Petition of Di Franco, 339 F. Supp. 414 (S.D.N.Y. 1972)

Joseph L. Belvedere, Brooklyn, N. Y., for petitioner.

Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, for the United States; Stanley H. Wallenstein, and Joseph P. Marro, Special Asst. U. S. Attys., of counsel.

MacMAHON, District Judge.

Petitioner moves for an order changing the date of his naturalization from March 8, 1971 nunc pro tunc to May 5, 1963.

It appears that petitioner, now 24 years old, was the minor child of a United States citizen in May 1963 and, as such, was eligible for naturalization upon application of his citizen father. 8 U.S.C. § 1433(a). His father, however, never made such an application. Nevertheless, petitioner lived most of his life under the mistaken belief that he was a United States citizen. When informed that he was not, he applied for naturalization and was naturalized on March 8, 1971. Thereafter, petitioner was discharged from the New York City Police Department because he was not a citizen in 1967 when he applied for employment.

A nunc pro tunc order may be made to record some actual fact which has gone unrecorded through inadvertence or mistake, so that the order takes effect as of the date the fact actually occurred. However, it is not the function of a nunc pro tunc order to antedate the actual performance of an act, to supply facts which never existed, or to embody a fiction that something which never happened did actually occur. Maney v. United States, 278 U.S. 17, 49 S. Ct. 15, 73 L. Ed. 156 (1928); Matthies v. Railroad Retirement Bd., 341 F.2d 243 (8th Cir. 1965).

In seeking to have his naturalization predated to 1963, petitioner would have us supply facts that never existed. Petitioner's father never made any application for naturalization of his son in 1963, and petitioner did not undergo the necessary investigation nor take the oath of allegiance until his actual naturalization in 1971. No alien *415 has a right to naturalization without compliance with all of the statutory requirements. United States v. Ginsberg, 243 U.S. 472, 37 S. Ct. 422, 61 L. Ed. 853 (1917). Although petitioner was eligible for naturalization in 1963, he did not comply with any of the statutory requirements and, thus, did not acquire the right to naturalization in that year.

Therefore, although we sympathize with petitioner's plight, this motion for an order antedating the actual occurrence of his naturalization must be denied.

So ordered.