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IN RE BORTLE

June 29, 1965

Petition of Azucena BORTLE to be Admitted a Citizen of the United States of America


The opinion of the court was delivered by: MATTHEWS

 On August 6, 1964 the United States through the Immigration and Naturalization Service filed a motion to reopen the order and judgment of naturalization of August 13, 1963 relative to Mrs. Azucena Bortle. Thereafter on September 23, 1964 the court granted the motion and restored Mrs. Bortle's petition for naturalization to a pending status for further determination on the merits of her qualifications for citizenship. This was done pursuant to Section 340(j) of the Immigration and Nationality Act, 8 U.S.C. 1451(j), reading as follows:

 
Nothing contained in this section shall be regarded as limiting, denying or restricting the power of any naturalization court, by or in which a person has been naturalized, to correct, reopen, alter, modify, or vacate its judgment or decree naturalizing such person, during the term of such court or within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action.

 A hearing has now been held pursuant to the mentioned order of September 23, 1964.

 Mrs. Bortle was naturalized on August 13, 1963 under Section 319(b) of the Immigration and Nationality Act, 8 U.S.C. 1430(b). This section permits the expeditious naturalization of an alien without requiring any specified period of residence or physical presence in the United States if that alien is married to a United States citizen who is in the employment of the Government of the United States and is regularly stationed abroad in such employment, provided the alien is in the United States at the time of naturalization and establishes an intention in good faith to take up residence within the United States immediately upon the termination of the employment abroad of the citizen spouse, *fn1" and provided the alien complies with all other requirements of the naturalization laws. One of such other requirements which must be met is the requirement in subdivision (a) of Section 319 that the alien spouse "immediately preceding the date of filing" of the petition for naturalization "has been living in marital union with the citizen spouse."

 A provision of the Code of Federal Regulations also applicable to Mrs. Bortle reads in pertinent part as follows:

 
A person of the class described in Section 319(b) of the Immigration and Nationality Act shall establish an intention in good faith, upon naturalization, to reside abroad with the United States citizen spouse and to take up residence in the United States immediately upon the termination of the employment abroad of such spouse * * * 8 C.F.R. 319.2.

 It is the contention of the Government that after Mrs. Bortle's naturalization it came to the attention of the Immigration and Naturalization Service that prior to her coming to the United States she and her husband jointly, through an attorney in Argentina, made arrangements to obtain a divorce in Mexico by proxy. It is the further contention of the Government that Mrs. Bortle was not living in marital union with her husband immediately preceding the date of the filing of her petition for naturalization; that she had no intention of rejoining her husband overseas, and that she was fully aware of these facts. According to the Government these facts, if known at the time Mrs. Bortle filed her petition and appeared for naturalization, would have precluded her naturalization, and the Immigration and Naturalization Service would have recommended to the court that her petition be denied.

 This is not a denaturalization proceeding under Section 340(a) of the Immigration and Nationality Act, 8 U.S.C. 1451(a), where the burden rests on the Government to prove that the naturalized citizen obtained naturalization by fraud or concealment. On the contrary, the matter here is the reopening by the court pursuant to Section 340(j) of the Immigration and Nationality Act, 8 U.S.C. 1451(j), of the judgment naturalizing Mrs. Bortle, and the restoring of her petition to a pending status for further determination on the merits of her qualifications. She has the burden of proof as to such qualifications. Petition of Field, 117 F. Supp. 154 (S.D.N.Y.1953).

 At one time Section 338 of the Nationality Act of 1940 was "the exclusive procedure for canceling citizenship on the score of fraudulent or illegal procurement based on evidence outside the record." Bindczyck v. Finucane, 342 U.S. 76, 79, 72 S. Ct. 130, 132, 96 L. Ed. 100. It corresponds to the present Section 340(a), supra. The procedural relief granted by Congress to the Immigration and Naturalization Service under Section 340(j) was not intended to "reduce the basic rights of a prospective citizen, but rather to clarify or eliminate the problems created by the decision in Bindczyck v. Finucane," and it "cannot be questioned that Congress had the power to grant the Immigration and Naturalization Service an additional method such as provided by § 340(j) to that formerly limited to proceedings under § 338," now § 340(a). In Re Naturalization of Bartkiw, 199 F. Supp. 762, 765 (E.D.Pa.1961).

 In her application to file a petition for naturalization Mrs. Bortle declared that she was married to a citizen of the United States in the Foreign Service and that she "must travel with him." In her petition for naturalization she stated that her husband then resided with her but was "temporarily in Buenos Aires, Argentina," and in addition she made the following statement:

 
I intend in good faith upon naturalization to live abroad with my spouse and to resume my residence within the United States immediately upon termination of such employment abroad.

 She failed to disclose that she and her husband had recently taken action toward obtaining a divorce, and that she had leased for a year an ...


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