Petition of Norbeck

• Court: U.S. District Court — District of Oregon
• Writing for the Court: JAMES ALGER FEE
• Citation: Petition of Norbeck, 65 F.Supp. 748 (D. Or. 1946)
• Decision Date: 29 April 1946
• Docket Number: No. 22168.,22168.
• Parties: Petition of NORBECK.

65 F. Supp. 748

Petition of NORBECK.

No. 22168.

District Court, D. Oregon.

April 29, 1946.

JAMES ALGER FEE, District Judge.

A petition has been filed for admission to citizenship upon which testimony was heard in open court in accordance with the rule here established. The facts are that Norbeck was born in Norway on April 9, 1893. He entered the United States in 1904 and resided continuously here thereafter. He married Carrie Blanche Stevens on December 13, 1915. She had been born at Swan Lake, Nebraska, February 3, 1890, and has never resided outside of the United States. His wife lost her citizenship by marriage to him on December 13, 1915. Mrs. Norbeck has never applied for restoration of citizenship. The petition under consideration is based on the right to file by derivation from the citizenship of the wife which, it is claimed, was restored by statute.¹ A petitioner whose right is derived from the citizenship of a spouse is relieved of various requirements incumbent upon other applicants for admission. The question then, is whether the application of petitioner for United States citizenship based upon the citizenship of his wife should be granted. If her citizenship has been restored, he has the right under the statute to file. If her citizenship has not been restored, there is no foundation for his present petition and it must be denied.

It has been suggested that Congress could not have intended to create a class of citizens who could exercise none of the rights and privileges thereof up until the time that the oath of allegiance had been taken. There can be no doubt of the power. The alternative is that Congress intended that citizenship should not be restored until the oath of allegiance was taken and the responsibilities of citizenship assumed thereby. It has been pointed out that the traditional function of the oath of allegiance in restoration of citizenship or the assumption of citizenship, is to mark the time when the assumption of duties as well as the rights and privileges of citizenship, take place. The argument set out in the case of In re Davies, D.C., 53 F. Supp. 426, that at the desire of the repatriate, tangible evidence of her restoration might be acquired by taking the oath, seems weak indeed. On the other hand, the reasoning of Judge Kalodner in the case of In re Portner, D.C., 56 F.Supp. 103, based upon the legislative history of the statutes and the traditional purpose of the oath of allegiance, coupled with the considerations set out by Judge Edgerton in Shelley v. United States, 74 App.D.C. 181, 120 F.2d 734, 735, is entirely satisfying. The mere fact that the Shelley case is based in part upon the Schwimmer and Macintosh cases (United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L.Ed. 1302) does not affect the conclusive demonstration of the intent of Congress in relation to the problem in the instant case.

The difficulty now arises in the fact that the naturalization office, notwithstanding the construction placed upon the statute by courts of high authority, persist in recommending such persons for citizenship. It is conceived, apparently, that the case at bar is one in which the facts are such that the court will feel justified in overruling what is the plain intention of Congress. This court has hitherto pointed out that in naturalization cases there is no effective way for the court to protect against unlawful admission of citizens if the naturalization bureau have been convinced by the petitioner no matter what the circumstances.² If the court refuse...