The opinion of the court was delivered by: GOURLEY
This action relates to a petition for naturalization filed by Steve Markiewicz on August 21, 1944.
The Immigration and Naturalization Bureau recommends that citizenship be denied for the following reasons:
1. The petitioner has failed to establish continuous residence in the United States during the period required by law, that is since August 21, 1939.
2. The petitioner has failed to establish that he has been and still is a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States.
Petitioner was lawfully admitted to the United States for permanent residence on November 4, 1913. He was born in a territory formerly a part of Russia which later became a part of Poland. He has continuously resided in the United States since his lawful admission.
A Deportation Order was issued against the petitioner on February 13, 1933. The basis for the Order was that the petitioner was a member of an organization that believed in, advised, and advocated the overthrow by force and violence of the Government of the United States. Said Order is still outstanding and cannot be effected for the reason that deportation to Poland or to Russia was not possible because of the refusal of said countries to issue passports. The Deportation Order was issued on the basis of an Act of Congress which provides, inter alia, that any alien who was at the time of entering the United States, or who has been at any time thereafter, a member of any one of the classes of aliens who believe in, advise, advocate or teach, or who are members of or affiliated with any organization, association, society or group that believes in, advises, advocates or teaches the overthrow by force or violence of the government of the United States or of all forms of law, shall, upon the warrant of the Attorney General, be subject to deportation. 8 U.S.C.A. § 137(a) to (g), inclusive.
It has been the finding of the immigration authorities, and which was the basis for the entry of the Deportation Order, that the petitioner was a member of the Communist Party and engaged in activities which furthered the aims and purposes of Communism. The government does not contend that the petitioner is precluded from being naturalized by virtue of the provisions of Section 305 of the Nationality Act of 1940, 8 U.S.C.A. 705, because of his former membership in the Communist Part. This position is taken by the government for the reason that the petition for naturalization was filed on August 21, 1944, and the petitioner has not been a member of any organization of the character referred to in Section 305 of the Nationality Act during the period of ten years prior to August 21, 1944. In short, the government states that the petitioner is not precluded from being naturalized due to his communistic connections more than ten years ago, but that the Deportation Order based on his communistic activities does bar the petitioner's right to establish continuous residence in the United States, for five years prior to the filing of his petition on August 21, 1944.
The question as to the legality of the Deportation Order has not been raised and no judgment is therefore being passed as to whether or not the order was issued in accordance with the provisions of law. The problem resolves itself into the question as to whether a person who is lawfully admitted to the United States loses his legal residence status for the purpose of meeting the requirements of the Nationality Act at the time that a deportation order is issued and remains outstanding.
One who has entered the United States lawfully may remain unlawfully since the unlawful remaining of an alien in the United States is an offense distinct in its nature from unlawful entry into the United States. Kumaki Koga et ux. v. Berkshire, 9 Cir., 75 F.2d 820.
There is no dispute that the petitioner has lived in the United States continuously with the intention to make this country his permanent residence and domicile.
Residence in the United States for the statutory period required for five years immediately preceding the application for citizenship is jurisdictional under Section 307(b) of the Nationality Act of 1940. United States v. Menichelli, D.C., 65 F.Supp. 738; Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed 311 U.S. 616, 61 S. Ct. 70, 85 L. Ed. 390.
Has the petitioner established continuous residence in the United States during the period required by law, that is since August 21, 1939, as contemplated by Section 307(a) of the Nationality Act of 1940? 8 U.S.C.A. § 707(a).
If Congress had desired, it could have provided that a person subject to an order of deportation shall not be eligible for naturalization. The fact is that Congress has taken no such action although courts have in the past admitted persons to citizenship subject to deportation. The residence required of aliens by the Nationality Act providing for continuous residence in the United States for a stated ...