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Thompson v. Immigration and Naturalization Service

May 21, 1964


Author: Duffy

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

DUFFY, Circuit Judge.

This appeal is from an order of the District Court denying appellant's petition for naturalization. Appellant's petition was heard de novo in open court as provided by Title 8 U.S.C. § 1447. This case is here for the second time.

The petition for naturalization herein was filed in 1946. Nearly fifteen years later, the Naturalization Examiner recommended against granting the petition. After a de novo hearing, the District Court, on April 18, 1962, entered an order denying the petition for naturalization. Twelve days later, appellant served a notice that he would appear before the trial judge and present a motion. This motion turned out to be a motion to amend certain Findings of Fact, to strike certain Findings and for a new trial. Appellant's motion was not filed within ten days of the entry of the final order of the District Court.

On December 6, 1962, within sixty days of the denial of the post trial motions, but not within sixty days of the original entry of judgment, petitioner filed a notice of appeal. The Government moved to dismiss the appeal. We held we did not have jurisdiction, and granted the motion to dismiss (318 F.2d 681). The Supreme Court granted certiorari and in a per curiam, five to four decision, reversed this Court and remanded for a hearing of petitioner's appeal upon the merits. Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404.

Petitioner, a Canadian Citizen, was born in 1900. In 1922, he entered the United States on foot at Blaine, Washington, prior to the time immigration guards were assigned to that border. On January 30, 1946, petitioner applied for a certificate of arrival under 8 U.S.C. § 146 et seq., Nationality Act of 1940, and he filed a preliminary form for a petition for naturalization. He indicated his willingness to take the oath of allegiance to the United States and his willingness to bear arms upon behalf of this country. He certified that for more than ten years immediately prior to the statement that he did not believe in "anarchy or the unlawful damage, injury or destruction of property or sabotage." Petitioner certified "I am, and have been during all of the periods required by law, attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States."

Petitioner disclosed a conviction in 1923 and a pardon in 1940. He also disclosed three arrests in Cleveland, all in one day, "Over labor disputes; no fine and no sentence; no costs."

On January 12, 1946, the Immigration and Naturalization Service (INS) certified that Thompson's entry was lawful and that he had been admitted for permanent residence, both being prerequisites for naturalization under the 1940 Act.

Thompson's petition for naturalization was under the 1940 Act. As an alien married to an American citizen, he filed his petition on August 28, 1946 in the District Court under 8 U.S.C. § 710(b). The petition was sworn to and verified by two witnesses as required by the statute. Thompson took the following oath of allegiance:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or a sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign, and domestic; that I will bear true faith and allegiance to the same; and that I take the obligation freely without any mental reservation or purpose of evasion; SO HELP ME GOD. In acknowledgement whereof I have, hereunto affixed my signature."

On January 31, 1947, the Examiner for INS questioned petitioner about his employment by the Industrial Workers of the World (IWW) as editor for the IWW paper. Petitioner answered all questions asked as to the IWW and stated his willingness to supply the Examiner with pamphlets published by the IWW, and to cooperate in any way. He stated he would bear arms on behalf of the United States even if the IWW were in control of the enemy country.

Then followed thirteen years of inaction. The record does not disclose why this petition was placed in mothballs for such a long period of time. At the oral argument before us, in response to a question from the bench, Government's counsel could not even hazard a guess as to the reason for this lengthy period that petitioner was kept waiting.

On July 18, 1960, a new Examiner resumed the questioning. However, the original Examiner was present and participated. For the first time, petitioner was represented by counsel.

Fourteen years after the petition had been referred for examination, the Naturalization Examiner, in May 1961, recommended to the Court that the petition for naturalization be denied. He found that "the petitioner has failed to establish that he has been attached to the principles of the ...

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