In re Simmiolkjier, 221-226

• Decision Date: 20 May 1947
• Docket Number: No. 252-258.,No. 221-226,221-226,252-258.
• Citation: 71 F. Supp. 553
• Parties: In re SIMMIOLKJIER et al.
• Court: U.S. District Court — Virgin Islands

71 F. Supp. 553

In re SIMMIOLKJIER et al.

Nos. 221-226; Nos. 252-258.

District Court, Virgin Islands, Div., St. Croix and St. Thomas.

May 20, 1947.

Croxton Williams, Asst. U. S. Atty., of St. Thomas, V. I., for the Government.

Cyril Michael, of St. Thomas, V. I., amicus curiae.

St. Croix Nos. 221-226; St. Thomas Nos. 252-258.

MOORE, District Judge.

As these four cases involve the same question they will be considered and disposed of together. Two of them came up before this court in the Division of St. Croix and two in the Division of St. Thomas and St. John.

The petitioners filed their petitions for naturalization under Sections 310(b) and 311 of the Nationality Act of 1940, 8 U.S.C.A. §§ 710(b), 711, which requires three years residence in the cases of Violet Aurora Simmiolkjier, and Raphael Hyppolyte Aubain and two years residence in the cases of Cynthia Vanita Phillipus and Constancia Elmira Hatchett prior to the filing thereof. The certificate of arrival filed with the petitions are based upon the reentry of the petitioners. Objection to the granting of the said petitions is filed by the Immigration Service.

The petitioners arrived in the Virgin Islands of the United States at different dates, all preceding July 1, 1938, but there is no record of their arrival.

The reason that this date is important in these cases is because on December 16, 1943, the Commissioner of Immigration, under the authority conferred upon him by statute, promulgated a regulation, the pertinent parts of which provide as follows:

"* * * Aliens who entered the Virgin Islands of the United States prior to July 1, 1938, shall, for purposes of reentry at any port of entry, be presumed to have been lawfully admitted for permanent residence even though no record of their admission as non immigrants is found. Any alien within the terms to this section shall upon application for readmission to the United States be inspected and be subject to the requirements of the immigration laws and regulations the same as if the original presumed lawful entry was by recorded admission for permanent residence; and if no record exists of a reentry since such presumed lawful entry, the alien shall be regularly manifested for the purpose of recording the application for readmission. Nothing in this section shall be deemed to preclude an alien qualified to do so from applying for registry^* under section 328 (b) of the Act of October 14, 1940, (54 Stat. 1152, 8 U.S.C. 728 8 U.S.C.A. § 72 8(b))."

To fully understand the purpose behind the promulgation of the above regulation of December 16, 1943, it is necessary to give a brief history of immigration in the Virgin Islands of the United States, for the Islands have consistently posed immigration problems to the authorities since they were purchased by the United States from Denmark in 1917.

During the Danish administration of the islands there were no restrictions on intercourse with the neighboring British, French and Dutch Islands. Naturally, people entered and departed frequently. For several years after the Transfer practially the same condition continued, because there was no effective enforcement of the United States immigration laws, as the said laws, especially the Act of March 3, 1917, 39 Stat. 1132, were considered inapplicable to the Islands.

Not until June 1, 1925, were any immigration laws considered applicable to the Virgin Islands, at which time the Naval Governor proclaimed that the Act of 1924, 8 U.S.C.A. § 201 et seq., was applicable. But in spite of this there was no real enforcement thereof, for the local administration in charge of enforcing the same, due to the lack of experienced and sufficient personnel, could not handle the situation efficiently. It was easy therefore, for aliens to slip in, either through a regular port of entry or "through the window," as it is called. With the attempted enforcement of the Immigration Act of 1924 most of the aliens who were residing here stayed and those who were temporarily out returned from time to time and stayed.

It was during this chaotic state of affairs the Solicitor of the Department of Labor on March 31, 1938, ruled that both the Acts of 1917 and 1924 were applicable to the Virgin Islands and were enforceable by the Immigration and Naturalization Service.

Under this ruling the Immigration and Naturalization Service on July 1, 1938, assumed responsibility for the enforcement of immigration laws and the Governor of the Virgin Islands was appointed as an Acting District Director and he in turn made use of the Police Force and employed other persons for the purpose of enforcoing the immigration laws. As theretofore, due to inexperience of the persons working in this field, it did not meet with the success anticipated and on March 1, 1941, the Immigration and Naturalization Service took over completely.

Shortly after this, with the development of the submarine, army and air bases, hundreds of aliens from the neighboring islands came in, most of them illegally, to work. Because of the insufficiency of local labor they were permitted to stay as long as they were working on defense projects. The greatest difficulty arose when these laborers were laid off, as they disliked the idea of having to return to their homeland where there were little or no opportunities for work and they had become accustomed to receiving almost unbelievable wages. Weeding these aliens out was a gigantic task for the Immigration and Naturalization Service.

This, then, was the background which in part gave rise to the promulgation of the regulation regarding aliens residing in the Virgin Islands prior to July 1, 1938. This regulation was to enable aliens who entered after July 1, 1924, the effective date of the Immigration Act of 1924, and who could not establish legal entry, although having lived and established a residence, from being deportable, and to make it possible for them to reenter if they left the islands on a trip, since a strict interpretation of the 1924 Act would make them deportable if here, and there were no record of their arrival subsequent to July 1, 1924, and excludable, if outside seeking readmission.

The question might be asked, why was July 1, 1938 fixed as the date prior to which lawful entry would be presumed as for permanent residence for reentry purposes, even though no record of arrival may be found?

The answer is, that was the date the Immigration and Naturalization Service became responsible for immigration matters and, hence, by the said regulation all aliens who entered prior to that date, whether manifested or not, were given the benefit, for reentry purposes, of the lax enforcement or non-enforcement of the immigration laws which should have been enforced in the Islands in the same manner as all over the United States.

The question is, does this presumed lawful entry of an alien for permanent residence count for naturalization purpose, even though there is no record of his arrival? It is the contention of the petitioners herein that they have resided continuously in the United States since their arrivals, all of which have been prior to July 1, 1938 (but after July 1, 1924), and are therefore eligible for naturalization by reason of such residence.

It will be noted from the regulation that the presumed lawful admission for permanent residence of the alien prior to July 1, 1938, is "for the...