The opinion of the court was delivered by: WEINFELD
Petitioner, an honorably discharged veteran of World War II, filed a petition for naturalization under section 329 of the Immigration and Nationality Act.
Denial of his application has been recommended by the Naturalization Examiner on the ground that he has failed to establish the requisite good moral character.
Petitioner, a native and citizen of China, entered this country in 1931 as a seaman under a sixty-day permit. He has remained here since. During the pendency of his petition for naturalization, a deportation proceeding was commenced against him under section 241 (a)(2) of the Immigration and Nationality Act of 1952,
on the ground that after his admission as a non-immigrant, he remained in the United States for a longer time than permitted. Upon the hearing, it developed that petitioner had been convicted between 1933 and 1953 on eight occasions of opium smoking, the possession of opium, opium apparatus, hypodermic needle, and the possession of heroin. The charges against him were then expanded to include as a further ground for deportation his convictions for the illicit possession of narcotics.
The Special Inquiry Officer found petitioner deportable by reason of convictions in 1941 and 1953 based upon his illicit possession of narcotic drugs in violation of New York State's laws.
He noted, however, that since petitioner had been in active-duty service in the Armed Forces in World War II, the fact that he had not been lawfully admitted to the United States was no bar to citizenship.
Since action on petitioner's application for citizenship was foreclosed so long as the deportation proceeding was pending,
the Special Inquiry Officer terminated the latter proceeding for the sole purpose of affording petitioner a hearing on his previously filed petition for naturalization. The Special Inquiry Officer based his action on 'appealing humanitarian factors' which he specified as petitioner's presence in the United States for over a quarter of a century; his age, 44 years; the fact that he has a citizen wife; and that he was an honorably discharged World War II veteran with several service citations.
The evidence relied upon before the Naturalization Examiner was essentially that presented before the deportation officer. In substance, it showed the various narcotic convictions from 1933 to 1953; that petitioner had been a drug addict for approximately fifteen years; and that he had resumed the regular use of narcotics after his discharge, at his own request and against medical advice, from the U.S. Public Health Hospital at Lexington, Kentucky, which he had entered as a voluntary patient for treatment and cure of his addiction.
The Naturalization Examiner concluded that petitioner had failed to sustain his burden of showing good moral character 'during a reasonable period of time immediately preceding the date of the petition' (May 14, 1957), and accordingly recommended denial of the petition. The Examiner, however, did not specify just what period he considered reasonable, but found that petitioner 'has habitually used narcotic drugs since his discharge' on October 25, 1956 from the U.S. Public Health Service Hospital.
Two questions are posed: (1) the period during which petitioner is required to establish good moral character, and (2) whether he has failed to sustain his burden of proof by reason of his habitual use of drugs.
As to the first question, section 329(b)(2) of the Immigration and Nationality Act
exempts honorably discharged active service veterans of World Wars I and II, from the five-year residence provision of section 316(a).
Since the period during which an applicant is required to establish good moral character refers back to the residence subsection,
the result of this exemption is the absence of any fixed period of time during which a veteran applying for citizenship under section 329 is required to establish good moral character. The Immigration and Naturalization Service states that 'it has been the standard practice in determining whether the requirement of good moral character has been met to give consideration to petitioner's conduct during a reasonable period of time immediately preceding the date of the petition', but it has submitted no authorities. Court decisions on the subject are sparse. Such rulings as are extant hold that the period of good moral character is to be determined at least from the date of the filing of the petition for naturalization to the date of the hearing.
If this view, most favorable to petitioner, were accepted, his last conviction in February 1953 -- more than four years prior to the filing of his petition, would not necessarily bar citizenship.
The Immigration Service Correctly contends, however, that the test is not conviction of crime but rather good moral character for the required period, and it urges that petitioner has failed to sustain his burden of proof on this issue.
Thus we reach the second question, whether petitioner's habitual use of narcotic drugs,
at and subsequent to the filing of his petition for naturalization, precludes a finding that he is a person of good moral character.
While petitioner's conduct prior to the date of filing his petition may not be used as a basis for denial of naturalization, it may be considered as bearing upon the question of good character within the requisite period.
The Government, in urging denial of petitioner's request for citizenship, relies upon his admission that off and on he has been a narcotic addict for fifteen years; that following his release from the U.S. Public Health Service Hospital in October, 1956, contrary to medical advice, he had resumed the regular use of drugs. When questioned on August 27, 1957 upon the initiation of the deportation charges, he stated he had last used narcotics a week before by sniffing heroin; that he used them on an average of twice a month. At a hearing on September 3, 1957 petitioner sought to disavow his previous answers, saying he had not really meant that he used drugs twice a month but only when someone offered them to him, and that in fact he had not used any since December 1956. However, at a further hearing on October 2, 1957, petitioner, then represented by counsel, acknowledged the truth of the statements made at the first hearing on August 27, 1957. Under this circumstance, the record justifies acceptance of his admissions, twice made, that at, and before, the filing of his petition for naturalization on May 14, 1957, and continuing thereafter at least to the date of the commencement of the deportation proceeding on August 27, 1957, petitioner was using drugs at least twice a month. Indeed, in the light of his addiction over a fifteen-year period it is questionable that his use is so limited.
Up to recent times, whether a drug addict was to be regarded as a criminal or a sick person has been the subject of much controversy.
While the subject is still mooted, the modern view, which finds increasing acceptance among substantial numbers of the medical and legal professions, judges, sociologists and penologists, is that addicts or users are sick persons who require medical treatment
-- in sum, the addict presents a social and a medical problem. Whether this view, entertained principally by members of professional groups, is accepted by the average person is not readily apparent.
But whatever view one takes, the question remains whether the petitioner, as an habitual user of narcotics, has met the requirement of good character which the law demands of those seeking the privilege of citizenship. In deciding the issue of good moral character the Court's individual attitude is not the criterion. The test applied, with its acknowledged shortcomings and variables, depending upon time and place, is the norm of conduct accepted by the community at large.
Indeed the Court must be careful to avoid substituting its ...