Opinion
September 23, 1954.
Moerman Moerman, New York City, George Moerman, New York City, of counsel, for petitioner.
William J. Kenville, Naturalization Examiner, New York City, Counsel for Immigration and Naturalization Service.
This is a petition for naturalization brought under § 330(a) (2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1441(a)(2).
The question presented is whether the petitioner's service as a seaman comes within the purview of this statute which permits, in lieu of continuous residence, service "on board vessels of more than twenty tons burden, whether or not documented under the laws of the United States, and whether public or private, which are not foreign vessels, and whose home port is in the United States * *." Nationality Act of 1940, § 325(a), 54 Stat. 1150, 76th Cong., 3d Sess.
It is conceded that the petitioner has offered sufficient proof of twenty-two months and nine days of valid service within the purview of the statute.
The conceded valid service of petitioner is as follows:
S.S. Haym Solomon 2 months 12 days S.S.W.P. Few 4 months 16 days S.S. George L. Farley 3 months 0 days U.S. Army Transport Service 12 months 11 days
The petitioner's service as master of the S.S. North King, the S.S. Caracas, the S.S. Derecktor and the S.S. Margo comes within the purview of prior decisions involving the application of the statute in question and he is entitled to be credited with the following periods of service:
S.S. North King 8 months 14 days S.S. Caracas 7 months 12 days S.S. Derecktor 11 months 13 days S.S. Margo 9 months 0 days
See Application of Aguirre, D.C.S.D.N.Y. 1950, 90 F. Supp. 668; United States v. Camean, 2 Cir., 1949, 174 F.2d 151.
With respect to the service on the S.S. Margo, the Immigration and Naturalization Service contends that the petitioner's claim lacks validity because the vessel never put to sea and that his services were rendered while the S.S. Margo was being repaired and outfitted, and subjected to trials within the harbor limits of the Port of New York. I feel that this matter is disposed of by the language of Chief Judge Learned Hand in U.S. v. Camean, supra, at page 153, to the effect that the important element is that the alien's service shall expose him to a scrutiny which is the measurable equivalent of actual residence. I think that this was accomplished throughout the petitioner's services on the S.S. Margo.
In addition, the petitioner properly claims, in my opinion, service of seventeen months and twenty-nine days in connection with the duties performed by him in behalf of the United States Army Transport Service and if this amount is allowed, the total accumulated service of the petitioner is substantially more than the statutory requirement of five years or sixty months. The Immigration and Naturalization Service concedes the validity of twelve months and eleven days of the petitioner's service with the United States Army Transport Service. It disputes over five months of that service, due to the fact that the petitioner was not on actual duty on a vessel. In point of fact, the petitioner was compelled to undertake lengthy voyages both for the purpose of assuming his seaman's duties and for the purpose of returning to the United States after being relieved of those duties. I do not believe that the petitioner should be deprived of credit for the time spent during these voyages. Moreover, I feel constrained to add that at the outset of the period in question, the petitioner attended the Transportation Corps School conducted by the United States Government at New Orleans, Louisiana, where he took examinations, obtained an unlimited mate's license, and was afforded the privilege of wearing a special service uniform, and that, during the entire period, he was subject to the control and discipline of the United States Government.
The petition should be granted.