OLIVER J. CARTER, District Judge.
Petitioner is a native and citizen of the Republic of the Philippines. He was admitted to the United States on October 2, 1959, as a temporary visitor under the provisions of Section 101(a) (15) (B) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101(a) (15) (B). He has never been admitted to the United States for permanent residence; however, petitioner urges that his honorable service in the United States Navy qualifies him for naturalization.
Petitioner's principal argument is that he meets the conditions of Section 329 of the Immigration and Nationality Act of 1952, 66 Stat. 250, 8 U.S.C.A. § 1440; and, secondarily, urges that he fulfills the conditions of Section 324 of the Nationality Act of 1940, 54 Stat. 1149, 8 U.S.C. (1940 ed.) § 724
The apposite part of Section 329 states:
The record furnished by the United States Navy establishes that the petitioner enlisted in the United States Navy on the 13th day of July, 1917, at Olongapa, Philippine Islands; that he reenlisted on the 11th day of August, 1924, at Cavite, Philippine Islands; that on August 2, 1928, he reenlisted in the Navy aboard the USS Mississippi at Seattle, Washington; that he served honorably in the Navy until August 1, 1932, when he was discharged; that on October 12, 1932, he again enlisted at Cavite, Philippine Islands. This hitch carried him forward until November 11, 1937, when he was "transferred to the U. S. NFR and released from active duty honorably." He remained in this status until he was recalled to active duty by the Secretary of the Navy pursuant to statutory authority on December 16, 1941. He was subsequently released from active duty on January 25, 1947. He was placed on the permanent retired list on October 1, 1951. The only connection between petitioner's 1928 enlistment in the United States and his service during World War
The question for resolution is whether or not petitioner's enlistment in the United States in 1928 fulfills the requirements of the statute. Admittedly, he served the United States in the United States Navy between September 1, 1939, and December 31, 1946. But, the narrower question is whether the enlistment leading to such service was in the United States, and further whether Section 329 requires some nexus between the enlistment in the United States and the alleged qualifying period of service. It is petitioner's contention that no connection is required while the government's position is contrary.
Section 329 requires that the "enlistment or induction of such person shall have been in the United States." Petitioner was recalled to active duty from an inactive status. The basis of the inactive status was based upon an honorable discharge from active duty on November 11, 1937. That active duty was based upon a voluntary enlistment at Cavite, Philippine Islands, on October 12, 1932. No enlistment or induction occurred in the United States in connection with any service in the United States Navy between 1939 and 1946, and, therefore, petitioner has not brought himself within Section 329.
Research does not disclose any judicial interpretation of Section 329 which is directly in point on the facts of this case. The cases are clear that enlistment or induction in the Philippines Islands is not enlistment or induction in "the United States, the Canal Zone, American Samoa, or Swains Island" as those terms are used in Section 329. See Petition for Naturalization of Garces, D.C.N.D.Cal. 1961, 192 F.Supp. 439, 440. In cases where enlistment took place in China and Australia prior to the alleged qualifying military service it was held that there had been no "enlistment or induction" within the scope of Section 329. See In re Petition of Lum Sum Git, D.C.E.D. N.Y.1958, 161 F.Supp. 821, and In re Naturalization of Hai Guan Han, D.C. S.D.N.Y.1959, 178 F.Supp. 199, 200. In the latter case the court said at page 200:
While these cases do not concern a situation where the applicant for citizenship had had an enlistment in the United States prior to the enlistment outside the United States which preceded his qualifying military service, they do indicate that the statute cannot be extended to cover situations which do not fall fairly within its ambit. The situation here is comparable to that in Tak Shan Fong v. United States, 359 U.S. 102, 79 S.Ct. 637, 3 L.Ed.2d 662. There the court was construing the Act of June 30, 1953, C. 162, 67 Stat. 108, 8 U.S.C.A. § 1440a, an Act with a comparable purpose, which was designed to facilitate the naturalization of aliens who served in our armed forces during the general period of the Korean conflict. That statute permitted the naturalization of aliens serving in the armed forces for at least ninety days during the prescribed period, "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." The question there was whether the applicant had the required period of physical presence before entering the armed forces. He had had a prior legal entry but his
It is ordered that the petition for naturalization be, and the same is hereby denied.