HARRIS, District Judge.
Petitioner, born in the Philippines in 1917, seeks to be naturalized as an American citizen.
From September 11, 1941, until May 15, 1946, he served on active duty in the United States Army, a period of almost five years. He was captured by the Japanese in 1941.
The designated examiner states:
A letter of March 30, 1956, prepared by Walter J. Hewitt, Lieutenant Colonel, Signal Corps, verifies the excellent character of his service. He has recently applied for re-enlistment.
In 1946 while still in the military service petitioner filed his preliminary form for petition for naturalization with the Commissioner of Immigration and Naturalization. Because he was stationed in an area where there was no designated representative, the Department returned the application August 9, 1946.
In 1948 petitioner registered with the American Consulate at Manila seeking an immigrant visa for permanent residence in the United States. The over-subscribed quota precluded his entry. Not until August 15, 1955, was petitioner able to enter the United States where he has remained ever since. This petition, filed January 5, 1956, enables petitioner to have completed five years of residence in the United States if his service in the United States Army may be counted.
Under 8 U.S.C.A. § 724(d) in the Nationality Act of 1940,
This section is supplemented by Section 2 of the Act:
These sections were repealed by the Immigration and Nationality Act of 1952, but the repealing legislation contained a savings clause, 8 U.S.C.A. § 1101 Note.
This savings clause with the language "or any status, condition, right in process of acquisition * * *" has been construed in a recent decision of the Ninth Circuit. In Aure v. United States, 9 Cir., 225 F.2d 88, the Court held that a person in a status similar to that of petitioner herein is entitled to count his military service by reason of the savings clause. The Circuit Court quoted with approval from the Supreme Court decision in United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615, where the Court stated:
Aure had served in the Navy for more than three years when he sought to obtain his citizenship. He had made no previous application for naturalization. Though the 1940 law had been superseded by the 1952 Act, the Court held that Aure was entitled to count his Naval service in computing his period of residence and that he was eligible for naturalization.
In like manner in the case at bar, DeMayo enjoyed a certain status or condition when he completed his tour of duty in the Army in 1946. This was a substantive right as distinguished from a procedural remedy. Under the then law he was eligible to utilize that service and substantial right in computing the five years of residence required for obtaining naturalization. Despite his diligent efforts to act on his rights in a timely manner he was frustrated (because he was stationed where there was no designated representative), until the present time from proceeding to obtain his citizenship. His status, however, was clearly established, and by reason of the savings clause it survived the repeal of the 1940 Act.
De Mayo is now eligible to become a naturalized citizen of the United States of America.
Accordingly, it is ordered that the petition for naturalization be, and the same hereby is, granted, and petitioner will be admitted upon taking the required oath.
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