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YIK SHUEN ENG v. INS

November 26, 1971

YIK SHUEN ENG, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

DECISION

BRIEANT, District Judge.

 Petitioner, Yik Shuen Eng, born on December 3, 1967, at Toyshan, Kwangtung, China, came to the United States at the age of ten on June 15, 1948. He entered as a citizen under the name of Den Ark Walk on a fraudulent representation directed by his father that he was the son of one Hen Fong Walk, a citizen of the United States. In actuality, petitioner is the son of Ping Goon Eng. By this fraudulent means, petitioner's father brought his son to live with him in this country. There was then no other way.

 On March 17, 1961, a Certificate of Citizenship (derivative) was issued by respondent. This Certificate was void, for fraud. On August 21, 1961, petitioner married in Hong Kong. Three children were born to this marriage, all of whom are United States citizens by virtue of their birth in this country.

 On April 3, 1967, pursuant to an official program of the Immigration and Naturalization Service, known as the "Chinese Confession Program", in which the Service encouraged persons with false claims of citizenship to surrender their claims and apply for adjustment of status, petitioner voluntarily confessed alienage. On January 20, 1970, his status was adjusted to that of a lawful permanent resident under Section 249 of the Immigration and Nationality Act, 8 U.S.C. § 1259, which provides as follows:

 
"A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under Section 212(a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he --
 
(a) entered the United States prior to June 30, 1948;
 
(b) has had his residence in the United States continuously since such entry;
 
(c) is a person of good moral character; and
 
(d) is not ineligible to citizenship."
 
(Italics added)

 Petitioner now moves for an order to require respondent to calendar his case for naturalization. On May 18, 1971, he filed a petition for naturalization under Section 316(a) of the Act, 8 U.S.C. § 1427(a), alleging that June 15, 1948 was his date of lawful admission to the United States for permanent residence purposes, rather than January 20, 1970, the date of his Certificate under Section 249, quoted supra.

 Petitioner's legal theory is that Section 241(f) of the Immigration and Nationality Act (8 U.S.C. § 1251(f)) validated his originally unlawful entry. Since petitioner had been a continuous resident of the United States, save for a brief departure in 1961, he claims that by the doctrine of relation back, he is now entitled to be naturalized, having fully complied with the residence requirements of Section 316(a) of the Act which provide that a petitioner shall not be naturalized unless, immediately preceding the date of filing his petition for naturalization and after having ...


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