reason existed to justify the statute's gender discrimination. By retroactively applying Section 1993's remedy of inclusion to the defendant, the court would be promoting the prohibition against gender discrimination. Thus, the second Chevron factor favors the retroactive application of Section 1993's remedy.
(c) The retroactive application of including mothers under the coverage of Section 1993 will not produce substantially inequitable results since foreign-born offspring of United States fathers born before 1934 will retain their United States citizenship. Thus, the third Chevron factor also favors the retroactive application of Section 1993's remedy.
56. The court concludes that the remedy for the unconstitutionality of Section 1993 is to retroactively include United States mothers under the statute so that their foreign-born offspring that were born before 1934 would be United States citizens.
(c) Defendant's Citizenship by Birth Defense
57. The court declines the government's request to treat the defendant's affirmative defense of citizenship by birth as a permissive counterclaim under Rule 13(b) of the Federal Rules of Civil Procedure because the parties did not present evidence or argument on the issues of whether the defendant's mother was still a United States citizen when the defendant was born and whether the defendant was still a United States citizen when he entered this country.
58. A person seeking a declaration of citizenship may apply pursuant to Section 341(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1452(a), for a certificate of citizenship from the United States Attorney General based upon statutory authority.
59. A party must have exhausted his or her administrative remedies before a federal district court can issue a declaration of United States nationality or citizenship pursuant to 8 U.S.C. § 1503(a). See Whitehead v. Haig, 794 F.2d 115 (3d Cir. 1986); Linzalone v. Dulles, 120 F. Supp. 107 (S.D.N.Y. 1954).
60. The defendant has not exhausted his administrative remedies since he is currently appealing to the Administrative Appeals Unit of the Immigration and Nationalization Service ("INS") an adverse decision by the District Director of the Philadelphia INS that denied his application for a certificate of citizenship.
61. The court will abstain from resolving the issue of defendant's citizenship by birth so that he can properly exhaust his administrative remedies.
(d) Defendant's Naturalization Certificate
62. The government previously prevailed on counts I and II of its complaint because the defendant's citizenship was illegally procured by his failure to comply with the statutory requirements for naturalization. See, United States v. Breyer, 829 F. Supp. 773 (E.D.Pa. 1993).
63. The defendant's certificate of naturalization must be revoked since his citizenship by that means was illegally procured. 8 U.S.C. § 1451(a).
64. Assuming, arguendo, that defendant is ultimately declared a citizen by birth, his certificate of naturalization is an extraneous document and the revocation of this document will have no effect on his standing as a United States citizen.
An appropriate order follows.
AND NOW, this 20th day of December, 1993, based on the foregoing findings of fact and conclusions of law, IT IS HEREBY ORDERED that:
1. Defendant procured his Certificate of Naturalization illegally.
2. The November 7, 1957 order of the United States District Court for the Eastern District of Pennsylvania admitting defendant to United States citizenship IS REVOKED AND SET ASIDE. 3. Defendant's Certificate of Naturalization No. 7992538 IS HEREBY CANCELED and defendant shall surrender Certificate of Naturalization to the United States Attorney for the Eastern District of Pennsylvania within sixty (60) days of the date of this order.
4. This order shall not prejudice the defendant's right to pursue his claim of citizenship by birth through the appropriate administrative channels.
William H. Yohn, Jr., Judge
© 1992-2004 VersusLaw Inc.