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Docket Number

Nos. 118325, 118327, 118331, 118337, 118338, 119195, 118329.

Attorney(S)

Jack L. Burnam, San Francisco, Cal., for applicants. Lloyd H. Burke, U.S. Atty., San Francisco, Cal., for the Government.

Judges

Louis Earl Goodman

Acts

Aliens And Nationality — Immigration And Nationality — Nationality And Naturalization — Nationality Through Naturalization — Constructive Residence Through Service On Certain United States Vessels
Aliens And Nationality — Immigration And Nationality — General Provisions — Definitions

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Smart Summary

Matter of the Applications for Citizenship of Alejo Trabocotano Tano, et al. — Summary of Opinion

Factual and Procedural Background

The seven petitioners filed petitions for naturalization on March 31, 1955, under § 330(a)(2) of the Immigration and Nationality Act of 1952 (cited in the opinion as 8 U.S.C.A. § 1441(a)(2)). All seven are natives of the Philippines who served as stewards on United States vessels. None of the petitioners had ever been admitted to the United States for permanent residence. Some petitioners had accumulated five years of sea service prior to the effective date of the Internal Security Act of 1950; others had not.

The district court summarized the relevant statutory history: (1) Section 325(a) of the Nationality Act of 1940 (8 U.S.C. § 725, 1946 Edition) permitted aliens with five years' service on U.S. vessels to naturalize without prior admission for permanent residence; (2) the Internal Security Act of 1950 changed the law so that alien seamen were ineligible for naturalization by sea service unless they had previously been lawfully admitted for permanent residence; and (3) the Immigration and Nationality Act of 1952 retained the admission requirement but contained a special provision allowing alien seamen who had five years of sea service prior to the Internal Security Act's effective date to naturalize without prior admission if they filed within one year from the effective date of the 1952 Act (the opinion describes the one-year filing period as ending before December 24, 1953).

The court recited that the petitioners who had the requisite five years' sea service prior to the Internal Security Act did not apply while the 1940 Act remained in effect and failed to file within the one-year period after the 1952 Act's effective date. The petitioners without five years' prior sea service never became eligible under any of the statutes at issue.

The petitions were before the court on the petitioners' contention that the general savings clause, Section 405(a) of the 1952 Act (referenced in the opinion as 8 U.S.C.A. § 1101 note), preserved or "saved" their eligibility so that their 1955 applications should be treated as effective. The court made findings pursuant to the Rules and resolved the petitions.

Legal Issues Presented

Whether Section 405(a) (the general savings clause) of the Immigration and Nationality Act of 1952 preserved any "status" or "condition" that would allow these petitioners to be naturalized despite not having been admitted for permanent residence and despite failing to file within the specific statutory periods.
Whether any of the petitioners had been lawfully eligible to file for naturalization within the applicable statutory periods (including whether they had in fact attempted timely filings) such that their 1955 petitions could be sustained.

Arguments of the Parties

Petitioners' Arguments

Petitioners asserted that Section 405(a), the general savings clause of the 1952 Act, "saved" their right or status and thereby validated their petitions filed in 1955 even though they had not been admitted for permanent residence and had not filed within the specific earlier filing periods.
Some petitioners claimed they had attempted to file petitions for citizenship within the times when they were statutorily eligible.

Government's Arguments

The opinion does not contain a detailed account of the Government's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aure v. United States, 9 Cir., 1955, 225 F.2d 88	Applied the savings clause, section 405(a), to preserve a then-existing right under section 324 of the 1940 Act where the petitioner then had an existing status (Navy service exceeding three years) that made him eligible at the effective date of the 1952 Act.	The court distinguished Aure as inapposite: Aure had a then-existing status preserved by the savings clause, whereas these petitioners had no then-existing right, status, or condition at the effective date of the 1952 Act that could be preserved.

Court's Reasoning and Analysis

The court analyzed the disputes by tracing the statutory changes and applying Section 405(a) of the 1952 Act only to rights or conditions that existed at the effective date of that Act.

Step 1 — Statutory chronology: Under the Nationality Act of 1940, aliens with five years' service on U.S. vessels could naturalize without prior admission for permanent residence. The Internal Security Act of 1950 changed the rule, making alien seamen ineligible for naturalization by sea service unless they had been lawfully admitted for permanent residence. The Immigration and Nationality Act of 1952 retained the admission requirement but included a special transitional provision allowing alien seamen who had five years' service prior to the Internal Security Act's effective date to naturalize without prior admission provided they filed within one year of the 1952 Act's effective date.

Step 2 — Application to petitioners: The court found two relevant categories among the petitioners: (a) those who had the five years' sea service before the Internal Security Act became effective but who did not file while the 1940 Act was in effect and who also failed to file within the one-year period after the 1952 Act; and (b) those who never had five years' sea service prior to the Internal Security Act and therefore never became eligible under the 1940 Act, the Internal Security Act of 1950, or the 1952 Act's special provision.

Step 3 — Savings clause analysis: The petitioners argued that Section 405(a) of the 1952 Act preserved some status or condition that would validate their later-filed petitions. The court rejected that contention because, at the effective date of the 1952 Act, none of the petitioners had any then-existing right, status, or condition to be preserved: those who once had eligibility under the 1940 Act had already lost it by the time the 1952 Act took effect (due to the Internal Security Act requirement of prior admission), and the others had never been eligible. The court distinguished Aure v. United States, observing that Aure had a then-existing status preserved by the savings clause but the petitioners here did not.

Step 4 — Evidence of attempts to file: The court addressed petitioners' claims that they had attempted to file within the applicable periods and concluded that such claims were supported by only "the most flimsy and insubstantial evidence," and therefore rejected those claims.

Conclusion of reasoning: Because none of the petitioners had an eligible status preserved by Section 405(a) at the effective date of the 1952 Act and because their asserted attempts to file timely were not credibly supported, the court held that the savings clause could not save their 1955 petitions.

Holding and Implications

Holding: All petitions for naturalization are denied.

Implications: The direct effect of the decision is the denial of each petitioner's application for naturalization. The court based its ruling on the absence of any then-existing right, status, or condition at the effective date of the 1952 Act that could be preserved by the savings clause, and on the insufficiency of evidence that any petitioner timely attempted to file when eligible. The opinion does not announce or discuss any broader change in precedent beyond applying and distinguishing Aure v. United States to the facts of these cases.

Additional court statement in the opinion: "Present findings pursuant to the Rules."

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Matter of the Applications for citizenship of Alejo Trabocotano TANO, Eriberto Chavez Abella, Jesus Monzon Martinez, Ignacio Martal Romano, Paulino Josue Elizalde, Emiliano Jesmundo Magallanes, Magtangol Cruz Politan, Petitioners.

GOODMAN, District Judge.

Petitions for naturalization of the above named seven petitioners were filed March 31, 1955, pursuant to § 330(a)(2) of the Immigration and Nationality Act of 1952, 66 Stat. 251, 8 U.S.C.A. § 1441(a)(2).

All of the petitioners are natives of the Philippines and all served on United States vessels as stewards. None has ever been admitted to the United States for permanent residence. Some of the petitioners had five years sea service prior to September 23, 1950, the effective date of the Internal Security Act of 1950. 64 Stat. 987. The others did not.

In order to understand the posture of these present petitions, it is necessary to briefly chronologize the pertinent statutory provisions.

Section 325(a) of the Nationality Act of 1940, 54 Stat. 1150, 8 U.S.C. § 725, 1946 Edition, permitted aliens who served five years on United States vessels to become naturalized without having been admitted to the United States for permanent residence. The law remained the same thereafter until 1950. Then, by the Internal Security Act of 1950, alien seamen became inadmissible to citizenship by virtue of sea service unless they had previously been lawfully admitted to the United States for permanent residence. 64 Stat. 1015, 8 U.S.C. § 725, 1946 Edition, Supplement IV.

In 1952, the immigration and nationality laws were completely revised by the adoption of the Immigration and Nationality Act of 1952. 66 Stat. 163. The 1952 Act retained the provision of the Internal Security Act of 1950 that alien seamen to be eligible for naturalization by reason of service on United States vessels must first have been admitted to the United States for permanent residence. 66 Stat. 251, 8 U.S.C.A. § 1441(a)(1). But, the 1952 Act also specially provided that alien seamen who had five years of sea service prior to the effective date of the Internal Security Act of 1950, September 30, 1950, could be naturalized without satisfying the requirement of admission for permanent residence, if application for citizenship was filed within one year from the effective date of the 1952 Act; that is, before December 24, 1953. 66 Stat. 251, 8 U.S.C. § 1441(a)(2).

The petitioners who had five years sea service prior to September 23, 1950, did not apply for citizenship while § 325(a) of the Nationality Act of 1940 was still in effect, and they were eligible for citizenship solely by reason of their sea service. After the Internal Security Act of 1950 became effective on September 23, 1950, they were no longer eligible for citizenship because they had not been admitted to the United States for permanent residence. After the passage of the 1952 Act, these petitioners again became eligible for citizenship, provided they filed petitions within one year after December 24, 1952, the effective date of the 1952 Act. They failed to file their petitions within this time.

The other petitioners who did not have five years sea service prior to September 23, 1950, never became eligible for naturalization under the Naturalization Act of 1940. They never became eligible for naturalization under the Internal Security Act of 1950, because they had not been admitted for permanent residence. They were not aided by the special provision of the 1952 Act because they had not had five years sea service prior to September 23, 1950.

Thus, the petitioners who did have five years sea service prior to September 23, 1950, failed to file applications for citizenship during any period of time when they were eligible. The petitioners who did not have five years sea service prior to September 23, 1950, never became eligible for naturalization under any statute.

But, it is contended by all of the petitioners that the general savings clause, Section 405(a), of the 1952 Act, 8 U.S.C.A. § 1101 note, somehow or other "saves" their petitions filed in 1955. Section 405(a) provides that nothing contained in the 1952 Act, unless otherwise specifically provided therein, shall affect any "status" or "condition" existing at the time of the effective date of the 1952 Act. Petitioners claim that they have some sort of "status" or "condition" that Section 405(a) preserved for them. It is difficult to perceive just what counsel assert to be such a "status" or "condition." At the time of the effective date of the 1952 Act, the Internal Security Act of 1950 was in effect, and the petitioners who had once been eligible for naturalization under the 1940 Act had already lost their eligibility. The other petitioners had never become eligible for naturalization. Thus none of the petitioners were then eligible for naturalization, nor did they have any status which could ripen into eligibility, since none of them had been admitted for permanent residence.

Aure v. United States, 9 Cir., 1955, 225 F.2d 88, cited by petitioners is not apropos because it applied the savings clause, section 405(a), to a right under section 324 of the 1940 Act, a provision unaffected by the Internal Security Act of 1950. At the time the 1952 Act became effective, Aure was then in the United States Navy and had already served for more than three years; he was then eligible for naturalization, under the provisions of Section 324 of the 1940 Act, although he had not filed his application. He had a then existing status which was preserved by the savings clause of the 1952 Act.

Since on the effective date of the 1952 Act petitioners had no "right" or "status" or "condition," they cannot advantage themselves of the savings clause.

Petitioners' various claims that they attempted to file petitions for citizenship within the times when they were statutorily eligible were based on the most flimsy and insubstantial evidence, and thus must be rejected.

All petitions will be denied.

Present findings pursuant to the Rules.

APPLICATIONS OF TANO, ETC., (N.D.Cal. 1955)