U S v. GINSBERG(1917)
The certificate in question is as follows:
The United States Circuit Court of Appeals for the Eighth Circuit hereby certifies that a record on an appeal now pending before it discloses the following:
The United States of America brought a suit in the district court of the United States for the western district of Missouri to cancel a certificate of citizenship issued December 18, 1912, to Solomon Louis Ginsberg, a native of Russia. The suit was brought under the provision of 15 of the Act of June 29, 1906 (34 Stat. at L. 601, chap. 3592, Comp. Stat. 1913, 4347), authorizing 'proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud, or on the ground that such certificate of citizenship was illegally procured.' On final hearing the trial court dismissed the bill. The government appealed.
The grounds for cancelation averred in the bill were: (a) The certificate of citizenship was illegally procured in that there was a violation of the provision of 9 of the Act of June 29, 1906, 'that every final hearing upon such petition (for naturalization) shall be had in open court before a judge or judges thereof,' the hearing in question having been before a judge in chambers, and not in open court. (b) The certificate of citizenship was illegally procured because, though the averments of Ginsberg's petition and the verifying affidavits of his witnesses were in due form and sufficient on their face, yet the undisputed facts disclosed at the hearing of the petition showed he was not qualified to be admitted to citizenship; and the petition was also a fraud upon the law.
At the trial of the suit below there was no conflict in the evidence as to time, place, and circumstances of the hearing of the petition for naturalization nor as to Ginsberg's qualifications for citizenship, and the disclosures thereof to the judge who awarded the certificate. Sworn statements of these [472-Continued.]
matters by Ginsberg and the two men who acted as his witnesses were made part of the bill of complaint, and, with the court records, of which judicial notice was taken, constituted the sole evidence upon which the trial court refused to cancel the certificate and dismissed the bill. This evidence showed the following:
The petition for naturalization was heard by a United States district judge assigned for service at Kansas City in the western district of Missouri, not the regular judge of that district. The petition was first brought up at a night session of the court December 16, 1912, and the hearing thereof was postponed by the court, with direction to Ginsberg and his witnesses to appear at the judge's chambers some time after 8 o'clock A. M. December 18, 1912. The judge's chambers were separate from but contiguous to the court room. According to direction they appeared at the chambers about half past 8 o'clock in the morning, the hearing was then had, and the certificate of citizenship was awarded. As shown by the court records for the previous day, court had adjourned until a later hour on the 18th than that at which the petition was heard. The petition for naturalization was filed June 7, 1912. The proofs at the hearing of it showed that Ginsberg had not resided continuously within the United States five years, nor within the state of Missouri one year, immediately preceding the date of his application, as required by 4, pp. 2 and 4 of the Act of June 29, 1906. Ginsberg was a native subject of Russia. He finished his school studies in England in 1890. He then went to Brazil and engaged in missionary work. In 1893 he identified himself with a foreign mission board in that country, with which he served continuously thereafter. At the end of each seven years of service he was allowed a vacation of about fourteen months, and, having married in Brazil, in 1893, a native of the state of Missouri, he was accustomed to spend his vacations with his wife's relatives in the latter place, following which, to use his expression, 'he would return to his home in Brazil.' When he declared his intention to become a citizen of the United States, in 1904, it was his intention to sever his connection with the mission board and remain in this country; but the condition of his work in Brazil made it necessary for him to resume his residence there. In the five years preceding June 7, 1912, when his petition for naturalization was filed, he had been 'actually and physically resident within the United States' but fifty-eight days; that is, from the 10th of the preceding April. When he filed his petition for naturalization and testified in support thereof he had no intention of claiming continuous residence in the United States, but whenever asked he stated the facts about his actual residence in Brazil as above recited. He said the clerk of the court prepared his petition, the averments of which, if true, were sufficient under the law.
It is further certified that the following questions of law arise from the record and are presented, the decision of which is indispensable to a determination of the case. To the end [472-Continued.]
that this court may properly discharge its duty it desires the instruction of the Supreme Court upon them:
1. Is the final hearing of a petition for naturalization had in open court, as required by 9 of the Act of June 29, 1906, 34 Stat. at L. 599, chap. 3592, Comp. Stat. 1913, 4368, if, after the petition is first presented in open court, the hearing thereof is passed to and finally held in the chambers of the judge adjoining the court room, on a subsequent day and at an hour earlier than that to which the court has been regularly adjourned?
2. If, under the above circumstances, the final hearing of the petition was not in open court, as required, may the certificate of citizenship issued on such a hearing and the order pursuant thereto be set aside and canceled in an independent suit brought under 15 of the Act of June 29, 1906, chap. 3592, on the ground that it was illegally procured or is a fraud upon the law?
3. Is it a fraud for which a certificate of citizenship may be set aside and canceled in an independent suit brought under 15 of the Act of June 29, 1906, chap. 3592, if the essential averments of residence in the petition for naturalization are sufficient on their face, but are false in fact, the petitioner having acted in good faith and in reliance upon the officer who prepared the petition for him, and having disclosed the truth at the hearing thereof?
4. May a certificate of citizenship be set aside and canceled in an independent suit brought under 15 of the Act of June 29, 1906, chap. 3592, on the ground that it was illegally procured, if the uncontradicted evidence at the hearing of the petition showed indisputably that the petitioner was not qualified by residence for citizenship, and that the court or judge who heard the petition and ordered the certificate misapplied the law and the facts?
Assistant Attorneys General Warren and Wallace for the United states.
No appearance for Solomon Louis Ginsberg.
Mr. Justice McReynolds delivered the opinion of the court:
Four questions have been certified (Judicial Code, 239 [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, 1216]); but considering the accompanying statement of facts and our views in respect of the law, answers to the first and fourth will enable the circuit court of appeals properly to determine the issues involved. United States v. Britton, 108 U.S. 199, 207 , 27 S. L. ed. 698, 700, 2 Sup. Ct. Rep. 531. Question '1. Is the final hearing of a petition for naturalization had in open court as required by 9 [243 U.S. 472, 473] of the Act of June 29, 1906, chap. 3592, 34 Stat. at L. 599, Comp. Stat. 1913, 4368, if, after the petition is first presented in open court, the hearing thereof is passed to and finally held in the chambers of the judge adjoining the court room, on a subsequent day and at an hour earlier than that to which the court has been regularly adjourned?'
Question '4. May a certificate of citizenship be set aside and canceled in an independent suit brought under 15 of the Act of June 29, 1906, chap. 3592, on the ground that it was illegally procured, if the uncontradicted evidence at the hearing of the petition showed indisputably that the petitioner was not qualified by residence for citizenship, and that the court or judge who heard the petition and ordered the certificate misapplied the law and the facts?'
Prior to 1906 'the Uniform Rule of Naturalization' authorized by the Constitution was found in the Act of 1802 [2 Stat. at L. 153, chap. 28], and a few amendments thereto. This enumerated only general controlling principles. Grievous abuses having arisen, Congress undertook, by the Act of June 29, 1906 (34 Stat. at L. 596, chap. 3592, Comp. Stat. 1913, 963), to prescribe 'and fix a uniform system and a code of procedure in naturalization matters.' Report Committee on Immigration and Naturalization, H. R. 1789, Feb. 26, 1906. This specifies with circumstantiality the manner ('and not otherwise') in which an alien may be admitted to become a citizen of the United States; what his preliminary declaration shall be; form and contents of his sworn petition to the court and witnesses by which it must be verified; form of oath to be taken in open court; necessary proof concerning residence, character, etc. The clerk is required to post notice of the petition with details concerning applicant, when final hearing will take place, names of witnesses by which alleged facts are to be established, etc. And it is further provided:
Section 9. 'That every final hearing upon such petition [243 U.S. 472, 474] shall be had in open court before a judge or judges thereof, and every final order which may be made upon such petition shall be under the hand of the court and entered in full upon a record kept for that purpose, and upon such final hearing of such petition the applicant and witnesses shall be examined under oath before the court and in the presence of the court.'
Section 15. 'That it shall be the duty of the United States district attorney for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days' personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the state or the place where such suit is brought.'
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In Johannessen v. United States, 225 U.S. 227 , 56 L. ed. 1066, 32 Sup. Ct. Rep. 613, we discussed the purpose and effect of the act.
An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.
Section 9 requires a final hearing upon the petition in [243 U.S. 472, 475] open court. The term 'open court' is used in contradistinction to a judge sitting in chambers. Bouvier's Law Dict. The whole statute indicates a studied purpose to prevent well-known abuses by means of publicity throughout the entire proceedings. Its plain language repels the idea that any part of a final hearing may take place in chambers, whether adjoining the court room or elsewhere.
No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in 15, and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence nonessential.
Question numbered 1 must be answered in the negative; numbered 4 in the affirmative
And it is so ordered.