Petition of Menasche, No. 5308.

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Writing for the CourtThomas I. Nido, of the Firm Fiddler, Gonzalez & Nido, San Juan, Puerto Rico, for petitioner
Citation115 F. Supp. 434
PartiesPetition of MENASCHE.
Docket NumberNo. 5308.
Decision Date24 September 1953

115 F. Supp. 434

Petition of MENASCHE.

No. 5308.

United States District Court, D. Puerto Rico, San Juan Division.

September 24, 1953.


Thomas I. Nido, of the Firm Fiddler, Gonzalez & Nido, San Juan, Puerto Rico, for petitioner.

Eugene E. Cole, Chief of the Nationality & Status Section Immigration & Naturalization Service, Miami, Fla., for the government.

RUIZ-NAZARIO, District Judge.

The petition for Naturalization of Richard Isaac Menasche, petitioner herein, came up for final hearing under Sections 336(a), Chapter 2, Title III of the Immigration and Nationality Act of 1952, Title 8 U.S.C.A. § 1447(a), on August 17, 1953 at 9:30 o'clock in the morning. Documentary and oral evidence was adduced at said hearing and the case submitted to the Court on written memoranda filed by the parties, which have been the subject of due consideration by the Court.

The only question at issue is whether petitioner is bound to comply with the physical presence requirement of Section 316(a) of the Immigration and Nationality

115 F. Supp. 435
Act of 1952, Title 8 U.S.C.A. § 1427 (a)

The government concedes that if petitioner had filed his petition under the Nationality Act of 1940, he would have met the residence requirement for naturalization contained in Section 307(a) of said Act, Title 8 U.S.C.A. § 707(a) and that, were it not for the physical presence requirement of Section 316(a) of the Immigration and Nationality Act of 1952, Title 8 U.S.C.A. § 1427(a), he would be eligible to citizenship because of his meeting of all other requirements therefor under both acts.

Petitioner concedes that if he is compelled to meet said physical presence requirement of the Immigration and Nationality Act of 1952, he would not be yet eligible to citizenship, but claims that such requirement is inapplicable to him because the validity of his Declaration of Intention made on April 16th 1948 under the Nationality Act of 1940 and the proceeding initiated thereby, as well as the status, condition and right in process of acquisition derived therefrom and done or existing at the time the Immigration and Nationality Act of 1952 took effect, must be deemed to have continued in full force and unaffected by the adoption of the latter act, and that his naturalization must be, therefore, governed by the provisions of the Nationality Act of 1940, which pursuant to the Saving Clause, Section 405(a) of the 1952 Act, Title 8 U.S.C.A. § 1101 note was in that respect expressly left in full force and effect.

Thus, the problem is reduced to determining whether under the provisions of the aforesaid saving clause petitioner is or is not bound to comply with the physical presence requirement of the Immigration and Nationality Act of 1952.

The legislative history of the Immigration and Nationality Act of 1952 sheds no light for the solution of this problem.

The analogy of some judicial precedents invoked by petitioner affords, however, convincing reasons towards a just and equitable solution thereof.

In Petition of Sproule, D.C., 19 F.Supp. 995, 997, the court characterized "the declaration of intention" as "the first step in the process of naturalization", further stating that the "declarant" thereof "acquires an inchoate nationality" even though "he remains an alien until the naturalization is completed", and acknowledging that certain rights flow from a declaration of intention, subject, however, to a strict construction. (Emphasis supplied.)

See also Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, holding that, for certain purposes, the status of a declarant under a Declaration of Intention is sufficiently different from that of a nondeclarant.

Although it is true that a Declaration of Intention is no longer necessary in the process of naturalization under the Immigration and Nationality Act of 1952, it was, however, the initial step in said process under the Nationality Act of 1940 which was the only naturalization statute in force when petitioner took his first papers.

The Nationality Act of 1940 contained a saving clause, Section 347(a), Title 8 U.S.C.A. § 747(a), which was not as broad as the saving clause contained in the Nationality Act of 1952, Sec. 405(a), Title 8 U.S.C.A. § 1101 note.

The terms "status", "condition", "right in the process of acquisition", "liability", "obligation", "rights" did not appear in the former, while they were specifically added to the latter.

Construing the saving clause of the Nationality Act of 1940, the Court of Appeals for the Second Circuit held that the provisions thereof did not cover "a mere condition, unattended by any affirmative action by the alien or by anyone else." (Emphasis supplied.)

United States ex rel. Aberasturi v. Cain, 2 Cir., 147 F.2d 449, 452.

The term "condition" was one of the terms not appearing in the saving clause of the Nationality Act of 1940, there construed, but which was later specifically included in the saving clause of the Immigration and Nationality Act of 1952.

115 F. Supp. 436

No doubt Judge Clark's dissenting opinion in the above case had much to do with the inclusion of said term in the latter act to avoid the narrow interpretation given to the saving clause of the former act in the majority opinion in said case.

Four years later, the Court of Appeals for the District of Columbia was called upon to construe the same saving clause of the 1940 Act, and in failing to agree with the holding of the Court of Appeals for the Second Circuit in United States ex rel. Aberasturi v. Cain, supra, it held that, although not specifically included in its language, said "saving clause must have referred...

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7 practice notes
  • United States v. Menasche, No. 104
    • United States
    • United States Supreme Court
    • April 4, 1955
    ...Act governs because respondent enjoyed a status, condition, and right in process of acquisition preserved by § 405(a) of the new Act. 115 F.Supp. 434. The Court of Appeals affirmed. 210 F.2d 809. We granted certiorari because of the importance of the questions presented in this and the comp......
  • United States v. Shaughnessy, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 13, 1955
    ...518. In United States v. Menasche, supra, it was held — affirming the reasoned decisions in Petition of Menasche, D.C. Puerto Rico, 115 F.Supp. 434, and United States v. Menasche, 1 Cir., 210 F.2d 809 — that a preliminary petition for naturalization should be given effect despite the petiti......
  • Yanish v. Barber, Civ. A. No. 29013.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 2, 1955
    ...Pringle, D.C.D. Va., 122 F.Supp. 90, affirmed, United States v. Pringle, 4 Cir., 212 F.2d 878; Petition of Menasche, D.C.D.Puerto Rico, 115 F.Supp. 434, affirmed United States v. Menasche, 1 Cir., 210 F.2d 809; Application of Shomberg, D.C.S.D.N.Y., 115 F.Supp. 336, affirmed Shomberg v. Uni......
  • Shomberg v. United States, No. 134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 25, 1954
    ...other than those stemming from a naturalization petition will be discovered. Compare generally Petition of Menasche, D.C.P.R., 115 F.Supp. 434. Be that as it may, in holding that its general terms must be read with the specific provisions of § 405(b) and do not override § 318 we are not den......
  • Request a trial to view additional results
7 cases
  • United States v. Menasche, No. 104
    • United States
    • United States Supreme Court
    • April 4, 1955
    ...Act governs because respondent enjoyed a status, condition, and right in process of acquisition preserved by § 405(a) of the new Act. 115 F.Supp. 434. The Court of Appeals affirmed. 210 F.2d 809. We granted certiorari because of the importance of the questions presented in this and the comp......
  • United States v. Shaughnessy, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 13, 1955
    ...518. In United States v. Menasche, supra, it was held — affirming the reasoned decisions in Petition of Menasche, D.C. Puerto Rico, 115 F.Supp. 434, and United States v. Menasche, 1 Cir., 210 F.2d 809 — that a preliminary petition for naturalization should be given effect despite the petiti......
  • Yanish v. Barber, Civ. A. No. 29013.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 2, 1955
    ...Pringle, D.C.D. Va., 122 F.Supp. 90, affirmed, United States v. Pringle, 4 Cir., 212 F.2d 878; Petition of Menasche, D.C.D.Puerto Rico, 115 F.Supp. 434, affirmed United States v. Menasche, 1 Cir., 210 F.2d 809; Application of Shomberg, D.C.S.D.N.Y., 115 F.Supp. 336, affirmed Shomberg v. Uni......
  • Shomberg v. United States, No. 134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 25, 1954
    ...other than those stemming from a naturalization petition will be discovered. Compare generally Petition of Menasche, D.C.P.R., 115 F.Supp. 434. Be that as it may, in holding that its general terms must be read with the specific provisions of § 405(b) and do not override § 318 we are not den......
  • Request a trial to view additional results

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