Opinion
No. 239.
March 16, 1931. Rehearing Denied April 20, 1931.
Appeal from the District Court of the United States for the Southern District of New York.
Petition by Subhi Mustafa Sadi for naturalization. From an order denying the petition, petitioner appeals.
Affirmed.
The appellant is a native and subject of Syria, who entered the United States on August 1, 1923, at the port of Boston. He came with a quota visa. He had been a teacher in Syria, and intended to study here either at Harvard University or at Columbia. The quota for Syria was exhausted on the day of his arrival shortly before he presented himself for admission. He was not refused admission, however, but was allowed to enter as "quota exempt, admitted as a bonafide student for a period of two years, under Immigration Act of 1921, as extended." He then went to New York, matriculated at Columbia University, and was graduated two years later. In February, 1926, he declared his intention to become a citizen. The Bureau of Naturalization, after investigation, called the attention of the Commissioner of Immigration at Ellis Island to the conditions under which he had been admitted, and such proceedings were had that he was arrested and ordered deported because "he entered the United States without being admitted and charged to the quota allotted to the country of which he is a native, for the fiscal year ended June 30, 1924." On appeal to the Secretary of Labor, the warrant for deportation was confirmed. He then obtained a writ of habeas corpus in the District Court for the Southern District of New York, which came on for hearing and was sustained by an order dated August 25, 1926, and he was discharged from custody on the ground that he was quota exempt. No appeal from this order was taken. In April, 1929, he filed his petition for naturalization, and it was denied February 24, 1930, on the ground that his declaration was invalid because he had no legal residence in the United States. This appeal was taken from that order.
Section 4, c. 536, of the Act of March 2, 1929 (45 Stat. 1513 [8 USCA § 377b]), effective July 1, 1929, to supplement the naturalization laws and for other purposes, provides that: "No declaration of intention shall be made by any alien under such Act of June 29, 1906, as amended, or, if made, be valid, until the lawful entry for permanent residence of such alien shall have been established, and a certificate showing the date, place, and manner of his arrival shall have been issued."
Frank J. McEwen, of New York City, for appellant.
Robert E. Manley, Acting U.S. Atty., of New York City (Frank W. Ford, Asst. U.S. Atty., of New York City, of counsel), for the United States.
Before L. HAND, CHASE, and MACK, Circuit Judges.
This appears to be a case of unusual hardship, but the statute above quoted explicitly forecloses any right of the appellant to be admitted to citizenship on his pending petition. We do not now undertake to determine whether or not he was entitled to entry for permanent residence at the time he was admitted at Boston. The fact remains that he was not so admitted, and, while that record stands, he cannot comply with the statute requiring his lawful entry for permanent residence to be established. See In re Wieg (D.C.) 30 F.2d 418.
It is urged that the order sustaining the writ of habeas corpus fixed his status as that of an alien admitted for permanent residence. To the extent that it had the effect of preventing his deportation upon the warrant which had then been issued, it did, of course, lend some color of permanence to his stay, in that he successfully withstood that attempt to deport him, but it did not change in any respect the terms and conditions of his original entry. It simply gave effect to the right he then possessed to remain in this country notwithstanding the order of deportation which had been issued. In respect to his ability to lay an essential foundation for his admission to citizenship, he stands in exactly the same situation he would have been had no warrant for his deportation been issued and no writ of habeas corpus sustained in his behalf. So far as the record shows, the writ was sustained on the ground that this appellant was quota exempt. Proof of residence that may, perhaps, become permanent because this alien was not deportable under a warrant that was issued and may not be deportable at any future time, dependent wholly upon what the future may bring forth, is certainly not the same as proof of his lawful entry for permanent residence. Of course, the order sustaining the writ of habeas corpus neither necessarily involved the determination that he had lawfully entered for permanent residence, nor does it appear that it was based on any such ground.
Order affirmed.
On Petition for Rehearing.
The petitioner is mistaken in the belief that we held the certificate of admission invalid. Whether it is valid or not, his proof of an essential fact is short. It did not show that he was admitted for permanent residence, and, with the records at Boston as they now stand he cannot prove that he was. That makes it impossible for him to prove what was necessary even before the Act of March 2, 1929 (45 Stat. 1512) took effect, In re Wieg (D.C.) 30 F.2d 418, and so we held that he could not be admitted to citizenship on his pending petition, since he could not show that he had in fact been admitted for permanent residence as the statute requires.
Nor can the petitioner take anything from the Act of June 7, 1924 (8 USCA § 228). Subdivision (1) relates wholly to aliens who were not only admitted before June 7, 1924, but were admitted in excess of quota and charged to the quota of a later month; while subdivision (2) applies to aliens admitted before June 7, 1924, under a construction of the Act of May 19, 1921 (42 Stat. 5), required by court decision. But, so far as has been made to appear, his admission as a student for a period of two years was not under any construction of the 1921 act required by any court decision. Subdivisions (3) and (4) so clearly relate to other classes of cases that they cannot possibly apply to him.
Indeed, it is not clear how it came about that he was admitted for two years only as a student, but that limitation was put upon his admission and with that fact he is now faced. He may have been admitted because it was thought that as a student he was entitled to enter temporarily on business or pleasure. It is idle to speculate on the reason now, for, whether it was a good one or not, the conditional entry accorded him was the only one he ever had.
To be sure, his discharge on the writ of habeas corpus did, as we said before, establish his right to remain in this country in spite of the effort then being made to deport him, but, because it did not necessarily require proof that he had been admitted for permanent residence, it now is of no aid to him when he must show that fact as a condition precedent to the validity of his petition for naturalization. See U.S. ex rel. Gentile v. Day (C.C.A.) 25 F.2d 717.
This petitioner would, no doubt, make a desirable citizen, and it is unfortunate that he was admitted, through no fault of his own, in a way which leaves us powerless to grant the relief he seeks. Perhaps Congress will see fit to do what we cannot.
Petition denied.