The opinion of the court was delivered by: GOURLEY
The petitioner, Emilio Leal Garcia, was naturalized in this court on June 1, 1938, and had issued to him Certificate of Naturalization No. 4505296. By his present petition, he now seeks to have this court change or correct the name as now appears on the naturalization records of this court to 'Emilio Leal.' The Government has filed an answer denying petitioner's right to such amendment.
This court did not have the opportunity of hearing the petitioner testify for the reason that the petition was filed on March 28, 1945, said proceeding having been heard on July 3, 1945, by the late Honorable Judge F. P. Schoonmaker who died piror to his adjudication of the issue joined therein.
The proceeding was duly assigned to this court who heard arguments of counsel on March 5, 1946. Suggested Findings of Fact and Conclusions of Law had been filed a short time subsequent to the hearing held on July 3, 1945, and this court in its discretion agreed to make disposition of the case on the record as it previously existed. This has been done in accordance with Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c.
The following are the material and undisputed facts as disclosed by the petition and answer, and also by the testimony of petitioner given in the due course of the hearing upon his petition:
The petitioner was a native of Spain and arrived in the United States on November 24, 1920, at the Port of New York, New York, under the name of Leal Emilio, his certificate of arrival being Number 48752. On the 20th day of May, 1936, he filed his application for a certificate of arrival together with his declaration of intention to become a citizen. In this form, he set forth that he had arrived in this country in November of 1920, under the name of Emilio Leal Garcia, although the official records of the Immigration and Naturalization Service certify he arrived under the name of Leal Emilo. In the declaration of intention he set forth that the name of his father was Ciriaco Leal, and that the name of his mother was Aurea Garcia. This form was signed and sworn to as Emilio Leal Garcia.
On April 7, 1937, the petitioner filed his preliminary form for petition for citizenship, and set forth that he had arrived in this country on November 24, 1920, under the name of Leal Emilo. He explained in this petition that he had used the name Emilio Leal Garcia since his arrival for the reason that he had been told he should use his mother's maiden name, Aurea Garcia. In the statement of facts form to be used in filing the petition for citizenship, he set forth his name as Emilio Leal, also known as Emilio Leal Garcia. In answer to the question as to what his desire was, 'If you wish to have your name changed, give full name you desire'? the name Emilio Leal was first written, but the original application appears thus: (EXAMPLE-OMITTED)
This form after the scratch out was signed Emilio Leal Garcia.
His petition for naturalization was filed in this court on September 14, 1937, Docket Number 107060, and he set forth therein his name as Emilio Leal, known as Emilio Leal Garcia, and that he had arrived at the Port of New York on November 24, 1920, under the name of Leal Emilo. In the prayer of this petition he asks that he may be admitted to citizenship, and that his name be changed to Emilio Leal Garcia. He signed this petition Emilio Leal and Emilio Leal Garcia.
In connection with the affidavits of witnesses, the two individuals, who certified as to their acquaintanceship with the petitioner, stated that in one instance he had been known as Emilio Leal or Emilio Leal Garcia since 1923, and the other witness had known him as such since March 12, 1939.
On the basis of the above facts, citizenship was granted on June 1, 1938, under the name of Emilio Leal Garcia.
The comments which I have hereinabove made were taken from the official court records, and I will now refer to the testimony presented in support of the petitioner's claim to correct his name from 'Emilio Leal Garcia' to 'Emilio Leal.'
Although the petitioner was naturalized on June 1, 1938, he did not realize his name was not certified as Emilio Leal until he went to vote sometime in 1939. He was later involved in an accident which hospitalized him for six months. After that time his inattention to the matter was purely neglect which continued until the proceeding now under consideration was filed on March 28, 1945.
After the entry of the petitioner on November 24, 1920, until his naturalization on June 1, 1938, he continuously used the name Emilio Leal and said name appears on the birth certificate of his child, his marriage certificate, his social security registration, in the conducting of his business and financial affairs, and this action also continues to the present time.
He also contends that he never requested his name to be changed to Emilio Leal Garcia and that where the request appears in his petition for citizenship, such reference was inadvertently set forth and a mistake of the ...