Zimmerman v. Lehmann, 14399.
Citation | 339 F.2d 943 |
Decision Date | 07 January 1965 |
Docket Number | No. 14399.,14399. |
Parties | Abraham F. ZIMMERMAN, Plaintiff Appellant, v. John M. LEHMANN, District Director, Immigration and Naturalization Service, Defendant-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Anna R. Lavin and Maurice J. Walsh, Chicago, Ill., for appellant.
Edward V. Hanrahan, U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel.
Before DUFFY, KILEY and MAJOR, Circuit Judges.
Plaintiff (sometimes called applicant) was born in Russia September 15, 1902. In September 1913, subsequent to the death of his parents, he and his two sisters came to the United States to join their uncle, Isadore Lande, at Fort Wayne, Indiana. At that time plaintiff was admitted for permanent residence, which status he has since continuously maintained, with the exception of three trips, subsequently discussed, which he made outside the country.
On November 8, 1955, a special inquiry officer of the Immigration and Naturalization Service found that plaintiff was an alien excludable from the United States under the provisions of Title 8 U.S.C.A. § 1182(a) (9), in that he had been convicted of a crime involving moral turpitude, and also under the provisions of Title 8 U.S.C.A. § 1182(a) (20), as an alien who attempted to enter the United States without a visa or other proper documentation. From the order of exclusion plaintiff appealed to the Board of Immigration Appeals which, on March 8, 1956, affirmed the order.
On March 23, 1956, plaintiff filed the instant action in the District Court, by which he sought relief from the exclusion order. That Court allowed defendant's motion for a summary judgment, from which plaintiff appeals.
The Board of Immigration Appeals in affirming the exclusion order stated:
Of the numerous grounds urged for reversal, we think that presently we need be concerned with only two: (1) that plaintiff is a citizen of the United States, and (2) that his brief excursions outside the country's borders in 1952 and 1953 did not subject him to the consequences of "entry" on his return, under Sec. 101 (a) (13), Title 8 U.S.C.A. § 1101(a) (13) of the Immigration and Nationality Act of 1952. If either of these contentions is valid, the order under attack cannot stand.
In our consideration of the record we are mindful of the statutory admonition, "* * * findings of fact, if supported by reasonable, substantial and probative evidence on the record considered as a whole, shall be conclusive." Title 8 U.S. C.A. § 1105a(6).
The special inquiry officer as a basis for his exclusion order found:
Plaintiff's claim to citizenship is based on the premise that shortly after his admission for permanent residence he was legally adopted at Fort Wayne, Indiana, by his uncle, Isadore Lande, although he continued to use the name Zimmerman. In 1923, when plaintiff was twenty years of age, Isadore Lande became a naturalized citizen at Flint, Michigan. During the intervening years, plaintiff resided with his adoptive parent. Thus, plaintiff argues that he as an adopted child acquired citizenship by reason of the naturalization of his adoptive parent.
The government asserts that inasmuch as this question was not raised in the District Court, it cannot be considered for the first time on appeal. We think to the contrary. The issue is jurisdictional inasmuch as the proceedings were instituted and the order of exclusion obtained on the basis that plaintiff was an alien, not a citizen.
Plaintiff's claim to citizenship is based upon the Act of March 2, 1907, Section 5 (Title 8 U.S.C.A. § 8*), which provides:
In construing this provision we are not aided by any Federal case or legislative history. Plaintiff's theory is that "a child born without the United States" includes an adopted child, and that "by naturalization * * * by the parent" includes an adoptive parent. Plaintiff argues with some plausibility that Congress in employing the terms "child" and "parent" must have had in mind the general rule announced by numerous State courts that the status between an adoptive parent and an adopted child is identical with that existing between a natural parent and his child. See 2 C.J.S. Adoption of Children § 55 page 446. Even so, we doubt, certainly are not persuaded, that this general principle bears any relevancy to the Congressional purpose underlying the provision in question. Defendant cites two opinions of the Attorney General of the United States which hold that there is no statute which bestows American citizenship on adopted aliens. 38 Op.Atty. Gen. 217; 38 Op.Atty.Gen. 397. It is our view and we so hold that plaintiff did not become a citizen by reason of the premise asserted or otherwise.
In 1931, plaintiff left the United States for a six-week trip to Europe, and returned to this country the following year. It is conceded that this departure and return was legal and constituted no impairment to his status as a permanent resident alien.
The circumstances surrounding plaintiff's 1952 and 1953 visits to Canada form the basis for the order under attack. On July 20, 1953, at International Falls, Minnesota, he was stopped at the Canadian border by an immigration officer and refused admission. On the following morning a hearing was had during which plaintiff claimed that he was a citizen of the United States as the adopted child of his uncle, a naturalized citizen. Plaintiff was permitted to enter on parole, and the hearing was continued and later concluded in Chicago. Concerning the hearing at International Falls, the inspector in his report stated:
We note that in the main the information given by plaintiff at this hearing was later verified, other than his claim that he was entitled to admission as a citizen.
During the hearing at International Falls, plaintiff voluntarily revealed that in July 1952 he and his family visited in Canada and returned after a five- or six-day vacation. As we understand, defendant contends that this entry was illegal and that plaintiff forfeited his status as a resident alien. Relative to plaintiff's 1952 absence from the United States, the inspector in his report stated:
"The applicant testified that he reentered the United States in July 1952 at an unknown port in Maine on the border of Canada; that he was questioned by an immigrant inspector; that he did not have any entry documents or passport; that he told the inspector that he was born in Russia and that he was a United States citizen; that the inspector asked how he acquired citizenship and that he stated he acquired citizenship by adoption; and that he did not recall any further questions."
Defendant in support of its exclusion order places great stress upon United States ex rel. Volpe v. Smith, 289...
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...this country without inspection after short trips abroad is a matter of first impression in the circuit courts. In Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965), this court held that Fleuti did protect an alien who had a prev......
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