Petition of YIU NAM DONN. Appeal of UNITED STATES of America
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Petition of YIU NAM DONN.
Appeal of UNITED STATES of America.
No. 74-1206.
United States Court of Appeals,
Third Circuit.
Argued Sept. 19, 1974.
Decided Feb. 25, 1975.
John L. Murphy, DeWitt R. Dent, Washington, D. C., Robert P. Trout,
Dept. of Justice, Crim. Div., Washington, D. C., for appellant.
Casimir F. Sojka, New York City, Edward L. Dubroff, Brooklyn, N. Y.,
for appellee.
Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
329 of the Immigration and Nationality Act, 8 U.S.C. 1440(a), allows
citizenship to aliens who have served actively in the armed forces during
specific periods of wartime or hostilities. Active duty service during both the
Korean and Vietnamese conflicts is included. In this case, we hold that an alien,
who served actively in Korea after the Korean cease-fire, and who was on
inactive duty during the Vietnamese conflict, does not qualify for citizenship
under 329 of the Act. The contrary holding of the district court1 is reversed.
Yiu Nam Donn, a native of Mainland China, entered the United States in 1952,
as the alleged son of a United States citizen. On the basis of his father's alleged
citizenship, Donn was issued a certificate of citizenship in 1955 under 341 of
the Act, 8 U.S.C. 1452.
Appellee Donn served actively in the military forces from 1958 to 1960 and
was assigned to Korea for one year of that period. Subsequent to his active duty
assignment, he was a member of the standby reserve from 1960 to 1964.2
4
Mr. Donn subsequently learned that his father had not in fact been an American
citizen. Upon learning this information from Mr. Donn, the Immigration and
Naturalization Service cancelled Donn's certificate of citizenship. Donn then
filed this petition for naturalization under 329 of the Act based on his military
service.
Although there are cases construing servicemen's citizenship petitions in a
liberal fashion, no cases have gone so far as petitioner would have us go. 329
of the Act specifically states:
Any person who, while an alien ... has served honorably in an active-duty status
in the military ... forces of the United States during ... a period beginning June
25, 1950, and ending July 1, 1955, or during the period beginning February 28,
1961, and ending on a date designated by ... Executive order ... may be
naturalized ...3 (Emphasis added).
The district court held, and petitioner Donn argues, that this petition comes
within the spirit of the Act for two reasons. The period of the Korean war is
covered by 329. Although Mr. Donn did not serve during that period, he
served in Korea, where tensions continued even after the 1955 termination of
active fighting. Secondly, Mr. Donn argues that during the Vietnam period he
was in standby service, ready to be called up at any time.
This argument must fail because it asks us to rewrite a statute which requires
active duty service during a specified period rather than service in any specific
place or service in the standby reserves.4
We simply cannot agree that the cases construing 329 liberally are helpful to
Mr. Donn. In United States v. Convento, 119 U.S.App.D.C. 35, 336 F.2d 954
(1964) the court affirmed a judgment granting naturalization under 329 of the
Act. The petitioner in that case had enlisted in 1953 while in the Philippines.
Although he had enlisted during the Korean war, his first enlistment had not
occurred within the United States as required by 329. The court granted
naturalization because Convento had reenlisted in the Navy while in the United
States, although after the Korean war had ended. Judge Bazelon's concerning
opinion, relied on by the district court in this case, states:
10
Easing naturalization requirements for those who have served our country in
wartime is a congressional policy of long standing. It is not simply a matter of
reward, it is also a recognition that no further demonstration of attachment to
this country is necessary. Since appellee's case is within the congressional aim,
the statute should not be read restrictively to bar him unless it is expressly
commanded.... 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. 336 F.2d at 954-55.
11
The instant case is distinguishable from Convento where the petitioner
complied with all the requirements of the statute but merely performed the
requirements (enlistment within the United States, and active duty service
during the Korean war) in successive enlistments rather than in one. In this
case, Mr. Donn has not met the requirements of 329. His active duty service
simply did not occur during a period specified by Congress. It is not without
our power to rewrite the statute to encompass Mr. Donn's petition.5
12
The Supreme Court has decided only two cases dealing with servicemen's
petitions. In Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 94
S.Ct. 19, 38 L.Ed.2d 7 (1973) the Supreme Court held that a cut-off date for
naturalization petitions must be strictly construed against the alien despite the
fact that the Court of Appeals had weighed the equities in favor of petitioner.
13
In Tak Shan Fong v. United States, 359 U.S. 102, 79 S.Ct. 637, 3 L.Ed.2d 662
(1959) the Supreme Court held that 329 did not apply where an alien had
unlawfully entered the United States prior to his honorable military service
during the Korean war. Mr. Justice Brennan stated for the Court:
14
Of course, we must be receptive to the purpose implicit in legislation of this
sort, to express gratitude of a country toward aliens who render service in its
armed forces in its defense. But that does not warrant our rationalizing to an
ambiguity where fairly considered none exists, or extending the generosity of
the legislation past the limits to which Congress was willing to go. 359 U.S. at
107, 79 S.Ct. at 641 (emphasis added).
15
It is clear that the instant petition does not fall within the language of 329
which requires active duty during a specified period. In light of the prohibition,
reiterated in Tak Shan Fong, against extending the limits of a statute beyond a
point which Congress was willing to go, we cannot affirm the granting of a
petition which does not come within the scope of 329.
16
For the foregoing reasons, the district court order granting naturalization will be
reversed.
Petition of Donn, 369 F.Supp. 669 (D.N.J.1973)
Mr. Donn is married to a permanent resident alien and is the father of two
children who are citizens by reason of their birth in this country
At oral argument, the government indicated that if Mr. Donn's 329 petition
were denied, he would have had to return to Hong Kong to apply there for
permanent resident status. At the court's request, the government reexamined
Mr. Donn's status. In view of the exceptional nature of this case, Mr. Donn was
not required to return to Hong Kong. The court has been furnished with proof
that Donn has recently been granted permanent resident status. He will be
eligible to apply for citizenship in five years on the basis of his permanent
resident status, or in three years if his wife should become a naturalized citizen
in the interim.
The complete text of 329, 8 U.S.C. 1440(a) provides:
Any person who, while an alien or a noncitizen national of the United States,
has served honorably in an active-duty status in the military, air, or naval forces
of the United States during either World War I or during a period beginning
September 1, 1939, and ending December 31, 1946, or during a period
beginning June 25, 1950, and ending July 1, 1955, or during a period beginning
February 28, 1961, and ending on a date designated by the President by
Executive order as of the date of termination of the Vietnam hostilities, or
thereafter during any other period which the President by Executive order shall
designate as a period in which Armed Forces of the United States are or were
engaged in military operations involving armed conflict with a hostile foreign
force, and who, if separated from such service, was separated under honorable
conditions, may be naturalized as provided in this section if (1) at the time of
enlistment or induction such person shall have been in the United States, the
Canal Zone, American Samoa, or Swains Island, whether or not he has been
lawfully admitted to the United States for permanent residence, or (2) at any
time subsequent to enlistment or induction such person shall have been lawfully
admitted to the United States for permanent residence. The executive
department under which such person served shall determine whether persons
have served honorably in an active-duty status, and whether separation from
such service was under honorable conditions:
Provided, however, That no person who is or has been separated from such
service on account of alienage, or who was a conscientious objector who
performed no military, air, or naval duty whatever or refused to wear the
uniform, shall be regarded as having served honorably or having been separated
under honorable conditions for the purposes of this section. No period of
service in the Armed Forces shall be made the basis of a petition for
naturalization under this section if the applicant has previously been naturalized
on the basis of the same period of service.
4
In 10 U.S.C. 101(22), Active duty is defined as:
"Active duty" means a full-time duty in the active military service of the United
States. It includes duty on the active list, full-time training duty, annual training
duty, and attendance, while in the active military service, at a school designated
as a service school by law or by the Secretary of the military department
concerned.
Standby reserve in contrast is defined by 10 U.S.C. 273(a) as:
The Standby Reserve consists of those units or members, or both, of the reserve
components, other than those in the Ready Reserve or Retired Reserve, who
are liable for active duty only as provided in sections 672 and 674 of this title.
Although Standby Reserve members are eligible for active duty, they are
clearly not on active duty.
The other cases relied on by petitioner are not helpful. In Villarin v. United
States, 307 F.2d 774 (9th Cir. 1962) petitioner complied with all the
requirements of 329 with sequential enlistments. See also In Re Gabriel, 319
F.Supp. 1312 (D.P.R.1970). United States v. Rosner, 249 F.2d 49 (1st Cir.
1957) construed 328, not 329. Although it read 328 in an extremely liberal
manner, this case predated some more restrictive Supreme Court cases infra.
The precedential value of Rosner, therefore, is limited. In Re Sing's Petition,
163 F.Supp. 922 (N.D.Cal.1958) dealt with a different aspect of the statute and
is not relevant here
Although In Re Todorov, 253 F.Supp. 977 (N.D.Ill.1966) does discount the
active duty requirement, we are simply not inclined to follow that case.
