JOHN W. MURPHY, Chief Judge.
Patsy Ferro seeks naturalization under § 311 of the Nationality Act of 1940, 54 Stat. 1145, 8 U.S.C.A. § 711 (1940 ed.), now 8 U.S.C.A. § 1430(a).
For reasons hereinafter stated, if the provisions of the Immigration and Nationality Act of 1952, enacted June 27, 1952, but not effective until December 24, 1952,
While § 311(b) reduced the residence requirement it did not lessen the burden on the petitioner of showing good moral character "for at least five years".
In our judgment the weight of authority, reason and principle is in favor of a broader scope of review. "* * * while the statute imposes upon applicants for citizenship the burden of proving five years good character, it does not restrict or limit in point of time, the power of the court to examine petitioner's qualifications for citizenship." In re Balestrieri, D.C., 59 F.Supp. 181, at 182. See, e. g., Molsen v. Young, 5 Cir., 1950, 182 F.2d 480; Ralich v. United States, 8 Cir., 1950, 185 F.2d 784, at page 787; Marcantonio v. United States, 4 Cir., 1950, 185 F.2d 934; Yuen Jung v. Barber, 9 Cir., 1950, 184 F.2d 491, at page 495; In re Ross, C.C.M.D.Pa.1911, 188 F. 685, Witmer, J. (murder second degree) took this position; and see In re Markiewicz, D.C.W.D.Pa.1950, 90 F.Supp. 191, 194.
Sometimes hard cases make bad law. A precedent may become hardened into a principle. An examination of the earlier cases, see notes 7 and 8 supra, suggests that the conduct in question was perhaps not sufficient to prevent the granting of citizenship. Instead of treating the problem as one of insufficiency of evidence to establish or prevent establishment of a fact the court placed its decision in effect on the theory of excluding evidence but, by way of statutory interpretation, treating the five-year period as one of limitation of the scope of review. See e. g., Application of Murra, supra, 178 F.2d at page 673, "The wording of the statute itself leaves little room for doubt. If a five year period is a `minimum requirement' * * * it become 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."
Naturalization is a matter of grace, not of right. Congress may grant or withhold the privilege upon any grounds or without any reason as it sees fit. Terrace v. Thompson, 1923, 263 U.S. 197, at page 220, 44 S.Ct. 15, 68 L.Ed. 255, and see United States Constitution, Art. I, § 8, Cl. 4. They may establish conditions prerequisite to the grant thereof and procedure for determining whether or not such conditions have been met. No alien has any right to naturalization unless all statutory requirements are complied with. Tutun v. United States, 1926, 270 U.S. 568, 578, 46 S.Ct. 525, 70 L.Ed. 738, "* * * in order to safeguard against admission of those who are unworthy, or who for any reason fail to measure up to required standards, the law puts the burden upon every applicant to show by satisfactory evidence that he has the specified qualifications." United States v. Schwimmer, 1929, 279 U.S. 644, at page 649, 49 S.Ct. 448, at page 449, 73 L.Ed. 889.
Once such rules are prescribed courts are without authority to sanction changes or modifications therein. "* * their duty is rigidly to enforce the legislative will * * *." United States v. Ginsberg, 243 U.S. 472, at page 474, 37 S.Ct. 422, at page 425, 61 L.Ed. 853. "* * * Because of the great value of the privileges conferred * * * the statutes * * * are to be construed with definite purpose to favor and support the government." United States v. Schwimmer, 279 U.S. at page 649, 49 S.Ct. at page 449, supra, "Doubts * * should be resolved * * * against the claimant." United States v. Manzi, 1928, 276 U.S. 463, 467, 48 S.Ct. 328, 329, 72 L.Ed. 654.
Congress has declared that before one is entitled to the privilege of citizenship he must by competent evidence make it appear to the court that he has behaved as a man of good moral character. Good moral character is a fact to be determined.
See 3 Wigmore on Evidence, 3d Ed. § 920, "* * * there may be particular instances of conduct * * * from which is inferable the permanent disposition that has inspired them * * *."
(1) "On principle, the correct solution seems to be that prior character at any time may be admitted, as being relevant to show present character * * *."
(2) "Another solution is that prior character should not be resorted to unless for some reason present character cannot be truly shown * * *."
(3) "A third solution altogether excludes prior character.
In our judgment, the proper approach is that of Chief Judge Parker in Marcantonio v. United States, supra, 185 F.2d at page 936, "* * * evidence of offenses committed prior to the five year period * * * could be received and considered with other evidence as a basis for finding that the petitioner had not shown good character within the five year period and at the time of the application * * *." And see Yuen Jung v. Barber, supra, 184 F.2d at page 495, "* * * character in prior periods. * * * is circumstantially relevant as bearing upon petitioner's character during the five year period * * *. But the ultimate fact to be determined * * * is his moral character within the specified period. * * *"
Marcantonio v. United States, supra, 185 F.2d at page 937, "* * * the judge may consider any proper evidence having reasonable tendency to prove or disprove * * * character * * * the fact of petitioner's having committed serious crimes at any time during his life has a bearing on his character * * *"
Yuen Jung v. Barber, supra, 184 F.2d at page 495, suggests that finding prior conduct per se sufficient to preclude citizenship requires a holding "* * * that Congress had enacted a legislative doctrine of predestination and eternal damnation"; that "All modern legislation dealing with crime and punishment proceeds upon the theory that aside from capital cases, no man is beyond redemption. We think a like principle underlies these provisions for naturalization." (Italics supplied.) But see In re Ross, supra, 188 F. at page 686, "* * * if his personal welfare alone was entitled to consideration the conferring * * * rights of citizenship might be considered as proper aid and encouragement. This matter, * * * is not to be determined along such narrow lines. * * *" In re Caroni, supra, 13 F.2d at page 955, "* * * Undoubtedly the interest of society requires the rehabilitation of the criminal * * * but this does not import * * * (bestowal) * * * of * * * citizenship." The liberality shown in the cases in Note 8 supra was as to the offense or conduct which would not preclude awarding citizenship and in allowing reapplication albeit not until five years later.
The view we take more nearly comports with and effectuates the purpose of the naturalization statutes. The contrary view is at variance with the purpose of the statute, nullifies to a certain extent at least, the rule that any doubt must be resolved against the petitioner. See 22 A.L.R.2d at 247; and see Petition of Reginelli, 20 N.J. 266, 119 A.2d 454, at page 456, "We prefer to embrace these latter adjudications as establishing a rule more workable and practical, conducive of sounder and more realistic justice, particularly where, as here, the past may by logical inference illuminate some presently occurring development."
The question is what did Congress intend. In our view the best expression of that intention is indicated by the holding of Marcantonio v. United States, supra. We find additional support for this view in § 316(a) (e) of the 1952 Act, 8 U.S.C.A. § 1427(a, e), "In determining whether the petitioner has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the court shall not be limited to the petitioner's conduct during the five years preceding the filing of the petition, but may take into consideration as a basis for such determination the petitioner's conduct and acts at any time prior to that period." See Commentary, 8 U.S.C.A. p. 79.
And see Id. § 101(f), 8 U.S.C.A. § 1101 (f),
"For the purposes of this chapter—
"No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was—* * *
"(8) one who at any time has been convicted of the crime of murder * * *" See Legislative History 1952, United States Code, Congressional and Administrative News, Volume 2, p. 1739. Also see In re De Angelis, D.C.E.D.N.Y.1956, 139 F.Supp. 779.
Certainly in the 1952 Act Congress expressed its intention, i. e., that a man who committed murder should not become a citizen of the United States. With the light suggested by that unequivocal declaration of congressional intent and by the teachings of the Supreme Court, we hold that in view of the petitioner's conviction of murder and incidentally the fact that he was on parole during a part of the five-year period, the petitioner has not shown good moral character during the prescribed statutory period. The petition will therefore be denied.
See In re Taran, D.C.D.Minn.1943, 52 F.Supp. 535, at page 537, and In re Markiewicz, supra, multiple crimes; United States v. Kichin, supra, 276 F. at page 822, "* * * broken every commandment in the decalogue, and * * * committed every crime in the criminal calendar * * * had seen fit to temporarily reform for five years." Petition of Gabin, supra, and see 22 A.L.R.2d at 253.
In re Balestrieri, supra, (conviction murder) applied the doctrine but awarded citizenship.
Accord: See Morss v. Palmer, 1850, 15 Pa. 51, 56, "It is impossible to fix any precise bound, as each case must depend on its own peculiar circumstances." Cf. Smith v. Hine, 1897, 179 Pa. 203, at page 206, 36 A. 222; Miller v. Miller, 1898, 187 Pa. 572, 590, 41 A. 277.
See Act of 1952, § 212(a) (9), 8 U.S. C.A. § 1182(a) (9), and see Act of 1954 as to certain misdemeanors, 8 U.S.C.A. § 1182(a).