Yuen Jung v. Barber, 12455.

Decision Date04 October 1950
Docket NumberNo. 12455.,12455.
Citation184 F.2d 491
PartiesYUEN JUNG v. BARBER.
CourtU.S. Court of Appeals — Ninth Circuit

Jackson & Hertogs and Joseph S. Hertogs, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., Edgar R. Bonsall and Macklin Fleming, Asst. U. S. Attys., all of San Francisco, Cal. (Stanley Johnston, Adjudications Div. Imm & Nat. Service, San Francisco, Cal., on the brief), for appellee.

Before BIGGS, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

Appeal from an order denying a petition for naturalization. Right to naturalization was claimed on the ground of petitioner's service in the armed forces for a period of over three years. Denial was on the ground that petitioner "has failed to establish that he has been a person of good moral character", as required by the applicable section of the Nationality Act. Appellant asserts that in reaching that conclusion the court considered evidence which it was prohibited from receiving in a case like this, where application is founded on military service. The basis of the appeal is the claim that petitioner's honorable discharge is, under the law, conclusive evidence of good moral character.

There are two distinct sections providing for naturalization of persons who have served in the armed forces. One of these is referred to by the court in its order; the other is the one upon which appellant's brief and argument are based. In some respects appellant comes within the provisions of both.

These are sections 324 and 324A of the Nationality Act of 1940, § 324A having been added by Act of June 1, 1948, 62 Stat. 282, to replace Title 8, § 1001, which had expired. In Title 8 U.S.C.A. they are § 724 and § 724a.1

Section 724, as amended July 2, 1946, provides for naturalization of "a person, who has served honorably at any time in the United States Army * * * for a period or periods aggregating three years and who, if separated from such service, was separated under honorable conditions". Section 724a provides for naturalization of "any person * * * who has served honorably in an active-duty status in the military * * * forces * * * during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or who, if separated from such service, was separated under honorable conditions". It is thus apparent that § 724a was intended to cover service during World War I or II, while § 724 covers military service in time of peace, as well as in time of war.

As petitioner was inducted into the Army on May 17, 1946, and thereafter served continuously until the present time (he was honorably discharged May 16, 1949, at the end of three years service, and reenlisted May 17, 1949), it is apparent that so far as period of service is concerned he comes within both sections.

The question which petitioner raises on this appeal arises out of the somewhat similar provisions of these two sections which dispense with certain requirements which apply in the ordinary naturalization proceeding. As to the applicant under § 724, if he apply while in service, or six months thereafter, "(1) No declaration of intention shall be required; (2) No certificate of arrival shall be required; (3) No residence within the jurisdiction of the court shall be required; (4) Such petitioner may be naturalized immediately * * *." And subdivision (e) provides: "Any such period or periods of service under honorable conditions, and good moral character, attachment to the principles of the Constitution of the United States, and favorable disposition toward the good order and happiness of the United States, during such service, shall be proved by duly authenticated copies of records of the executive departments having custody of the records of such service, and such authenticated copies of records shall be accepted in lieu of affidavits and testimony or depositions of witnesses." § 724a contains similar provisions.2

Petitioner contends that since all that is required of him by § 724 is his record of service under honorable conditions, that this is conclusive. And, further, that since the three year military service is substituted for the ordinary five year residence requirement, the court could not properly go into his conduct or character prior to such military service.

The facts upon which the court acted, and which make necessary an examination of the questions thus raised by petitioner, are not in dispute. In 1941 he arrived in the United States representing himself to be a citizen by reason of birth here. Before a Board of Special Inquiry, in that year, he swore falsely that he was born in San Francisco in 1912, and supported the claim with documents he knew were forged. He was released under bond as war conditions prevented his deportation. In 1942 he stated in his Selective Service questionnaire that he was born in San Francisco. In 1945 he was found guilty of violating the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., in failing to notify his draft board of a change of status (he had previously received an occupational deferment), and he was sentenced to six months imprisonment.3

It does not appear from the record that he was guilty of any conduct indicating lack of good moral character after the date of his induction in the Army on May 17, 1946. It does appear that his Army records show his birthplace as San Francisco, but whether this information was obtained from him at the time of induction or from his selective service record does not appear.4

Both of these sections expressly dispense with the common requirement of five years' continuous residence in the United States.5 § 724, subdivision (a), provides that one who has served honorably for the three years "may be naturalized without having resided, continuously immediately preceding the date of filing * * * in the United States for at least five years * * *."6 And § 724a provides that "no period of residence within the United States or any State shall be required". So far as § 724 is concerned, this express doing away with the five years' residence requirement, when considered with the language previously quoted from subdivision (e) of that section, to the effect that the three year period of service, and good moral character, etc., during such service, shall be proved by the service records, "and such authenticated copies of records shall be accepted in lieu of affidavits and testimony or depositions of witnesses", clearly indicates (1) that petitioner need only prove good moral character for the period of his service (providing it has been continuous), and (2) that he may do so by the authenticated record of his honorable service.

Appellant says that this requires us to hold that such proof, when made, is conclusive. We think that result does not follow, for § 734(d) of the same Title provides: "The United States shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner's right to admission to citizenship, and shall have the right to call witnesses, produce, evidence, and be heard in opposition to the granting of any petition in naturalization proceedings."

Thus the United States may show, by cross-examination of this petitioner, or otherwise, that during the period of his military service, he was not a person of good moral character. But what is the consequence if it appear that the circumstances indicating want of good moral character occurred at a time prior to the period of petitioner's military service? May such evidence be received or considered?

The courts have had occasion to deal with a similar problem when considering proof required to be made under sections 707 and 709 which require a showing of good moral character for the five year period. They do not agree. In Application of Murra, 7 Cir., 178 F.2d 670, 673, the court, in holding that "the government in its inquiry as to the fitness of an applicant for naturalization is confined to the five year period immediately preceding the filing of the petition", said: "If a five year period is a `minimum requirement,' as the government argues, it becomes meaningless. If the time fixed by Congress is `minimum,' then it would seem to follow that the maximum time would be during all of the petitioner's life. We cannot believe that Congress meant other than what it said, that is, that if a petitioner meets the enumerated requirements for a period of five years immediately prior to the filing of his petition he is entitled to be admitted. We need not decide that a court is never justified in making inquiry concerning a petitioner previous to the five year period, but what we do think and hold is that even so the facts developed by such an inquiry cannot be used as the basis for disqualification."

On the other hand, in Molsen v. Young, 5 Cir., 182 F.2d 480, 483, it was stated: "We find no merit in the contention that the trial court, in its inquiry concerning the petitioner's alleged attachment to the principles of the Constitution and good moral character, was limited to the statutory period of five years prior to the filing of the petition for naturalization. The statute does not require that the evidence necessary to meet the tests of loyalty and good character be confined to the five year period. It merely disqualifies for citizenship those who cannot show the requisite loyalty and good moral character for at least five years prior to their application, and thereby fixes the minimum requirement as to these statutory qualifications which petitioners for citizenship must meet."

Each of the two cases reflecting these conflicting views finds support in decisions of other courts. We have held that § 724 has, in cases where military service has been continuous, substituted the three year period for...

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