United States v. Menasche, No. 4798.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAGRUDER, , and MARIS and WOODBURY, Circuit
PartiesUNITED STATES v. MENASCHE.
Decision Date03 March 1954
Docket NumberNo. 4798.

210 F.2d 809 (1954)

UNITED STATES
v.
MENASCHE.

No. 4798.

United States Court of Appeals First Circuit.

March 3, 1954.


Douglas P. Lillis, Acting District Counsel, Miami Dist., Immigration and Naturalization Service, Miami, Fla. (Ruben Rodriguez Antongiorgi, U. S. Atty. Dist. of Puerto Rico, San Juan, Puerto Rico, on brief), for appellant.

Tomas I. Nido, San Juan, Puerto Rico (Fiddler, Gonzalez & Nido, San Juan, Puerto Rico, on brief), for appellee.

Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.

210 F.2d 810

WOODBURY, Circuit Judge.

The petitioner-appellee, a native of Belgium and citizen of France, lawfully entered the United States for permanent residence on March 7, 1948, and on April 16 of the same year he filed his Declaration of Intention to become a citizen of the United States. His employment in an executive capacity by a wholly owned subsidiary of Columbia Pictures International, — an American corporation — necessitated his absence from the United States for periods of more than six months, but never for more than a year at a time, on several occasions during the following five years. On April 24, 1953, he filed his Petition for Naturalization in the court below.

The Naturalization Examiner designated to conduct the petitioner's preliminary examination found, and the United States does not deny, that in spite of the petitioner's absences he did not in fact abandon or otherwise forfeit his "residence" in the United States. On the other hand, the petitioner concedes, as he must, that his absences were of such frequency and duration that he was not physically present in the United States for at least one half of the five-year period immediately preceding the filing of his Petition for Naturalization. This, the Government contends, prevents the petitioner's naturalization under § 316(a)1 of the Immigration and Nationality Act, 66 Stat. 242, 8 U.S.C.A. § 1427(a), which was passed over presidential veto on June 27, 1952, and went into effect 180 days thereafter on December 24th. The petitioner, however, contends (the court below agreed and admitted the petitioner to citizenship) that his lack of physical presence in the United States is of no consequence for the reason that he is entitled to be naturalized under § 307 (a)2 of the Nationality Act of 1940, 54 Stat. 1142, which contains no requirement of physical presence in the United States prior to a petition for naturalization.

The answer to these conflicting contentions lies in the meaning of subsections (a) and (b) of § 405 of the Immigration and Nationality Act of June 27, 1952, 8 U.S.C.A. § 1101 note, which in material part read:

"(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document
210 F.2d 811
or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or
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4 practice notes
  • United States v. Menasche, No. 104
    • United States
    • United States Supreme Court
    • April 4, 1955
    ...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 companion case of Shomberg v. United States, 348 U.S.......
  • United States v. Shaughnessy, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 13, 1955
    ...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 petitioner's absence from the country, which would have......
  • 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
    ...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. United States, 2 Cir., 210 F.2d 82; United States v. Matles-Frie......
  • Junso Fujii v. Dulles, Civ. No. 1261.
    • United States
    • U.S. District Court — District of Hawaii
    • June 23, 1954
    ...cites in opposition to this argument the cases of Petition of Menasche, D.C.Puerto Rico, 1953, 115 F. Supp. 434, affirmed, 1 Cir., 1954, 210 F.2d 809; and In re Jocson, D.C.Hawaii 1954, 117 F.Supp. 528; wherein the Saving Clause was held to be applicable. There 122 F. Supp. 264 the plaintif......
4 cases
  • United States v. Menasche, No. 104
    • United States
    • United States Supreme Court
    • April 4, 1955
    ...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 companion case of Shomberg v. United States, 348 U.S.......
  • United States v. Shaughnessy, No. 187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 13, 1955
    ...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 petitioner's absence from the country, which would have......
  • 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
    ...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. United States, 2 Cir., 210 F.2d 82; United States v. Matles-Frie......
  • Junso Fujii v. Dulles, Civ. No. 1261.
    • United States
    • U.S. District Court — District of Hawaii
    • June 23, 1954
    ...cites in opposition to this argument the cases of Petition of Menasche, D.C.Puerto Rico, 1953, 115 F. Supp. 434, affirmed, 1 Cir., 1954, 210 F.2d 809; and In re Jocson, D.C.Hawaii 1954, 117 F.Supp. 528; wherein the Saving Clause was held to be applicable. There 122 F. Supp. 264 the plaintif......

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