Schwab v. Coleman, 5293.

• Citation: 145 F.2d 672,156 ALR 355
• Decision Date: 10 November 1944
• Docket Number: No. 5293.,5293.
• Parties: SCHWAB et al. v. COLEMAN, U. S. District Judge.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

156 ALR 355, 145 F.2d 672 (1944)

SCHWAB et al. v. COLEMAN, U. S. District Judge.

No. 5293.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1944.

Simon E. Sobeloff, of Baltimore, Md. (Bernard M. Goldstein, of Baltimore, Md., on the brief), and Joseph Savoretti, Acting Com'r, Immigration and Naturalization Service, pro se, in support of petition.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an application for a writ of mandamus to require Hon. William C. Coleman, one of the District judges of the United States for the District of Maryland, to pass upon certain petitions for naturalization pending before him. The petitioners here are the Commissioner of Immigration and Naturalization of the United States and five persons who filed the petitions for naturalization before Judge Coleman. Each of these five persons has complied with all the requirements of the naturalization laws for admission to citizenship; and, as to each, admission to citizenship is recommended by the Commissioner. Each, however, is a native of Germany who left that country after the beginning of the Nazi regime. Judge Coleman refused to pass upon their applications and continued the hearings thereon because of a policy which he has adopted not to grant citizenship during the war to German enemy aliens who have left Germany since the beginning of the Nazi regime, except in the case of members of our armed forces.

There is no dispute as to the facts or as to their showing without contradiction that the petitioners are persons of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States. One is a Rabbi of a Hebrew Synagogue in Baltimore. Two of the others are a noted ophthalmologist, attached to the Wilmer Clinic of Johns Hopkins Hospital, and his wife. Another is a woman whose father is dead, whose mother is in a German concentration camp, who has no relatives in foreign military service, who has three cousins in the armed forces of the United States and who desires citizenship in order that she herself may join the Women's Army Corps. The remaining applicant is a trained nurse, the wife of an officer in the United States Army. The following succinct statement of the pertinent facts appears in the brief of the Commissioner:

"The petitioners for naturalization, all natives of Germany and now citizens thereof or stateless and residents of Baltimore, Maryland, filed their respective petitions for naturalization in the United States District Court for the District of Maryland, at Baltimore, Maryland. In each case the petitioner for naturalization and his witnesses were accorded a preliminary examination prior to the filing of his petition, and a preliminary hearing pursuant to the provisions of section 333 of the Nationality Act of 1940 (54 Stat. 1156, 8 U.S.C.A. § 733) was held subsequent to the filing of his petition. The evidence in each case establishes that for at least five years immediately prior to the filing of his petition each petitioner for naturalization had resided continuously in the United States and that during all of that time he had been a person of good moral character, attached to the principles of the Constitution and well-disposed to the good order and happiness of the United States, and entitled to naturalization under all the applicable provisions of the naturalization laws.

"Subsequent to the filing of the petition the clerk of court notified the Commissioner of Immigration and Naturalization of the pendency of each and every petition involved herein, and at the time of the final hearings hereinafter mentioned, more than ninety days had intervened between the notice from the clerk and the final hearing. During this intervening period the Government conducted an investigation to determine petitioners' eligibility to naturalization including whether petitioners were loyal to the United States and attached to the principles of the Constitution of the United States. The investigation was conducted in the same manner as that conducted in all cases involving alien enemies. In the course of the investigation the alien registration records and the fingerprint records of the Federal Bureau of Investigation were checked. All available information regarding the petitioners for naturalization was obtained from the files of the Federal Bureau of Investigation, the Army and Navy Intelligence Divisions, and the local police authorities. In addition officers of this Service made inquiry concerning petitioners in the neighborhoods in which they lived. Sworn statements were taken from petitioners regarding their background and activities since coming to this country. No information was discovered which indicated the necessity for further investigation. As the result of the investigation conducted in this case it was concluded by the Commissioner that petitioners had fully established their eligibility to naturalization.

"The Court set the cases for final hearing on June 13, 1944. On the trial of the cases held on June 13 and 14, 1944, the petitioners for naturalization and their witnesses testified under oath in support of the material allegations of their respective petitions. The evidence presented established that for at least five years immediately prior to the filing of the petition in each case, and until the final hearing thereof, the petitioners had resided continuously in the United States and that during all such period they had been persons of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States.

"After hearing all the testimony offered in behalf of the petitioners the trial court, on June 13 and 14, 1944, concluded that it should not make a final determination of the issues in the cases involved for the reasons appearing in the record which may be summarized as follows: (1) That during a state of war an investigation as to background and antecedents cannot be conducted, and, (2) that petitioners for naturalization who have not resided in the United States since prior to 1933 have not resided a sufficient length of time for the Court or the petitioners to know whether they are attached to the principles of the Constitution due to the emotional conditions under which they came here.

"The final hearing in each case was thereupon continued indefinitely. Counsel for the petitioners urged that the Court either grant or deny each petition on the basis of the evidence adduced at the hearings. This the Court refused to do."

Judge Coleman has filed a written opinion setting forth his reasons for refusing to pass upon the applications for citizenship. He refers to this opinion as his answer to the petition for mandamus; and we have given it careful and respectful consideration. In that opinion he makes it very clear that he is refusing to take final action upon the petitions for two reasons, (1) because the war makes it impossible to conduct an investigation in Germany with regard to the petitioners, and (2) because he thinks that refugees driven out of Germany by the Nazi regime are not able, because of the emotional strain to which they have been subjected, to attach themselves to this country in the manner that the law contemplates. The heart of the court's reasoning is set forth in the following excerpt from his opinion:

"We are not questioning the good faith or the thoroughness of the examination made by the administrative authorities in so far as they have been able to make it, but the points which the court is stressing, and which seem in the public interest to fully justify a postponement of final action in cases of this kind, are the following: First, the state of war, — the fact that the persons seeking citizenship are nationals of a country with which we are at war. Congress has provided that, under certain circumstances, such persons may be admitted to citizenship. The law does not say that they must be. It provides that they may be presented for citizenship if their declaration of intention has been existent for a given length of time, and there are other administrative requirements. All of those have been met. But it does not say that the state of war shall be swept aside from consideration by the Court, or the Bureau. It does not say that the Court is forbidden to take into account the inability to ascertain what normally should be ascertained about petitioners of this kind because of the state of war, and there is an almost complete inability to do so. Such ascertainment may add nothing. It may only increase the proof of loyalty. But the fact remains that the war has shut the door upon a full, thorough investigation. The petitioners' records in Germany, their proclivities and associations are undisclosed except by their own statements and those of their relatives resident in this country, and of their newly made friends in this country — persons for the most part of German extraction or birth themselves who knew little if anything about the petitioners until, a few years ago, when they came to this country under the stress of war, or near-war conditions.

"Secondly: While the law says that persons meeting the requirements set forth in the statute, even though nationals of enemy countries, may be naturalized, it does not say that the Court shall close its eyes to any emotional condition under which the applicant has come to, and taken up residence in this country, or the length of time which may affect a determination as to whether or not the applicant is able, — not so much a question of whether he is willing but whether he is in fact able, — to attach himself under these emotional and abnormal war conditions to this country. That is the second consideration to which the Court feels, in the public interest, it must give great weight."

And more specifically with respect to petitioners the Court sai...