In re Pollock

• Decision Date: 01 July 1918
• Citation: 257 F. 350
• Parties: In re POLLOCK.
• Court: U.S. District Court — Southern District of New York

257 F. 350

In re POLLOCK.

United States District Court, S.D. New York.

July 1, 1918

Theodore J. Breitwieser, of New York City, for the motion.

Francis C. Caffey, U.S. Atty., of New York City (John E. Walker Asst. U.S. Atty., of New York City, of counsel), opposed.

MAYER District Judge.

This is an application to amend a petition for naturalization, so as to base it on petitioner's declaration of intention made April 12, 1899, and 'for an order granting a certificate of naturalization upon the petition so amended.'

The facts bring up for construction certain provisions of a recently enacted statute and will be fully stated. Pollock the petitioner, was born in Austria in 1866, and came to the United States in 1889, where he has resided continuously ever since. On July 12, 1899, Pollock made his declaration of intention to become a citizen in the court of common pleas Philadelphia, Pa., where he then resided. On November 17, 1910, Pollock filed his petition for naturalization in this court, and that petition was set down for hearing for February 21, 1911. In November, 1910, Pollock, according to his affidavit, fell seriously ill and was confined to his bed for a long period-- and beyond February 21, 1911-- and was subsequently taken to a hospital to be operated upon, and for many months thereafter continued to be ill. On February 21, 1911, because of Pollock's failure to appear, the hearing set for that day was adjourned without date, and on March 25, 1913, the petition was dismissed for lack of prosecution. In the summer of 1913 Pollock learned that his petition had been dismissed, and was advised that his only course was to make a new declaration of intention. This he did on January 7, 1916, and thereafter, on January 7, 1918 (exactly two years having elapsed), he filed his petition for naturalization, which is now pending in this court. Meanwhile, and shortly before Pollock filed his pending petition, viz. on December 7, 1917, our government declared war against Austria.

As the law stood prior to the act of May 9, 1918, infra, (a) an alien enemy, who had filed his petition subsequent to the declaration of war against the country of which he was a subject, could not be naturalized during the war, and (b) in this circuit after the decision in Yunghauss v. United States (D.C.) 210 F. 545, dated January 26, 1914, and affirmed 218 F. 168, 134 C.C.A. 67, declarations of intention made prior to September 27, 1906, were not available to applicants, unless the petition for naturalization was filed within seven years after said date. Thus, when Pollock filed his petition on January 7, 1918, he was not eligible for naturalization because of either ground.

Congress, however, in order to meet the new situations and exigencies which the war had created, amended the naturalization laws in a number of important respects, two of which relate to and cover a case like that of Pollock's. By paragraph 11 of Act May 9, 1918, c. 69, 40 Stat. 542 (Comp. St. 1918, Sec. 4352), amending section 4 of Act June 29, 1906, c. 3592, 34 Stat. 596 (Comp. St. Sec. 4352), it is provided as follows:

'Eleventh. No alien who is a native, citizen, subject, or denizen of any country, state, or sovereignty with which the United States is at war shall be admitted to become a citizen of the United States unless he made his declaration of intention not less than two nor more than seven years prior to the existence of the state of war or was at that time entitled to become a citizen of the United States, without making a declaration of intention, or unless his petition for naturalization shall then be pending and is otherwise entitled to admission, notwithstanding he shall be an alien enemy at the time and in the manner prescribed by the laws passed upon that subject: Provided, that no alien embraced within this subdivision shall have his petition for naturalization called for a hearing, or heard, except after ninety days' notice given by the clerk of the court to the commissioner or deputy commissioner of naturalization to be present, and the petition shall be given no final hearing except in open court and after such notice to the representative of the Government from the Bureau of Naturalization, whose objection shall cause the petition to be continued from time to time for so long as the government may require. * * * '

From the foregoing it will be seen that, if the Bureau of Naturalization does not object, the court is authorized to entertain the petition of an alien enemy who made his declaration of intention not less than two years nor more than seven years prior to war...