In re Bodek

• Citation: 63 F. 813
• Parties: In re BODEK.
• Decision Date: 11 October 1894
• Court: U.S. District Court — Eastern District of Pennsylvania

63 F. 813

In re BODEK.

United States Circuit Court, E.D. Pennsylvania.

October 11, 1894

DALLAS Circuit Judge.

In pursuance of its power to 'establish an uniform rule of naturalization ' (Const. art. 1, Sec. 8), congress has prescribed the conditions on which an alien may become a citizen of the United States, and the manner in which 'and not otherwise,' he may be admitted to citizenship. By section 2165 of the Revised Statutes the following requirements, among others, are imposed upon every applicant under that section: (1) He shall have made the declaration which is there set forth 'two years, at least prior to his admission; ' (2) he shall, at the time of his application to be admitted, declare on oath 'that he will support the constitution of the United States;' (3) he shall make it appear to the satisfaction of the court (his oath not being allowable to prove residence) that he has resided within the United States five years, and within the state where the court is held one year, at least, and that during that time he has behaved as a man 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 same. By section 2167 especial provision is made for the admission, 'without having made the declaration required in the first condition of section 2165,' of aliens coming to this country during their minority; but to entitle any applicant to the benefit of this exemption it is exacted that (1) he shall have resided in the United States three years next preceding his arrival at the age of 21 years, and for the period of 5 years, including the 3 years of his minority, and shall have continued to reside therein to the time of making his application, and shall then have attained his majority; (2) he shall make the declaration required in the first condition of section 2165 at the time of his admission; (3) he shall declare on oath, and prove to the satisfaction of the court, that for two years next preceding it has been his bona fide intention to become a citizen of the United States; (4) he shall in all other respects comply with the laws in regard to naturalization. The acts of congress from which the foregoing statement of their more generally important provisions has been compiled enjoin the terms on which, and on which only, an alien may acquire citizenship; and the courts to which is confided the duty to see the- these terms are complied with 'are to receive testimony, to compare it with the law, and to judge on both law and fact. ' Marshall, C. J., in Spratt v Spratt, infra. Their function is judicial. The courts have so held. The executive department of the government has so declared. The statutes themselves show that congress so intended. There can be no doubt about it. Campbell v Gordon, 6 Cranch, 176; Stark v. Insurance Co., 7 Cranch, 420; Spratt v. Spratt, 4 Pet. 393; Green v. Salas, 31 F. 106; U.S. v. Norsch, 42 F. 417. See, also, Whart. Int. Law, Sec. 174a, where among other pertinent documents, a letter, dated March 7, 1879, is referred to, in which Mr. Evarts, then secretary of state, used this language: 'It certainly is not competent for the department of state * * * to go behind a judicial decision of a court of law, such as is a certificate of naturalization. ' An applicant for naturalization, then, is a suitor, who, by his petition, institutes a proceeding in a court of justice for the judicial determination of an asserted right. Every such petition must, of course, allege the existence of all facts, and the fulfillment of all conditions, upon the existence and fulfillment of which the statutes which confer the right asserted have made it dependent, and I believe that the petitions usually presented conform to this rule. But the presentation of the petition merely brings the matter before the court, and the burden then rests upon the petitioner to establish its material allegations by such evidence as the law has made requisite, and 'which ought, indeed, to be required to satisfy the judgment of the court. ' Spratt v. Spratt, supra. Without this there can be 'no such judicial inquiry into the case as the act of congress contemplates. ' U.S. v. Norsch, supra. In short, as was said in Re An Alien, 7 Hill, 137, cited in Green v. Salas, supra: 'The application must be supported by legal proof of the facts on which it rests. The proceedings are strictly judicial. The alien who applies for admission asserts a compliance on his part with the prescribed conditions, and he must furnish the requisite proof of what he so alleges, or he establishes no right. ' Proof that the declaration required in the first condition of section 2165 has been duly made is, of course, necessary in all cases to which that section applies; but, as such proof is ordinarily supplied by the production of a sufficient certificate, nothing need be said under this head. Of the fact of making the declaration to support the constitution of the United States no extrinsic evidence...