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GAMBINO v. POMEROY

December 2, 1982

EMANUEL S. GAMBINO, Petitioner,
v.
JAMES J. POMEROY, Acting District Director, Immigration and Naturalization Service, Respondent



The opinion of the court was delivered by: BIUNNO

 BIUNNO, Senior District Judge

 This is a proceeding by a resident alien seeking to be admitted to citizenship by naturalization. Because the procedural history is somewhat unusual, its highlights are noted here.

 The earliest document seems to be an "Application to File Petition for Naturalization", dated March 15, 1976, attached to which is a "Statement of Facts for Preparation of Petition, Section of Law 329" signed by the preparer and the applicant on April 9, 1976 in Dover, Delaware, and sworn to before a Naturalization Examiner in Philadelphia on May 26, 1977. There are two witnesses, Sharon Raciti and Robert Skalsky, with addresses.

 This Application and Statement (Exh. 2, Tr. 3/29/82, p. 66) is 4 pages and shows various written corrections numbered 1 to 38. The affidavit on the last page verifies the truth of the statements in the form as corrected, and the jurat/certification says that before verification, the applicant heard the application and corrections and understood their contents.

 The supplemental form referred to evidently is the first 2 pages of Exh. 3, Tr. 3/29/82 p. 66, only the first page of which was filled out and sent by the Immigration and Naturalization Service to the military for certification of military service. The second page, or back of the sheet, is the certification as filled out and dated November 1, 1977, and the next two pages are a record of Special Court-Martial Order No. 539 of March 11, 1970. The last page shows receipt by INS in Philadelphia on November 15, 1977.

 The Petition for Naturalization itself, only the first page of which is Exh. 1, Tr. 3/29/82 p. 65, was evidently referred to INS in Philadelphia where a "Designated Examiner" administered the oath to the petitioner and both witnesses on May 26, 1977, and the Clerk of the Court in Wilmington endorsed it as filed there on June 1, 1977.

 In any event, on July 11, 1977 petitioner signed an "Application for Transfer of Petition for Naturalization" asking the court in Wilmington to transfer his petition to the court in Newark, N.J. This form indicated that petitioner then lived at 3 Conrow Road, Delran, N.J. It was sworn and subscribed in Camden.

 On August 18, 1977, an order of transfer was signed in Wilmington by Chief Judge Latchum, and on August 30, 1977 an order approving the transfer was signed by Judge Stern in this court.

 This part of the history clears up the questions raised when the matter first came before the court, Tr. 2/22/82, page 2, line 23 to page 11, line 1.

 The next event of record is that on February 2, 1982, petitioner filed another "petition" in this court, which was given Civil No. 82-303, and a 60 day summons issued.*On the same date, a notice of motion was filed returnable February 22, 1982 for an order to INS to conduct a preliminary hearing.

 At that hearing it appeared that the investigation which the statute assigns to INS to make as a basis for a report was not yet completed, but was awaiting a federal Grand Jury investigation for income tax evasion. This implied a "referral" from the Treasury Department to the Department of Justice, see U.S. v. La Salle Nat'l Bank, 437 U.S. 298, 57 L. Ed. 2d 221, 98 S. Ct. 2357 (1978), and the observation about the actual process noted in U.S. v. Garden State Nat'l Bank, 465 F. Supp. 437 (D.N.J., 1979), and later on in U.S. v. First Nat. State Bank of N.J., 469 F. Supp. 612 (D.N.J., 1979). See Tr. p. 11, line 4 to p. 12 line 7.

 The question then was raised by the court whether pendency of such an investigation would present Fifth Amendment problems if there were claims of possible self-incrimination raised in the course of the INS investigation. Petitioner's lawyer said: "We don't claim any privilege at all, your Honor." (Tr. p. 14, lines 9-10).

 After a colloquy dealing with tax returns requested but not supplied, the court directed that an order be submitted for petitioner to supply INS with copies of such federal and state tax returns and estimates as he had filed from February, 1973 to the date of the order, "inclusive of all supporting documents such as forms 941 and W-2". The court noted petitioner's right to obtain copies of filed returns from the taxing authorities. This was to be done on or before March 15, 1982 and the hearing on the motion was carried to March 29, 1982.

 At the hearing, the court noted its readiness to entertain an application to require tax authorities said to have petitioner's books and records, to supply him with copies (Tr. p. 23, line 24 to p. 25, line 15). No application for this purpose was ever made.

 At the continued hearing of March 29, 1982, there was received as Exh. 5, Tr. p. 166, a 9-page transcript of a continued preliminary examination before a designated naturalization examiner, and a number of exhibits to be mentioned.

 Petitioner was told that his statements should be voluntary, in that they may be used against him in any criminal or civil proceedings; he said he understood and was willing to make a statement under those conditions. He was also told that his statements would be made under oath, and that if any were knowingly a false statement, this could make him subject to a fine, imprisonment or both [presumably this referred to 18 USC § 1015(a)]; he said he understood and was willing to make a statement under oath.

  He seems not to have had explained to him that under 8 USC § 1101 (f) (6), the giving of false testimony for the purpose of obtaining any benefits under the naturalization statutes is an act which Congress has declared to preclude a determination that an applicant is a person of good moral character. See Berenyi v. District Director, etc., 385 U.S. 630, 17 L. Ed. 2d 656, 87 S. Ct. 666 (1967), where the district court denied an application for citizenship expressly because it found that petitioner had testified falsely in the preliminary proceedings, and therefore was "not a person of good moral character within the meaning of the Immigration and Nationality Act" (385 U.S. at 634-635).

 In any event, he answered questions about himself and his current status and occupation, about the papers he had signed for naturalization, including the certification of military service, and the tax materials called for by the order of March 5, 1982. Briefly, these were copies of tax returns for the years 1973 through 1977 inclusive and will be mentioned later.

 He was asked about tax returns for years after 1977, which he said was the last year for which he filed a tax return. He testified that he guessed the crime commission or somebody, "I don't know who it was" took all the records, "the IRS they took all the records and we have been trying to get them back" but had no luck, so he was trying to file returns but without the records it becomes harder and harder. He was referring to business and personal records, his cancelled checks "and all that stuff like that" that would help to do the income tax. He said he was sending the money toward those taxes because he didn't know what he owed, and didn't want them to think he didn't want to pay his taxes.

 At the hearing of March 29, 1982, there was also presented an affidavit of a New Jersey attorney who said he had been retained to represent petitioner with regard to filing "certain income tax returns" on his behalf, and in turn had retained an accounting firm, working particularly with two of its members, "to completely, legally and adequately" prepare all tax returns on petitioner's behalf. He also said that another accountant had been retained by petitioner and was in possession of all books, records and documents needed to properly prepare tax returns when all of them were seized [probably means subpoenaed] for a Grand Jury investigation, including documents relating to taxpayers other than petitioner. As a result, the lack of documentation resulted in delay and thus full preparation became extremely difficult. He said that every effort was being made to fully comply with U.S. laws on tax returns (no mention is made of State tax returns). Along with this affidavit there were copies of returns as enumerated in the memorandum of November 5, 1982.

 The court examined this group of returns (years 1973-1977) on the bench at the hearing of March 29, 1982 and commented that some of the material seemed open to question at first review, that the supporting documentation was not included, and questioned why no final returns, estimates, and the like had been filed (both State and federal) since the 1978 filing of the 1977 return.

 The explanation given in the attorney's affidavit -- that the books and records had been taken -- was questioned. Petitioner (though not under oath) said that the first records taken were for 1976, and that they have been taken for every year since (Tr. p. 33, lines 9-17). Asked how he could run a business and draw a salary, pay expenses and the like without books and records, he explained that at the end of each month the cancelled checks, checkbook stubs, and so on, are all turned over to the accountant who then prepares and sends petitioner a monthly report. He had these at the office and did not have them with him. He had them for 1981 but not earlier, as IRS took all copies: the accountant's and his. He could not make estimates from the current monthly reports because of the circumstances, such as:

 
"I might have had a loss in certain years" (Tr. p. 27, line 18).
 
"Because I have some apartments that I own" (Tr. p. 27, line 19).
 
"I have other income. I have income from stocks, I have income from the sale of a store * * *" (Tr. p. 34, line 12).

 He sends "them" money every two or three weeks towards his taxes because he knows he owes them money but doesn't know how much. He sends a check in a letter that he is paying for a particular year; he just sends money but no estimated return. Tr. p. 34, line 23 to p. 36, line 3. No copies of letters or checks, or any list of these alleged payments has been submitted, and the returns later filed show no entry of any credit for their payment.

 After a colloquy, the court commented that petitioner did not seem to have obeyed the order of March 5, 1982 because there was no indication that he had made any request of federal or State authorities for copies of filed returns. There was no New Jersey return for 1977 although he lived here then and the current gross income tax took effect in 1976. The attorney whose affidavit was submitted had only recently been engaged (Tr. p. 31, lines 13 to 21; p. 45, lines 22 to 24). The records were taken from Book and Bamberger in Dover, Delaware and from Don Baldwin in New Jersey (Tr. p. 33, lines 3 to 6), but neither is listed in the lawyer's affidavit as an accountant engaged to help prepare returns.

 The court indicated that under the basket provision of 8 USC § 1101(f), the question it needed to consider was whether an individual who does not file returns, does not file estimates, for the length of time petitioner had indicated he had not filed, matches the statutory standard of a person of good moral character. Tr. p. 48, line 24 to p. 49, line 3.

 After some comments about the 1977 federal return (filed in 1978) and the absence of a New Jersey return, and the later failure to produce final returns through 1980 and estimates for 1981, Tr. p. 60, line 1 to p. 62, line 20, the court tendered petitioner an opportunity to decide whether to withdraw the petition without prejudice, or to have an extension of further time to produce records and to supplement the record.

 After private consultation, petitioner decided to ask for more time, and the court directed that the motion be marked "date to be set", with a status report around the end of June, 1982. Tr. p. 64, line 20 to p. 65, line 16.

 On June 23, 1982, the court sent a memorandum order to submit a detailed status report no later than June 30, 1982. This evidently crossed in the mail a letter from petitioner's Pennsylvania counsel sending an accountant's certificate and copies of federal and New Jersey final returns (but no estimates) for calendar 1978, 1979, 1980 and 1981.

 Another letter from counsel dated July 2, 1982 reported that the material sent constituted everything that would be submitted.

 By letter of October 28, 1982, petitioner's counsel sent the court a brief, and about the same time the court set November 30, 1982 as the continued date for the pending motion. By memorandum dated November 5, 1982, the court listed the various exhibits presented for the March 29, 1982 hearing date as well as those sent in late June, and called attention to other items requested but not included. Finally, with a letter dated November 18, 1982, petitioner's counsel sent a supplemental brief to the court.

 Discussion of the Law.

 The basic requirements specified by the Congress for naturalization are spelled out in 8 USC § 1427 (section 316 of the 1952 Act). Subsection (a) basically requires at least 5 years continuous residence in the United States after lawful admission for permanent residence, at least 50% of the time during the 5 years immediately before filing to be physically present here, and at least 6 months' residence in the State where the petition is filed.

 It also requires continuous residence in the U.S. from the date of the petition to the time of admission to citizenship (sub par. 2), and, during all of the periods referred to (i.e., before filing and after filing) it requires that the person "has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States" (sub par. 3).

 Subsection (b) deals with absences from the U.S. for more than 6 months but less than 1 year, and is not of interest in this case.

 Subsection (c) qualifies the provisions of subsection (b) and is not of interest here.

 Subsection (d) declares that no finding by the Attorney General that a petitioner is not deportable shall be accepted as conclusive evidence of good moral character.

 Subsection (e) provides that in determining whether the petitioner has sustained the burden of establishing good moral character and the other qualifications specified in subsection (a), the court is not limited to petitioner's conduct during the 5 years before filing but may take into consideration conduct and acts at any time before that period.

 Subsection (f) deals with the effect of proceedings under the Subversive Activities Control Act of 1950 and has no application to this case.

 Definitions established by Congress for use in connection with the 1952 Act are set out in 8 USC § 1101. The definitions applicable here are those set out in subsection (f). That provision, like the provisions in § 1427(a), is cast in negative terms:

 
"No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was --"

 and there then follow specific categories, (1) through (8), followed by what the court has mentioned above as the "basket clause":

 
"The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character."

 The entire text of subsection (f), although included with various definitions, is in fact not a "definition" in the usual sense, but is a set of congressionally selected circumstances which, if they exist, bar a finding of good moral character. Aside from the 8 specific categories for which "good moral character" is barred, the term carries its usual meaning as made clear by the basket clause.

 Reference is also needed to § 329 of the 1952 Act, 8 USC § 1440, because that is the section under which the petition was filed. That section contains special rules for petitioners who had active-duty service during specified periods related to World War I, World War II, or the Korean, Vietnam or other periods of military hostilities.

 Subsection (a) sets out the requirements for naturalization under § 1440. It is divided into several parts. The first part sets two requirements for a person serving during one of the designated periods: (1) he must have served honorably in an active-duty status during one of the indicated periods, and ...


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