United States v. Rolando Reyes Convento

336 F.2d 954, 119 U.S. App. D.C. 35, 1964 U.S. App. LEXIS 4813

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 7, 1964
• Docket: 17805_1
• Status: Published

Opinions

PER CURIAM.

The judgment of the District Court is affirmed. Chief Judge Bazelon votes to' affirm for reasons stated in his opinion; Circuit Judge Burger votes to affirm on the basis of the opinion of District Judge Hart. 210 F.Supp. 265 (D.D.C.1962).

BAZELON, Chief Judge.

Appellee Convento enlisted in the United States Navy in the Philippine Islands in 1953, served continuously until 1957 when he re-enlisted in San Diego, California, and has continued to serve without interruption until the present time. The District Court correctly held he was eligible for naturalization under the expediting provisions of 8 U.S.C. § 1440(a) as one who “served honorably in an active-duty status in the * * * naval forces of the United States * * * during a period beginning June 25, 1950, and ending July 1, 1955,” and “at the time of enlistment or induction * * * [was] in the United States, * * * whether or not he [was] lawfully admitted to the United States for permanent, residence.” ¹ The Government appeals, claiming that both conditions above must, be satisfied by the same enlistment.

Easing naturalization requirements for those who have served our country in wartime is a congressional policy of long standing. It is not simply a matter of reward; it is also a recognition that no further demonstration of attachment to this country and its ideals is necessary. Since appellee’s case is within this congressional aim, the statute should not be read restrictively to bar him unless it is expressly commanded.

The Government argues that the words •of the statute, literally read and against the background of legislative history, require his exclusion. While syntax may be better preserved by insisting that the •enlistment between June 25, 1950 and •July 1, 1955 be the one which occurs in the United States, the words of the statute do not compel it.² And there is no indication in the legislative history “that Congress faced the problem of re-•enlistments.

In the absence of the clearest indication that Congress intended to confer well-merited benefits in arbitrary and niggardly fashion, we must assume that it did not. This is the view adopted by the Court of Appeals for the Ninth Circuit in Villarin v. United States, 307 F.2d 774 (1962), and by Judge Hart below. I therefore join in affirming the judgment.

1 . Among other expediting provisions, no period of residence or specified period of physical presence is required of those who qualify under § 1440. Alien enemies may be naturalized without the loyalty investigation ordinarily required under 8 U.S.C. § 1442.

Most significant, however, is the elimination in § 1440(a) (1) of the requirement that the applicant have been “lawfully admitted to the United States for permanent residence,” since under present law this means exemption from immigrant quota requirements. The yearly Philippine quota is 100; as of January 15, 1984, the waiting list (for all preference categories, including non-preference, see 8 U.S.C. § 1153) was 11,184. U.S. Dept, of State, Visa Office Bulletin No-123 (Jan. 15, 1964).

2 . Nor is the Government’s reading necessary in order to avoid rendering § 1440 (a) (2) superfluous. That section eases naturalization requirements for a 1950-55 veteran who did not enlist in the United 'States if “at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence.” It extends the legislative policy to aliens who have not met the requirements of § 1440 (a) (1) by enlisting or re-enlisting in the United States.

The facts of this case do not require ■consideration whether uninterrupted service between the 1950-55 service and the re-enlistment is a prerequisite for qualification under § 1440(a) (1).