DAWSON, District Judge.
This case presents the issue as to whether an alien seaman who remained in the United States illegally after the expiration of his seaman's pass, but later served in the United States Army, is eligible for naturalization.
Petitioner, a native and citizen of Italy, seeks to be naturalized pursuant to Public Law 86, Chapter 162 of the 83rd Congress, 67 Stat. 108, 8 U.S.C.A. 1440a et seq.
The following facts are not in dispute:
On April 19, 1951, petitioner was drafted into the United States Army. On May 19, 1952, a warrant of arrest in a deportation proceeding was served upon petitioner, a hearing held, and petitioner paroled. In June of 1952, petitioner was shipped overseas as a soldier in the United States Army. On January 14, 1953, petitioner was honorably discharged from the United States Army at the convenience of the government because of alienage. On February 19, 1953, petitioner was afforded a hearing in his deportation proceeding and was found to be deportable. Petitioner then commenced this proceeding on November 24, 1953.
The record indicates further, without contradiction, that when petitioner was drafted, Selective Service had knowledge that he was an alien illegally in the United States; when petitioner, as a soldier in the United States Army, was shipped overseas, it was with the knowledge of the Immigration and Naturalization Service.
The Immigration and Naturalization Service urges that petitioner was not "admitted" to the United States within the meaning of the statute. The legislative history of the Act indicates that it was intended to apply to persons who were lawfully admitted either in an immigrant status or in a non-immigrant status, and the fact that events subsequent to their admission deprived them of that status would not be sufficient to deny them naturalization if they had served honorably in the United States Army.
In House Report No. 223, 1953,
The Report points out that many thousands of permanently residing aliens have enlisted in our Armed Forces and then states:
The Report states, with reference to the bill:
The Department of Justice recommended that the bill be amended to provide that the serviceman bear the burden of proving lawful admission.
The Report stated:
That a seaman possessing a seaman's pass is a non-immigrant and is lawfully admitted as such is shown by Part 214(d) of the Administrative Regulations under the Immigration and Nationality Act, U.S.Cong. & Adm.News, 1953, p. 2497. If he fails to leave at the expiration of the pass, he is in no different position than visitors or students who are admitted for temporary residence only and who overstay their time. The situation might be quite different in the case of a seaman who "jumped ship" and never acquired any legal right to admittance.
The recommendation of the Immigration and Naturalization Service that naturalization be denied in this case was based upon a finding that petitioner was, in fact, an immigrant at the time of entry and not a bona fide seaman. This was based upon a statement made by petitioner when examined by the Immigration and Naturalization Service on February 19, 1953, at which time the following questions were asked and answers given:
Petitioner, in an affidavit submitted in this matter, stated that he did not understand these questions at the time that they were asked of him, and sought a hearing. The hearing was then held by me at which he stated that while he had so testified at the immigration hearing, he misunderstood the question and the exact time period to which it related; that at the time of his departure from the ship, he intended to return to the ship and sail on it; that it was not until he had been ashore for several days that he decided to try to remain in the United States permanently.
What the intention of the petitioner was at the time that he left the ship, or whether he had any intention at that time, is, of course, a matter of the operation of his mind which would be difficult to establish. It is well established that "what the alien says and the documents he submits to the examining immigrant inspector, rather than his subjective intent or concealed motive for wishing shore leave, are determinative of his status as a non-immigrant." United States v. Prince Line, 2 Cir., 1951, 189 F.2d 386, 389; see also Brownell v. Gutnayer, D.C.Cir.1954, 212 F.2d 462; President of United States ex rel. Feretic v. Shaughnessy, D.C.S.D.N.Y.1954, 122 F.Supp. 739.
Petitioner was duly admitted to the United States as a non-immigrant. The immigration authorities were placed on notice that his continued stay in the United States was illegal, but they nevertheless permitted him to serve in the United States Army, instead of taking prompt action to compel his deportation. He served honorably in the Army, reaching the rank of Sergeant. Testimony given at the hearing before me indicates that he is a person of good moral character.
Since petitioner has all of the qualifications necessary for naturalization under the provisions of the statute, his petition for naturalization is approved. So ordered.
"* * * notwithstanding the provisions of sections 310(d) and 318 of the Immigration and Nationality Act, any person, not a citizen, who, after June 24, 1950, and not later than July 1, 1955, has actively served * * * honorably, in the Armed Forces of the United States for a period or periods totaling not less than ninety days and who * * * (2) having been lawfully admitted to the United States, and having been physically present within the United States for a single period of at least one year at the time of entering the Armed Forces, may be naturalized * * *." § 1440a.