In re Petition of Chin Thloot Har Wong

• Decision Date: 10 December 1963
• Docket Number: No. 746968.,746968.
• Citation: 224 F. Supp. 155
• Parties: In the Matter of the Petition for Naturalization of CHIN THLOOT HAR WONG in Behalf of Her Adopted Son, Kenneth Wong.
• Court: U.S. District Court — Southern District of New York

224 F. Supp. 155

In the Matter of the Petition for Naturalization of CHIN THLOOT HAR WONG in Behalf of Her Adopted Son, Kenneth Wong.

No. 746968.

United States District Court S. D. New York.

December 10, 1963.

Benjamin Gim, New York City, for petitioner.

Marjorie Jackson, Naturalization Examiner, New York City, for the United States.

FEINBERG, District Judge.

This case, like so many arising under the immigration and naturalization laws, raises an issue narrow in scope but vitally important to those affected by it.The question is whether a child adopted by a husband and wife, only one of whom is a citizen, can be naturalized upon the petition of the citizen alone.

On April 29, 1963, Chin Thloot Har Wong, a naturalized United States citizen, filed a petition for the naturalization of her adopted son, Kenneth Wong.Kenneth, who is now eleven, was born in Hong Kong and was brought to the United States almost four years ago, as an orphan, with the help of the International Social Service Agency.¹Thereafter, he was adopted by petitioner and her husband, Thlick Yuen Wong, in New York County on December 9, 1959.Since January 29, 1959, the child has resided continuously in the United States with his adoptive parents.

An earlier petition for naturalization was filed jointly by petitioner and her husband in March 1962, but has since been withdrawn.²The present application is opposed by the Immigration and Naturalization Service (the "Service").The Naturalization Examiner who conducted the preliminary examination has recommended that the petition be denied because (1) the adoptive father failed to join in the petition, and (2)petitioner failed to establish the United States citizenship of the adoptive father.

Section 323 of the Immigration and Nationality Act(the "Act") of 1952, 66 Stat. 246(1952),8 U.S.C. § 1434, sets forth the criteria for determining eligibility for naturalization of adopted children:

"CHILDREN ADOPTED BY UNITED STATES CITIZENS

"Sec. 323(a) An adopted child may, if not otherwise disqualified from becoming a citizen by reason of sections 313,314,315 or 318 of this Act, be naturalized before reaching the age of eighteen years upon the petition of the adoptive parent or parents, upon compliance with all the provisions of this title, if the adoptive parent or parents are citizens of the United States, and the child —

"(1) was lawfully admitted to the United States for permanent residence;

"(2) was adopted before attaining the age of sixteen years; and

"(3) subsequent to such adoption has resided continuously in the United States in legal custody of the adoptive parent or parents for two years prior to the date of filing such petition.

"(b) In lieu of the residence and physical presence requirements of section 316(a) of this Act such child shall be required to establish only two years' residence and one year's physical presence in the United States during the two-year period immediately preceding the filing of the petition.If the child is of tender years he may be presumed to be of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States."(Emphasis added.)

There is no dispute as to compliance in this case with the admission, age, custody, physical presence, or residence requirements of the statute.Nor does petitioner challenge here the Examiner's finding with regard to the citizenship of the adoptive father.The question to be decided is whether both adoptive parents must join in filing the petition for naturalization and both must be United States citizens.³

The issue before the Court is one of first impression.Both the Service and petitioner contend that the meaning of the phrase, "the adoptive parent or parents," which occurs twice in the first paragraph of Section 323(a), is clear, although the clear meaning found by one is diametrically opposed to the clear meaning found by the other.The Service contends that the phrase "the adoptive parent or parents" means the adoptive parent when there is only one adoptive parent, and both adoptive parents when there are two adoptive parents.⁴Petitioner claims that the phrase means either of the adoptive parents when there are two.⁵

Both sides, in effect, urge the Court to resort to the "plain meaning" rule in construing the statute.Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 61 L.Ed. 442(1917).Such a facile resolution of the controversy would be most attractive if the Court thought that the construction urged by either of the parties was so clearly correct as to justify invocation of this traditional canon of construction.⁶But, it cannot be said that the language in question is unambiguous.Standing alone, the phrase "adoptive parent or parents" may be construed in a restrictive sense to mean one parent when there is only one adopting parent and both when there are two adopting parents, as urged by the Service, or it may just as logically be construed in a permissive sense to mean either or both, as argued by petitioner.Moreover, Congress within the same Act has treated this problem with greater precision.Thus, some years after Section 323(a) was adopted,⁷Congress dealt with the adoption problem in a specialized context.In facilitating the naturalization of foreign born children adopted by certain United States citizens stationed abroad,⁸Congress enacted subdivision (c) to Section 323, which provides in part as follows:

"(c) Any such adopted child (1)one of whose adoptive parents is (A) a citizen of the United States, * * and (3)whose citizen adoptive parent declares before the naturalization court in good faith an intention to have such child take up residence within the United States immediately upon the termination of such service or employment abroad of such citizen adoptive parent, may be naturalized upon compliance with all the requirements of the naturalization laws except that no prior residence or specified period of physical presence within the United States or within the jurisdiction of the naturalization court or proof thereof shall be required, and paragraph (3) of subsection (a) of this section shall not be applicable."(Emphasis added.)

71 Stat. 642(1957), as amended8 U.S. C. § 1434(c)(Supp.1962).Thus, Congress made absolutely clear in this subdivision that only one adoptive parent need be a citizen.

On the other hand, Section 321 of the Act, which deals with automatic acquisition of citizenship by children born of alien parents outside of the United States, clearly requires the naturalization of both parents if both parents are alive and there has been no legal separation, and also explicitly provides for the contingency of the child having only one parent:

"Sec. 321.(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

"(1) The naturalization of both parents; or

"(2) The naturalization of the surviving parent if one of the parents is deceased; or

"(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; * *"

66 Stat. 245(1952),8 U.S.C. § 1432.⁹Surely then, Congress could have stated unequivocally in Section 323(a) either that citizenship by one adoptive parent is sufficient (as it chose to do in Section 323(c) quoted above) or that citizenship of both parents is necessary when there are two adoptive parents (as it did in an analagous situation in Section 321(a)(1) quoted above).A clearer statute could have been written merely by use of the phrase "the adoptive parent or one of the adoptive parents," or, alternatively, if Congress intended the meaning urged by the Service, "the adoptive parent if there is only one adoptive parent or both adoptive parents if there are two."Cf.Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 633, 4 L.Ed. 2d 623(1960).

A comparison of the critical language of Section 323(a) with related provisions of the Act thus illustrates how ambiguities often exist where upon superficial examination the words may have seemed clear.SeeHelvering v. New York Trust Co., 292 U.S. 455, 465, 54 S. Ct. 806, 78 L.Ed. 1361(1934).Since the language of Section 323(a) gives rise to uncertainty as to the meaning Congress intended, the Court may consult the legislative history of the statute and examine related sections of the Act for the purpose of ascertaining the meaning of Section 323(a).United States v. Pub. Util. Comm., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020(1953);Woodward v. United States, 341 U.S. 112, 71 S.Ct. 605, 95 L.Ed. 648(1951).It is also helpful and proper in construing legislative language governing the status of an adopted child to take into account the contemporaneous legal treatment of adopted children.Woodward v. United States, supra;Carpenter v. United States, 168 F.2d 369, 370, 3 A.L.R.2d 841(3 Cir.1948);McDonald v. United States, 91 F.Supp. 163, 170-171(D.Mass.1950).

An examination of the legislative history of Section 323(a) does not disclose that Congress was conscious of the particular problem in this case.While there are scattered references in committee reports and hearings to the adoptive parental unit, they are inconclusive since the phrases, "adoptive parent" and "adoptive parents," seem to have been used interchangeably without any awareness that the singular-plural distinction might have any critical significance.¹⁰The Service contends¹¹ that Congress was aware that in many jurisdictions a single adult can adopt a child and that, consequently, the citizenship requirement for filing a petition for naturalization of...