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April 13, 1946


The opinion of the court was delivered by: LEAVY

This is a proceeding in habeas corpus, whereby the petitioner, Sylvester Joseph Schneider, seeks his discharge from an order directing that he be deported to Canada.

The petitioner herein, on the 29th day of August, 1945, was ordered deported to his native country of Canada by the Board of Immigration Appeals, after a hearing upon a warrant charging that he had more than once been convicted for crimes involving moral turpitude. 8 U.S.C.A. § 155.

 The petitioner was born December 31, 1917, in the Dominion of Canada. He entered the United States at Portal, North Dakota, on December 19, 1920, when he was not quite three years of age. He accompanied his father and mother and other minor brothers and sisters. He has resided continuously in the United States since the date of entry.

 An agreed statement of fact has been submitted and made a part of the record, a summary of which is as follows:

 Petitioner's father, Frank Schneider, was born in Russia on March 27, 1884, and first came to the United States on November 5, 1906, his entry being in compliance with the then existing law. In the spring of 1907, he filed a declaration of homestead, making commutation proof thereon in 1908. In 1913 he went to Canada, accompanied by his wife and two children, where he remained for seven years, but took no steps to become a citizen of Canada. During the stay of the Schneider family in Canada, two more children were born to them, the youngest of whom was the petitioner herein. The petitioner's father, Frank Schneider, registered under the Selective Service Act, 50 U.S.C.A.Appendix § 201 et seq., for United States military service in 1917, at Burdette, Sackatchewan, Canada, and was by his United States draft board granted an exemption because of his family.

 On November 7, 1920, the petitioner's father, mother and the four children, one of whom was the petitioner, returned to the United States by way of Portal, North Dakota, a designated port of entry for immigrants. The father presented to the Immigration Inspector at that port his final proof of homestead for the lands in Perkings County, South Dakota. Upon such showing the Immigration Inspector admitted him to the United States and no record of arrival of the father or any member of the family was made at that time, both the Immigration Inspector and the petitioner's father assuming that the father was a citizen of the United States.

 On December 27, 1928, when petitioner's father discovered his patent to the government homestead land had been granted to him upon his declaration based upon his first entry to the United States, and did not confer citizenship upon him, he filed a second declaration of intention at Aberdeen, South Dakota, alleging his first entry at Portal, North Dakota in 1906. He was thereupon advised by the immigration authorities that, due to his seven years residence in Canada prior to 1920, he would have to base his declaration of intention upon his re-entry into the United States, and on April 24, 1935, he filed with the Immigration Service his application for registry as an alien, making the showing in the application required by the then existing law. 8 U.S.C.A; § 728. This application was made by the father alone. In due time it was granted, and he was issued a certificate of arrival nunc pro tunc, as of November 7, 1920. On the 26th day of May, 1936, in the 5th Judicial Circuit of South Dakota at Aberdeen, a State Court, he was granted his final naturalization papers.

 During all of the time subsequent to the father's arrival in the United States upon his second entry, to and after the time of his naturalization, the petitioner was a minor child living with his parents in the care and custody of his father and mother, and his name was listed in the naturalization proceedings of his father as a minor child so residing with him. The petitioner was over the age of eighteen years at the time of the naturalization of his father.

 Subsequent to the petitioner's father's naturalization, on the 17th day of November, 1938, and again on the 10th day of May, 1941, the petitioner was convicted of public offenses involving moral turpitude, subjecting the petitioner to deportation proceedings if he were not in fact a citizen. By reason of these convictions a warrant of deportation was issued on August 29, 1945, by the Immigration Service, directing that the petitioner be deported, and thereafter appropriate proceedings were taken and hearings had, and he was ordered deported to Canada. Upon an appeal from this order to the Board of Immigration Appeals, the decision of the presiding inspector of the Board was affirmed, following which the proceedings herein were instituted in this court. The foregoing are the facts as agreed to by the parties to this action, and the court finds the facts to be as just recited.

 The law in force at the time of the naturalization of petitioner's father, in reference to derivative citizenship, is found in 48 Stat. 797, and reads as follows:

 'Sec. 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin five years after the time such minor child begins to reside permanently in the United States.'

 It will be noted that, before a person may be entitled to derivative citizenship, such person, while still a minor child, must 'reside permanently in the United States'. The question for determination, therefore, is whether in contemplation of the law the residence of the petitioner can be recognized as a permanent residence. It is a fact that he has at all times continuously resided in the United States since his original entry in 1920.

 Congress has not seen fit to define the term 'permanent residence.' There are numerous decisions dealing with this expression, and without exception they hold that even though the alien may reside physically within the United States, if he be in an excluded class, such residence can not be considered as a 'permanent residence.' In this case we have no issue of an 'excluded class.' The petitioner was in every way qualified for admission if his father at the time he brought him into this country had fully complied with the immigration laws and the regulations, or if the Immigration Inspector at the port of entry had fully performed his duty in requiring the father to produce competent evidence of American citizenship before admitting him. There is likewise little room for doubt, had the immigration authorities properly advised the petitioner's father in 1935, concerning the essential steps to be taken for registry, the petitioner's registry would have been ...

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