The opinion of the court was delivered by: DAWSON
This case presents the issue as to whether an alien seaman who remained in the United States illegally after the expiration of his seaman's pass, but later served in the United States Army, is eligible for naturalization.
Petitioner, a native and citizen of Italy, seeks to be naturalized pursuant to Public Law 86, Chapter 162 of the 83rd Congress, 67 Stat. 108, 8 U.S.C.A. 1440a et seq.
The Immigration and Naturalization Service recommends that the petition be denied, on the ground that petitioner was not lawfully admitted to the United States.
The following facts are not in dispute:
Petitioner arrived in the United States at Philadelphia, Pennsylvania on or about August 22, 1947, as a seaman aboard the S.S. Rialto. Petitioner was given a 29-day seaman's pass pursuant to the regulations issued under Section 15 of the Immigration Act of 1924, 8 U.S.C.A. § 215.
Petitioner overstayed his leave and remained in the United States without legal authority so to remain.
On April 19, 1951, petitioner was drafted into the United States Army. On May 19, 1952, a warrant of arrest in a deportation proceeding was served upon petitioner, a hearing held, and petitioner paroled. In June of 1952, petitioner was shipped overseas as a soldier in the United States Army. On January 14, 1953, petitioner was honorably discharged from the United States Army at the convenience of the government because of alienage. On February 19, 1953, petitioner was afforded a hearing in his deportation proceeding and was found to be deportable. Petitioner then commenced this proceeding on November 24, 1953.
The record indicates further, without contradiction, that when petitioner was drafted, Selective Service had knowledge that he was an alien illegally in the United States; when petitioner, as a soldier in the United States Army, was shipped overseas, it was with the knowledge of the Immigration and Naturalization Service.
The Immigration and Naturalization Service urges that petitioner was not 'admitted' to the United States within the meaning of the statute. The legislative history of the Act indicates that it was intended to apply to persons who were lawfully admitted either in an immigrant status or in a non-immigrant status, and the fact that events subsequent to their admission deprived them of that status would not be sufficient to deny them naturalization if they had served honorably in the United States Army.
In House Report No. 223, 1953,
which was submitted in connection with the bill which became Public Law 86, adopted on June 30, 1953, 67 Stat., Chap. 162, there is the statement:
'The purpose of the bill is to provide means for the expeditious naturalization of aliens lawfully admitted into the United States as immigrants of non-immigrants, who have served honorably, or are serving in the Armed Forces of the United States during the period beginning June 25, 1950 * * * and terminating on June 30, 1955.'
The Report points out that many thousands of permanently residing aliens have enlisted in our Armed Forces and then states:
'Many more thousands, including those who have temporary residence only (students, visitors, 'treaty merchants' and their children, etc.), have been inducted in accordance with Public Law 51, 82d Congress * * *.'
The Report states, with reference to the bill:
'It contemplated benefits only for the alien who has effected lawful entry, either in an immigrant or nonimmigrant status.'
The Department of Justice recommended that the bill be amended to provide that the serviceman bear the burden ...