The judgment of the District Court is affirmed. Chief Judge Bazelon votes to affirm for reasons stated in his opinion; Circuit Judge Burger votes to affirm on the basis of the opinion of District Judge Hart. 210 F.Supp. 265 (D.D.C.1962).
BAZELON, Chief Judge.
Appellee Convento enlisted in the United States Navy in the Philippine Islands in 1953, served continuously until 1957 when he re-enlisted in San Diego, California, and has continued to serve without interruption until the present time. The District Court correctly held he was eligible for naturalization under the expediting provisions of 8 U.S.C. § 1440(a) as one who "served honorably in an active-duty status in the * * * naval forces of the United States * * * during a period beginning June 25, 1950, and ending July 1, 1955," and "at the time of enlistment or induction * * * [was] in the United States, * * * whether or not he [was] lawfully admitted to the United States for permanent residence."
Easing naturalization requirements for those who have served our country
The Government argues that the words of the statute, literally read and against the background of legislative history, require his exclusion. While syntax may be better preserved by insisting that the enlistment between June 25, 1950 and July 1, 1955 be the one which occurs in the United States, the words of the statute do not compel it.
In the absence of the clearest indication that Congress intended to confer well-merited benefits in arbitrary and niggardly fashion, we must assume that it did not. This is the view adopted by the Court of Appeals for the Ninth Circuit in Villarin v. United States, 307 F.2d 774 (1962), and by Judge Hart below. I therefore join in affirming the judgment.
DANAHER, Circuit Judge (dissenting).
I am deeply sensible of the generosity of spirit which moved my colleagues to affirm the judgment of the District Court which had granted the appellee's petition for naturalization. Mere desire to reward the wartime service of the appellee is not enough, I fear. My reading of the record here and the legislative history of the governing statute do not support the reasons outlined by District Judge Hart in his opinion.
The Government contends and the appellee concedes that he had never "been lawfully admitted to the United States for permanent residence."
The appellee's November 28, 1961, petition for naturalization discloses that
The Designated Naturalization Examiner concluded that Convento is not eligible for naturalization because he had not been lawfully admitted for permanent residence. Moreover, at the time of his 1953 enlistment, he was not in the United States or one of the named outlying possessions.
The 1952 Act in section 310(d) (66 Stat. 239), provided that a person may be naturalized "under the conditions prescribed" and "not otherwise." Section 318 (66 Stat. 244), read: "Except as otherwise provided in this title, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence."
Section 328, (66 Stat. 249), dispensed with certain residence requirements of section 316, (66 Stat. 242), and expedited naturalization for one who at any time had honorably served an aggregate of three years in the armed forces. Additional benefits were provided for one with such service, if such person filed his petition for naturalization while still in the service or within six months of honorable termination of such service. Convento claims his case comes within this general section which in some circumstances entitles a petitioner to qualify "without having been physically present in the United States for any specified period." It would appear, on the contrary, that the language means that an alien who has honorably served for three years in the armed forces may have that time counted toward the requirement for actual residence. The entire three years' period might be spent in overseas service and yet be available to him for naturalization purposes. Section 328(b) still requires that such a petitioner who files under section 328(a) "shall comply in all other respects with the requirements of this title." There is in this section no exemption from the provisions of section 318 of the Act.
Convento would say in any event his entitlement arises under 8 U.S.C. § 1440 (a) (Supp. III, 1961), under which his petition had been filed. Looking first to the 1952 Act, it will be seen that section 329(a), (66 Stat. 250), authorized naturalization benefits for aliens or non-citizen nationals who had served honorably in an active duty status in the armed forces during World War I or World War II. No particular term of service was specified. Under clause (2) of that section, benefits were made available to one who had so served if "at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence." (Emphasis added.)
The following year Congress for the first time turned to the problem of naturalization based upon honorable active duty service during the Korean hostilities. For a limited time and on petition to be filed not later than December 31, 1955, Public Law 86
Convento tells us on brief that he had enlisted in the Philippines pursuant to an agreement effective December 13, 1952, entered into in accordance with Article XXVII of the Military Bases Agreement of 1947 (61 Stat. pt. 4, 4019). The American Ambassador and the Philippine Secretary of Foreign Affairs exchanged notes reciting that the United States Navy might accept for voluntary enlistments of four or six year terms not more than 1,000 Philippine citizens per calendar year with the privilege to qualified recruitees "to extend their enlistments or to re-enlist" for such period as might "entitle them to retirement under existing United States laws, if they elect to do so."
There is no mention in the notes of a possible change in immigration status or of possible later naturalization benefits to recruitees. Naturalization of Korean hostilities veterans was not again examined by Congress until 1959 when Congressman Shelley introduced H.R. 7209 "According Certain Naturalization Privileges to Veterans of the Korean Hostilities." At the hearing on his bill, he explained that in his San Francisco district he had "Chinatown, the Chinese, Filipinos * * * a community of about
The following year the text of the Shelley bill as it had passed the House, was incorporated into Public Law 87301.
The policy of Congress is so thoroughly established and its purpose so clear, I can find no basis for a holding in favor of the appellee. Like several thousand others similarly situated, he has never been "lawfully admitted to the United States for permanent residence." His coming ashore on leave from duty status at San Diego in 1957 and his re-enlistment then and there did not satisfy the requirements of the Act.
We should reverse.
Most significant, however, is the elimination in § 1440(a) (1) of the requirement that the applicant have been "lawfully admitted to the United States for permanent residence," since under present law this means exemption from immigrant quota requirements. The yearly Philippine quota is 100; as of January 15, 1964, the waiting list (for all preference categories, including non-preference, see 8 U.S.C. § 1153) was 11,184. U.S. Dept. of State, Visa Office Bulletin No. 123 (Jan. 15, 1964).
The facts of this case do not require consideration whether uninterrupted service between the 1950-55 service and the re-enlistment is a prerequisite for qualification under § 1440(a) (1).
The Supreme Court commented: the "Act's general provision allowing aliens with three years' armed service at any time to be naturalized free of certain residence requirements provides no exemption from the requirement that they have been `lawfully admitted to the United States for permanent residence.'" (Emphasis added.) Tak Shan Fong v. United States, 359 U.S. 102, 104, 79 S.Ct. 637, 639, 3 L.Ed.2d 662 (1959); United States v. Sison, 272 F.2d 366 (9 Cir. 1959).
Compare Act of June 1, 1948, 62 Stat. 281, 282, adding § 324A which provided benefits to those relying upon World War I or World War II service but which specified that at the time of entlistment or induction such persons must have been in the United States or an outlying possession, "excluding the Philippine Islands." (Emphasis added.)