IN RE RABANAL'S PETITION, 1470-TR-66.
| Citation | 169 F. Supp. 918 |
| Decision Date | 15 January 1959 |
| Docket Number | No. 1470-TR-66.,1470-TR-66. |
| Parties | Petition for Naturalization of Balbino Monces RABANAL. |
| Court | U.S. District Court — District of Maryland |
F. Alfred Petersam, Baltimore, Md., for Immigration and Naturalization Service.
The question presented by the Immigration and Naturalization Service in this case is whether petitioner, having been lawfully admitted for permanent residence, has resided continuously within the United States since the date of the filing of his petition for naturalization, as required by sec. 316(a) of the Immigration and Nationality Act, 1952 (INA), 8 U.S.C.A. § 1427(a), which provides:
"No person, except as otherwise provided in this subchapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States."
Petitioner is a national of the Republic of the Philippines, having been born in the Philippine Islands in 1925. He was lawfully admitted to Hawaii on January 30, 1946, under the terms of the last sentence of sec. 8(a)(1) of the Philippine Independence Act of March 24, 1934, 48 Stat. 456, 48 U.S.C.A. § 1238. Sec. 8(a) provided:
Upon the proclamation of Philippine Independence on July 4, 1946 (Presidential Proclamation 2695 of July 4, 1946, 11 F. R. 7517, 22 U.S.C.A. § 1394 note), sec. 14 of the Philippine Independence Act became effective. Petitioner thereupon lost his status as a national of the United States and became an alien. Cabebe v. Acheson, 9 Cir., 183 F.2d 795; Rabang v. Boyd, 353 U.S. 427, 77 S.Ct. 985, 1 L.Ed.2d 956.
Having been admitted to Hawaii during the period between May 1, 1934 and July 3, 1946, under the provisions of the Philippine Independence Act, petitioner was "lawfully admitted for permanent residence" in Hawaii and became eligible for naturalization there. Ricardo Fermin, A-6719397, August 8, 1949, opinion set forth in the Congressional Record, Vol. 98, Part 5, House of Representatives, June 10, 1952, pp. 6988-6989. That case arose under the Nationality Act of 1940, but the Service concedes that it applies under INA.
Petitioner filed his petition for naturalization in the United States District Court for the District of Hawaii on August 3, 1953, as he had a right to do under the general provisions of INA. Thirty days thereafter he became eligible for admission to United States citizenship by that court. Petitioner wished to study in the continental United States so that he could return to Hawaii and serve as a missionary among the Filipino people in Hawaii, and wanted to begin his studies in September 1953, before it was practicable to obtain a hearing on his petition. The representatives of the Service in Hawaii advised him that he would be able to transfer his petition to some district court in the continental United States and be admitted to citizenship by such court, provided he resided continuously within the United States from the date of his petition up to the time of his admission to citizenship, as required by sec. 316(a)(2), quoted above. Accordingly, on August 18, 1953, petitioner executed an "Application for Permission of a Citizen of the Philippine Islands in Hawaii to Enter the United States", in which he stated, inter alia: , and "(19) I also understand that if I am allowed to proceed to the continental United States mainland as a temporary visitor, I will not be allowed to seek, or to engage in, employment of any kind; that I may not change my status without prior authority from the Immigration and Naturalization Service; and that I will be required to return to Hawaii, or depart from the continental United States at the expiration of the period of admission granted to me unless I have applied for, and received, from the Immigration authorities, an extension of my temporary stay." This application was granted, for the purpose stated.
Petitioner entered the continental United States in September 1953, and since that date has resided and pursued his studies therein. He is now attending college in Maryland. On October 27, 1957, his petition for naturalization was transferred to the United States District Court for the District of Maryland, pursuant to sec. 335, 8 U.S.C.A. § 1446(i).
The Service concedes that if petitioner returned to Hawaii he could now be admitted to citizenship there, but the Service contends that he cannot be admitted to citizenship by this court because he was admitted to the continental United States as a nonimmigrant. The Service argues that the continuous residence in the United States after the date of the petition, required by sec. 316(a)(2), 8 U.S.C.A. § 1427(a), means continuous residence after being lawfully admitted for permanent residence to that portion of the United States where such residence occurs. Congress, however, has clearly differentiated between the term "lawfully admitted for permanent residence", and the term "residence", as used in INA. Cf. sec. 101(a)(20) with sec. 101(a)(33), 8 U.S.C.A. § 1101(a)(20) and (33):
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