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Price v. United States Immigration and Naturalization Service

filed: April 20, 1992.

JOHN ERIC PRICE, PETITIONER-APPELLANT,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. PET-21298-WAI. William A. Ingram, Chief Judge, Presiding. This Opinion Substituted by Court for Withdrawn Opinion of August 7, 1991.

Before: Robert R. Beezer and John T. Noonan, Circuit Judges and James K. Singleton,*fn* District Judge Opinion by Judge Beezer; Dissent by Judge Noonan.

Author: Beezer

Order AND OPINION

Order

The full court has been advised of the suggestion for rehearing en banc. Judge Beezer rejected the suggestion for rehearing en banc and Judge Singleton recommended rejection. Judge Noonan approved the suggestion for rehearing en banc. An active Judge called for a vote on the suggestion and a majority of active Judges voted not to rehear the matter en banc. The panel resumed control of the case February 25, 1992.

The panel has unanimously voted to grant the petition for rehearing. The opinion filed August 7, 1991 is withdrawn. A new opinion is filed herewith and the clerk shall issue the mandate forthwith. OPINION

BEEZER, Circuit Judge:

John Eric Price appeals the district court's denial of his petition for naturalization. The district court's order was based on Price's refusal to list all organizations with which he has ever been affiliated. Price argues that the Attorney General does not have statutory authority to require him to supply such a list and that such authority would be unconstitutional. We affirm.

I

John Price is a native of England and a citizen of the United Kingdom. He was granted lawful resident alien status in the United States in 1960, and has worked and resided in the United States since then.

On April 21, 1984, Price applied to petition for naturalization. Price answered all questions on the application except Question 18, which reads: "List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society or similar group in the United States or in any other country or place, and your foreign military service. (If none, write 'None.')." In the space provided for an answer to this question, Price wrote "Please see attached statement." The attached statement is a legal brief contending that Question 18 violates Price's First Amendment right of association.

Price answered negatively all parts of Question 19, which asked whether he was or had ever been a member of or associated with the Communist Party, had ever knowingly aided or supported it, or had ever "advocated, taught, believed in, or knowingly supported or furthered the interests of Communism." Additionally, during the course of a preliminary examination before a designated naturalization examiner, Price swore:

I am not and have not been, within the meaning of the Immigration and Nationality Act, for a period of at least 10 years immediately preceding the date of this petition, a member of or affiliated with any organization proscribed by such Act, or any section, subsidiary, branch, affiliate or subdivision thereof, nor have I during such period believed in, advocated, engaged in, or performed any of the acts or activities prohibited by such Act.

At a Further Preliminary Examination, Price, under oath, reaffirmed his answer to Question 19. When the examiner read the text of Question 18 to him, Price responded that he had not had any foreign military service. He also admitted that he had been a member of "any organization," but he refused to answer any further questions on the subject on the ground that they were "overbroad" and violated his constitutional rights.*fn1 Price later swore that he was not consciously thinking of any professional or social organization knowledge of which he intended to keep from the INS.

Price also was given a copy of section 313 of the Immigration and Naturalization Act, 8 U.S.C. § 1424(a), which describes organizations and activities in which participation will bar an alien from being naturalized,*fn2 and swore that he was not and had never been a member of or affiliated with any organization mentioned in that section and reaffirmed the averment made at the first preliminary examination.

On the basis of his refusal to answer Question 18, the district court denied Price's petition for naturalization on the INS's recommendation. On appeal, Price argues that Question 18 exceeds the statutory authority granted the Attorney General by Congress, and that the ...


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