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3 U. Bridgeport L. Rev. 197 (1981-1982)
Yes, Virginia, There Is a Uniform Rule of Naturalization Clause: Nemetz v. Immigration and Naturalization Service

handle is hein.journals/qlr3 and id is 203 raw text is: YES, VIRGINIA, THERE IS A UNIFORM RULE OF NATURALIZATION CLAUSE: Nemetz v. Immigration and Naturalization Service INTRODUCTION When Horst Nemetz emigrated from Germany in 1967, he chose to reside with a male companion in Virginia. From time to time, Mr. Nemetz and his roommate, in the privacy of their quar- ters, committed acts criminal in the eyes of Virginia law.' In 1976, Horst Nemetz filed a petition to become a United States citizen,2 the Immigration and Naturalization Service (INS) opposing on grounds of the petitioner's lack of good moral charac- ter.3 The privilege of citizenship,4 which Congress extends to de- serving aliens,5 may be exercised only upon the fulfillment of cer- 1. VA. CODE § 18.2-361 (Cum. Supp. 1980): Crimes against nature. If any per- son shall carnally know ... any male or female person by'the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years. 2. Nemetz v. Immigration & Nat. Serv., 647 F.2d 432 (4th Cir. 1981). The peti- tioner for United States citizenship must fulfill the requirements of the Immigration & Nationality Act of 1954, 8 U.S.C. §§ 1101 et seq. (1976). These include residence, nonabsence, physical presence and moral character. 8 U.S.C. § 1427. (Exceptions are granted for service in the armed forces. 8 U.S.C. §§ 1439, 1440). He must then dem- onstrate his understanding of the English language and of the fundamentals of the history ... principles and form of government of the United States. Having thus complied with the regulations, he may file a verified petition for naturalization with the clerk of the court. 8 U.S.C. §§ 1423, 1445. Jurisdiction for naturalization is vested concurrently in the federal district courts and the courts of all states and territories. 8 U.S.C. § 1421. The final hearing is held in open court before the sitting judge. 8 U.S.C. § 1447. If the petition is denied, an appeal may be addressed to the naturali- zation court or to the circuit court of appeals. In proper cases, notably when conflict exists among the circuits, the Supreme Court will grant certiorari. 8 U.S.C. § 1451. 3. In re Nemetz, 485 F. Supp. 470 (E.D. Va. 1980), rev'd sub nom. Nemetz v. Immigration & Nat Serv., 647 F.2d 432 (4th Cir. 1981). 4. See, e.g., Schneiderman v. United States, 320 U.S. 118, 131-32 (1943) (natu- ralization is a privilege); Marcantonio v. United States, 185 F.2d 934, 937 (4th Cir. 1950) (The opportunity to become a citizen of the United States is said to be merely a privilege, and not a right) (quoting Justice Brandeis in Tutin v. United States, 270 U.S. 568, 578 (1926)); Ralich v. United States, 185 F.2d 784, 786 (8ih Cir. 1950) (citi- zenship is a gift). 5. See Fedorenko v. United States, 101 S. Ct. 737 (1981) (Congress has the sole constitutional authority to prescribe rules for naturalization); Examining Bd. of Eng'rs, Arch. & Surveyors v. Flores de Otero, 426 U.S. 572, 602 (1976) (federal gov- ernment has primary responsibility in field of immigration and naturalization); Baumgartner v. United States, 322 U.S. 655, 672 (1944) (Congress alone entrusted by Constitution with power to give or withhold naturalization); Chirac v. Lessee of Chirac, 15 U.S. 259, 269 (1817) (power of naturalization exclusively in Congress).

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