George Luria v. United States

Decision Date20 October 1913
Docket NumberNo. 27,27
Citation58 L.Ed. 101,34 S.Ct. 10,231 U.S. 9
CourtU.S. Supreme Court

[Syllabus from pages 9-11 intentionally omitted] Messrs. Louis Marshall and A. M. Friedenberg for appellant.

[Argument of Counsel from pages 11-13 intentionally omitted] Assistant Attorney General Harr for appellee.

[Argument of Counsel from pages 14-17 intentionally omitted] Mr. Justice Van Devanter delivered the opinion of the court:

This appeal brings under review a decree setting aside and canceling, under § 15 of the act of June 29, 1906, 34 Stat. at L. 596, 601, chap. 3592, U. S. Comp. Stat. Supp. 1911, pp. 124, 537, as fraudulently and illegally procured, a certificate of citizenship theretofore issued to George A. Luria by the court of common pleas of the city and county of New York. 184 Fed. 643.

The petition was not carefully prepared, and yet it doubtless was designed to charge that the certificate was fraudulently and illegally procured, in that Luria did not at the time intend to become a permanent citizen of the United States, but only to obtain the indicia of such citizenship in order that he might enjoy its advantages and protection, and yet take up and maintain a permanent residence in a foreign country. There was a prayer that the certificate be set aside and canceled because 'procured illegally.' The sufficiency of the petition was not challenged, and the case was heard and determined as if the issue just described were adequately tendered. In the opinion rendered by the district court it was said, after observing that the petition was subject to criticism: 'That point, however, was not raised, and I suppose the defendant does not mean to raise it.' This view of his attitude passed unquestioned then, and it is too late to question it now.

The case was heard upon an agreed statement and some accompanying papers, from all of which it indubitably appeared that Luria was born in Wilna, Russia, in 1865 or 1868, and came to New York in 1888; that he entered a medical college of that city the next year and was graduated therefrom in 1893; that he applied for and procured the certificate of citizenship in July, 1894; that in the following month he sought and obtained a passport from the Department of State, and in November left the United States for the Transvaal, South Africa, arriving in December; that from that time to the date of the hearing, in December, 1910, he resided and practised his profession in South Africa; that he joined the South African Medical Association and served in the Boer war; that his only return to the United States was for four or five months in 1907, for the temporary purpose of taking a postgraduate course in a medical school in New York; and that when entering that school he gave as his address, Johannesburg, South Africa. From the facts so appearing the district court found and held that within a few months after securing the certificate of citizenship Luria went to and took up a permanent residence in South Africa, and that this, under § 15 of the act of 1906, constituted prima facie evidence of a lack of intention on his part to become a permanent citizen of the United States at the time he applied for the certificate. In the papers accompanying the agreed statement there were some declarations which, if separately considered, would tend to engender the belief that he had not taken up a permanent residence in South Africa, and was only a temporary sojourner therein; but the district court, upon weighing and considering those declarations in connection with all the facts disclosed, as was necessary, concluded that the declarations could not be taken at their face value, and that the residence in South Africa was intended to be, and was, permanent in character. We concur in that conclusion.

In his answer, Luria interposed the defense that his presence in the Transvaal was solely for the purpose of promoting his health, the implication being that when he went there his health was impaired in such a way that a residence in that country was necessary or advisable and therefore that taking up such a residence ought not to be accepted as indicating that when he was naturalized it was not his intention to become a permanent citizen of the United States. He does not appear to have been present at the hearing, and although there was ample time (ten months after filing his answer) to take his deposition, it was not taken, and there was substantially no attempt to sustain this defense, or to explain his permanent removal to the Transvaal so soon after he procured the certificate of citizenship. True, it appeared that in 1909 he filed at the United States Consulate in Johannesburg, in support of an application for registration as a citizen of the United States, two certificates from medical practitioners, stating, in effect, that his residence in the Transvaal was for purposes of health; but those certificates did not rise to the dignity of proof in the present case. Besides being ex parte, they were meager, not under oath, and not accepted by the consular officers as adequate or satisfactory. Thus, we think the district court rightly held that there was no countervailing evidence sufficient to overcome the evidential effect of taking up a permanent residence in the Transvaal so shortly following the naturalization.

Section 15 of the act of 1906, under which this suit was conducted, is as follows:

'Sec. 15. That it shall be the duty of the United States district attorneys 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.

'If any alien who shall have secured a certificate of citizenship under the provisions of this act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancelation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective juirsdictions who have such certificates of citizenship, and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship.

'Whenever any certificate of citizenship shall be set aside or canceled, as herein provided, the court in which such judgment or decree is rendered shall make an order canceling such certificate of citizenship, and shall send a certified copy of such order to the Bureau of Immigration and Naturalization; and in case such certificate was not originally issued by the court making such order, it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such cer- tificate of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the court to enter the same of record, and to cancel such original certificate of citizenship upon the records, and to notify the Bureau of Immigration and Naturalization of such cancelation.

'The provisions of this section shall apply not only to certificates of citizenship issued under the provisions of this act, but to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws.'

One of the questions arising under this section is, whether the second paragraph, dealing with the evidential effect of taking up a permanent residence in a foreign country within five years after securing a certificate of citizenship, is confined to certificates issued under the act of 1906, or applies also to those issued under prior laws, as was Luria's. If that paragraph were alone examined, the answer undoubtedly would be that only certificates under the act of 1906 are included. But the last paragraph also must be considered. It expressly declares that 'the provisions of this section' shall apply not only to certificates issued under the act of 1906, but also to all certificates theretofore issued under prior laws. The words 'the provisions of this section' naturally mean every part of it, one paragraph as much as another, and that meaning cannot well be rejected without leaving it uncertain as to what those words embrace. Counsel refer to the Congressional Record, which shows that the second paragraph was inserted by way of amendment while the section was being considered in the...

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