Imagini ale paginilor
PDF
ePub
[merged small][merged small][ocr errors][merged small]

Acquisition of Nationality

Children of Members of Diplomatic Mission

The Department of State received an inquiry from the Consulate General of Japan at New York about the possible acquisition of United States citizenship by the child of a First Secretary at the Permanent Mission of Japan to the United Nations, born in New York in 1979 after its father, no longer stationed at the Permanent Mission, had already departed from the United States. The Department replied in a letter from H. Edward Odom, Chief, East Asia and Pacific Division, Office of Citizens Consular Services, Bureau of Consular Affairs, addressed to Consul Tetsuo Yamazaki, dated February 6, 1980, that read in part:

The Fourteenth Amendment to the Constitution of the United States provides, in part, that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . ." Therefore, the child would have acquired citizenship unless he or she were not born subject to the jurisdiction of the United States.

Thus, the question... [is] whether the diplomatic immunity extended to Mr.... continued to extend to his wife and newborn child after he left the United States. Under Article 39(2) of the Vienna Convention on Diplomatic Relations, immunity extends to a person entitled to it either until he leaves the host country after the conclusion of his assignment, or until the expiration of a reasonable period of time in which to do so. The Department of State is of the opinion that the only appropriate interpretation of this section of the Convention with regard to the present case is that the reasonable period of time in which to leave the country also applied to the members of Mr. . . .'s household.

As Mrs. . ... was unable to depart the United States prior to the birth of the child, her personal ímmunity extended until she was capable of travelling after the birth of the child. Thus the child was born into a household which still enjoyed the immunities accompanying Mr. . . .'s diplomatic status. Under these circumstances

the child was not born subject to the jurisdiction of the United States and therefore did not acquire United States citizenship.

Dept. of State File No. P83 0154-0478.

The Headquarters Agreement between the United States and the United Nations, signed at Lake Success, New York, June 26, 1947, provides, by sec. 15(2), under Art. V, "Resident Representatives to the United Nations", that such resident members of the staff of a Member's principal resident representative to the United Nations as may be agreed upon between the Secretary-General, the U.S. Government, and the Government of the Member concerned, shall be entitled in the territory of the United States "to the same privileges and immunities, subject to corresponding conditions and obligations", as the United States accords to diplomatic envoys accredited to it. TIAS 1676; 61 Stat. 3416; 12 Bevans, Treaties, etc. (1974), pp. 956, 962.

The Convention on the Privileges and Immunities of the United Nations, adopted by the U.N. General Assembly on Feb. 13, 1946, provides in sec. 11(g), under Art. IV, "The Resident Representatives", that the representatives shall enjoy "such other privileges, immunities and facilities . . . as diplomatic envoys enjoy . . . ." By sec. 16, under the same Article, the expression "representatives" is deemed to include "all delegates, deputy delegates, advisers, technical experts and secretaries of delegations." TIAS 6900; 21 UST 1418, 1428, 1430; entered into force for the United States, Apr. 29, 1970.

The Vienna Convention on Diplomatic Relations, done at Vienna, Apr. 18, 1961, may be found at TIAS 7502; 23 UST 3227; entered into force for the United States, Dec. 13, 1972.

Naturalization

Petition for Naturalization of Hector Raul Javkin, 500 F. Supp. 711 (N.D. Cal. 1980), presented the question, whether the petitioner's earlier invocation of a treaty exemption from military service rendered him ineligible for naturalization under section 315 of the Immigration and Nationality Act, 8 U.S.C. 1426.

A permanent resident of the United States since 1956, Javkin had registered in 1965 under Selective Service and had received a II-S student deferment. Reclassified as I-A (available for military service) in 1967, he had been ordered to appear for a pre-induction physical examination and had then received a notice of induction. After Javkin requested a treaty exemption from compulsory military service (Article X of the Treaty of Friendship, Commerce, and Navigation between the United States and Argentina, signed July 27, 1853, T.S.4, 10 Stat. 1005, 5 Bevans, Treaties, etc. (1970), p. 61), he was notified that the request would render him permanently ineligible to become a United States citizen, and he indicated in writing that he understood this. The induction was cancelled, and no further formal action was taken regarding Javkin's draft eligibility until 1972, when he was informed that he had been given a IV-C classification (alienage exemption).

District Judge Samuel Conti held on October 30, 1980, that Javkin had "knowingly and intelligently waived his right to become a

United States citizen" when he sought an alienage exemption from military service. Relying on Ungo v. Beechie, 311 F.2d 905 (9th Cir. 1963), cert. denied, 373 U.S. 911, Judge Conti rejected Javkin's argument that he had not been made aware of other consequences of seeking that exemption, "notably" a bar to reentering the United States on other than a nonimmigrant basis (section 212(a)(22) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(22)).

The Court found that Javkin had avoided imminent induction by filing his claim to an alienage exemption, had "precluded any further attempts to induct him, and [had] ultimately received an exempt classification." Despite several years' delay in his actual reclassification, Javkin had been "left by the government to function unfettered in this society", and had thus been "relieved" from service under Astrup v. Immigration and Naturalization Service, 402 U.S. 509 (1971).

Judge Conti commented on the delay between cancellation of Javkin's induction in 1967 and the notification of his IV-C reclassification in 1972 as follows:

During the intervening period, there was some confusion as to the availability of a IV-C classification for resident aliens seeking an alienage exemption from the draft. This confusion did not seem to affect whether such an exemption would be honored under the treaties into which the United States had entered, but rather focused upon whether the IV-C class was an appropriate one in which to place resident aliens relying on the treaties for an exemption. The question was finally resolved on December 10, 1971 and Petitioner was formally notified of his reclassification to IV-C status shortly thereafter. In the interim, although the actual classification of Petitioner may have been in doubt, his status as an exempt alien was not.

500 F. Supp. 712.

Current classification rules under the Selective Service System may be found at 32 CFR, Pt. 1630 (July 1, 1985). Eligibility for Class 4-C classification (aliens or dual nationals) is determined according to 32 CFR 1630.42.

In re Petition for Naturalization of Watson, 502 F. Supp. 145, (D.D.C. 1980), involved a nonimmigrant alien student who had enlisted in the National Guard and who after 4 months' training (that made him an active duty United States Army member) continued to serve with his Guard unit in a reserve capacity until honorably discharged. The U.S. District Court for the District of Columbia held on October 2, 1980, that he was entitled to be naturalized under section 329(a) of the Immigration and Nationality Act, 8 U.S.C. 1440(a). Watson, a native of Guyana, had been discharged for inability to produce an Immigration and Naturalization Service alien registration receipt card Form I-151, as required by National Guard regulations. The Form I-151 (superseded in 1976 by a machinereadable Form I-551) was issued only to permanent resident aliens. Watson's service record, despite the discharge, was "entirely satisfactory."

Rejecting the Service's opposition to Watson's naturalization and granting the latter's petition, District Judge John H. Pratt upheld

the petitioner's argument that Congress intended in section 329(a) of the Act to bar naturalization only of those aliens who sought and procured discharge from the Armed Forces by reason of their alienage and not to bar naturalization of those honorably discharged for the convenience of the United States. The legislative history of the provision, Judge Pratt said, supported this contention.

The Court traced the provision from its initial enactment in 1948 through amendments that extended permanent naturalization benefits to Korean War and Vietnam War veterans by changes in eligibility dates. Public Law 87-301, §§ 7, 8, approved September 26, 1961, 75 Stat. 653-654; Public Law 90-633, approved October 24, 1968, 82 Stat. 1343-1344.

By Exec. Order 12081, Sept. 18, 1978, President Carter ordered that the statutory period of Vietnam hostilities that began on Feb. 28, 1961, should be deemed to have terminated on Oct. 15, 1978, for purposes of qualification for expeditious naturalization based on military service. 3 CFR, 1978 Comp. (1979), p. 225.

In re Petition for Naturalization of Juana Mabel Clavijo de Bellis, 493 F. Supp. 534 (E.D. Pa. 1980), involved denial of naturalization upon the petitioner's refusal for religious reasons to take without further qualification the modified oath of allegiance permitted under section 337(a) of the Immigration and Nationality Act, 8 U.S.C. 1448(a).

Under section 337(a) of the Act, if a petitioner is unable for religious reasons to swear that, when required by law, he will bear arms on behalf of the United States or perform noncombatant service in the Armed Forces of the United States, the petitioner may give an oath that excludes these obligations but is in all other respects identical with the required oath, including an obligation to perform work of national importance under civilian direction when required by law. Regulations promulgated pursuant to section 337 provide that the oath must be taken "freely without any mental reservation."

The petitioner, a Jehovah's Witness, was prepared to give the modified oath but subject to further qualification. She was willing to swear, she testified, to perform work of national importance under civilian direction, only if it were not as a substitute for military service, and she herself would decide whether such work were or were not a substitute. She stated that she would obey only those laws that she decided were consonant with her religious beliefs.

In an opinion dated July 15, 1980, District Judge J. William Ditter, Jr., held that the petitioner's refusal to take the modified oath of allegiance without further qualification was "fatal" to her petition for naturalization.

Revocation of Naturalization

War Crimes

In United States v. Fedorenko, 597 F.2d 946 (5th Cir. 1979), reh'g and reh'g en banc denied, 601 F.2d 1195, cert. granted, 444 U.S. 1070 (1980), aff'd on other grounds, 449 U.S. 490 (1981), the United States Court of Appeals for the Fifth Circuit ruled that the district court had erred when holding that the defendant in a proceeding for revocation of naturalization had not procured United States citizenship by concealment of a material fact. The United States Government charged that Fedorenko had concealed material facts, under section 340(a) of the Immigration and Nationality Act, 8 U.S.C. 1451(a), both in his application for an immigrant visa under the Displaced Persons Act in 1949 and in his application for citizenship in 1969.

Ruling on the standard to be applied in determining the materiality of a concealed fact under the statute, the Fifth Circuit reversed the district court on June 28, 1979, and accepted the Government's contention that it need not "prove the existence of facts which, in and of themselves, would have justified denial of citizenship" but only that "the facts which the defendant admittedly misrepresented might, if disclosed, have led to the discovery of other facts which would have justified denial of citizenship."

Based upon its finding of facts, that included the rejection of certain witness identifications, and based upon its reading of Chaunt v. United States, 364 U.S. 350 (1960), the district court had held that the defendant's admitted deception was not material misrepresentation and concealment within the meaning of 8 U.S.C. 1451(a), and that, even if Fedorenko were guilty of making material misstatements and omissions, equitable considerations required the entry of judgment for the defendant. (United States v. Fedorenko, 455 F. Supp. 893, 918-921 (1978); see, also, the 1978 Digest, pp. 337-340.)

Writing for the three-judge panel of the Fifth Circuit, Judge John Minor Wisdom agreed with the Government's contention that "the better analysis is found in United States v. Oddo", 314 F.2d 115 (2d Cir. 1963), cert. denied, 375 U.S. 833 (1963), saying:

*

In that case, the Court of Appeals for the Second Circuit held that a fact suppressed or misstated that would not, in and of itself, have warranted denial of citizenship is material nonetheless if its disclosure would have led the government to conduct an inquiry that might have uncovered other facts justifying denial of citizenship. . . .

« ÎnapoiContinuă »