71 F. Supp. 84 | N.D. Cal. | 1947
The petitioner, Wong Sie Lim, is a 22 year old male native of China, who seeks citizenship under the special provisions of Section 701 of the Nationality Act of 1940 as amended, 8 U.S.C.A. § 1001. The petitioner first entered the United States illegally on April 19, 1942. He was subsequently apprehended by the Immigration-Officers and on July 16, 1943, was ordered deported from the United States. However, due to war time conditions the government permitted petitioner to remain, under bond, in the United States. During that period and on August 28, 1944, he was inducted into the United States Army. On December 19, 1944, he was discharged from the army. Such duties as he performed during the period of approximately three and one half months of service in the army, were wholly within the continental United States. On May 2, 1945, he was deported from the United States. Subsequently, and on December 3, 1945, he was lawfully admitted for permanent residence. By his petition now before the Court, he seeks the benefits of Section 701 as amended by the Act of Dec. 22, 1944, c. 662, Sec. 1, 58 Stat. 886, 8 U.S.C.A. § 1001. The amended section reads as follows:
“Notwithstanding the provisions of sections 703 and 726 of this title, any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who shall have been at the time of his enlistment or induction a resident thereof and who (a) was lawfully admitted into the United States, including its Territories and possessions, or (b) having entered the United States, including its Territories and possessions, prior to September 1, 1943, being unable to establish lawful admission into the United States serves honorably in such forces beyond the continental limits of the United States or has so served may be naturalized upon compliance with all the requirements of the naturalization laws except (1) no declaration of intention, no certificate of arrival that for those described in group (b) hereof, and no period of residence within the United States or any State shall be required * * (Italics supplied.)
The argument made by both petitioner and the Commissioner is that the change in the language of section 701 effected by ■the amendment of 1944
It is true that consideration should be given to the construction of statutory language placed thereon by those entrusted by law with executive and administrative functions and particularly so in cases where the statute authorizes the promulgation of regulations by the officer who is to execute the statute. Jacobs v. Prichard, 223 U.S. 200, 32 S.Ct. 289, 56 L.Ed. 405; United States v. Cerecedo, 209 U.S. 337, 28 S.Ct. 532, 52 L.Ed. 821; Moy Chee Chong v. Weedin, 28 F.2d 263. But I fail to find in regulation 338.1
Moreover, it should be emphasized that an administrative officer has a clear duty to execute Congressional mandates without any effort on his part to extend statutory benefits and privileges because he thinks it might be a liberal or praiseworthy course of action and no matter how well intentioned he may be.
I am of the opinion that both the regulation so promulgated by the Commissioner (conceding that it does clarify the words of the statute) and his interpretation of the statutory language is completely without warrant or justification in view of the clear lesson tau'ght by the legislative history of the statute in question.
After the United States entered World War II, Congress proceeded to a consideration of the nature and extent of citizenship benefits to be conferred upon aliens serving in the armed forces. The first legislation on this subject was contained in the Second War Powers Bill to expedite the war effort, introduced in the Senate by Senator Van Nuys on January 16, 1942, 88 Cong.Rec. 431. As introduced its provisions were applicable to all aliens with honorable service in the armed forces.
After a year of war following the enactment of Section 701, Congress, heeding the recommendations of the War Department, the American Legion and the Department of Justice, gave consideration to the further relaxation of naturalization re
"When the bill passed the House it was in a broad form but when aided upon by the Committee on Immigration two amendments were inserted. One limited the measure to those who entered the service of the United States and began to reside here prior to September 1, 1943, so as to avoid its being made use of as an escape from immigration procedures in the future, but to cover those features where there had been some irregularities which could not otherwise be met. The other limited the mectr sure to cases overseas, it being felt that those were the cases where the need would arise and where the soldiers would be put in jeopardy, whereas as long as they were in the United States they could follow the normal procedure.” (Emphasis supplied.)
When the bill reached the House on December 15, 1944, 90 Cong.Rec. 9681, Representative Allen of Louisiana in presenting the committee report to the House stated :
“The Senate restricted the House bill by making the benefits of this bill apply only to those who came here after September 1, 1943, and only to those who are serving outside the continental United States.” (Emphasis supplied.)
The intent of Congress is crystal clear. The benefits which petitioner in this case seeks to obtain were specifically limited by Congress to those in the armed forces serving outside continental United States. As to those aliens serving in continental United States, Congress by the 1944 Amendment to sec. 701 intended making no change in those requirements specified in section 701 as originally enacted in 1942. Consequently an alien serving in the armed forces who illegally entered the United States and was not therefore a lawful resident at the time of his induction or enlistment in the armed forces, cannot have the benefits of this section of the law, unless he performed military services outside the continental limits of the United States. To hold otherwise, as recommended by the Commissioner, would be to judicially legislate.
Furthermore, it must be kept in mind that the amendments to the Nationality Act of 1940 were in furtherance of the war effort. The traditional naturalization requirements were lessened only as to those in the armed forces and only to the specific extent prescribed by the Congress, after long and thorough discussion and consideration. It is still an historic pre
This case does not call for a liberal statutory interpretation as is impliedly urged by petitioner and Commissioner. We are not here dealing with remedial legislation where technical construction is avoided and the curing of social and economic mischiefs bespeaks liberality. No man may be admitted as a citizen of the United States unless he satisfies all requirements of the statute, be he a soldier or a civilian.
In Petition of Agustín, D.C., 62 F.Supp. 832, and In re Delgado, D.C., 57 F.Supp. 460, it is true that I stressed that the conditions precedent to the bestowal of citizenship upon aliens in our military services should not be “formalistic technicalities.” But these cases are not apposite. In the Agustín case the question was whether Petitioner who actually fought in our armed forces and was otherwise qualified had to show that he had complied with the formalities of an induction ceremony. In the Delgado case the question presented was whether a “temporary member” of the Coast Guard, otherwise qualified, was a member of our military forces.
The petitioner in this case does not meet the requirements which the Congress has seen fit to impose and therefore his petition is denied.
It may be well to add that the denial of this petition in no way prevents the eventual naturalization of the petitioner. He may still pursue the normal procedure and in due time become a citizen, upon his compliance with the applicable conditions of the naturalization process. He may not, however, take the short-cut provided by Sec. 701 of the Nationality Act.
F.R.Doc. 45-2887; EUed, Feb. 21, 1945; 3:30 p.m.
Prior to 1944 and as originally enacted in 1942, section 701, provided as follows:
“Sec. 701. Notwithstanding ‘ the provisions of sections 303 and 326- of this Act [Title 8, §§ 703, 726], any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the Unit- ■ ed States during the present war and who, having been lawfully admitted to the United States, including its Territories and possessions, shall have been at - the time of his enlistment or induction a resident thereof, may be naturalized up- - on compliance with all the requirements of the naturalization laws except that (1) no declaration of intention and no period of residence within the United States or . any State shall be required; * * * ” 50 U.S.C.A.Appendix, § 640. (Emphasis supplied.)
§ 338.1 Persons eligible. Any person not a citizen of the United States, regardless of age, who is serving or has served honorably in the military or naval forces of the United States during the Second World AVar and who was at the time of his enlistment or induction a resident of the United States, its Territories, or possessions and who (a) has been lawfully admitted into the United States, including its Territories and possessions, or (b) having entered the United States, including ■ its Territories and possessions, prior to September 1, 1943, serves honorably in such forces-beyond the continental limits of the United States or has so served, may be naturalized under the provisions of section 701, of the Nationality Act of 1940, as amended, upon his petition filed not later
In Ex parte Fillibertie et al., D.C., 62 F.Supp. 744, the Court was of the view that the statutory language, with which we are here concerned, was so clear and unambiguous against the Commissioner’s interpretation that it did not feel itself compelled to make an examination of the Congressional proceedings to ascertain legislative intent. A thorough examination of the Congressional Proceedings, however, sets the matter completely at rest.
See explanatory statements of Mr. O’Mahoney, Chairman of Senate Judiciary Committee, 88 Cong.Rec. 663.
See Note (2) 71 F.Supp. page 85.
The chronology of the congressional proceedings in the 77th Congress, 2nd session is as follows:
1942
Jan. 16 Senate Bill 2208 introduced by Senator Van and referred to Judiciary Committee Nuys 88 Cong.Rec. 431
Jan. 22 Bill reported with amendments 88 Cong.Rec. 539
Jan. 24 Debated in Senate 88 Cong.Rec. 653 et seq.
Jan. 28 Amended and passed Senate 88 Cong.Rec. 815
Jan. 29 Referred to House Judiciary Com. 88 Cong.Rec. 896
Feb. 9 Reported with amendments 88 Cong.Rec. 1197
Feb. 24, 25, 28 Debated in House 88 Cong.Rec. 1620 et seq.
Feb. 28 Passed House with amendments 88 Cong.Rec. 1857
Mar. 2 Senate disagrees with House amendments; conferees appointed 88 Cong.Rec. 1893
Mar. 3 House Conferees appointed 88 Cong.Rec. 1986
Mar. 12 Conference report filed 88 Cong-Rec. 2447
Mar. 27 Bill adopted
The chronology of Congressional proceedings in the 78th Cong. 1st session is as follows:
1943
Jan. 19. Bill introduced in House by Mr. Dickstein and referred to Immigration and Naturalization Com. 80 Cong.Rec. 255
Feb. 24 Reported without amendment ■ 89 Cong.Rec. 1317
Mar. 15 Debated in House 89 Cong.Rec. 2027 et seq.
Apr. 5 Passed House 89 Cong.Rec. 2955
Apr. 6 Referred to Senate Com. on I. & N. 89 Cong.Rec. 2997
1944
Nov. 29 Reported by Senate Com. with amendments 90 Cong.Rec. 8661
Dec. 14 Debated in Senate 90 Cong.Rec. 9566
Dec. 15 House concurs in Senate Amendment 90 Cong.Rec. 9681
Dec. 22 Bill becomes effective