IN RE: BOGUNOVIC. (1940)

Petitioner filed his petition in the superior court seeking naturalization. His petition was denied upon the ground that he was “not attached to principles of the government of the United States”. Petitioner appeals from the judgment denying his petition.

At the outset, we should dispose of the contention of respondent that this court has no jurisdiction of this appeal. Respondent argues that there is no provision for any appeal in the statutes relating to naturalization and that when naturalization proceedings are instituted in a state court, no appellate court of such state can entertain an appeal in such proceedings. While the statutes relating to naturalization contain no express provision for any appeal and while it was held in the case of United States v. Dolla, 5 Cir., 177 F. 101, 21 Ann.Cas. 665, that no appeal would lie in a naturalization proceeding instituted in a federal court, the last-mentioned case was overruled by the United States Supreme Court in Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 426, 70 L.Ed. 738, where it was held that the United States Circuit Court of Appeals had jurisdiction to review the decree of a United States District Court denying a petition for naturalization. That decision was based on section 128 of the Judicial Code of the United States, 28 U.S.C.A. § 225, providing that the Circuit Courts of Appeals shall have appellate jurisdiction to review final decisions of the District Court of the United States “in all cases”, with certain exceptions not material to this discussion. It was held that a naturalization proceeding was “a case” within the meaning of that statute. The court there said on page 575 of 270 U.S., on page 426 of 46 S.Ct., 70 L.Ed. 738, “In the state courts judgments granting or denying petitions for naturalization have generally been held to be reviewable on appeal, like other cases.” There is some conflict in the decisions of the state courts on the subject but the great weight of authority supports the view which was quoted with approval by the United States Supreme Court in Tutun case. See In re Fordiani, 98 Conn. 435, 120 A. 338; United States v. Hrasky, 240 Ill. 560, 88 N.E. 1031, 130 Am.St.Rep. 288, 16 Ann.Cas. 279; United States v. Gerstein, 284 Ill. 174, 119 N.E. 922, 1 A.L.R. 318; Ex parte Smith, 8 Blackf., Ind., 395; Dean, Petitioner, 83 Me. 489, 22 A. 385, 13 L.R.A. 229; State v. District Court, 107 Minn. 444, 120 N.W. 898, 22 L.R.A., N.S, 1041; Ex parte Johnson, 79 Miss. 637, 31 So. 208, 89 Am.St.Rep. 665; State v. District Court, 61 Mont. 427, 202 P. 387; State, Rushworth v. Judges of Inferior Court, 58 N.J.L. 97, 32 A. 743, 30 L.R.A. 761; United States v. Breen, 135 App.Div. 824, 120 N.Y.S. 304; In re Naturalization of Vura, 5 Ohio App. 334; Ex parte Granstein, 1 Hill, S.C., 141. Most of the decisions of the state courts adopting a contrary view, including In re Wilkie, 58 Cal.App. 22, 208 P. 144, and State v. Superior Court, 75 Wash. 239, 134 P. 916, Ann.Cas.1915C, 425, were handed down prior to the decision in Tutun v. United States, supra. In the only case touching the subject which has been decided in this jurisdiction since the decision in the Tutun case (In re Hullen, 124 Cal.App. 271, 12 P.2d 487), the court recognized the fact that the question of whether an appeal would lie to the appellate courts of the state was not necessarily involved for the reason that the appeal there was not, in any event, perfected within the time allowed by law. We therefore conclude upon the authority of the Tutun case and the decisions of the state courts referred to therein with approval, that this court has jurisdiction of this appeal.

We may now proceed to a consideration of appellant's contentions on this appeal but, before doing so, it appears appropriate to make certain general observations concerning naturalization as much is said in the briefs regarding the question of whether naturalization is a right or a privilege. We believe that the situation is clarified by the decisions of the United States Supreme Court.

In United States v. Macintosh, 283 U.S. 605, at page 615, 51 S.Ct. 570, at page 572, 75 L.Ed. 1302, the court said: “Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes.” And in Tutun v. United States, 270 U.S. 568, at page 578, 46 S.Ct. 425, at page 427, 70 L.Ed. 738, it was said, “The opportunity to become a citizen of the United States is said to be merely a privilege, and not a right. It is true that the Constitution does not confer upon aliens the right to naturalization. But it authorizes Congress to establish a uniform rule therefor. Article 1, § 8, cl. 4. The opportunity having been conferred by the Naturalization Act, there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate. See United States v. Shanahan (D.C.) 232 F. 169, 171. There is, of course, no ‘right to naturalization unless all statutory requirements are complied with.’ United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422 (61 L.Ed. 853); Luria v. United States, 231 U.S. 9, 22, 34 S.Ct. 10, 58 L.Ed. 101. The applicant for citizenship, like other suitors who institute proceedings in a court of justice to secure the determination of an asserted right, must allege in his petition the fulfillment of all conditions upon the existence of which the alleged right is made dependent, and he must establish these allegations by competent evidence to the satisfaction of the court. In re Bodek (C.C.) 63 F. 813, 814, 815; In re [an Alien], 7 Hill (N.Y.) 137. In passing upon the application the court exercises judicial judgment. It does not confer or withhold a favor.”

It thus appears that while an alien has the right to file his petition and to obtain a hearing thereon before a competent tribunal, he has no right to admission to citizenship except upon his establishment of the requisite facts. In this connection it is well settled that the burden of proof is upon the petitioner and that any doubt which exists should be resolved against the petitioner. United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302; United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Manzi, 276 U.S. 463, 48 S.Ct. 328, 72 L.Ed. 654.

From the standpoint of the government the most important fact to be established before an alien is admitted to citizenship is that the alien is “attached to the principles of the Constitution of the United States”. Sec. 382, U.S.C.A., tit. 8, chap. 9. “Attached to the principles of the Constitution means attachment to the principles of free government as exemplified in that instrument. ‘Attachment’ is a stronger word than ‘well disposed,’ and implies a depth of conviction which would lead to an active support of the Constitution.” In re Saralieff, D.C., 59 F.2d 436. It therefore may be said that proof of such attachment consists of proof of the attitude or state of mind of the petitioner and that, in passing upon a petition for naturalization, the court is not bound by the mere statement of the petitioner that he bears such attachment. On the contrary the court may admit any evidence which will have any reasonable tendency to show the attitude or state of mind of the petitioner and may consider the willingness or unwillingness of the witness to answer frankly all proper questions and his demeanor in answering such questions. The scope of the examination to ascertain the state of mind of a petitioner is practically unlimited for as was said in United States v. Macintosh, 283 U.S. 605, at pages 616 and 617, 51 S.Ct. 570, at page 572, 75 L.Ed. 1302, “These, at least, are matters which are of the essence of the statutory requirements, and in respect of which the mind and conscience of the applicant may be probed by pertinent inquiries as fully as the court, in the exercise of a sound discretion, may conclude is necessary.” It is obvious that a trial court, seeing and hearing a petitioner while giving his testimony, has a far better opportunity than has an appellate court to determine the truth of such testimony and to determine the attitude or state of mind of such petitioner and therefore the finding of a trial court with respect to the lack of attachment of a petitioner to the principles of the Constitution should seldom be disturbed by an appellate court. It is well settled that the trial court is not always bound by the positive and uncontradicted testimony of a witness (Caldwell v. Weiner, 203 Cal. 543, 264 P. 1100; Travis Glass Co. v. Ibbetson, 186 Cal. 724, 200 P. 595; Blanc v. Connor, 167 Cal. 719, 141 P. 217; Davis v. Judson, 159 Cal. 121, 113 P. 147) and this is particularly true where the witness is an interested witness and the issue is one involving the attitude or state of mind of such witness. In any event, if the record in a naturalization proceeding shows affirmatively that there is any reason for the trial court to doubt the attachment of a petitioner to the principles of our Constitution, there can be no question under the authorities above cited that the trial court's finding against such petitioner on this issue must be sustained on appeal.

The main contention of petitioner is that the trial court abused its discretion in denying him admission to citizenship as there was no evidence to sustain the finding of the trial court against him on the issue of his attachment. We find no merit in this contention. It is true that in response to a few leading questions from his own counsel, petitioner testified that he was “well disposed to the good order of the United States”, that he had not done “anything detrimental to the best causes and interest of the Constitution, Government and laws of the United States” and did not know anything which he had done for which he could be criticized. We may assume, without deciding, that this was a sufficient prima facie showing that petitioner was “attached to the principles of the Constitution of the United States”. It is impossible, however, for an appellate court to ascertain from the typewritten record the demeanor of the witness on the stand or whether that demeanor in itself was sufficient to cast doubt on the truth of petitioner's representation as to his attachment. Furthermore, we find that the record affirmatively shows sufficient facts and circumstances to cast doubt thereon.

It appears that petitioner is about 40 years of age. He was born in Jugoslavia, entered the United States in 1909 and has engaged in farming, residing in Cupertino. He is the secretary of the Cupertino Local of the Croatian Fraternal Union. The record does not disclose the exact nature of this union or lodge. Petitioner states that he has no police record except for a minor traffic violation. The record shows, however, that he was also arrested at one time and paid a fine for stealing fruit from a neighbor's orchard. A reading of the entire testimony shows that petitioner has a fair knowledge of the English language but his answers to certain questions show either a lack of understanding of the questions or an attempt to be vague, evasive or untruthful in his replies. Upon cross-examination, the examiner sought to elicit facts tending to show attachment on the part of the petitioner to the principles of communism rather than attachment to the principles of our Constitution. The petitioner admitted that he subscribed and resubscribed to a weekly newspaper called “Rodnik” over a period of two years; that this paper was a communistic paper, published in this county in the Jugoslavian language and bearing on the front page the statement “Organ Communist Party of the United States of America”; that a fellow lodge member by the name of Nicholas circulated this paper; that on one occasion a bundle of these papers was sent to petitioner by mail but he did not know whether Nicholas circulated the papers contained in said bundle or whether his wife burned them up. While petitioner claimed that he did not know it was a communistic paper when he first subscribed as “the man who subscribed me didn't tell me”, he admitted that he discovered that it was a communistic paper as soon as he received it. At one point he explained his continued subscription to the paper thereafter by stating that he was solely interested in a story which ran therein for about a year and a half but afterwards stated, “Well, when I read the paper I want to see both sides, so I think I am entitled to read the paper.” When asked the question, “Didn't think anything of it?”, he gave the ambiguous reply, “That I want to educate myself to become communist, I didn't think nothing of it to read that paper.” At one point he stated, “I really don't remember what it was, what I read in those papers those days” and again when he was asked “* you know that that paper taught the overthrow of this government, is that right?”, he stated, “Well, I may say that that I read in the paper.” It further appears that petitioner had made application for naturalization on a previous occasion. At that time he was requested to appear before the immigration authorities for the purpose of making a statement. He did so appear but he refused to make any statement on the advice of counsel.

Our view of the record shows that the trial court may well have considered that petitioner had not shown that willingness to submit to examination or that frankness in answering material questions which should characterize the attitude of an alien who is applying for admission to citizenship. Petitioner was represented by counsel who strenuously objected to many proper questions and, when testimony was adduced raising a doubt as to whether petitioner was attached to the principles of communism or to the principles of our Constitution, petitioner failed to offer any testimony expressly disavowing his attachment to the principles of communism. The burden of proof was not upon the government to show that petitioner was attached to the principles of communism. The burden was upon petitioner, as above stated, to show that he was attached to the principles of our Constitution. It is a sufficient answer to petitioner's main contention here to state that the record affirmatively shows a doubt as to whether petitioner had sustained his burden of proof on said issue and therefore, under the authorities above cited, the trial court was justified in finding against him on said issue and in denying him admission to citizenship.

Petitioner further contends that the trial court erred in “admitting evidence of conduct seven years prior to the time the petition was filed”. Petitioner objected to many of the questions relating to his conduct upon the theory that under the provisions of the statute (sec. 382, U.S.C.A., tit. 8, chap. 9) the scope of the inquiry was limited to the period of five years immediately preceding the filing of the petition. We believe this contention to be wholly without merit. Said statute provides that no alien shall be admitted to citizenship unless he has resided continuously in the United States for “at least five years” immediately preceding the date of his application and continuously from that time until the time of his admission to citizenship and unless “during all the periods referred to in this section he has behaved as 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”. It is also provided in the statutes that the government may appear in naturalization proceedings and may cross-examine the petitioner and the other witnesses “concerning any matter touching or in any way affecting his right to admission to citizenship”. Sec. 399, U.S.C.A. tit. 8, chap. 9. We find nothing in the statutes showing any intention to limit the scope of such cross-examination to a period of five years. When a petitioner claims that he is and has been for “at least five years” attached to the principles of our Constitution the government has the right to examine the petitioner regarding any conduct of petitioner occurring at any time which may have any tendency to cast doubt upon the truth of such claim. United States v. Bressi, D.C., 208 F. 369; In re DeMayo, D.C., 26 F.Supp. 996; In re Kornstein, D.C., 268 F. 172; United States v. Etheridge, D.C., 41 F.2d 762. As was said in United States v. Bressi, supra, at page 372 of 208 F., “His testimony as to being attached to the principles of the Constitution of the United States and his disposition with relation to our theory of government, and his position in and relation to society and beliefs pertaining to organized government, and disposition as to public officers, is the every essence of the inquiry. These are matters of growth and development, and a conclusion as to some of these requirements can only be arrived at by a discovery of the mental relation and bearing as to these functions and institutions; and any condition or practices of the applicant during his previous life would be material as bearing upon the truthfulness of the statement made.”

Finally petitioner contends that the decision of the trial court violated his constitutional rights. He cites the first, fifth and fourteenth amendments to the Constitution of the United States and section 9 of article I of said Constitution in their relation to freedom of speech, freedom of press, due process, equal protection of the laws and ex post facto laws. It seems entirely clear, without extended discussion, that there is no merit in petitioner's claim. Even if it be assumed that any person, including any alien lawfully within our borders, has the right under our Constitution to be opposed to the principles of the very instrument under which he claims such right of opposition, it does not follow that an alien who exercises his claimed constitutional right of opposition has any right, constitutional or otherwise, to gain the status of a citizen. He may apply or refrain from applying for citizenship as he chooses but, if he applies, the burden is upon him to show the primary statutory requirement of attachment to the principles of our Constitution. And if it appears from the testimony concerning his conduct, including his utterances, his publications, his readings or his associations, that he is opposed to the principles of our Constitution or that there is doubt concerning his attachment to such principles, a decision denying him naturalization cannot be assailed upon the ground that the Constitution guarantees to him the right to indulge in such utterances, publications, readings or associations. The real issue upon a naturalization hearing is not whether the petitioner's conduct has been lawful or unlawful. Evidence of the petitioner's conduct is admitted merely as an aid to the court in determining whether the petitioner is attached to the principles of the Constitution of the United States. A decision against a petitioner in such proceedings on the ground of lack of attachment merely amounts to a decision that the petitioner has failed to sustain the burden of proving such attachment. Such decision does not deprive him of any constitutional right.

The judgment is affirmed.

SPENCE, Justice.

We concur: NOURSE, P.J.; STURTEVANT, J.