167 F.2d 808 (9th Cir. 1948), 11599, Wixman v. United States

Docket Nº:11599.
Citation:167 F.2d 808
Party Name:WIXMAN v. UNITED STATES.
Case Date:May 04, 1948
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 808

167 F.2d 808 (9th Cir. 1948)

WIXMAN

v.

UNITED STATES.

No. 11599.

United States Court of Appeals, Ninth Circuit.

May 4, 1948

Rehearing Denied June 5, 1948.

Page 809

Wirin, Kido & Okrand, A. L. Wirin, Fred Okrand, Leo Gallagher and Herbert Ganahl, all of Los Angeles, Cal. (Arthur Garfield Hays, Osmond K. Fraenkel and Nanette Dembitz, Counsel, American Civil Liberties Union, all of New York City, of Counsel), for appellant.

James M. Carter, U.S. Atty., Ronald Walker and Paul Fitting, Asst. U.S. Attys, all of Los Angeles, Cal., Bruce G. Barber, District Adjudications Officer, Immigration and Naturalization Service, of Los Angeles Cal., on the brief), for appellee.

Before MATHEWS, BONE, and ORR, Circuit Judges.

MATHEWS, Circuit Judge.

This appeal is from a judgment denying a petition for naturalization filed by appellant, Shulim Wixman, also known as Samuel Morris Wixman, who was born in Russia on March 25, 1900, and entered the United States under the name of Scholem Wieseman on July 16, 1911. The petition was filed on September 25, 1945, and was denied on February 7, 1947.

The petition was filed pursuant to the Nationality Act of 1940, 8 U.S.C.A.§ 501 et seq. Subsection (a) of Sec. 307 of the Act, 8 U.S.C.A. § 707, provides that, with inapplicable exceptions, 'No person * * * shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years and within the State in which the petitioner resided at the time of filing the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is * * * attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.'

Appellant's petition stated: 'I am, and have been during all of the periods required by law, 1 attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States.' On the ground that appellant was not so attached or so disposed, appellee, the United States, objected to his naturalization.

Pursuant to Sec. 334 of the Act, 8 U.S.C.A. § 734, a final hearing on appellant's petition was had in open court before a judge thereof, commencing on January 24, 1947, and ending on February 5, 1947. The witnesses- 31 for appellant and 9 for appellee- were examined under oath before and in the presence of the court and judge. On the issue as to whether appellant, during the periods referred to in subsection (a) of Sec. 307 of the Act, 8 U.S.C.A. § 707, 2 was attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States, the evidence was conflicting. There was evidence tending to show that he was so attached and so disposed and evidence tending to show that he was not so attached or so disposed. The court resolved

Page 810

the conflict in favor of appellee and against appellant. Hence the judgment here appealed from.

As required by our Rule 19(6), 3 appellant, upon filing the record in this court, filed with the clerk a statement of the points on which he intended to rely on the appeal and designated the parts of the record which he thought necessary for the consideration thereof. Three points were stated. Point 1 is that 'The denial of the petition and the judgment thereon denies to the appellant his right of freedom of speech within the meaning of the...

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