In re Wieg

• Citation: 30 F.2d 418
• Decision Date: 21 January 1929
• Docket Number: No. 3391.,3391.
• Parties: In re WIEG.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

30 F.2d 418 (1929)

In re WIEG.

No. 3391.

District Court, S. D. Texas, at Houston.

January 21, 1929.

Wolters, Blanchard, Woodul & Wolters and J. F. Wolters, all of Houston, Tex., for plaintiff.

Howard L. Field, Jr., Naturalization Examiner, for the United States.

HUTCHESON, District Judge.

In this case the undisputed facts are:

Frank Wieg was born in Germany, on September 24, 1889. In the early part of 1924 he applied to the American consul at Hamburg, Germany, for a quota immigration visa, with the intention of coming to the United States for the purpose of permanent residence. He was informed by the consul that no such visa could be issued to him at that time, inasmuch as the German quota was filled. Wieg then applied for a visa to permit him to enter the United States as a visitor. This visa was issued, and on March 10, 1924, he arrived at the port of New Orleans, La., and was admitted by the immigration authorities in the status of a visitor. He filed a declaration of intention to become a citizen in the Galveston county district court, Galveston, Tex., on March 26, 1924. During the summer of 1924 he served aboard the steamship Worden and the steamship Truxtun, of Nicaraguan registry, as a messman for at least two voyages to foreign ports; each voyage consuming approximately two weeks for the round trip. On December 14, 1924, he enlisted as a private in Headquarters troop, 56th Cavalry Brigade, National Guard of the United States, at Houston, Tex., and was honorably discharged on December 16, 1927 upon the expiration of his enlistment.

On April 12, 1928, he was examined by a representative of the Bureau of Naturalization as required by subdivision 7 of section 4 of the Act of June 29, 1906, as amended (8 USCA § 388), and filed a petition for naturalization under the provisions of that statute in the United States District Court, Houston, Tex., predicated upon his declaration of intention and honorable discharge from the National Guard. Filed with and made a part of his petition was a certificate of arrival from the Department of Labor, stating the date, place, and manner of his arrival in the United States on March 10, 1924, and bearing the indorsement, "Admitted for six months visit and business, not permanently admitted."

Upon these facts the government opposes the admission of the alien on three grounds:

(1) That it affirmatively appears that the alien has not resided in the United States for five years next preceding his admission.

(2) That the alien, having served upon a vessel of foreign registry during the period of his claimed residence, is by the proviso of May 9, 1918, barred from admission; and

(3) That the petitioner has never had a legal residence in the United States.

To the first objection the petitioner replies that he brings his petition under the Act of May 9, 1918 (8 USCA § 388), and specifically under that provision of it which provides "Any alien * * * of the age of 21 years * * * who has enlisted * * * in * * * the National Guard * * * may, on presentation of the required declaration of intention petition for naturalization without proof of the required 5 years' residence within the United States if, upon examination by the representative of the Bureau of Naturalization, in accordance with the requirements of this subdivision, it is shown that such residence cannot be established."

That such section works an exception to the operation of section 2170, Revised Statutes (8 USCA § 361), and, in the instance of such exception, makes unnecessary the proof of 5 years' residence, and cites in support of this view In re Richardson (D. C.) 21 F.(2d) 181; In re Monson (D. C.) 10 F. (2d) 560; In re Ellingsen (D. C.) 300 F. 225; In re Linklater (D. C.) 3 F.(2d) 691.

Against this position and the authorities cited, the government cites In re Sandstrom (D. C.) 14 F.(2d) 675; In re Olsen (D. C.) 18 F.(2d) 425. All of these cases arose under the seventh subdivision. The majority of the petitioners were alien seamen; two of them however, were of the same character as the present case, and in one of them, In re Richardson, the District Court of Oregon holds 5 years' residence not necessary. In the other, In re Sandstrom, the District Court of Virginia holds that it is.

A critical examination of the statute under discussion discloses ambiguities sufficient to account for, and according to the point of view adopted sustain, either line of decisions. Nowhere in the statute is there an express statement that the general requirement of proof at the trial of 5 years' residence may be dispensed with. On the contrary, the only references to the 5 years are procedural: (1) That the applicant may file his petition without proof of the required 5 years, if it is shown to the representative of the Bureau of Naturalization that such residence cannot be established; and (2) that the honorable discharge shall be deemed prima facie evidence to satisfy all the requirements of residence.

Now the courts which hold the 5 years necessary have reasonably declared that section 2170, requiring 5 years, is universal, and that this is enforced by subdivision 4, of section 4 of the act of 1906 (8 USCA § 382), that it shall be made to appear to the satisfaction of the court that the applicant has resided continuously within the United States for 5 years; that only in the event of a direct repeal, or repeal by implication of necessity, can these provisions be ignored; and that, so far from the subdivision under which this petition is filed effecting such resort, its language is carefully worded to avoid it, by providing, not that the petitioner shall be admitted without proof of 5 years, but merely that he may be entitled to file his petition without proof, and, further, by providing, not that his certificate of discharge shall be conclusive, but, on the contrary, shall be prima facie...