In re Naturalization of Quintana, Petition No. 17521.

• Decision Date: 28 March 1962
• Docket Number: Petition No. 17521.
• Citation: 203 F. Supp. 376
• Parties: In the Matter of Petition for NATURALIZATION OF Frank Joseph QUINTANA.
• Court: U.S. District Court — Southern District of Florida

203 F. Supp. 376

In the Matter of Petition for NATURALIZATION OF Frank Joseph QUINTANA.

Petition No. 17521.

United States District Court S. D. Florida, Tampa Division.

March 28, 1962.

LIEB, District Judge.

This is a proceeding relating to a Petition for Naturalization filed by Frank Joseph Quintana. The Immigration and Naturalization Service recommended approval of the petition.

From the report of the Designated Examiner of the Immigration and Naturalization Service, it appears that the petitioner is a native and national of Cuba. He is 66 years of age and has continuously resided in the United States since his lawful admission for permanent residence on June 29, 1906. He was convicted of second degree murder on March 20, 1941, in the Circuit Court of Hillsborough County, Florida, and was sentenced to the Florida State Penitentiary for a period of twenty years for that crime.

On August 28, 1945, the petitioner was released on parole under supervision until March 26, 1961. The Governor of the State of Florida granted the petitioner a full and complete pardon and restored his civil rights on June 13, 1956. The petitioner filed his application for naturalization on July 20, 1961, under the general provisions of the Immigration and Nationality Act.

Under the provisions of § 316(a) of the Immigration Act of 1952 8 U.S.C.A. § 1427(a), hereinafter referred to as the Act, a petitioner for naturalization is required to establish, among other matters, good moral character for a period of at least five years prior to the filing of his petition for naturalization and until the date of final hearing thereon.

Section 101 of the Act 8 U.S.C.A. § 1101(f) provides:

"(f) for the purposes of this chapter—

"No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was —

"(1) a habitual drunkard;

"(2) one who during such period has committed adultery;

"(3) a member of one or more of the classes of persons, whether excludable or not, described in paragraphs (11), (12), and (31) of section 1182(a) of this title; or paragraphs (9), (10), and (23) of section 1182(a) of this title, if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

"(4) one whose income is derived principally from illegal gambling activities;

"(5) one who has been convicted of two or more gambling offenses committed during such period;

"(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;

"(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

"(8) one who at any time has been convicted of the crime of murder.

"The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." (Emphasis supplied.)

Despite the clear differentiation in the section between those persons convicted of murder and those convicted of lesser offenses, petitioner claims, and the examiner agrees with him, that a conviction of the crime of murder is not an absolute bar to citizenship. Petitioner contends that, because he was granted a full and unconditional pardon of the offense more than five years prior to his application for citizenship, and his record during the same five years indicated that he was otherwise a person of good moral character, he is entitled to be naturalized.

Petitioner contends that the effect of the full pardon granted to him was to completely blot out of existence the verdict of guilty so that in the eyes of the law he is considered as innocent as if he had never committed the offense. In support of this proposition, petitioner cites the decisions of the Supreme Court of the United States in Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366; Carlisle v. United States, 16 Wall. 147, 83 U.S. 147, 21 L.Ed. 426; and Osborn v. United States, 91 U.S. 474, 23 L.Ed. 388. However, none of these cases involved naturalization proceedings or the effect of a pardon with relation to the immigration or naturalization laws.

The modern trend of authorities is away from such a concept of a pardon. The Supreme Court of Florida, the state wherein petitioner's pardon was granted, in its decision in the case of Page v. Watson, 140 Fla. 536, 192 So. 205, 126 A.L.R. 249, decided in 1938, stated its views on this matter as follows:

"While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense, it does not so operate for all purposes and as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction thereof; it does not wash out the moral stain; as has been tersely said; it involves forgiveness and not forgetfulness."

The petitioner cites no case decided since the passage of the Immigration and...