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IN RE VACONTIOS

September 30, 1957

Matter of the Petition of Andreas VACONTIOS


The opinion of the court was delivered by: BRYAN

This is a petition for naturalization, under Section 330(a)(2) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1441(a), by an alien seaman who has never been admitted to the United States for permanent residence.

The question presented is whether petitioner, having failed to file a petition for naturalization within one year from the effective date of the Immigration and Nationality Act of 1952, as provided by Section 330(a)(2), is nevertheless eligible for naturalization under that section by virtue of having filed a preliminary 'Application to File Petition for Naturalization' (Form N-400) during the prescribed one year period.

 Petitioner Vacontios is a native and citizen of Greece, fifty years of age. Since July 14, 1943, he has been employed as a seaman on various American vessels of over twenty tons burden. He has never been admitted to the United States for permanent residence but has entered this country on many occasions as an alien seaman.

 Vacontios was eligible for naturalization under § 325(a) of the Nationality Act of 1940, which provided that an alien who had served for an aggregate of five years on board certain classes of American vessels *fn1" could be naturalized without prior admission into the United States for permanent residence. He lost his eligibility when Congress enacted § 26 of the Internal Security Act, 64 Stat. 1015, on September 23, 1950, which amended § 325(a) by adding the requirement of prior admission for permanent residence as a condition precedent to naturalization thereunder. *fn2" Section 330(a)(2) of the Immigration and Nationality Act of 1952, which became effective on December 24, 1952, reinstated petitioner's rights under the 1940 Act for one year, by providing that:

 '* * * any periods of time prior to September 23, 1950, during all of which any person had served honorably or with good conduct for an aggregate period of five years on any vessel described in section 325(a) of the Nationality Act of 1940 prior to its amendment by the Act of September 23, 1950, shall be deemed residence and physical presence within the United States within the meaning of Section 316(a) of this title, if such petition *fn3" is filed within one year from the effective date of this Act. Notwithstanding the provisions of section 318, a person entitled to claim the exemptions contained in this paragraph shall not be required to establish a lawful admission for permanent residence.'

 Section 330(a)(2) was drafted as a 'special equitable provision for * * * alien crewmen' who, like petitioner, had completed five years' sea service prior to September 23, 1950 and whose rights had been cut off by the Internal Security Act of 1950. *fn4" Petitioner clearly falls within the class sought to be benefited by that section.

 Pursuant to the Immigration and Naturalization Service regulations, 8 C.F.R. §§ 334.11 (1952 Ed.), petitioner commenced his naturalization proceedings on November 24, 1953, *fn5" by filing the preliminary 'Application to File Petition for Naturalization' (Form N-400) with the Immigration and Naturalization Service. On December 4, 1953, a notice to appear on December 8 for the purpose of filing a petition for naturalization was forwarded to petitioner in care of American Chandlers, 15 Moore Street, New York City, the address set forth on his application. American Chandlers were the operators of the vessel S. S. George M. Culucundis on which petitioner was then employed as a deck engineer. When the notice to appear was received at American Chandlers petitioner was no longer in this country, having departed on a foreign voyage aboard the S. S. George M. Culucundis on December 1, 1953. The notice was relayed to the master of petitioner's vessel while it was passing through the Canal Zone and the following cable was sent by the master to the Immigration and Naturalization Service in New York:

 'Andreas Vacontios file number 2930941 is member of my crew now at sea on foreign articles for a period of six months please grant him waiver to file petition for citizenship upon return from foreign Stop. If this impossible extend waiver till December thirtieth this year

 'Master George M. Culucundis'

 The Service received the above cable on December 16, 1953. The signature 'Master George M. Culucundis', led the Service to conclude that George M. Culucundis was the name of the master rather than the name of the vessel. Consequently they erroneously believed that no return address had been furnished and deemed it impossible to send a reply. It also appears from an office memorandum that there was doubt that the Service was authorized to bear the cost of a reply cable. As a result, a letter dated December 16, 1953, was sent to petitioner, in care of American Chandlers, stating that the Service was unable to contact him because 'no address was furnished whereby you might be reached by cable * * *', and informing him that the law under which he was attempting to file a petition was to expire on December 23; that the Service was without authority to grant an extension; and that if the petition was not actually filed before the deadline, petitioner would lose his rights under Section 330(a)(2). There is no record of this communication having reached petitioner on or before December 23 and it is very unlikely that it could have. Because of all this Vacontios did not file a petition for naturalization until after the expiration of Section 330(a)(2).

 On these facts the designated naturalization examiner recommended that naturalization be granted, relying on the savings provisions of §§ 405(a) of the Act of 1952, 8 U.S.C.A. §§ 1101 note. However, the Acting Regional Commissioner, after reviewing this recommendation, *fn6" recommended that the petition be denied. He proceeded upon the theory that the literal language of §§ 330(a)(2) required the filing of 'such petition' on or before December 23, 1953; that the filing of the 'Application to File Petition for Naturalization', Form N-400, by petitioner prior to that date, did not comply with the statute and that petitioner had no rights which were preserved by §§ 405(a). The Government asks me to follow the latter recommendation. On the other hand, petitioner contends that by filing Form N-400 prior to the deadline he complied with §§ 330(a)(2) and that he is therefore eligible for naturalization without prior admission for permanent residence.

 In resolving a conflict of this sort it is important to consider the purpose of Congress in enacting the statute under consideration as well as the specific words used by Congress to achieve its desired result. As was stated by the Supreme Court in Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 512, 36 L. Ed. 226, 'it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers'; and again in United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S. Ct. 1059, 1063, 84 L. Ed. 1345, it was said that:

 'There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as a whole' this Court has followed that purpose, rather than the literal words.'

 These rules have arisen from a recognition that words may often be misleading or ambiguous and that it would be unrealistic for the courts to fail to take cognizance of this infirmity ...


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