United States ex rel. Aberasturi v. Cain

FRANK, Circuit Judge.

In asserting that relator, on March 27, 1943 was a citizen of the United States, respondent is compelled to take the following position: (1) Respondent admits that, under the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq., which became effective January 13, 1941, a minor child of alien parents, only one of whom was naturalized during the child’s minority, does not become a citizen of the United States by mere length of residence of the child in this country. (2) Nevertheless, says respondent, such a minor, if he began to reside here on January 12, 1941, one day before the 1940 Act went into effect, and if, without more, he continued his residence here for five years — until January 12, 1946 — will become a citizen on that date; for, respondent contends, the one day of residence before January 13, 1941, creates an “inchoate citizenship” which, under the Nationality. Act of 1934, would have ripened into citizenship after five years of continued residence, and such “inchoate citizenship” with such attendant consequences was preserved by the “saving clause” of the 1940 Act.

We do not agree. That “saving clause” preserves merely the “validity” of a “declaration of intention, petition for naturalization, certificate of naturalization of citizenship, or other document which shall be valid” on the effective day of the Act, January 13, 1941, or any “prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing” on that day. We think that this provision does not cover a mere condition, unattended by any affirmative action by the alien or by anyone else. In other words, we do not think that Congress in the 1940 Act intended that the mere fact of residence before January 13, 1941, should operate to continue, for a maximum period of four years and three hundred and sixty-four days thereafter, the precise privilege [and obligation] which would have existed under § 2 of the 1934 Act if the 1940 Act had not been enacted. (We do not need to, and do not here, consider a case where an alien child or someone on his behalf had, before January 13, 1941, taken some affirmative action on the child’s behalf.)

Since relator had not completed five years of residence in this country before January 13, 1941, he was not a citizen on March 27, 1943 when, pursuant to the Selective Training and Service Act, he filed a statement of his election as a neutral alien to be exempt from “liability for training and service” under that Act. Neither his previous registration under that statute nor his previous statement in his questionnaire, “I am a citizen of the United States” constituted a waiver of that statutory right of election; for one who erroneously thought himself a citizen of the United States¹ cannot be regarded as intending to waive a right belonging solely to a neutral alien. And relator’s mistaken assertion of American citizenship could not create that status.

The issue here being the correct interpretation of the statutes, United States ex rel. Brandon v. Downer, 2 Cir., 139 F. 2d 761, and United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944, are not in point. We are not bound by the interpretation of the Naturalization Law given by the Department of Justice.

It follows from what we have said that relator was unlawfully inducted and should be released.

Reversed;

1 As the adult members of the Selective Service Headquarters disagreed with the adult members of the Local Draft Board as to whether relator was a citizen of this country, it is not surprising that relator, still a minor when he filed his questionnaire, made such a mistake.