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IN RE CHIN THLOOT HAR WONG

December 10, 1963

In the Matter of the Petition for Naturalization of CHIN THLOOT HAR WONG in Behalf of Her Adopted Son, Kenneth Wong


The opinion of the court was delivered by: FEINBERG

This case, like so many arising under the immigration and naturalization laws, raises an issue narrow in scope but vitally important to those affected by it. The question is whether a child adopted by a husband and wife, only one of whom is a citizen, can be naturalized upon the petition of the citizen alone.

On April 29, 1963, Chin Thloot Har Wong, a naturalized United States citizen, filed a petition for the naturalization of her adopted son, Kenneth Wong. Kenneth, who is now eleven, was born in Hong Kong and was brought to the United States almost four years ago, as an orphan, with the help of the International Social Service Agency. *fn1" Thereafter, he was adopted by petitioner and her husband, Thlick Yuen Wong, in New York County on December 9, 1959. Since January 29, 1959, the child has resided continuously in the United States with his adoptive parents.

 An earlier petition for naturalization was filed jointly by petitioner and her husband in March 1962, but has since been withdrawn. *fn2" The present application is opposed by the Immigration and Naturalization Service (the 'Service'). The Naturalization Examiner who conducted the preliminary examination has recommended that the petition be denied because (1) the adoptive father failed to join in the petition, and (2) petitioner failed to establish the United States citizenship of the adoptive father.

 Section 323 of the Immigration and Nationality Act (the 'Act') of 1952, 66 Stat. 246 (1952), 8 U.S.C. § 1434, sets forth the criteria for determining eligibility for naturalization of adopted children:

 'CHILDREN ADOPTED BY UNITED STATES CITIZENS

 'Sec. 323(a) An adopted child may, if not otherwise disqualified from becoming a citizen by reason of sections 313, 314, 315 or 318 of this Act, be naturalized before reaching the age of eighteen years upon the petition of the adoptive parent or parents, upon compliance with all the provisions of this title, if the adoptive parent or parents are citizens of the United States, and the child --

 '(1) was lawfully admitted to the United States for permanent residence;

 '(2) was adopted before attaining the age of sixteen years; and

 '(3) subsequent to such adoption has resided continuously in the United States in legal custody of the adoptive parent or parents for two years prior to the date of filing such petition.

 '(b) In lieu of the residence and physical presence requirements of section 316(a) of this Act such child shall be required to establish only two years' residence and one years' physical presence in the United States during the two-year period immediately preceding the filing of the petition. If the child is of tender years he may be presumed to be of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States.' (Emphasis added.)

 There is no dispute as to compliance in this case with the admission, age, custody, physical presence, or residence requirements of the statute. Nor does petitioner challenge here the Examiner's finding with regard to the citizenship of the adoptive father. The question to be decided is whether both adoptive parents must join in filing the petition for naturalization and both must be United States citizens. *fn3"

 The issue before the Court is one of first impression. Both the Service and petitioner contend that the meaning of the phrase, 'the adoptive parent or parents,' which occurs twice in the first paragraph of Section 323(a), is clear, although the clear meaning found by one is diametrically opposed to the clear meaning found by the other. The Service contends that the phrase 'the adoptive parent or parents' means the adoptive parent, and both adoptive parents parent, and both adoptive parents when there are two adoptive parents. *fn4" Petitioner claims that the phrase means either of the adoptive parents when there are two. *fn5"

 Both sides, in effect, urge the Court to resort to the 'plain meaning' rule in construing the statute. Caminetti v. United States, 242 U.S. 470, 490, 37 S. Ct. 192, 61 L. Ed. 442 (1917). Such a facile resolution of the controversy would be most attractive if the Court thought that the construction urged by either of the parties was so clearly correct as to justify invocation of this traditional canon of construction. *fn6" But, it cannot be said that the language in question is unambiguous. Standing alone, the phrase 'adoptive parent or parents' may be construed in a restrictive sense to mean one parent when there is only one adopting parent and both when there are two adopting parents, as urged by the Service, or it may just as logically be construed in a permissive sense to mean either or both, as argued by petitioner. Moreover, Congress within the same Act has treated this problem with greater precision. Thus, some years after Section 323(a) was adopted, *fn7" Congress dealt with the adoption problem in a specialized context. In facilitating the naturalization of foreign born children adopted by certain United States citizens stationed abroad, *fn8" Congress enacted subdivision (c) to Section 323, which provides in part as follows:

 '(c) Any such adopted child (1) one of whose adoptive parents is (A) a citizen of the United States, * * * and (3) whose citizen adoptive parent declares before the naturalization court in good faith an intention to have such child take up residence within the United States immediately upon the termination of such service or employment abroad of such citizen adoptive parent, may be naturalized upon compliance with all the requirements of the naturalization laws except that no prior residence or specified period of physical presence within the United States or within the jurisdiction of the ...


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