Application of Murra, 9809.

Citation178 F.2d 670
Decision Date31 January 1950
Docket NumberNo. 9809.,9809.
PartiesApplication of MURRA.
CourtU.S. Court of Appeals — Seventh Circuit

William H. King, Jr., Richard H. Merrick, Chicago, Ill., Henry Heineman, Chicago, Ill., for appellant.

Hon. Otto Kerner, Jr., U. S. Attorney, John Peter Lulinski and C. Wylie Allen, Asst. U. S. Attys. Chicago, Illinois (Dewey G. Hutchinson, Chicago, Ill., of counsel), for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

This is an appeal from an order entered November 23, 1948, denying the naturalization petition of John Victor Murra. The petition was filed November 21, 1944, and took what may be termed its usual course. It came on for final hearing in open court, and on January 17, 1947, his petition was denied and dismissed. From this order an appeal was taken to this court, wherein the order was reversed with directions that the court make its findings of fact and conclusions, as required by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S. C.A. Application of Murra, 7 Cir., 166 F. 2d 605.

Thereupon, the court made its findings of fact and entered its conclusions of law, but upon precisely the same record as the court had before it in the first instance. That record contains two exhibits introduced by the government, one containing the testimony of Murra taken at a hearing before a Naturalization Examiner on June 4, 1946, and the other the testimony of Murra and other witnesses taken before a Naturalization Examiner on October 11, 1946. Thus, there is contained in the record the testimony given by Murra on three different occasions, twice before an Examiner and once at the hearing on his petition in open court. On the former appeal, this court held that the testimony taken before an Examiner was irrelevant where the petition was heard in open court. Relative to such hearing we stated 166 F. 2d at page 607:

"Thus, the hearing before the court is not for the purpose of reviewing the recommendations of the Examiner; it is a hearing de novo and it is obvious that the court must decide the issues upon the testimony which it hears, and that neither the testimony heard by the Examiner, his findings, nor his recommendation are of any consequence."

While we have given further thought to the conclusion thus reached, we see no reason to retract it. We refer to this matter at this point for the reason that the government on the instant appeal fails to distinguish between the testimony which was given before the Examiner and that heard in open court, and the court below in its findings also to some extent failed to make such distinction.

In view of the findings subsequently referred to, made in response to our previous direction, as well as the argument here relied upon by the government, we think a further construction of Sec. 307(a) of the Nationality Act of 1940, 54 Stat. 1142, 8 U.S.C.A. § 707(a), is required, insofar as it relates to the length of time during which a petitioner must meet the conditions thereby imposed. The statutory provision so far as presently material provides in substance that no person shall be naturalized unless "immediately preceding the date of filing petition for naturalization", he has for at least five years "been and still is 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."

The government contends that this provision "fixes the minimum requirements that a petitioner for naturalization must meet, but the naturalization court may inquire into the entire life history of the petitioner to ascertain his true character and inclinations and it is incumbent upon the petitioner for naturalization to answer all pertinent questions and to honestly and truthfully disclose the facts bearing on his moral conduct." A number of district court opinions are cited in support of this contention, the most relevant being In re Taran, D.C., 52 F.Supp. 535; Petition of Gabin, D.C., 60 F.Supp. 750; In re Balestrieri, D.C., 59 F.Supp. 181. This theory of the government and of the cases which support it is contrary to the overwhelming weight of authority.

In Petition of Zele, 2 Cir., 140 F.2d 773, 776, the court stated:

"Under the law the burden is on the petitioner to establish good moral character only during the five-year period, not earlier. Petition of Zele, 2 Cir., 127 F.2d 578; United States v. Clifford, 2 Cir., 89 F.2d 184; United States v. Rubia, 5 Cir., 110 F.2d 92; In re Aldecoa, D.C.Idaho, 22 F. Supp. 659, 661. And it has consistently been construed liberally so as to sanction forgiveness after the expiration of five years from the date of a disbarring misdeed. In re Trum, D.C.W.D.Mo., 199 F. 361; In re Centi, D.C.W.D.Tenn., 217 F. 833; In re Guliano, D.C.S.D.N.Y., 156 F. 420; United States v. Mirsky, D.C.S.D.N. Y., 17 F.2d 275; In re Nagy, D.C.S.D. Tex., 3 F.2d 77; Application of Polivka, D. C.W.D.Pa., 30 F.Supp. 67. See, also, In re Schlau, 2 Cir., 136 F.2d 480."

In Schwab v. Coleman, 4 Cir., 145 F.2d 672, 675, 156 A.L.R. 355, the court stated:

"The statute in its general provisions requires five years residence and proof of good character and attachment to the Constitution during such period citing statute; and there is nothing in the provision as to naturalization of aliens which requires proof with respect to matters prior to such five year period."

And on the following page the court expressed the view that to hold otherwise "is not only to add to the requirements which the applicant must meet a condition which Congress has not imposed, but is also, in so far as the condition is insisted on, to nullify the provision of the statute which permits the naturalization of enemy aliens."

Section 305 of the Naturalization Act, Title 8 U.S.C.A. § 705, prescribes a time limitation "within a period of ten years immediately preceding the filing of the petition for naturalization." It will be observed that this time element is exactly the same as that contained in the section under consideration, except there it is ten years while here it is five. In United States v. Waskowski, 7 Cir., 158 F.2d 962, in passing on the qualification of an applicant for naturalization, this court held, contrary to the contention of the government, that it could not go beyond this ten year period. In doing so, we stated 158 F.2d at page 963: "But, as we interpret Congress' intent, the court is not permitted to go back more than 10 years preceding the filing of the application to determine whether the applicant is a member of or affiliated with a proscribed organization but is permitted to disqualify him only if that disqualifying factor has existed within 10 years prior to the filing of the petition." The court further stated that it was "the evident intent of Congress that any disqualification occurring more than 10 years prior to the date of the filing of his application and not existing within the 10-year period is insufficient to disqualify him." What the court said and held regarding this ten year limitation provision is equally applicable to the five year provision before us.

Other cases which have held in one form or another that the government in its inquiry as to the fitness of an applicant for naturalization is confined to the five year period immediately preceding the filing of the petition for naturalization are United States v. Rubia, 5 Cir., 110 F.2d 92, 93; Petition of Zele, 2 Cir., 127 F.2d 578, 580; United States v. Francioso, 2 Cir., 164 F.2d 163; Repouille v. United States, 2 Cir., 165 F.2d 152, 153; Daddona v. United States, 2 Cir., 170 F.2d 964, 965. (See also other cases which the courts in these cases have cited.)

We are of the view that these numerous courts have correctly construed the provision in question. The wording of the statute itself leaves little room for doubt. If a five year period is a "minimum requirement," as the government argues, it becomes meaningless. If the time fixed by Congress is "minimum," then it would seem to follow that the maximum time would be during all of the petitioner's life. We cannot believe that Congress meant other than what it said, that is, that if a petitioner meets the enumerated requirements for a period of five years immediately prior to the filing of his petition he is entitled to be admitted. We need not decide that a court is never justified in making inquiry concerning a petitioner previous to the five year period, but what we do think and hold is that even so the facts developed by such an inquiry cannot be used as the basis for disqualification.

As stated, the petition in question was filed November 21, 1944. Thus, the relevant period of inquiry as to petitioner's activities, conduct, statements, etc., must be that which took place within the five year period immediately prior to that date, or during the period between November 21, 1939 and November 21, 1944. We have purposely construed this time element in the beginning because much of the evidence upon which the government relies has to do with matters previous, and some of it long previous, to the relevant period of inquiry. We shall not relate such testimony found in the government's brief but shall go to the court's findings, which disclose to a large extent the same erroneous conception as that indulged in by the government.

The court's findings of fact are contained in two paragraphs, and we think they should be set forth. In paragraph 1, it is found:

"That the petitioner, John Victor Murra, has failed to establish that he has been attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States for the period required by law for the reason that he attended meetings of the Communist Party from January, 1935 to July, 1936; that in 1935 he associated with and was influenced by Communists;...

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