In re Blechschmidt

291 F. 99, 1923 U.S. Dist. LEXIS 1377

• Court: District Court, E.D. Pennsylvania
• Decided: June 26, 1923
• Docket: No. 47937
• Status: Published

Opinion

THOMPSON, District Judge.

The applicant, a native of Germany, filed his declaration of intention to become a citizen of the United States on August 28, 1911. On June 24, 1921, he filed his petition for naturalization, based on the declaration made in 1911.

Section 4352, Comp., Stat. 1918,¹ provides that a petition for naturalization shall be filed not less than two nor more than seven years after the applicant has made his declaration of intention. The time for filing the applicant’s petition for naturalization, therefore, expired in August, 1918. At that time the United States was at war with Germany, and it appears the applicant had the impression that a petition for naturalization could not be filed while the nations were at war. It is contended on his behalf that paragraph 11 of section 4352 exempts him from the provisions generally applicable and is intended to toll the running of the seven-year limitation for the duration of the war. The paragraph provides as follows:

“No alien wbo is a native, citizen, subject, or denizen of any country, state, or sovereignty .with wbicb the United States is at war shall be admitted to become a citizen of the United States unless he made his declaration of intention not less than two nor more than seven years prior to the existence of the state of war or was at that time entitled to become a citizen of the United States, without making a declaration of intention, or unless his petition for naturalization shall then be pending and is otherwise entitled to admission, notwithstanding he shall be an alien enemy at the time and in the manner prescribed by the laws passed upon that subject: Provided, that no alien embraced within this subdivision shall have his petition for naturalization called for a hearing, or heard, except after ninety days’ notice given by the clerk of the court to the Commissioner or Deputy Commissioner of Naturalization to be present, and the petition shall be given no final hearing except in open court and after' such notice to the representative of the Government from the Bureau of Naturalization, whose objection shall cause the petition to be continued from time to time for so long as the Government may require: Provided, however, that nothing herein eontained shall he taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien; and section twenty-one hundred and seventy-one of the Revised Statutes of the United States is hereby repealed: Provided further that the President of the United States may, in his discretion upon investigation and report by the Department of Justice fully establishing the loyalty of any alien enemy not included in the foregoing exemption, except such alien enemy from the classification of alien enemy, and thereupon he shall have the privilege of applying for naturalization ; and for the purposes of carrying into effect the provisions of this section, including personal services in the District of Columbia, the sum of $400,000 is hereby appropriated, to be available .until June thirtieth, nineteen hundred and nineteen, including travel expenses for members of the Bureau of Naturalization and its field service only, and the provisions of section thirty-six hundred and seventy-nine of the Revised Statutes shall not be applicable in any way to this appropriation.”

This amendment of May 9, 1918, to the Act of June 29, 1906, ex-, tended no privilege removing limitation of time to an alien enemy to which he was not entitled prior to the existence of a state of war. It provided for notice of the hearing of the petition to be given to the Bureau of Naturalization, and the right on the part of the bureau by its representative to obtain continuance of the hearing evidently for the purpose of affording time and opportunity for inquiry into the loyalty of the applicant. This is apparent from the provisions authorizing the removal of an alien enemy previous to his actual naturalization, and, upon the establishment of his loyalty, authorizing his being excepted from the classification of alien enemies. The effect of the act was to prohibit the admission of an alien enemy upon a petition filed during the war based upon a declaration of intention made within two years prior to the war or upon a declaration of intention made during the war unless excepted from these restrictions by presidential action.

There is nothing in the act which affected in any way the rights of the applicant. His declaration was made more than two years before the declaration of war and less than seven years before that time. He had a right to file his petition, therefore, as did any other applicant within the seven year period. Not having done so, his petition, filed more than seven years after his declaration, is void and of no force and effect.

It is therefore ordered that the petition be dismissed without prejudice.

1 Comp, gt, Ann. Supp. 1919.