BARNES, Circuit Judge:
Appellant appeals from a judgment of the district court denying his petition for naturalization.
Appellant honorably served in the armed forces of the United States on an active duty status from August 1, 1957 to July 31, 1959, and has since served in the Army Reserves. He petitioned for naturalization under the provisions of 8 U.S.C. § 1439.
A naturalization examiner, acting under the authority of 8 U.S.C. §§ 1443 and 1446, and, thereafter the district court, acting pursuant to 8 U.S.C. §§ 1421 and 1447, both concluded that the petition should be denied because the petitioner had not been lawfully admitted to the
This court has jurisdiction on this appeal under 28 U.S.C. § 1291.
The issue here is: Must a petitioner under § 1439 have been lawfully admitted to the United States for permanent residence for his petition to be granted?
We believe and hold that he must. The decision below is affirmed.
The applicable case law supports such a determination. In Tak Shan Fong v. United States, 1959, 359 U.S. 102, 104, 79 S.Ct. 637, 639, 3 L.Ed.2d 662, the Supreme Court expressly stated that § 1439 "provides no exemption from the requirement that they have been `lawfully admitted to the United States for permanent residence.'" This was only dictum, as the Court was there giving examples of the varying degrees of liberality with which Congress has treated different groups of alien servicemen. Yet, this statement is entitled to some weight. In Aure v. United States, 9 Cir. 1955, 225 F.2d 88-89, this court also made such a categorical statement, agreeing with the district judge who had so held. Although the court of appeals ultimately found for the petitioner on a different issue not raised below, this statement is entitled to weight. In In re Naturalization of Fernandez, N.D.Cal. 1961, 196 F.Supp. 107, 108, Judge Oliver J. Carter held that a petitioner under § 1439 must satisfy that requirement of § 1429. In United States v. Rosner, 1 Cir. 1957, 249 F.2d 49, 51, the court categorically made the same statement, although the statement played only a minor role in its decision, which was basically on another issue. In United States v. Aronovici, 7 Cir. 1961, 289 F.2d 559, 561, the court, in deciding the same issue raised in Rosner, quoted at length from Rosner with approval, including the categorical statement that § 1429 was applicable to and limited § 1439. In In re Jocson, D. Hawaii 1954, 117 F.Supp. 528, Judge Wiig as well as the parties apparently assumed that § 1429 applied to § 1439, although the case was decided on a different issue.
Finally, the regulations enacted pursuant to the Act make the same assumption. 8 C.F.R. § 328.1.
In face of this authority, appellant advances several arguments. One is that a phrase in § 1439 ("and without having been physically present in the United States for any specified period") exempts § 1439 from the requirement of § 1429. Literally read, this could be true, for if one never need be physically present in the country, he need never have been lawfully admitted. However, in the light of past legislation, this interpretation urged by appellant does not appear to be necessary. The residence requirements from which petitioners under § 1439 are exempted are those listed in 8 U.S.C. § 1427 (a).
Secondly, appellant contends that the third sentence of § 1429 indicates that the lawful admission requirement of § 1429 does not apply to § 1439. That sentence reads:
Appellant contends that since neither § 1438
With this we cannot agree. Section 1438(b) expressly requires that the petitioner must have been lawfully admitted to the United States for permanent residence. That is entirely inconsistent with the argument urged by appellant. In addition, the "except" clause should probably be read as meaning only that proceedings pursuant to §§ 1438 and 1439 should not be delayed by any deportation proceedings. Such is the interpretation given the except clause in Application of Chin King, S.D.N.Y. 1954, 124 F.Supp. 911, 912, and in In re Petition for Naturalization of Yow Leslie Chung, E.D.N.Y. 1961, 199 F.Supp. 566, 567.
Thirdly, appellant argues that since the predecessor of § 1439 was interpreted such as to not require what is now required by § 1429,
Fourthly, appellant cites a footnote in Yuen Jung v. Barber, 9 Cir. 1950, 184 F.2d 491, 497, n. 12, in support of his position that the lawful admission requirement of § 1429 does not apply to § 1439. That footnote, however, was concerned with what is now § 1440,
"(a) A person who has served honorably at any time in the armed forces of the United States for a period or periods aggregating three years, and who, if separated from such service, was never separated except under honorable conditions, may be naturalized without having resided, continuously immediately preceding the date of filing such person's petition, in the United States for at least five years, and in the State in which the petition for naturalization is filed for at least six months, and without having been physically present in the United States for any specified period, if such petition is filed while the petitioner is still in the service or within six months after the termination of such service."
"Except as otherwise provided in this subchapter, no person shall be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this chapter."
Appellant does not here contend that he was so lawfully admitted. When he entered this country he was immediately placed under detention as an excludable alien.
Nor does the government here contend that reserve duty following active duty does not satisfy the requirement in § 1439 that the petitioner have "served honorably * * * for * * * three years," thus apparently acquiescing in the decisions in United States v. Aronovici, 7 Cir. 1961, 289 F.2d 559, and United States v. Rosner, 1 Cir. 1957, 249 F.2d 49.