Petition of Bashan, Petition for Naturalization No. 883108.

Decision Date06 January 1982
Docket NumberPetition for Naturalization No. 883108.
PartiesIn the Matter of the Petition of Mordchai BASHAN to be admitted as a Citizen of the United States of America.
CourtU.S. District Court — Southern District of New York

Albert Ades, New York City, for petitioner.

J. Scott Blackman, Gen. Atty., New York City, for the Immigration & Naturalization Service.


CANNELLA, District Judge:

Motion of the Immigration and Naturalization Service "INS" to vacate the Order and Judgment of Naturalization dated December 3, 1980 is granted. 8 U.S.C. § 1451(j); Fed.R.Civ.P. 60(b). The petition for naturalization is denied. 8 U.S.C. §§ 1430(a), 1447(a).

On November 25, 1981, the Court conducted a de novo hearing on the instant petition for naturalization. Each party was given a full opportunity to be heard and to present evidence through the testimony of witnesses or otherwise. Kathryn Bashan, petitioner's former wife, testified on behalf of the INS and was cross-examined by counsel for petitioner. The INS also produced documentary evidence. Petitioner did not attend the hearing, produce any witnesses, or offer any evidence other than a Memorandum of Law. The Court has considered all of the above, and has also reviewed the original petition and the INS's papers in support of its prior motion to reopen the Court's Order and Judgment of Naturalization.


On November 2, 1975, petitioner, a citizen of Israel, married Kathryn Bashan, nee Rice, a citizen of the United States, in New York City. Petitioner was lawfully admitted for permanent residence on October 14, 1977, and on August 22, 1980, submitted an "Application to File Petition for Naturalization" "Application".1 On October 15, 1980, before naturalization examiner Marvin Stang, petitioner swore to the truth of the statements contained in the Application, including the statement that his wife and daughter then resided "with me."2 The same day, petitioner filed his petition, seeking naturalization pursuant to section 319(a) of the Immigration and Nationality Act, 8 U.S.C. § 1430(a) the "Act". To qualify under this section, an individual must have been "living in marital union" with his citizen spouse throughout the three-year period immediately preceding the filing of the petition. Stang approved the petition, and on December 3, 1980, in this Court, the petition was granted and petitioner was naturalized.

On January 15, 1981, Kathryn Bashan appeared at the INS office in New York and alleged in a sworn affidavit that petitioner left their marital residence in May 1980 after she sued him for divorce. She also claimed that they had not resided together since that time and that a final divorce had been granted January 13, 1981. Finally, Ms. Bashan stated that petitioner had ceased his association in their jointly-owned business as of April 11, 1980.3

Based on Kathryn Bashan's January 15th affidavit, the INS moved in this Court to reopen the Order and Judgment of Naturalization, pursuant to section 340(j) of the Act, 8 U.S.C. § 1451(j)4 and Fed.R.Civ.P. 60(b), on the ground that petitioner had knowingly misstated the status of his relationship with his wife, which materially affected his qualifications for naturalization. On April 15, 1981, Judge Edelstein granted the motion and ordered that the Order and Judgment "be reopened and held in abeyance pending further determination on the merits of petitioners sic qualifications for naturalization, subject to being vacated in the event that the petitioner is found ineligible at a subsequent hearing herein." Petitioner was not required to surrender his naturalization certificate.

Subsequently, naturalization examiner Stang was redesignated pursuant to section 335(b) of the Act, 8 U.S.C. § 1446(b), to conduct a preliminary examination and recommend a disposition of the reopened petition. At Stang's request, petitioner, his attorney, and Kathryn Bashan appeared at a hearing, but petitioner refused to testify, claiming harassment by his former wife. Ms. Bashan, however, reiterated her claim that petitioner left their home in May 1980 and that they had not resided together since. Under cross-examination by petitioner's counsel, Ms. Bashan stated that she had filed a criminal complaint against petitioner, claiming harassment, but that she later dropped the charges after petitioner threatened to take their daughter out of the country. She also stated that two months after her marriage to petitioner, he told her he married her solely to obtain a "Green Card," that is, to become a permanent resident alien pursuant to 8 U.S.C. § 1255.5

Following the hearing, the naturalization examiner prepared a written report containing his findings of fact, conclusions of law and recommendation. In essence, Stang found that petitioner was not residing in marital union with Kathryn Bashan when he filed the instant petition on October 15, 1980, and that the marital union had been terminated in May 1980 by petitioner's departure from his wife and failure to return. Thus, Stang concluded that petitioner failed to qualify for naturalization under section 319(a) of the Act. He recommended that the Order and Judgment of Naturalization be vacated, that the petition be denied and that petitioner surrender his certificate of naturalization for cancellation.6 On the basis of Stang's report, the INS moved before this Court for the relief recommended therein.

At the hearing held on November 25, 1981, Kathryn Bashan reiterated her prior statements that she was living apart from petitioner on October 15, 1980, and that shortly after petitioner was naturalized, she was granted a divorce.7 As noted above, petitioner did not testify or produce any witnesses or other evidence.8

Having reviewed all of the foregoing evidence, the Court finds that (1) on the date the petition was filed, October 15, 1980, petitioner and Kathryn Bashan, who were then legally married, were living separate and apart due to marital disharmony; (2) they had been so separated since May 1980; and (3) they neither resumed living together thereafter nor ever intended to do so.


Initially, the Court notes that the INS followed the proper procedures in this case. Once the motion to reopen was granted by Judge Edelstein pursuant to section 340(j) and Rule 60(b), the petition was restored to the Court's calendar as a pending petition. As such, it was "governed by the same procedures as are applicable to other pending petitions." In re Cardines, 366 F.Supp. 700, 707 (D.Guam 1973). Thus, petitioner bears the burden of establishing his eligibility for naturalization, as distinguished from a revocation proceeding pursuant to section 340(a), 8 U.S.C. § 1451(a), in which the INS bears the burden of establishing that the naturalized citizen obtained his naturalization certificate illegally or fraudulently. See id. at 703, 707-08. See also In re Bortle, 244 F.Supp. 319, 320-21 (D.D.C.1965). Moreover, since Judge Edelstein's order placed the petition on the pending calendar, the naturalization examiner was properly designated to conduct a preliminary examination and hearing and to submit recommendations. 8 U.S.C. § 1446(b).

Because the INS made an adverse recommendation, petitioner was entitled to a final hearing de novo on the petition. See 8 U.S.C. § 1447; In re Cardines, supra, 366 F.Supp. at 708. Petitioner was notified of the motion and scheduled hearing, but apparently chose not to avail himself of the opportunity to appear and testify.

Turning now to an interpretation of the phrase "living in marital union," the Court notes that existing precedent is less than clear. In In re Kostas, 169 F.Supp. 77 (D.Del.1958), petitioner's marital relationship was "marked by frequent separations of substantial duration," during the three years immediately preceding the filing of the petition. Id. at 78. The court remarked that Congress reduced the waiting period for filing a petition from the normal five years to three years "evidently" because "a noncitizen spouse who lives in close association with a citizen spouse for three years would more speedily absorb the basic concepts of citizenship than one not so situated." Id. The court, therefore, held that the relevant phrase should "be given a strict construction," and that "while a short period of separation such as two weeks should not operate to destroy a petitioner's rights under section 319(a), a close continued marital association is obviously intended." Id. The petition was denied.

The Kostas court's use of "evidently" as a preface to its statement of Congressional intent was mandated by a definitive lack of legislative history, a point underscored by the court in In re Olan, 257 F.Supp. 884, 888-90 (S.D.Cal.1966). In Olan, petitioner's spouse had left home several times for short periods during the three years prior to the filing of the petition, and had been living apart for the two and one-half months immediately preceding the filing. The spouse, however, left most of his clothes at home, continued to provide financial support for petitioner and their two children, received his mail at home, and talked of reconciliation with petitioner. Moreover, both petitioner and her spouse testified "that there was no intent of permanent separation during the two and one-half months." Id. at 889. Nevertheless, the court found it undesirable to conduct an inquiry into the circumstances of each case seeking to uncover the existence of a "close continued marital association," and held instead that "`living in marital union' means simply living in the status of a valid marriage," In re Olan, supra, 257 F.Supp. at 890.9

Finally, in In re Lee, 480 F.2d 673 (2d Cir. 1973), petitioner falsely stated, during the preliminary examination, that he was living with his wife. The Second Circuit affirmed the district court's denial of the petition, but on grounds other than petitioner's failure to establish "marital union." In...

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