IN RE ORPHANIDIS'PETITION, Petition No. 3963.
| Decision Date | 08 December 1959 |
| Docket Number | Petition No. 3963. |
| Citation | 178 F. Supp. 872 |
| Parties | Petition for Naturalization of Minas Michael ORPHANIDIS. |
| Court | U.S. District Court — Northern District of West Virginia |
A. W. Petroplus and George N. Caravasios, Wheeling, W. Va., for petitioner.
Ned Haimovitz, Designated Naturalization Examiner, Pittsburgh, Pa., for the Government.
The question presented is whether petitioner has established good moral character for a period of five years immediately preceding October 1, 1958, the date he filed his petition for naturalization.
On October 1, 1958, the date his petition was filed, petitioner testified under oath that he had been arrested in 1953 for a liquor violation and was fined $106, but had suffered no other arrests. A later investigation by the examiner revealed that he had been arrested on other occasions. On January 16, 1956, he was arrested on a charge of driving on an expired operator's license and paid a fine of $25 and costs. On January 28, 1958, he was arrested on a charge of allowing minors to play pin-ball machines, which charge was dismissed. On the same date he was arrested on a charge of assault and was found not guilty.
Petitioner was accorded a further preliminary examination on February 5, 1959, at which time he was represented by counsel. When confronted with these other arrests which the investigation had uncovered, his explanation was that he had not considered them arrests and, therefore, did not feel that he was giving false testimony during the preliminary examination by not admitting them. At this same hearing on February 5, 1959, petitioner admitted that he had been selling liquor at his place of business in Wheeling, West Virginia, since April, 1955, and was still selling it. He testified that he sold such liquor by the drink and sold from two to four bottles of liquor weekly and that he knew that he was violating the laws and ordinances of the City of Wheeling and State of West Virginia by such sale.
Good moral character required by Section 316(a) (8 U.S.C.A. § 1427(a)) of the Immigration and Nationality Act has never been defined by statute. The courts have created a more or less flexible judicial standard by which the moral character of each applicant is to be measured. Generally, the courts have held that "good moral character" is evidenced by that conduct which measures up to the standards of the average citizen of the community in which the alien resides. Repouille v. United States, 2 Cir., 165 F.2d 152. Evidence of crimes committed prior to the five-year statutory period may be received and considered with other evidence in determining whether petitioner has shown good moral character within the statutory period and at the time of application, but it is not permissible to base denial of naturalization on crimes committed prior to the five-year period. To do so would be to add a condition to the statute not contained therein. Marcantonio v. United States, 4 Cir., 185 F.2d 934. "The opportunity to become a citizen of the United States is said to be merely a privilege, and not a right." Tutum v. United States, 270 U.S. 568, 578, 46 S.Ct. 425, 427, 70 L.Ed. 738. "Under the law the burden is on the petitioner to establish good moral character only during the five-year period, not earlier." Petition of Zele, 2 Cir., 140 F.2d 773, 776. A liberal construction has been given the statute so as to sanction forgiveness after the expiration of five years...
To continue reading
Request your trial