Petition for Writ of Certiorari — Aquilina v. Immigration & Naturalization Service

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90-271 ED

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JOSEPH aa AP A -

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CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

JOSEPH N. AQUILINA, M.D. - PETITIONER

vs.

UNITED STATES OF AMERICA,

U.S. JUSTICE DEPARTMENT

IMMIGRATION & NATURALIZATION SERVICE

PETITION FOR WRIT OF CERTORIARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTORIARI

JOSEPH N. AQUILINA, M.D.

In Pro. Per.

3406 DAVENPORT AVENUE

SAGINAW, MICHIGAN 48602

Tel: (517) 799-4840

“Pp

-*

Parties To This Proceeding

Joseph N. Aquilina M.D., In Pro. Per., Petitioner

Respondents: United States of America, U.S. Justice Depart-

ment of Immigration and Naturalization.

Notice of Entry and Order for Intervention of Parties under

Federal Rules of Civil Procedure, Rule 24, has been submitted

by Rosemarie E. A. Barone, J.D. of Lansing, Michigan, In.

Pro. Per., and Joseph W. Aquilina, M.D. of eatin

Michigan, In Pro. Per., on July 7th, 1990, A.D.

QUESTIONS PRESENTED

(1) Whether U.S.C. Section 301(a)(7) 1952, now Section

301(g) violates due process and equal protection by requiring a

ten year residence prior to granting passage of ‘jus sanguinis’

rights, when U.S.C. Section 301(a)(4) 1952, now Section 301(d)

only requires a one year residence for the same right?

(2) Whether U.S.C. Section 301(a)(7) 1952, now Section

301(g) violates Petitioner’s fundamental right, freedom of

choice, of whom to marry by imposing the ten year residence re-

quirement?

(3) Would a ten year residence requirement which results in

the loss of ‘jus sanguinis’ rights and stateless progeny be con-

sidered a denial of due process as well as cruel and unusual

‘punishment violative of the Fifth, Eight and Fourteenth

Amendments?

il

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTORIARI

TO THE UNITED STATES OF COURT APPEALS

FOR THE SIXTH CIRCUIT |

OPINIONS BELOW 2

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 2

STATEMENT OF CASE ; 2

REASONS FOR GRANTING THE PETITION -

CONCLUSION 13

INDEX TO APPENDICES

Appendix A Opinion of the Court of Appeals,

6th Circuit, No. 89-1565, April 10, 1990. 14

Appendix B- Opinion of the District Court,

Eastern District of Michigan,

Northern Division, File No.

88-CV-10226-BC, dated April 14, 1989. 16

Appendix C Motion for extension of time for

Appeal dated May 7, 1990.

Denied 5-11-1990. 24

Appendix D_ Article V; Article VIII; Article XIV,

(clause 1). 28

Appendix E Current Applicable Law. 29

Appendix F Immigration & Naturalization Act § 320(a). 30

Appendix G- Immigration & Naturalization Act § 329. 31

iil

TABLE OF AUTHORITIES

CASES Page

Marbury v. Madison,

Rae EE BOTs BONED sos 6. ds dd ace da cee eeet ee 11

Rogers v. Bellei,

ee Bee a os Sak ha gee on aS Passim

United States v. Trevino Garcia,

eR re ae 6

Uribe - Temblador v. Rosenberg,

es oc one oe ukeamasecesaneeas 6

Villanueva - Jurado v. Rosenberg,

ee ee Oe EI Is POs 6 oc bc ccccsscsaceceevies 6

STATUTES

United States Code

U.S.C.§ 301(d), 1988, (amended § 301(a)(4) 1952) ..... Passim

U.S.C. § 301(g), 1988, (amended § 301(a)(7) 1952) ..... Passim

Immigration and Nationality Act.

Sheen EE SS ob o'ecwebusechacacstéabeacss 3

ee gs ot obs aba bua be Rees y

Re rere 5,8

U.S. Constitution, Amendment VIII...................... 8

U.S. Constitution, Amendment XIV ................... 5,6

NO.

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

October Term 1990

Joseph N. Aquilina, M.D., Petitioner

vs.

United States of America, U.S. Justice Department

Immigration & Naturalization Service

Defendant, Respondent

PETITION FOR WRIT OF CERTORIARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, Joseph N. Aquilina, M.D. respectfully prays that

a writ of certoriari issue to review the judgement and opinion of

the United States Court of Appeals for the Sixth Circuit refus-

ing to support a motion for declaring Section 301(a)(7) 1952,

now Section 301(g) 1988 unconstitutional on the basis of denial

of due process and equal protection when compared tto Section

301(a)(4) 1952, now Section 301(d) 1988. The discrimination

within the act takes the form of a longer residence requirement,

(10 years v. 1 year), for Fourteenth Amendment citizens who

marry non-resident aliens to qualify for the same rights as other

citizens who marry non-citizen nationals.

OPINIONS BELOW

The opinion of the Court of Appeals is recorded as Joseph N.

Aquilina, M.D., v. United States of America, Case No. 89-1565

and filed April 10, 1990, and appears in Avpendix A to this peti-

tion. The written opinion of the District Court for Eastern

District of Michigan, Joseph N. Aquilina, M.D. v. United

States of America, File No. 88-CV-10226-BC appears in Appen-

dix B.

JURISDICTION

The Court of Appeals’ Opinion in this matter was filed on

April 10, 1990 by Clerk Leonard Green. An untimely Motion

for Extension of time for Appeal was denied on May 11, 1990

and is filed in Appendix C. This Court’s jurisdiction is invoked

under Title 28, U.S.C. §1254(1) and 28 U.S.C. §2403(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitutional Amendment V, Amendment

VIII and Section I of the XIV Amendments are set forth in Ap-

pendix D.

STATEMENT OF CASE

On December 5, 1952, the Petitioner immigrated into the

United States of America from the island of Malta. He served

in the United States Army from October 11, 1954 until October

10, 1956. On November 18, 1955, while serving with the United

States Army in Europe he was naturalized as a United States

Citizen at Frankfurt, Germany under Immigration and Na-

tionality Act Section 329. On August 31, 1957 he was married

in Rosenheim, West Germany to Mrs. Johanna E. Aquilina, née

Gleissner, his wife. Two children were born in Germany:

Rosemarie E. A. Barone, J.D. n€&e Aquilina born on April 25,

1958 and Joseph W. Aquilina, M.D. born on March 27, 1959.

—

The Petitioner was not allowed to pass ‘jus sanguinis’ rights

to his children on the basis of Se::tion 301(a)(7) 1952, now Sec-

tion 301(g) which at the time required 10 years of residence in

the United States by the father prior to the birth of such

children.

The Petitioner was never warned by the United States con-

sular officials about the citizenship implications for children

born to citizens who married non-resident aliens. The Peti-

tioner was well known to the U.S. Consular personnel since he

was registered with them. They knew that he was naturalized

while he was serving in the United States Army. Also the Peti-

tioner had informed them of his impending marriage and then

of the birth of the children.

Since the children had a father (the Petitioner) who was an

American citizen, Germany regarded the children to be U.S.

citizens. Also, in 1959 the Petitioner’s wife, as a German Na-

tional, could not pass her German nationality to the children

since only illegitimate children of German women were

recognized, her children being legitimate, under German law

would take the citizenship of the father. Therefore, the Peti-

tioner and his children were abandoned by the United States.

The State of Germany declared the children ‘STATELESS’ and

issued to them ‘stateless passports.” These children then im-

migrated to the United States along with their mother on

* August 13, 1959. The Petitioner had to remain in Germany un-

til January 1963 when he completed his Doctor of Medicine

Degree.

On May 1, 1968 these children along with their mother were

naturalized as citizens of the United States under section 320(a)

of the Natiorality Act of 1952. In spite of United States citizen-

ship by ‘naturalization,’ the Petitioner and his family continue

to be subjected to unusual United States Government scrutiny

when this question of ‘statelessness’ at birth comes up.

Consequently on August 9, 1988 the Petitioner filed Civil Ac-

tion No. &8-CV-10226-BC in the United States District Court,

Eastern Division of Michigan, Northern Division for the deter-

mination of the constitutionality of Section 301(a)(7), 1952 now

designated Section 301(g), 1988. The Hon. James P. Churchill

dismissed this complaint with prejudice on April 14, 1989, pur-

suant to Fed. R. Civ. P. 12 (b)(6) for ‘‘failure to state a claim

upon which relief can be granted.’’

The Petitioner filed an appeal on May 24, 1989 and subse-

quently filed with the Court a Pro-Se Brief, Reply Brief for the

Appellant, as well as a Supporting Brief and an Appendix. On

April 10, 1990 the United States Court of Appeals for the Sixth

Circuit issued an order in which oral argument was denied under

Fed. R. App. P. 34(a). The Court also affirmed the District

Court’s Order under Rule 9/b)(5), rules of the Sixth Circuit.

This Order was not recommended for full text publication.

REASONS FOR GRANTING THE PETITION

Certoriari should be granted for two reasons: First, the

authority utilized by the District Court, and as affirmed by the

Court of Appeals for the Sixth Circuit, utilizing Rogers v.

Bellei, 401 U.S. 815 (1971), stated in context, simply does not

apply to this Petitioner. Second, the Opinions of the District

Court, Eastern District of Michigan, Northern Division and as

affirmed by the Court of Appeals for the Sixth Circuit are

untenable, since this Petitioner did state a claim upon which

relief can be granted. This Petitioner proved denial of ‘due pro-

cess’ and ‘equal protection’ in that the Congress did not have a

legitimate compelling reason to deny this Petitioner’s fun-

damental right of freedom of choice, of whom to marry.

On August 9, 1988 this Petitioner filed Complaint | No.

88-CV-10226-BC with the District Court, Eastern District of

Michigan, Northern Division in which the Petitioner sought a

declaration that § 301(a)(7) 1952, now § 301(g) is violative of ‘due

process’ and ‘equal protection.’ On April 14, 1989 that Court

dismissed that Petition with Prejudice, pursuant to Federal

Rules of Civil Procedure 12(bX6), for ‘‘failure to state a claim

upon which relief can be granted.’’ That Court relied on Rogers

v. Bellei at815, 830 (1971). Bellei is clearly distinguishable from

the case at bar, based on the specific facts involved.

On May 24, 1989 the Petitioner Filed Appeal No. 89-1565

which was docketed with the Court of Appeals for the Sixth Cir-

cuit. That Court denied oral argument under Federal Rule of

Appellate Procedure 34a). The Court of Appeals also used

Bellei as their authority. The Court of Appeals then affirmed

‘ the District Court’s Order under 9(b)(5), Rules of the Sixth Cir-

cuit “‘that it is manifest that the questions on which the decision

of the cause depends are so unsubstantial as not to need further

argument; or,...’’. The Petitioner once again claims that a fair

reading of the Pro-Se Brief and the answers to the questions

that were submitted by that Court proves that this Petitioner

has been denied both ‘due process’ and ‘equal protection’.

Also, the authority of Bellei does not support the position of

that Court. Therefore, the position of the Court is untenable.

The Petitioner states that $301(a)(4) 1952, now §301(d) 1988,

created a right to the passage of ‘jus sanguinis’ rights by the

citizen parent to the foreign bern children with only one year of

residence in the United States, prior to the birth of the children.

The statute under challenge however §301(a)(7) 1952, now

§ 301(g) 1988, discriminates against this Petitioner by a require-

ment of a 10 year residence prior to the birth of the children for

the passage of that same right of ‘jus sanguinis’. Therefore, this

discrimination within the Act is violative of the ‘equal protec-

tion’ provisions guaranteed to this Petitioner by a panopoly of

‘equal protection’ provisions of the United States Constitution

including the Fifth Amendment. (Compare | year v. 10 years).

v. 10 years).

a

Therefore, Congress by creating a discriminatory statute did

not follow their constitutional mandate to ‘‘/E/stablish a

uniform rule of naturalizatio[n]’’ as mandated by the United

States Constitution articie I, §8, clause 4.

The holding in Rogers v. Bellei, 401 U.S. 815 (1971), as used

by the lower Courts is not applicable to this Petitioner. This

Petitioner was a Fourteenth Amendment citizen while Mr.

Bellei had obtained his citizenship by derivation through a

citizen mother and an alien father. The Petitioner also proved

that Congress indeed had created a right to the passage of ‘jus

sanguinis’ rights by Fourteenth Amendment parents, to their

legitimate offspring, with a one year residence in the United

States, prior to the birth of such children. The Court quotes

Justice Blackmun: ‘‘the Court has specifically recognized the

power of Congress not to grant a United States citizen the right

to transmit citizenship by descent.’’ Bellei U.S. at 830. That

quote was taken out of context. It is simply not applicable to

the question of denial of ‘due process’ and ‘equal protection’ to

this Fourteenth Amendment citizen of the United States.

In this present context the Petitioner claims that he is a Four-

teenth Amendment citizen of the United States. The District

Court never disputed that fact. The District Court has disputed

this Petitioner’s claim that he has a right to pass his ‘jus

sanguinis’ rights under §301(a)(4) 1952, now §301(d) 1988,

because the Petitioner claimed that right since he had resided in

the United States for more than one year prior to the birth of his

children. The District Court failed to look at the discrimination

within the Nationality Act that denied ‘equal protection’. The

Congress created a right to the passage of ‘jus sanguinis’ rights

with the legislation of Section 301(a)(4) 1952, now Section

301(d) 1988, which qualified some United States citizens to pass

their ‘jus sanguinis’ rights with a residence of one year. The

Petitioner claims that he qualifies under that requirement and to

deny him that right is violative of both ‘due process’ and ‘equal

protection.’

Therefore, the section of the Nationality Act under challenge:

§301(a)(7) 1952, now §301(g) 1988, denied the right of this Peti-

tioner to pass ‘jus sanguinis’ rights by using a discriminatory

residence requirement of 10 years for the same rights that the

Congress created under §301(a)(4) 1952, now §301(d), 1988 with

only a one year requirement. Since United States citizens are

protected by a panopoly of ‘due process’ and ‘equal protection’

provisions, under the United States Constitution, such a denial

of ‘equal protection’ is illegal. Therefore, the Be//ei authority,

as used by the District Court, fails on its face.

The District Court quotes the authority of United States v.

Trevino Garcia, 440 F. 2d 368, 369 (Sth Cir. 1971); Villanueva-

Jurado v. I.N.S., 482 F 2d 886, 887 (5th Cir. 1973); Uribe-

Temblador V. Rosenberg, 423 F. 2d 717, 717-718 (9th Cir.

1970). These cases are not applicable to this Petitioner but they

would have been applicable to the Petitioner’s children. The

Petitioaer did not include his children as part of this complaint

exactly because of the cases quoted above. The Congress can

exclude such aliens under the statute under challenge if the

foreign born children claim their rights to ‘jus sanguinis’ on

their own. The Court has used the principle that ‘‘no alien has

the slightest right to naturalization unless all statutory re-

quirements are complied with.’’ Bellei at 830. The Honorable

Judge Churchill did give the children of this Petitioner standing,

in that Court Order, even though the children have been inten-

tionally excluded from this complaint.

When, however, the Fourteenth Amendment Parent demands

‘due process’ and ‘equal protection’ to pass his ‘jus sanguinis’

rights to his legitimate children, such as in the case before this

Honorable Court, then the Congress cannot deny this basic

right of our liberty. The lower court stated:

‘Plaintiff Joseph Aquilina, who is not joined by either of his

adult children, filed suit on August 9, 1988 seeking United

States citizenship at birth for his two naturalized children.

Specifically, Plaintiff Aquilina petitioned the Court to declare

§301(a)(7) as well as the statute in its current form violative of

equal protection.’’ District Court Order, No. 88-CV-10226-BC,

page 18.

The Petitioner only claimed that with the legislation of

§301(a)(4) 1952, now §301(d) 1988, the Congress had created a

right for United States citizens to pass their ‘jus sanguinis’ rights

to their legitimate progeny with one year of residence in the

United States. The Congress at the same time also created an ir-

rational statute that denied these same rights to citizens of the

United States who married non-resident aliens and who

therefore were punished by being required to fulfill a 10 year

residence requirement for that same right. The irrationality of

the Act is based on two key principles: First, Congress denied

‘due process’ and ‘equal protection’ by using a longer residence

requirement of 10 years, as compared to one year for other

citizens. Second, Congress also violated Petitioner’s fundamen-

tal right to due process, liberty to choose whom to marry, by im-

posing a longer punitive residence requirement.

The Eighth Amendment protects this Petitioner against cruel

and unusual punishment. The Congress required this Petitioner

to fulfill a longer residence requirement, that being 10 years

prior to the birth of the children, in order to have the right for

passage of ‘jus sanguinis’. Other citizens married to non-citizen

nationals were qualified with one year of residence prior to the

birth of the children, to qualify for this same right. Thus, this

Petitioner was punished for marrying a non-resident alien. This

resulted in his family being abandoned by the United States. As

a result, the government of Germany then took jurisdiction of

the Petitioner’s legitimate children declaring them ‘stateless’.

The government of Germany recognized only the U.S. citizen-

ship of the father. The State of Bavaria, Germany then issued

‘stateless’ passports to the children of this Petitioner since the

United States did not have a procedure by which a travel docu-

ment could be issued to the Petitioner’s children. In addition,

the Petitioner and his family continue to be subject to unusual

United States government scrutiny every time the question of

‘statelessness’ at birth has to be entered in completion of

government forms, which results in unnecessary delay and an

invasion into personal privacy. This denial of ‘due process’ and

‘equal protection’ made this Petitioner a second-class citizen by

statute.

In order to more clearly set forth Petitioner’s position, it is

helpful to closely examine the facts and circumstances con-

fronted by this Court in Bellei.

Mr. Bellei was born abroad of a citizen mother and an alien

father. Mr. Bellei, therefore, had acquired his citizenship by

derivation through a citizen mother. He never fulfilled the re-

quirements of the first clause of the Fourteenth Amendment

and he therefore lost his citizenship when he failed to fulfill the

residence requirements of Congress. The Court in Bellei stated

that Congress was authorized to impose conditions subsequent

to naturalization for citizens like Mr. Bellei. Ibid Bel/ei at 831.

As an authority relied on by the lower courts, the Bellei holding

is distinguishable. Thus, it should be held only applicable to

citizen Bellei and not this Petitioner.

This Petitioner was naturalized by a United States Court with

proper authority and jurisdiction on November 18, 1955, under

§329 of the Immigration and Nationality Act, at Frankfurt,

Germany. The Congress had felt compelled to naturalize

members of the Armed Forces who were serving honorably dur-

ing the Korean War. Therefore, the honorable service and

honorable discharge of this Petitioner qualified him as a Four-

teenth Amendment citizen of the United States. He is,

therefore, absolutely protected from Congressional intrusion in-

to his citizenship rights.

The holding in Bellei, when analyzed closely proves why this

Petitioner is absolutely protected while citizen Bellei was not:

**Thus at long last, there emerged an express constitutional

definition of citizenship. But it was one restricted to the com-

bination of three factors, each and all significant: birth in the

United States, naturalization in the United States, and under the

jurisdiction of the United States.’’ Ibid Bellei at 830.

ian ia

Note that Justice Black further notes that:

‘*If, for example, Congress should decide to vest authority to

naturalize aliens in American embassy officials abroad rather

than have the ceremony performed in this country, I have no

doubt that those so naturalized would be just as fully protected

by the Fourteenth Amendment.’’ Ibid Bellei at 843.

The Petitioner’s claim, therefore, has to do more with the

right that is intrinsic in the denial of ‘due process’ and ‘equal

protection’ than his right to ‘jus sanguinis.’ The Congress

created this Petitioner’s right to ‘jus sanguinis’ by legislating

§ 301(a)(4) 1952, now § 301(d) 1988. Congress really intended

for this Petitioner to be excluded by that statute since this Peti-

tioner had neither married a non-citizen national, nor had he

resided in the United States for 10 years prior to the birth of the

children, which also disqualified him. However, the Constitu-

tion comes to the Petitioner’s rescue by the panopoly of ‘due

process’ and ’equal protection’ provisions.

The Congress, by legislating §301(a)(7) 1952, now §301(g)

1988, could not use this statute to dtny ‘equal protection’ to this

Fourteenth Amendment citizen. Also, ‘due process’ will not

allow Congress to deny the right to a free choice of a marriage

partner within the fundamental right of a free choice to marry.

The Petitioner’s claim therefore, that he has those same rights

as the citizens who are qualified by Congress under §301(a)(4)

1952, now § 301(d) 1988, is correct, since the Petitioner has pro-

ven that he is being denied ‘equal protection’ and such is pro-

hibited by a panopoly of ‘equal protection’ provisions of the

United States Constitution.

Also, when the Congréss wrote the statute under challenge,

Congress in fact created an irrational law, as it was always the

intent, since the Declaration of Independence, that this Govern-

ment of the People legislates statutes for the people within a

constitutional mandate.

10

It was, therefore, why the Constitution created that delicate

balance between the executive, the legislative and the judiciary

branches of government, so as to safeguard those inalienable

rights, among which are:

**(L]ife, liberty and the pursuit of happiness. That to secure

these rights, governments are instituted among men, deriving

their just powers from the consent of the governed;(*) that

whenever any form of government becomes destructive of these

ends, it is the right of the people to alter or abolish ift].’’ The

Declaration of Independence, paragraph 2 (U.S. 1776)

(*) emphasis added.

The Petitioner proves that the authority of Bellei, in which

the District Court quoted Justice Blackmun, was not applicable

to this Petitioner. The Congress had indeed created a right

under § 301(a)(4) 1952, now § 301(d) 1988 to pass ‘jus sanguinis’

rights for citizens of the United States to their legitimate off-

spring, with a one year residence, prior to the birth of the

children. Since this Petitioner was a Fourteenth Ainendment

citizen, he was protected by a panopoly of ‘due process’ and

‘equal protection’ provisions by the United States Constitution

and therefore, this Petitioner has the right to the passage of his

‘jus sanguinis’ rights in the same manner as other citizens under

§ 301(a)(4) 1952, now § 301d) 1988.

The Petitioner has proven that the statute under challenge

§ 301(a)(7) 1952, now § 301(g) 1988, is violative of both ‘due pro-

cess’ and ‘equal protection’ and is therefore, null and void,

under the well known authority of Marbury v. Madison, |

Cranch 137, 2 LEd. 60, 1803.

11

i

The Petitioner, therefore, requested this Writ of Certoriari in

order to ask this Honorable Court to overrule the previous deci-

sions of the District Court and the Court of Appeals since he

proved that he had stated a claim upon which relief can be

granted. In addition, this Petitioner respectfully requests that

this Honorable Court declare the statue under challenge,

§ 301(a)(7) 1952, now § 301(g) 1988, to be violative of ‘due pro-

cess’ and ‘equal protection.’ Further, in the alternative, this

Petitioner asks that this Honorable Court grant this Petitioner

the right to pass his ‘jus sanguinis’ right to his children without

specifically ruling on the constitutionality of the statute under

challenge.

CONCLUSION

For the reasons set forth above, a writ of certoriari should be

granted.

DATED: July 4, 1990

Respectfully Submitted,

del ak.

Jobeph N. Aquilina, M.D.

In Pro. Per.

(*) If this Court elects not to address the issue presented in this

writ at the present time, it is requested that the writ issue and

that the matter be remanded to the Court of Appeals for re-

determination in light of this Court’s Opinion in Bellei.

13

<ciiiaiiaiai iii i il

APPENDIX ‘A’

NOT RECOMMENDED FOR FULL TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations. Please see

Rule 24 before citing in a proceeding in a court in the Sixth Circuit.

of a copy must be served on other parties and the Court.

This notice is to be prominently displayed if this decision is

FILED

APR 10 1990

LEONARD GREEN, Clerk

No. 89-1565

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH N. AQUILINA, M.D.,

Plaintiff-Appellant,

v. ORDER

UNITED STATES OF AMERICA, US.

Justice Department Immigration

& Naturalization,

Defendant-Appellee.

BEFORE: MERRITT, Chief Judge; KRUPANSKY, Circuit

Judge; and PECK, Senior Circuit Judge.

This case has been referred to a panel of the court pursuant to

Rule 9(a), Rules of the Sixth Circuit. Upon examination of the

record and the briefs, this panel unanimouly agrees that oral

argument is not needed. Fed. R. App. P. 34(a).

Plaintiff Aquilina filed an action in which he challenged the

constitutionality of legislation (presently codified at 8 U.S.C.

§1401) restricting the ability of naturalized citizens to pass their

citizenship to their foreign-born children at birth. The district

court ultimately dismissed the case and this appeal followed.

The parties have briefed the issues, plaintiff Aquilina pro-

ceeding without counsel.

ic

Upon consideration, we find that the district court correctly

dismissed the complaint. The core of Aquilina’s action is his

claim that he had a constitutionally cognizable right to pass on

his citizenship to his children regardless of the circumstances of

their birth. No such absolute right exists in law. Rogers v.

Bellei, 401 U.S. 815, 830 (1971). Aquilina lacks standing to

assert claims on behalf of his adult children, both of whom are

naturalized citizens, hold advanced degrees, and are presump-

tively capable of litigating their own claims.

Accordingly, the district court’s order is affirmed. Rule

9(b)(5), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Clerk

ISSUED AS MANDATE: May 11, 1990

COSTS: None

A TRUE COPY

Attest:

LEONARD.GREEN, Clerk

By: Signed

Deputy Clerk

15

APPENDIX ‘B’

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOSEPH N. AQUILINA, APR 14 2:29 PM ‘89

Plaintiff,

vs.

File No. 88-CV-10226-BC

UNITED STATES OF AMERICA,

Defendant.

ORDER DISMISSING COMPLAINT WITH PREJUDICE

For reasons stated in the Memorandum Opinion bearing the

same date as this order, IT IS ORDERED THAT Plaintiff

Aquilina’s complaint be, and hereby is, dismissed with pre-

judice pursuant to Fed.R.Civ.P. 12(b)(6) for ‘‘failure to state a

claim upon which relief can be granted.’’ See Fed.R.Civ.P.

12(b)(6)..,

So ordered.

JAMES P. CHURCHILL

UNITED STATES DISTRICT JUDGE

1. Plaintiff Aquilina’s motion for summary judgment ob-

viously is denied in light of the Court’s ruling dismissing his

complaint with prejudice.

16

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JOSEPH N. AQUILINA, APR 14 2:29 PM ‘89

Plaintiff,

vs. File No. 88-CV-10226-BC

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

Plaintiff Joseph N. Aquilina, M.D., a naturalized United

States citizen, has raised an equal protection challenge to 8

U.S.C. §1401, which prescribes the requirements for United

States citizenship at birth. Specifically, Plaintiff Aquilina con-

tends that the statute governing United States citizenship ‘‘at

birth’’ impermissibly discriminates against naturalized citizens

by denying them the ability to immediately pass their citizenship

to their children. Because the Court finds Plaintiff Aquilina’s

constitution attack on 8 U.S.C. §1401 to be foreclosed by bin-

ding Supreme Court precedent, the Court shall dismiss Plaintiff

Aquilina’s complaint with prejudice.

I. The Factual Context of the Dispute

Plaintiff Joseph Aquilina was born on the island of Malta on

March 7, 1935; he immigrated to the United States on December

5, 1952. He was drafted by the U.S. Army on October 11, 1954,

and became a naturalized United States citizen on November

18, 1955 in Germany while serving in the army. After his release

from active duty, he remained in Germany to attend medical

school. While in Germany, Plaintiff Aquilina married a Ger-

17

man national named Johanna Elizabeth Gleissner. Two children

were born to the couple in Germany -- Rosemarie on April 25,

1958 and Joseph Wolfgang on March 27, 1959. Both of these

children were denied United States citizenship at birth by opera-

tion of § 301(a)(7), Title III of the Immigration and Nationality

Act of 1952, Pub. L. No. 414, 66 Stat. 235 (originally codified

at 8 U.S.C. § 1401(@)(7).. Mrs. Aquilina and the couple’s two

children immigrated to the United States in August of 1959.

The children, however, remained ‘‘stateless’’ citizens until May -

1, 1968 when they and Mrs. Aquilina became naturalized United

States citizens.

Plaintiff Joseph Aquilina, who is not joined by either of his

adult children, filed suit on August 9, 1988 seeking United

States citizenship at birth for his two naturalized children.

Specifically, Plaintiff Aquilina petitioned the Court to declare

§301(a)(7) as well as the statute in its current form violative of

equal protection. In Plaintiff Aquilina’s view, 8 U.S.C. § 1401

deprives naturalized United States citizens of the power to pass

United States citizenship to their children at birth, yet grants the

power to all other United States citizens. Compare 8 U.S.C.

§ 1401(aX(7) (1952) with 8 U.S.C. § 1401(a)(4) (1952); compare 8

U.S.C.A. §1401(g) (Supp. 1988) with 8 U.S.C.A. §1401(d)

(Supp. 1988). On this basis, Plaintiff Aquilina moved for sum-

mary judgement on November 23, 1988. The Government

responded with a cross-motion to dismiss on January 31, 1989.

Thus, the matter is squarely before the Court for consideration.

Il. The Statute at Issue -- 8 U.S.C. $1401 ’

The 82nd Congress enacted the Immigration and Nationality

Act of 1952 as ‘‘a comprehensive, revised immigration,

naturalization and nationality code.’’ SeeH.R. Rep. No. 1365,

82nd Cong., 2d Sess., reprinted in 1952 U.S. Code Cong. & Ad-

min. News 1653, 1653 (statement of purpose). Included in the

Immigration and Nationality Act of 1952 is a provision govern-

ing citizenship at birth. See Immigration and Nationality Act of

18

es

1952, Pub. L. No. 414, § 301, 66 Stat. 235 (1952). This provi-

sion, codified at 8 U.S.C. §1401, was in effect when Dr. and

Mrs. Aquilina’s two children were born. The specific provision

at issue, §301(a)(7) of the Act, see 8 U.S.C. §1401(a)(7) (1952),

states that:

The following shall be nationals and citizens of the

United States at birth:

(7) a person born outside the geographical limits of

the United States and its outlying possessions of

parents one whom is an alien, and the other a citizen

of the United States who, prior to the birth of such

person, was physically present in the United States or

its outlying possessions for a period or periods total-

ing not less than ten years, at least five of which were

after attaining the age of fourteen years: Provided,

That any periods of honorable service in the Armed

Forces of the United States by such citizen parent

may be included in computing the physical presence

requirements of this paragraph.

8 U.S.C. §1401(a)(7) (1952). With the exception of several

minor changes in the provision that are not relevant to the pre-

sent dispute, see, e.g., Pub. L. No. 89-770, 80 Stat. 1322 (1966)

(expanding proviso); Pub. L. No. 95-432, §3, 92 Stat. 1046

(1978) (revising numbering of subsections); Pub. L. No. 99-653,

§ 12, 100 Stat. 3655, 3657 (1986) (changing physical presence re-

quirements from ‘‘ten years, at least five’’ years to ‘‘five years,

at least two’’ years), the pertinent subsection remains the same

today as originally enacted. Compare 8 U.S.C. §1401(a)(7) with

8 U.S.C.A. § 1401(g) (Supp. 1988).

19

———SVS ae

Simply stated, §301(a)(7) of the 1952 Act, 8 U.S.C.

§ 1401(a)(7) (1952), can be reduced to single proposition: a child

born abroad to a U.S. citizen parent and an alien parent is not a

U.S. citizen unless his (or her) citizen parent held U.S. citizen-

ship for ‘‘not less that ten years’’ prior to the birth of the child.

Even including the time that Plaintiff Aquilina spent in the

military after he became a naturalized United States citizen in

November of 1955, cf. 8 U.S.C. § 1401(a)(7) (1952) (allowing in-

clusion of ‘‘any periods of honorable service in the Armed

Forces of the United States’’), Plaintiff Aquilina did not satisfy

the ten-year (or even the present five-year) physical presence

and citizenship requirements at the time that either of his

children was born abroad. Thus, neither of his children could

qualify at birth as a United States citizen under § 301(a)(7) (or

even under current §301(g)). See 8 U.S.C. §1401(a)(7) (1952)

(original version); see also 8 U.S.C.A. 1401(g) (Supp. 1988)

(current version with reduced physical presence requirements. ).

For this reason, Plaintiff Aquilina cannot avail himself of any

statutory right to citizenship at birth for his children. Conse-

quently, he cannot claim citizenship at birth for his children

without successfully attacking §301(a)(7) of the 1952 Act and,

by implication, §301(g) of the current Immigration and Na-

tionality Act. .

III. Equal Protection, Standing and Citizenship

To address the issues raised by Plaintiff Aquilina, the Court

must consider the delicate interplay among three constitutional-

ly based concepts -- equal protection, standing and citizenship.

While Plaintiff Aquilina cannot rely on the Fourteenth Amend-

ment’s equal protection clause in a suit against the United

States, see, e.g., News America Publishing, Inc. v. Federal

Communications Comm’n, 844 F. 2d 800, 804 (D.C. Cir. 1988),

he nevertheless may rely on the Fifth Amendment’s equal pro-

tection component in this case. See Sturgell v. Creasy, 640 F. 2d

843, 850 (6th Cir. 1981) (‘‘It is well established that the Fifth

20

Amendment’s Due Process Clause which applies to the federal

government encompasses equal protection principles.’’); see

also News America, 844 F. 2d at 804 (citing Bolling v. Sharpe,

347 U.S. 497 (1954)). Plaintiff Aquilina, therefore, can assert

the full panopoly of equal protection rights afforded to him as a

United States citizen in a constitutionally permissible fashion.

Article III of the Constitution, however, places limitations on

the federal courts’ power to adjudicate disputes. Specifically,

Article III ‘‘confines the federal courts to adjudicating ‘cases’

and ‘controversies.’’’ Allen v. Wright, 468 U.S. 737, 750

(1984). Among the various Article III concepts, the ‘‘doctrine

that requires a litigant to have ‘standing’ to invoke the power of

a federal court is perhaps the most important [.]’’ Id. ‘‘In

essence the question of standing is whether the litigant is entitled

to have the court decide the merits of the dispute or of par-

ticular issues.’’ Warth v. Seldin, 422 U.S. 490, 498 (1975). To

ascertain whether Plaintiff Aquilina has standing to attack

§ 301(a)(7) of the Immigration and Nationality Act of 1952 on

constitutional grounds, the Court must discern whether Plain-

tiff Aquilina has ‘‘allege[d] personal injury fairly traceable to

the defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief.’’ Allen, 468 U.S. at 751.

To the extent that Plaintiff Aquilina’s children themselves

have been wronged through denial of citizenship from birth,

they alone are the ones with standing to assert their rights. Cf.

Allen, 468 U.S. at 751 (‘‘A plaintiff must allege personal

injury{.]’’). The supreme Court in Allen explained that the

standing doctrine includes ‘‘the general prohibition on a

litigant’s raising another person’s legal rights[.]’’ Id. Thus,

Plaintiff Aquilina’s challenge to the Immigration and

Naturalization Act cannot rest on the rights of his children, who

are not parties to this case.

At oral argument, however, Plaintiff Aquilina vociferously

argued that his right to pass on his citizenship, rather than his

children’s right to citizenship at birth, forms the basis for this

suit. The Supreme Court’s decision in Rogers v. Bellei, 401

21

cea eid

U.S. 815 (1971), undercuts this argument. In Beilei, Justice

Blackmun wrote for the majority that ‘‘the Court has specifical-

ly recognized the power of Congress not to grant a United States

citizen the right to transmit citizenship by descent.’’ Id. at 830.

Moreover, federal appellate courts have consistently held that

“*the Congress has a completely free hand in defining citizenship

as it relates to persons born abroad.’’ See, e.g., United States v.

Trevino Garcia, 440 F. 2d 368, 369 (Sth Cir. 1971); Villanueva-

Jurado v. I.N.S., 482 F. 2d 886, 887 (Sth Cir. 1973); Uribe-

Temblador v. Rosenberg, 423 F. 2d 717, 717-718 (9th Cir.

1970). For these reasons, the Court finds that Plaintiff

Aquilina’s equal protection rights, which he most assuredly

possesses as a United States citizen, do not afford him the right

to pass his United States citizenship to his children by descent.

See Bellei, 401 U.S. at 830. Plaintiff Aquilina’s argument to the

contrary, like Justice Black’s eloquent dissent in Bellei, is com---

pelling yet inconsistent with binding precedent.’

Accordingly, the Court shall enter an order dismissing Plaintiff

Aquilina’s complaint.

Signed

JAMES P. CHURCHILL

UNITED STATES DISTRICT

JUDGE

1. Plaintiff Aquilina essentially argues for “‘the rule of des-

cent by blood, ‘jus sanguinis[.]’’’ See United States v. Wong

Kim Ark, 169 U.S. 649, 667 (1898). On at least two occasions,

the United States Supreme Court has repudiated the concept of

‘jus sanguinis’. See id. at 674, 702-03; Bellei, 401 U.S. at 830.

22

CERTIFICATE OF SERVICE

UNITED STATES OF AMERICA

Case No. 88-CV-10226-BC

EASTERN DISTRICT OF MICHIGAN

Pursuant to Rule 77(d), FRCivP, I, the undersigned, certify

that I have on the 14th day of April, 1989, mailed a copy of the

MEMORANDUM OPINION AND ORDER DISMISSING

COMPLAINT WITH PREJUDICE in the foregoing cause to

the following persons at the addresses given.

Dr. Joseph N. Aquilina

3406 Davenport Street

Saginaw, MI 48602

Ms. Janet L. Parker

Assistant U.S. Attorney

(Hand-delivered)

Signed

Erma L. Thomas, Secretary to

Judge James P. Churchill

23

|

APPENDIX ‘C’

RECEIVED rILED

MAY 11, 1990 MAY 11, 1990

LEONARD GREEN, Clerk LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

JOSEPH N. AQUILINA, M.D. File Number: 89-1565

Plaintiff-Appellant,

v. MOTION FOR EXTENSION

OF TIME

UNITED STATES OF AMERICA,

U.S. Justice Department,

Immigration & Naturalization, CHIEF JUDGE MERRITT

Defendant. CIRCUIT JUDGE KRUPANSKY

SENIOR CIRCUIT JUDGE PECK

JOSEPH N. AQUILINA, M.D., In Pro. Per.

3406 Davenport Avenue 5-11-90 DENIED BY

Saginaw, Michigan 48602 ORDER OF THE COURT

(517) 799-4840

.

JANET L. PARKER (P34931)

Attorney for Defendant

204 Federal Bldg.

Bay City, Michigan 48707-0026

(517) 895-5712

MOTION FOR EXTENSION OF TIME

NOW COMES ithe Plaintiff, JOSEPH N. AQUILINA,

M.D., a resident of Saginaw, Michigan, in pro per and for Mo-

tion for an Extension of time for appeal states as follows:

1. That Plaintiff and his family were out of the Country dur-

ing the date an appeal could be filed.

24

2. That upon arriving in Detroit on the evening of April 21,

1990, Plaintiff was unable to return to Saginaw upon discover-

ing that his mother had been placed in Oakwood Hospital,

Dearborn, Michigan during the time he was out of the Country.

3. That Plaintiff, because he was unable to return to Saginaw

until on or about April 23, 1990, did not receive the judgement

and answer which had been postmarked April 12, 1990, until

after his date of return on or about April 23, 1990.

4. That once Plaintiff reviewed the judgement and answer

Plaintiff called the court clerk to ask what the time limitations

were for an appeal to be filed and was notified that the time had

passed.

5. That Plaintiff is not an attorney and is not accustomed to

the strict time for filing an appeal.

6. That Plaintiff wishes to file an appeal should an extension

of time be granted.

WHEREFORE, THIS PLAINTIFF RESPECTFULLY

REQUESTS that:

A. Plaintiff be given an additional 14 (fourteen) days to file

an appeal;

B. The additional days granted begin running the date the at-

tached Order is signed.

C. This Honorable Court grant any additional or substitute

relief which can be granted under the law and as equity dictates.

D. An Order has been properrly attached which the Plaintiff

respectfully requests the Honorable Court to review and sign

should it agree with the extension of time.

Dated: May 7, 1990 By: Signed

JOSEPH N. AQUILINA, M.D., In Pro. Per.

3406 Davenport Avenue

Saginaw, Michigan 48602

(517) 799-4840

25

RECEIVED |

MAY 11, 1990

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

JOSEPH N. AQUILINA, M.D. File Number: 89-1565

Plaintiff-Appellant,

v. ORDER FOR EXTENSION

OF TIME

UNITED STATES OF AMERICA,

U.S. Justice Department,

Immigration & Naturalization, CHIEF JUDGE MERRITT

Defendant. CIRCUIT JUDGE KRUPANSKY

SENIOR CIRCUIT JUDGE PECK

JOSEPH N. AQUILINA, M.D., In Pro. Per.

3406 Davenport Avenue

Saginaw, Michigan 48602

(517) 799-4840

JANET L. PARKER (P34931)

Attorney for Defendant .

204 Federal Bldg.

Bay City, Michigan 48707-0026

(517) 895-5712

ORDER FOR EXTENSION OF TIME

AT A SESSION OF SAID COURT, HELD IN THE

COURTHOUSE IN THE CITY OF ,

COUNTY OF... STATS GE... ...., ON

) ow fs ea = =—=—he

PRESENT: THE HONORABLE

26

PLAINTIFF, Joseph N. Aquilina, M.D., having made a mo-

tion on or about the day of May, 1990, In Pro. Per.

and this Honorable Court having read the motion submitted by

the Plaintiff, this Honorable Court being fully advised as to the

reasons for the request to extend the time for which a request

for a rehearing can be made;

NOW THEREFORE, IT HEREBY IS ORDERED that

Plaintiff’s Motion for an Extension of Time to File an Appeal,

that date being fourteen days from the date of the signing of this

order, or the day, in the month of , 1990, A.D.,

be granted.

DATED:

THE HONORABLE

27

APPENDIX ‘D’

ARTICLE V

No person shall be held to answer for a capital, or otherwise in-

famous crime, unless on a presentment or indictment of a grand

jury, except in cases arising in the land or naval forces, or in the

militia, when actual service in time of war or public danger; nor

shall any person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled to be a

witness against himself, nor be deprived of life, liberty, or pro-

perty without due process of law; nor shall private property be

taken for public use without just compensation.

ARTICLE VIII

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishment inflicted.

ARTICLE XIV

First Clause

Section I: All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any: law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdiction the

equal protection of the laws. :

28

APPENDIX ‘E’

CURRENT APPLICABLE LAW

Section 301(a)(7), Title III, of the Immigration Act of 1952,

now designated Section 301(g) of the Nationality Act of Oc-

tober 10, 1978 now in force and being challenged by this com-

plaint.

(g) A PERSON BORN OUTSIDE THE GEOGRAPHICAL

LIMITS OF THE UNITED STATES AND ITS OUTLYING

POSSESSIONS OF PARENTS ONE OF WHOM IS AN

ALIEN, AND THE OTHER A CITIZEN OF THE UNITED

STATES WHO, PRIOR TO THE BIRTH OF SUCH PER-

SON, WAS PHYSICALLY PRESENT IN THE UNITED

STATES OR ITS OUTLYING POSSESSIONS FOR A

PERIOD OR PERIODS TOTALLING NOT LESS THAN

FIVE YEARS, AT LEAST TWO OF WHICH WERE AFTER

ATTAINING THE AGE OF FOURTEEN YEARS: PROVID-

ED, THAT ANY PERIODS OF HONORABLE SERVICE IN

THE ARMED FORCES OF THE UNITED STATES, OR

PERIODS OF EMPLOYMENT WITH THE UNITED

STATES GOVERNMENT OR WITH AN INTERNATIONAL

ORGANIZATION AS THAT TERM IS DEFINED IN SEC-

TION 288 OF TITLE 22 BY SUCH PARENT, OR ANY

PERIODS DURING WHICH SUCH CITIZEN PARENT IS

PHYSICALLY PRESENT ABROAD AS THE DEPENDENT

UNMARRIED SON OR DAUGHTER AND A MEMBER OF

THE HOUSEHOLD OF A PERSON (A) HONORABLY SER-

VING WITH THE ARMED FORCES OF THE UNITED

STATES, OR (B) EMPLOYED BY THE UNITED STATES

GOVERNMENT OR AN INTERNATIONAL ORGANIZA-

TION AS DEFINED IN SECTION 288 OF TITLE 22, MAY

BE INCLUDED IN ORDER TO SATISFY THE PHYSICAL-

PRESENCE REQUIREMENT OF THIS PARAGRAPH.

THIS PROVISO SHALL BE APPLICABLE TO PERSONS

BORN ON OR AFTER DECEMBER 24, 1952, TO THE

SAME EXTENT AS IF IT HAD BECOME EFFECTIVE IN

THIS PRESENT FORM ON THAT DATE.

29

1986 Amendment. Subsection (g) Pub. L. 99-653 substituted

**five years, at least two’’ for ‘‘ten years, at least five.’’

1978 Amendment. *****(1) to (7) as to (g) respectively.

(d) a person born outside of the United States and its outlying

possessions of parents one of whom is a citizen of the United

States who has been physically present in the United States or

one of its possessions for a continuous period of one year prior

to the birth of such person, and the other of whom is a national,

but not a citizen of the United States.

APPENDIX ‘F’

IMMIGRATION AND NATIONALITY ACT

Section 320(a). A child born outside of the United States, one

of whose parents at the time of the child’s birth was an alien and

the other of whose parents then was and never thereafter ceased

to be a citizen of the United States, Shall, if such alien parent is

naturalized, become a citizen of the United States, when --

(1) such naturalization takes place while such child is under

the age of sixteen years; and

(2) such child is residing in the United States pursuant to a

lawful admission for permanent residence at the time of

naturalization or thereafter and begins to reside permanently in

the United States while under the age of sixteen years.

APPENDIX ‘G’

IMMIGRATION AND NATIONALITY ACT

Section 329. (a)* Any person who, while an alien or a non-

citizen national of the United States, has served honorably in an

active-duty status in the military, air, or naval forces of thc

United States during either World War I or during a period

beginning September 1, 1939, and ending December 1, 1946, or

during a period beginning June 25, 1950, and ending July 1,

1955, or during a period beginning February 28, 1961 and en-

ding on a date designated by the President by Executive order

shall designate as a period in which Armed Forces of the United

States are or were engaged in military operations involving arm-

ed conflict with a hostile foreign force, and who, if separated

from such service, was separated under honorable conditions,

may be naturalized as provided in this section if (1) at the time

of enlistment or induction such person shall have been in the

United States, the Canal Zone, American Samoa, or Swains

Island, whether or not he has been lawfully admitted to the

United States for permanent residence, or (2) at any time subse-

quent to enlistment or induction such person shall have been

lawfully admitted to the United States for permanent residence.

The executive department under which such person served

shall determine whether persons have served honorably in an

active-duty status, and whether separation from such service

was under honorable conditions: Provided, however, That no

person who is or has been separated from such service on ac-

count of alienage, or who was a conscientious objector who per-

formed no military, air, or naval duty whatever or refused to

wear the uniform, shall be regarded as having served honorably

or having been separated under honorable conditions for the

purposes of this section. No period of service in the Armed

forces shall be made the basis of a petition for naturalization

under this section if the applicant has previously been naturaliz-

ed on the basis of the same period of service.

* As amended by the Acts of September 26, 1961 (75 Stat. 654) and

October 24, 1968 (82 Stat. 1343).

(11-6-68)

31

(b) A person filing a petition under subsection (a) of this section

shall comply in all other respects with the requirements of this

title, except that --

(1)* he may be naturalized regardless of age, and notwith-

standing the provisions of section 318 as they relate to depor-

tability and the provisions of section 331;

Sec. 3 of the Act of October 24, 1968 (82 Stat. 1343), provides

as follows:

Sec. 3. Notwithstanding any other provisions of law, no clerk

of a United States court shall charge and collect a naturalization

fee from an alien who has served in the military, air, or naval

forces of the United States during a period beginning February

28, 1961, and ending on the edge designated by the President by

Executive order as the date of termination of the Vietnam

hostilities, or thereafter during any other period which the

President by Executive order shall designate as a period in which

Armed forces of the United States are or were engaged in

military operations involving armed conflict with a hostile

foreign force, and who is applying for naturalization during

such periods under section 329 of the Immigration and Na-

tionality Act, as amended by this*Act, for filing a petition for

naturalization or issuing a certificate of naturalization upon his

admission to citizenship, and no clerk of any State court shall

charge or collect any fee required to be paid to the State shall be

charged or collected. A report of all transactions under this sec-

tion shall be made to the Attorney General as in the case of

other reports required of clerks of courts by title III of the Im-

migration and Nationality Act.

* As amended by the Act of October 24, 1968 (82 Stat.

1343)

(11-6-68)

32

(2) no period of residence or specified period of physical

presence within the United States or any State shall be required;

(3)* the petition for naturalization may be filled in any court

having naturalization jurisdiction regardless of the residence of

the petitioner; and

(4)* service in the military, air, or naval forces of the United

States shall be proved by a duly authenticated certificate from

the executive department under which the petitioner served or is

serving, which shall state whether the petitioner served

honorably in an active-duty status during either World War ! or

during a period beginning September 1, 1939, and ending

December 31, 1946, or during a period beginning February 28,

1961, and ending on a date designated by the President by Ex-

ecutive order as the date of termination of the Vietman

hostilities, or thereafter during any other period which the

President by Executive order shall designate as a period in which

Armed Forces of the United States are or were engaged in

military operations involving arnicd conflict with a hostile

force, and was separated from such forces under honorable

conditions.

(c) Citizenship granted persuant to this section may be revok-

ed in accordance with section 340 of this title if at any time

subsequent to naturalization the person is separated from the

military, air, or naval forces under other than honorable condi-

tions, and such ground for revocation shall be in addition to any

other provided by law. The fact that the naturalized person was

separated from the service under other than honorable condi-

tions shall be proved by a duly authenticated certification from

the executive department under which the person was serving at

the time of separation.

(*) As amended by the Acts of September 26, 1961 (75 Stat. 654);

October 24, 1968 (82 Stat. 1343); and Dec. 29, 1981, Pub. L 97-116,

§15 (95 Stat. 1619).

T 102 (2-17-82)

33

(d) The eligibility for naturalization of any person who filed a peti-

tion for naturalization prior to January 1, 1947, under section 701 of

the Nationality Act of 1940, as amended (56 Stat. 182, 58 Stat. 886, 59

Stat. 658; 8 U.S.C. 1001), and which is still pending on the effective

date of this Act, shall be determined in accordance with the provisions

of this section.

*As amended by the Act of October 24, 1968 (82 Stat. 1343)

(11-6-68)

34

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

October Term 1990

NO.

Joseph N. Aquilina, M.D., Petitioner

vs.

United States of America, U.S. Justice Department of

Immigration & Naturalization, Defendant, Respondent

PROOF OF SERVICE

l, "9 PH N. AQUILINA, do swear or declare that on this

date, 7 uses, 1990, A.D., pursuant to Supreme Court Rules

29.3 and 29.4, I have served the attached PETITION FOR

WRIT OF CERTORIARI on each party to the above pro-

ceeding, or that parties’ counsel, and on every other person re-

quired to be served by depositing an envelope containing the

above documents with the United States Post Office, properly

addresses to each of them and with first class postage pre-paid

affixed thereon, and also each envelope was mailed return

receipt.

The names and addresses of those served are as follows:

1. SUPREME COURT OF THE UNITED STATES: Atten-

tion: Clerk; 1 First Street, N.E.; Washington, D.C. 20543.

2. Solicitor General, Department of Justice; Washington,

D.C. 20530

3. Janet Parker, J.D., Assistant U.S. Attorney, 203 Federal

Bldg., 1000 Washington; Bay City, Michigan 48708. Tel: (517)

985-5712

BY: fophW Gaur

JOSEPH N. AQUILINA, M.D.

Subscri and sworn, before me

on the day of ,1990, A.D.

in the county of Saginaw, State of Michigan.

My commission expires:

Notary Publit in and for said County and State

Notary Public. Saginaw County. MI 35

My Commnission Expires Jan. 19, 1992

ns