In re Siacco's Petition

• Decision Date: 28 June 1960
• Docket Number: No. 40526.,40526.
• Citation: 184 F. Supp. 803
• Parties: Matter of the Petition for Naturalization of Vincent SIACCO.
• Court: U.S. District Court — District of Maryland

184 F. Supp. 803

Matter of the Petition for Naturalization of Vincent SIACCO.

No. 40526.

United States District Court D. Maryland.

June 28, 1960.

Thomas J. Kenney, Baltimore, Md., for petitioner.

Ernest H. Hupp, Baltimore, Md., for I. N. S.

THOMSEN, Chief Judge.

The principal question on this petition for naturalization under sec. 316(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1427, is whether petitioner meets the applicable requirement with respect to good moral character. A subsidiary question is whether the fact that he was convicted of the crime of murder in 1930 and has since been pardoned is an absolute bar to naturalization in view of 8 U.S.C.A. § 1101(f) (8).

Sec. 316(a) of the I.N.A., 8 U.S.C.A. § 1427(a), 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."

Sec. 101(f), 8 U.S.C.A. § 1101(f), provides:

`(f) For the purposes of this chapter—

"No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was —

"(1) a habitual drunkard;

"(2) one who during such period has committed adultery;

"(3) a member of one or more of the classes of persons, whether excludable or not, described in paragraphs (11), (12), and (31) of section 1182(a) of this title; or paragraphs (9), (10), and (23) of section 1182(a) of this title, if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

"(4) one whose income is derived principally from illegal gambling activities;

"(5) one who has been convicted of two or more gambling offenses committed during such period;

"(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;

"(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

"(8) one who at any time has been convicted of the crime of murder.

"The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character."

It will be noted that the language of 1101(f) (8) is different from the language of the other subparagraphs of 1101(f) in the use of the words "at any time" rather than the words "during such period".

8 U.S.C.A. § 1251(b), dealing with deportation rather than naturalization, provides: "The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, * * *." There is no similar provision in that portion of the Code which deals with naturalization. Thus, two questions of law are presented: (1) whether the fact that a person has been convicted of the crime of murder is a perpetual bar to naturalization, and (2) what is the effect of an executive pardon for purposes of naturalization. Finally, if petitioner is not absolutely barred, there remains the question (3) whether he has shown that he is a person of good moral character.

(1) An applicant for naturalization under sec. 1427(a) is required to show good moral character only during the five year period immediately preceding the filing of his petition. Aside from the special provisions of sec. 1101(f), quoted above, misconduct beyond the five year period is not a bar if the applicant has in fact reformed, but evidence of offenses committed prior to the five year period should be received and considered with other evidence in determining whether petitioner has shown good moral character within the statutory period and at the time of application. Good moral character is not a momentary attribute. Marcantonio v. United States, 4 Cir., 185 F.2d 934, 937; Petition of B, D.C.D.Md., 156 F.Supp. 761; Petition of K, D.C.D. Md., 174 F.Supp. 343. For a general discussion of the law, see Petition of Ferro, D.C.M.D.Pa., 141 F.Supp. 404.

Under 8 U.S.C.A. § 1101(f) (8), a person who has been convicted of the crime of murder is treated as a special case. The effect of the first sentence of sec. 1101(f) and of subparagraph (8), read together, is that no person can be found to be a person of good moral character who at any time has been convicted of the crime of murder. The language of Congress appears to be clear that such a conviction is a perpetual bar. Petition of De Angelis, D.C.E.D.N.Y., 139 F. Supp. 779; Petition of Ferro, supra.

(2) In the instant case, however, petitioner, who had been convicted of second-degree murder...