In Re Kempson, 14 F.2d 668 (W.D. Wash. 1926)

John Speed Smith, Chief Naturalization Examiner, of Seattle, Wash.

NETERER, District Judge.

The identical point appears in each case and will be disposed of together. Objection to admission to citizenship is made: (a) The certificate of arrival filed with the petition is a nunc pro tunc certificate as of the time of the arrival of alien. (b) No lawful entry as required by the immigration laws was made, and therefore no legal residence obtained for naturalization purposes.

Section 963, Comp. St., provides that the Bureau of Naturalization and Immigration shall keep books of record wherein the Commissioners of Immigration shall register each alien arriving in the United States after the passage of the act, giving his name, occupation, description, place of birth, last residence, the intended place of residence of the applicant in the United States, date of his arrival, and the name of vessel, if entered through a port, and to give to such alien a certificate of arrival, with the particulars thereof. Section 4352, subd. 2, Comp. St., provides that with the petition for naturalization shall be filed a certificate from the Department *669 of Commerce and Labor, if the petitioner arrives after the passage of the act, giving the date, place, and manner of his arrival, and the declaration of intention shall be attached to and made a part of the petition.

Two distinct acts are prerequisite to a valid petition for citizenship: (1) Inspection and registration upon arrival; (2) the filing with the petition for citizenship in the office of the clerk of court a certificate of arrival and the declaration of intention.

The petitioner Kempson was born in Ireland, 1899, arrived as a seaman on the steamship Antiochus at the port of Seattle, January 4, 1915, and has since resided in the United States or sailed upon United States registry vessels. Upon arrival of the ship, he deserted, did not report to the immigration authorities, was not inspected, did not pay the required head tax until August 26, 1920, on which date he appeared before an immigration inspector for inspection, was examined, and passed. On the following day a certificate was issued as of January 4, 1915.

Joseph Henry Chedore, subject of Great Britain and Ireland, was born June 22, 1892, at Gaston, West Quebec, Canada, arrived March 4, 1919, via Great Northern Railway, at Blaine, Wash., reported for inspection and paid the head tax February 5, 1926, and was given a certificate as of March 4, 1919, and has since resided in the United States.

Joseph Pincus was born December 15, 1894, in Poland, arrived August 26, 1918, via Canadian Pacific Railway boat at the port of Seattle and was inspected and admitted to entry, but no registration was made. He has since resided in the United States. A nunc pro tunc certificate was made as of the date of entry, at about the time of filing the petition.

"Arrival," within the immigration laws, must mean compliance with the requirements entitling a person to entry. See Rhodes v. Iowa, 170 U.S. 412, 18 S. Ct. 664, 42 L. Ed. 1088; Harrison v. Vose, 50 U. S. (9 How.) 372, 13 L. Ed. 179. The petitioner had not "arrived" in the sense contemplated by the law, supra, until he had passed the required examinations to determine whether he belonged to the excluded classes. See Zartarian v. Billings, 204 U.S. 170, 27 S. Ct. 182, 51 L. Ed. 428; U. S. v. Ju Toy, 198 U.S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Nishimura Ekiu v. U. S., 142 U.S. 651, 12 S. Ct. 336, 35 L. Ed. 1146. "Arrival" was not effected until entry was made and legal residence begun. See U. S. ex rel. Randazzo v. Tod (C. C. A.) 297 F. 214. No power or discretion is lodged with the Department of Labor to abrogate any of the requirements of the law. Citizenship is the highest privilege which can be conferred, and the laws granting this privilege should be strictly construed and followed, and such intent is made manifest by the Congress by its progressive legislation: (1) Arrival or entry and registry of certain facts required of each alien; (2) the giving of 90 days' notice, before hearing, by the clerk upon filing of the petition for naturalization, affording the Bureau of Naturalization opportunity to make satisfactory inquiry. The starting point is the entry, evidence of which is registry and certificate. It is also evidentiary as to whether applicant is within the excluded classes (section 4289¼b, Comp. St.) and identity of the alien for the period of continuous residence required. "The filing of the certificate of arrival being a matter of substance, it is clear that no power is vested in the Naturalization Bureau to dispense with it." U. S. v. Ness, 245 U.S. 319, 38 S. Ct. 118, 62 L. Ed. 321. It being a matter of substance vital to the hearing, it may not be supplied by the Department of Labor by nunc pro tunc order. The purpose of the registration, no doubt, was inspired by reason of experience and investigation that the widespread frauds in naturalization were, in a large measure, due to the great diversity in local practices and the carelessness in discharge of official duties in this connection, and the prevalence of perjury in naturalization cases. U. S. v. Ness, supra. Applicants, however, are not responsible for default of officials in making proper registration when they reported for inspection.

Kempson reported to the Immigration Bureau on the 26th of August, 1920, and should have been registered instead of given a nunc pro tunc certificate of entry. He should not now be made to suffer for this official irregularity, but his legal residence should date from the time of his compliance with the law. Pincus, having reported for inspection, was examined and passed, but no record at the time was made. A nunc pro tunc certificate is proper in his case because it supplies a record which should have been made at the time. Kempson and Pincus should be admitted.

Chedore reported for inspection and paid the head tax on February 5, 1926, was passed and given a nunc pro tunc certificate as of March 4, 1919. He should be registered as of the date of his examination, and passed, February 5, 1926. His legal residence did not commence until he was inspected and passed, and must date from that time. His petition is denied.