The opinion of the court was delivered by: MADDEN
This matter comes before the Court on a Petition for Naturalization of one, Moy Jeung Dun, a Chinese national who has been in this country since 1928. There are recommendations against granting naturalization by the Department of Immigration and Naturalization and the Naturalization Examiner.
The facts briefly stated are these. The petitioner came to his country on a February 23, 1928 and was admitted by a board of special inquiry under Section 3(6) of the Immigration Act of 1924, 8 U.S.C.A. § 203(6), as the minor son of a Chinese Treaty merchant. The father had been in this country since 1907 and had been admitted to the United States for permanent residence in accordance with the treaty between the United States of America and China of 1880. The examiner argues that admission under such treaty and the Act of 1924 was not for permanent residence and, therefore, the petitioner not coming here for permanent residence but merely for either visitation or commercial privileges extended under the treaty cannot be admitted to citizenship unless his entry is solely for the purpose of immigration.
In the Court's estimation, in order to properly dispose of the matter, it will be necessary to deal somewhat fully with the history of the various Nationality Acts, together with the treaty in existence at the time of the father's entry, in order to bring us down to date and arrive at what we think is the intention of Congress by reason of its most recent enactment of legislation upon the subject.
We come firstly to the Treaty between the United States and China entered into on November 17, 1880, found in Volume 22 of the Statutes at Large at page 826, Article I and Article II thereof being set forth in the footnote.
It can be seen from both the Treaty and the Exclusion Act that Congress was attempting to find that difficult middle ground of encouraging trade and tourists with the nation of China, and at the same time preventing immigration of laborers whose days' hire was so cheap that it would be ruinous to the hard won position of the American laboring man.
This was the status of the law, through treaty and legislative enactment, when petitioner's father arrived in 1907 and from whom petitioner derived his right of entry and residence.
Thereafter, Congress saw fit to adopt what is known as the Immigration Act of 1924, Volume 43 of the Statutes at Large, page 153, and the pertinent sections thereof are set forth in the footnotes hereof.
It can be seen from this particular Act that specific provision was made that immigrants would not be considered as such if they came to this country under certain treaties existing between this country and other nations, and likewise under Section 28(c) of this Act, the petitioner here was specifically disqualified from naturalization.
While the right for petitioner to enter existed under the Treaty of 1880 (supra) and was preserved under the Act of 1924 the right of naturalization, as has been demonstrated, was expressly excluded.
The next step in the legislative history came in 1943.
I think it appropriate to remark at this time that in 1943, we must bear in mind, that this nation was at war- at war with the people of Germany, Italy and their allies in the European theater, and Japan and her allies or subjugated countries in the Pacific or Asiatic theater and with the world in that state and with the Chinese nation considered an ally of this country Congress legislated on this subject. It, by its Act, completely repealed the Chinese Exclusion Act which had stood on our books since 1882; it established a quota of 100 Chinese to enter the country per year as immigrants for the purpose of permanent residence and, if desired, naturalization. And in Chapter 334 of the Laws of 1943, found at 57 Statutes 601, it not only repealed the Chinese Exclusion Act but it specifically provided by Section 303 for the naturalization of 'Chinese persons or persons of Chinese descent'.
There is no mention in that Act whatsoever that the right to be naturalized exists only in those who thereafter come to this country under the provisions of that Act. It would seem logical to the Court that with Congress specifically eliminating the statutory exclusion of Chinese from citizenship, that had been in existence for such a long period of time, that if it desired the right of naturalization to flow to only those who came to this country subsequent to the enactment of the law it would have said so specifically and, as was pointed out by Judge Black, in the United States District Court for the Western District of Washington, in the matter of Chi Yan Cham Louis found at 70 F.Supp. 493 at page 494, when he was speaking of the legislative history of the Act of 1943 said: '* * * In that report it is said: 'The number of Chinese who will actually be made eligible for naturalization under this section is negligible. There are approximately forty-five thousand alien Chinese persons in the United States (continental, territorial and insular). ...