In re Petition of LaVoie

• Decision Date: 24 August 1972
• Docket Number: No. 2429.,2429.
• Citation: 349 F. Supp. 68
• Parties: In the Matter of Petition For Naturalization of Daniele Anne Elise Rose LaVOIE.
• Court: U.S. District Court — Virgin Islands

349 F. Supp. 68

In the Matter of Petition For Naturalization of Daniele Anne Elise Rose LaVOIE.

No. 2429.

District Court, Virgin Islands, D. St. Thomas and St. John.

August 24, 1972.

Daniele Anne Elise Rose LaVoie, pro se.

MEMORANDUM OPINION

WARREN H. YOUNG, District Judge.

Petitioner, a national of France and the wife of a United States citizen, filed a petition for naturalization under section 319(a) of the Immigration and Nationality Act ("the Act"). 8 U.S.C.A. § 1430(a) (1970). This permits the spouse of a citizen to be naturalized after residing continuously in the United States for three years.¹ Another section defines "continuous" residence and specifies that an absence of one year will break the continuity.² 8 U.S.C.A. § 1427(b) (1970). The application of these sections to the facts of this case raises the novel question whether Petitioner may be naturalized despite her failure to have spent the full, unbroken three year term in this country. She was absent solely in reliance upon faulty information from Immigration and Naturalization Service ("the Service"). For the reasons set forth below I hold that she may be naturalized.

The facts of this case are not in dispute. Petitioner and her husband, Donald E. LaVoie, a native-born United States citizen, were married in Puerto Rico in 1965. Some six months later, Petitioner was formally admitted for permanent residence. In 1968, her husband was transferred to Dakar, Senegal to serve three years as a Deputy Director of the Peace Corps. On several occasions, the LaVoies inquired with the Service to determine whether petitioner could accompany her husband to Senegal without jeopardizing her application for citizenship. They were assured that this was permissible, and, in reliance upon this information, the couple left the United States for the period from November 2, 1968 to August 31, 1971.

After they had been abroad for more than a year, Donald LaVoie wrote the Service and requested instructions on the next steps to be taken. The letter he received in reply was misleading on two counts. First, it did not mention the only means whereby Petitioner was then eligible for naturalization, which was by application for accelerated procedures under section 1430(b) as the spouse of a citizen posted abroad in the employment of the United States Government. For such persons, all residency requirements are waived. Petitioner need only have flown to the United States for the naturalization itself, but she would have to have done this while her husband was still stationed abroad. The letter, however, erroneously assumed that Petitioner could remain eligible under the normal three-year residency standard of section 319(a). The Service therefore enclosed an Application to Reserve Residence, which maintains legal continuity of residence for aliens stationed abroad in specified occupations deemed to be of benefit to the United States.³ This special provision, however, is not available to the spouse of the person so employed. For this reason Petitioner's Application to Reserve Residence was subsequently denied.⁴ She therefore appeared wholly ineligible for naturalization, since she had been absent over a year and was still not informed of the alternative processes under section 1430(b). Matters remained in this posture until the LaVoies returned to the United States and the opportunity to use the accelerated procedure had passed. This petition was then filed on March 23, 1972.

Throughout these attempts to gain citizenship the LaVoies' diligence and good faith are unquestioned. The exhibits include several letters seeking information and requesting the proper procedures to follow. Testimony at the preliminary investigation mentioned other inquires which have not been preserved. Donald LaVoie further testified, and the Naturalization Examiner found, that only the misinformation from the Service caused his wife's apparent failure to comply with the Act. Had the couple been fully informed, Petitioner would not have left the United States until she had been naturalized, or else they would have accepted the expense of having her fly back from Dakar to take advantage of section 1430(b) naturalization.

Under these circumstances I believe that Petitioner's petition for Naturalization must be granted. Two separate reasons support this conclusion, and will be discussed in sequence. First, I do not believe that an absence from the country in reliance upon Service misinformation will break "continuous" residence within the intent of the Naturalization Statute. And secondly, I believe that the Government is in any event estopped to object to a technical noncompliance which one of its agents was materially responsible for creating.

I.

At the outset, it is clear that the requirements for naturalization should not be whittled away by loose statutory construction. On several occasions the Supreme Court has pointed out that the Naturalization Act extends a privilege, and that the statutory prerequisites must therefore be strictly complied with. See Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156 (1928) (Holmes, J.) (naturalization court may not accept the certificate of arrival nunc pro tunc); United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321 (1917) (Brandeis, J.) (same); United States v. Ginsberg, 243 U.S. 472, 37 S. Ct. 422, 61 L.Ed. 853 (1917) (hearing in chambers inadequate substitute for hearing in open court) (alternative ground).

This general stringency underlies a legislative desire to have the residency requirements observed with particular strictness. That desire is illustrated by the Congressional response to the decision in Neuberger v. United States, 13 F.2d 541 (2nd Cir. 1926) (L. Hand, J.). At the time of that case the Act required five years of continuous residence for naturalization, but did not specify any particular period of absence as breaking its continuity. Neuberger had been visiting his native Germany in 1914 when he was overtaken by the First World War, and was unable to return until its termination. The Second Circuit held that since the prolongation of his sojourn was involuntary he had never abandoned his "residence" in the United States. This result must have appeared troublesome to Congress. As the Court admitted, it would be possible for an alien to be naturalized under these circumstances without having spent any of the preceding five years in this country. It would therefore be difficult to find character witnesses, and the petitioner would be denied the assimilative experiences which it was one purpose of the waiting period to secure. We may speculate that these considerations helped prompt the amendment of the Act three years later. The Act of March 2, 1929, § 6(b), 45 Stat. 1513, specified that "absence from the United States for a continuous period of one year or more during the period immediately preceding the date of filing the petition for citizenship . . . shall break the continuity of such residence." This was not an isolated episode; subsequent legislation underscored Congress' intention that the residence periods be strictly observed. The Act of June 25, 1936, 49 Stat. 1925, specified with some precision the persons who would be excepted from the one-year absence provision —certain government employees and persons engaged in research and foreign commerce—and this exception was quite rigidly contained by the Act of June 29, 1938, 52 Stat. 1247.

Subsequent judicial interpretation of "continuous residence" has been correspondingly strict. Two cases denied naturalization to persons who had voluntarily left the country but whose prompt return was delayed by circumstances beyond their control. See In re Holzer's Petition, 143 F.Supp. 153 (SDNY 1956); In re Hilden, 60 F.Supp. 845 (SDNY 1945). In the latter case the reasons for delay were unspecified, and in the former they included financial constraints, so these decisions may have included some concept of "assumption of the risk." Nonetheless the Second Circuit has termed a year's absence "an absolute bar" to naturalization. United States v. Larsen, 165 F.2d 433, 434 (2nd Cir. 1947).

I believe, however, that the better view permits some flexibility in the assessment of Congressional purpose. Several cases have permitted deviation from the residency requirements where external forces—including Government rulings—rendered fruitless the petitioners' good-faith attempts at compliance. In re Yarina, 73 F.Supp. 688 (N.D. Ohio 1947), granted citizenship to an alien who was captured at Wake Island in 1941 and forcibly transported by the Japanese to a concentration camp, holding that this absence from the country should not be considered disbarring within the intention of the statute. Another case granted section 1430(b) accelerated naturalization to the wife of an overseas serviceman who was willing to promptly join her husband in Thailand and was precluded from doing so solely because this area was designated a combat zone in which all dependents were forbidden. See Petition for Naturalization of Simpson, 315 F.Supp. 584 (W.D.La.1970); Petition for Naturalization of Sun Cha Tom, 294 F.Supp. 791 (D. Hawaii 1968).

Quite in point for the present case is McLeod v. Peterson, 283 F.2d 180 (3rd Cir. 1960), which also involves the effect of prior error by the Service. McLeod, a citizen of the British West Indies, had been living illegally in the United States with his American wife. He was discovered and threatened with deportation in 1956. At that time he was eligible to petition the Attorney General for a suspension of deportation, since under the predecessor to 8 U.S.C.A. § 1254(a) he had been in the country over five years. The Service, however, persuaded him to relinquish this right and leave voluntarily, promising that they would help his wife secure his lawful admission on a non-quota basis which would be "fairer" to other citizens of the British West Indies...