In re Pauschert's Petition

• Decision Date: 02 May 1956
• Citation: 140 F. Supp. 485
• Parties: Petition of Stephen PAUSCHERT for Naturalization.
• Court: U.S. District Court — Southern District of New York

140 F. Supp. 485

Petition of Stephen PAUSCHERT for Naturalization.

United States District Court S. D. New York.

May 2, 1956.

Steinberg, Friedman & Blau, New York City, for petitioner, Lester Friedman, New York City, of counsel.

William J. Kenville, Naturalization Examiner, Department of Justice, New York City.

LEVET, District Judge.

The issue in this contested naturalization proceeding is whether Section 405 (a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 note, supports petitioner's claim for naturalization despite his inability to establish physical presence in the United States for the required period prescribed by Section 319(a) of the Act.

The petitioner, a native and national of Hungary, was married to his wife, a naturalized citizen of the United States, on February 5, 1951 in Baltimore Maryland. Thereafter he obtained his immigration visa and was lawfully admitted to the United States for permanent residence on April 9, 1952 at Rouses Point, New York. Since his lawful admission, the petitioner has resided continuously with his wife in the United States, except for round-trip voyages as a radio operator aboard vessels flying the flags of Liberia, Panama and Denmark. Owing to these voyages, petitioner was physically absent from the United States for an aggregate period of about twenty-eight months since his lawful admission and up to the date of filing of his petition. Consequently, he was unable to establish physical presence in the United States for the required periods totaling at least half of the three years immediately preceding the date of filing his petition and, therefore, is not eligible for naturalization under Section 319(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1430(a).

However, it appears from petitioner's sworn statement that he had intended in good faith to become a citizen of the United States and had previously sought to file a declaration of intention to become a citizen, but was advised that such action was unnecessary because he was married to a United States citizen.

The requirement of physical presence in the United States was not imposed by Section 311 of the Nationality Act of 1940 and was not a prerequisite to naturalization on April 9, 1952, when the petitioner lawfully entered this country for permanent residence. Concededly, in the absence of the Immigration and Nationality Act of 1952 the petitioner would have been eligible for naturalization pursuant to Section 311 of the Act of 1940.

Petitioner contends, and this Court now holds, that Section 405(a) of the Immigration and Nationality Act preserves his status under Section 311 of the 1940 Act and thereby entitles him to naturalization notwithstanding his inability to meet the physical presence requirement of the 1952 Act. Section 405 (a) provides as follows:

"(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes sic, conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless

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