rule 60(b), 28 U.S.C.A., authorize, inter alia, the Court to relieve a party or his legal representative from a final judgment under the following circumstances:

"On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment * * * for the following reasons:
"(1) Mistake, inadvertence, surprise, or excusable neglect;
"(2) Newly discovered evidence * * *;
"(6) Any other reason justifying relief from the operation of the judgment."

The motion made was timely under the Rule. The Immigration and Naturalization Service further argues that under the terms of § 340(j) of the Immigration and Nationality Act of 1952, June 27, 1952, C. 477, T. III, Ch. 2, § 340, 66 Stat. 260, 8 U.S.C.A. § 1451(j), the Government may proceed by this method to reopen or vacate the judgment of naturalization.1 Respondent, however, states that the general Savings Clause of the Act: namely, § 405, 8 U.S.C.A. § 1101, Note, p. 156, compels the dismissal of this motion since respondent had acquired rights when she came to this country which predated the terms of the 1952 Act and they could not be diminished by it. In support of respondent's counsel's position he cites United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L. Ed. 615 (1955); and Medalion v. United States, 2 Cir., 279 F.2d 162 (1960). This is an impressive argument, but on the facts of this case and the situation as it exists now, we think that the holdings in those cases are not in point. We do not consider that by entertaining this motion the "status," "condition," or "right in process of acquisition" preserved by § 405(a) have been lost or diminished. The procedural relief granted by Congress to the Immigration and Naturalization Service under § 340(j) of the Act we are convinced was placed in the Act by Congress not to reduce the basic rights of a prospective citizen, but rather to clarify or eliminate the problems created by the decision in Bindczyck v. Finucane, 342 U.S. 76, 79, 72 S.Ct. 130, 132, 96 L.Ed. 100 (1951), where the Supreme Court stated:

"Due regard for § 338, including the history of its origin and for the nature of a judgment of naturalization * * * compels us to hold that § 338 is the exclusive procedure for canceling citizenship on the score of fraudulent or illegal procurement based on evidence outside the record."

It cannot be questioned that Congress had the power to grant the Immigration and Naturalization Service an additional method such as provided by § 340(j) to that formerly limited to proceedings under § 338 where it was necessary that the Government file a specific complaint and prove its case by clear, unequivocal and compelling evidence. On this question, therefore, we agree with the...

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7 cases
  • Gorbach v. Reno
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 4, 1999
    ... ... Meissner, Commissioner of Immigration and Naturalization Service; United States Immigration and Naturalization Service, Defendants-Appellants ... No ... 1955). But see Petition of Cardines, 366 F.Supp. 700, 706-08 (D.Guam 1973); In re Bartkiw, 199 F.Supp. 762, 765 (E.D.Pa. 1961); Petition of Field, 117 F.Supp. 154, 155-56 (S.D.N.Y.1953) ... ...
  • Petition of Cardines
    • United States
    • U.S. District Court — District of Guam
    • September 28, 1973
    ...v. Doyle, supra This Court, rather, agrees with the holding in the cases of Petition of Field, supra, In re Naturalization of Bartkiw, 199 F.Supp. 762, U.S.D.C.Pa., 1961, and In re Bortle, 244 F.Supp. 319, U.S.D.C. D.C., 1965, wherein the view was expressed that remedy under Section 340(j) ......
  • Petition of De Roma, Civ. No. 84-4130.
    • United States
    • U.S. District Court — District of New Jersey
    • January 14, 1985
    ... ...         Romulo de Roma became a citizen of the United States through naturalization on order of this Court on December 12, 1983. The District Director of Immigration and ... ...
  • Petition of Tabilos, 325 408 MISC.
    • United States
    • U.S. District Court — Northern District of California
    • June 19, 1986
    ... ... Naturalization Service's ("INS") motion to reopen the judgment of naturalization, pursuant to section 340(j) of ... See, e.g., In re Petition of Cardines, 366 F.Supp. 700 (D.Guam 1973); In re Petition of Bartkiw, 199 F.Supp. 762 (E.D.Pa.1961); In re Petition of Bortle, 244 F.Supp. 319 (D.D.C.1965). Other ... ...
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