United States v. Cain, 148.

Citation147 F.2d 449
Decision Date04 January 1945
Docket NumberNo. 148.,148.
PartiesUNITED STATES ex rel. ABERASTURI v. CAIN, Commanding Officer, U. S. Army.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Louis J. Opal, of New York City, for relator-appellant.

T. Vincent Quinn, of Brooklyn, N. Y. (Vine H. Smith and Anthony G. Greco, both of Brooklyn, N. Y., of counsel), for respondent-appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

In asserting that relator, on March 27, 1943 was a citizen of the United States, respondent is compelled to take the following position: (1) Respondent admits that, under the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq., which became effective January 13, 1941, a minor child of alien parents, only one of whom was naturalized during the child's minority, does not become a citizen of the United States by mere length of residence of the child in this country. (2) Nevertheless, says respondent, such a minor, if he began to reside here on January 12, 1941, one day before the 1940 Act went into effect, and if, without more, he continued his residence here for five years — until January 12, 1946 — will become a citizen on that date; for, respondent contends, the one day of residence before January 13, 1941, creates an "inchoate citizenship" which, under the Nationality Act of 1934, would have ripened into citizenship after five years of continued residence, and such "inchoate citizenship" with such attendant consequences was preserved by the "saving clause" of the 1940 Act.

We do not agree. That "saving clause" preserves merely the "validity" of a "declaration of intention, petition for naturalization, certificate of naturalization of citizenship, or other document which shall be valid" on the effective day of the Act, January 13, 1941, or any "prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing" on that day. We think that this provision does not cover a mere condition, unattended by any affirmative action by the alien or by anyone else. In other words, we do not think that Congress in the 1940 Act intended that the mere fact of residence before January 13, 1941, should operate to continue, for a maximum period of four years and three hundred and sixty-four days thereafter, the precise privilege and obligation which would have existed under § 2 of the 1934 Act if the 1940 Act had not been enacted. (We do not need to, and do not here, consider a case where an alien child or someone on his behalf had, before January 13, 1941, taken some affirmative action on the child's behalf.)

Since relator had not completed five years of residence in this country before January 13, 1941, he was not a citizen on March 27, 1943 when, pursuant to the Selective Training and Service Act, he filed a statement of his election as a neutral alien to be exempt from "liability for training and service" under that Act. Neither his previous registration under that statute nor his previous statement in his questionnaire, "I am a citizen of the United States" constituted a waiver of that statutory right of election; for one who erroneously thought himself a citizen of the United States1 cannot be regarded as intending to waive a right belonging solely to a neutral alien. And relator's mistaken assertion of American citizenship could not create that status.

The issue here being the correct interpretation of the statutes, United States ex rel. Brandon v. Downer, 2 Cir., 139 F. 2d 761, and United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944, are not in point. We are not bound by the...

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14 cases
  • In re Petition of Chin Thloot Har Wong
    • United States
    • U.S. District Court — Southern District of New York
    • December 10, 1963
    ...S.Ct. 161, 89 L.Ed. 124 (1940). See generally, 1 Davis, Administrative Law Treatise §§ 5.05-5.07 (1958). 42 United States ex rel. Aberasturi v. Cain, 147 F.2d 449, 452 (2 Cir. 1945); Ng Fun Yin v. Esperdy, 187 F.Supp. 51 (S.D. N.Y.1960); In re Howard's Petition, 147 F.Supp. 676 (W.D.Mo.1956......
  • United States v. Menasche
    • United States
    • U.S. Supreme Court
    • April 4, 1955
    ...because § 347(a) of the 1940 Act did not extend to 'a mere condition, unattended by any affirmative action.' United States ex rel. Aberasturi v. Cain, 147 F.2d 449, 452. The Court of Appeal for the District of Columbia disagreed, construing the broad language of § 347(a) as covering 'rights......
  • United States v. Rubinstein
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 5, 1948
    ...but only defer, registrants under the 1940 Act, Lehr v. United States, 5 Cir., 139 F.2d 919, 921, 922; cf. United States ex rel. Aberasturi v. Cain, 2 Cir., 147 F.2d 449, deferment was no different from the selection for "partial military service" made under the 1917 Act. The Act of 1917 pr......
  • United States v. Shaughnessy, 187
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 13, 1955
    ...to recognize inchoate rights, expressed also in its disapproval of the majority decision of this court in United States ex rel. Aberasturi v. Cain, 2 Cir., 147 F.2d 449, and approval of the contrary decision in Bertoldi v. McGrath, 86 U.S.App.D.C. 1, 178 F.2d 977, strongly suggests that her......
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