IN RE PETITION OF PASION, Misc. No. 74-69.

• Decision Date: 18 December 1974
• Docket Number: Misc. No. 74-69.
• Citation: 386 F. Supp. 886
• Parties: In re Petition for Naturalization of Andres Bonifacio PASION, Petitioner.
• Court: U.S. District Court — District of Hawaii

386 F. Supp. 886

In re Petition for Naturalization of Andres Bonifacio PASION, Petitioner.

Misc. No. 74-69.

United States District Court, D. Hawaii.

December 18, 1974.

Elmer E. Poston, Wm. F. Thompson, III, Honolulu, Hawaii, for petitioner.

Lawrence A. L. Scheftel, Designated Naturalization Examiner, U. S. Immigation & Naturalization Service, Honolulu, Hawaii, for respondent.

DECISION AND ORDER

SAMUEL P. KING, Chief Judge.

The facts of this case are not in dispute. Petitioner is a native and citizen of the Philippine Islands. He enlisted in the Philippine Scouts on April 11, 1946, served entirely in the Philippines, and was honorably discharged on January 29, 1949. Petitioner has been to the United States on two occasions as a visitor. He is presently in the United States having entered on or about August 8, 1972. On March 12, 1974, he filed a petition for naturalization under section 329 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1440 (hereinafter referred to as the 1952 Act). A preliminary examination was conducted by a Designated Naturalization Examiner pursuant to section 335 of the 1952 Act, 8 U.S.C. § 1446. The Examiner made a recommendation that the petition be denied. A final hearing has now been held on the petition (8 U.S.C. § 1447), and petitioner and the United States Immigration and Naturalization Service (INS) have filed Memoranda in support of their positions. Jurisdiction of this court is based upon section 310(a) of the 1952 Act, 8 U.S.C. § 1421(a).

Petitioner claims to have complied with all the requirements of section 329 which provides an expeditious method for naturalization of veterans, and therefore to be entitled to United States citizenship.¹ The Examiner agrees that petitioner has fully complied with all the provisions of section 329 except one (Examiner's Recommendation at 5).

Among other requirements which an individual must meet to qualify for naturalization under section 329 is the requirement that the individual either at the time of enlistment be in the United States, the Canal Zone, American Samoa, or Swains Island, or at any time subsequent to enlistment be "lawfully admitted to the United States for permanent residence."² Petitioner, having enlisted and served in the Philippines, does not qualify for naturalization unless he has been lawfully admitted to the United States for permanent residence.

Petitioner argues that he acquired the "status" of being lawfully admitted for permanent residence under section 2 of the Act of August 16, 1940, ch. 684, 54 Stat. 788 (hereinafter referred to as the August 16, 1940 Act). Section 2 provides:

Hereafter service in the Regular Army honorably terminated shall be credited for the purpose of legal residence under the naturalization laws of the United States, regardless of the legality or illegality of the original entry into the United States of the alien, the certificate of honorable termination of such service or duly authenticated copy thereof made by a naturalization examiner of the Immigration and Naturalization Service being accepted in lieu of the certificate from the Department of Justice (see, 54 Stat. 1238) . . . of the alien's arrival in the United States required by the naturalization laws; and service so credited in each case shall be considered as having been performed immediately preceding the filing of the petition for naturalization.

The certificate referred to in section 2 is a Certificate of Arrival which under the Nationality Act of 1940, ch. 876, §§ 332(a)(20) and 332(c), 54 Stat. 1155-1156 (hereinafter referred to as the October 14, 1940 Act), was issued by the INS and demonstrated one's lawful admission for permanent residence. Since section 2 provides that the certificate of honorable termination from service is to be accepted in lieu of the Certificate of Arrival, petitioner claims to have satisfied the requirement of being lawfully admitted for permanent residence.

While the 1952 Act expressly repealed all other prior immigration laws (section 403(b), 8 U.S.C. § 1101 note), it also contained a saving clause (section 405(a), 8 U.S.C. § 1101 note) which provides in part:

Nothing contained in this Act this chapter, unless otherwise specifically provided therein, shall be construed to affect the validity of . . . 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 this chapter shall take effect; but as to all such prosecutions, suits, actions, proceedings, statutes so in original; probably should read "statuses" conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act this chapter are, unless otherwise specifically provided therein, hereby continued in force and effect. . . .

This saving clause, petitioner argues, preserved his acquired status for the purposes of section 329 of the 1952 Act.

It has been held on facts similar to those of this case that under section 2 of the August 16, 1940 Act and section 324 of the October 14, 1940 Act one had a right to naturalization and that that right continued under the saving clause. In re Roble, 207 F.Supp. 384 (N.D.Cal.1962). However, after the petitioner in the Roble case had filed his petition for naturalization, the 1952 Act was amended by adding section 310 (e), 8 U.S.C. § 1421(e). This section provides:

Notwithstanding the provisions of section 405(a), any petition for naturalization filed on or after September 26, 1961, shall be heard and determined in accordance with the requirements of this subchapter.

Both petitioner and the INS agree that because of section 310(e) this petition must be determined under section 329 of the 1952 Act, and thus petitioner does not rely on section 324 of the October 14, 1940 Act as did the petitioner in Roble. Indeed, arguably petitioner would disqualify himself if he attempted to do so irrespective of section 310(e) because section 324 appears to require five years United States residency and allows the military time served to count towards that requirement. See, United States v. Sison, 272 F.2d 366 (9th Cir. 1959). Section 329, however, does away with this requirement. Petitioner here did not have five years service with the Philippine Scouts.

Thus, petitioner argues that he gained the status of having been lawfully admitted for permanent residence by virtue of section 2 of the August 16, 1940 Act; that this status is continuing under section 405(a) of the 1952 Act; and, since he also meets all the other requirements of section 329 of the 1952 Act, that he is entitled to United States citizenship.

The INS agrees with petitioner's position except as to two points. It claims that section 310(e) clearly eliminates any preservation of rights or statuses acquired under prior laws and that the principle laid down by the court in the Roble case has been overruled by United States Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973).

For the reasons stated below, the court agrees with petitioner and grants his petition for naturalization.

The meaning of section 310(e) of the 1952 Act is at best ambiguous. It is clear from its language that it has some effect on section 405(a). Nevertheless, as petitioner points out, if Congress wished to repeal section 405(a) it could have done so in unambiguous terms. The purpose and therefore the effect of the subsection as intended by Congress can be clarified by reference to its legislative history. The House Committee on the Judiciary reported the purpose of the amendment as follows:

The purpose of this amendment is to overcome interpretations placed upon the savings clause (Section 405) of the Immigration and Nationality Act (United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513 99 L.Ed. 615 (1955); United States v. Wolff, 270 F.2d 422, 3d Cir., cert. den. 362 U.S. 928 80 S.Ct. 753, 4 L.Ed.2d 746 (1960); Medalion v. United States, 279 F.2d 162, 2d Cir. (1960)), holding in effect, that residence in the United States before December 24, 1952, was sufficient to confer naturalization rights under the Nationality Act of 1940, as amended, notwithstanding its repeal on that date by the Immigration and Nationality Act.

1961 U.S.Code Cong. and Admin.News 2981-2982. An examination of the cases cited by the Committee reveals that the concern of Congress was that aliens were being granted citizenship after the effective date of the 1952 Act even though they did not comply with the physical presence requirements of that Act. In every case cited, the petitioner had been admitted for permanent residence. The question in each case was whether the individual was required to comply with the physical presence requirements of the 1952 Act since his petition was filed after the effective date thereof. As the Committee Report states:

As a consequence of the court interpretations, petitioners of this class are being considered eligible, 9 years after its repeal, for naturalization under the 1940 law . . . .

In this case, petitioner is exempt from the physical presence requirements under the very terms of the 1952 Act.³ Rather than saying that complying with the prior Act entitles him to citizenship, petitioner argues that he acquired the "status" of one admitted for permanent residence as required by the 1952 Act and in all other ways complies with the Act. Section 310(e) was addressed to a different situation than that of this case. Indeed, it is difficult to imagine what would be left of section 405(a) if petitioner could not assert that it preserved a status acquired under the previous Act.

This conclusion is supported by the fact that none of the cases cited by the House Committee involved section 329 or any of its predecessors. There was no reason to treat the petitioners in those cases differently from all others seeking citizenship. On the other hand, petitioner...