In re Jow Gin, 9748.

• Decision Date: 09 June 1949
• Docket Number: No. 9748.,9748.
• Citation: 175 F.2d 299
• Parties: In re JOW GIN. JOW GIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

175 F.2d 299 (1949)

In re JOW GIN JOW GIN v. UNITED STATES.

No. 9748.

United States Court of Appeals Seventh Circuit.

June 9, 1949.

Otto Kerner, Jr., U. S. Atty., John P. Lulinski, Asst. U. S. Atty., Chicago, Ill., Edmund J. Johnson, Asst. U. S. Atty., Dewey G. Hutchinson, Naturalization Examiner, Chicago, Ill., for appellant.

Helen B. Jerry, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and MINTON and DUFFY, Circuit Judges.

MAJOR, Chief Judge.

This is an appeal from an order, entered June 8, 1948, allowing appellee's Petition for Naturalization over the objection of the United States Naturalization Examiner.

Petitioner was born on February 17, 1921, in Hong Kong, China, and entered the United States at the port of Seattle, Washington, on August 9, 1930, as the minor son of a merchant. He filed his Declaration of Intention to become a citizen of the United States on June 24, 1944, in the United States District Court for the Northern District of Illinois. On August 8, 1946, he filed his Petition for Naturalization in the same court.

The matter was referred to Patrick J. Dillon, who conducted preliminary hearings upon the petition, as provided by Title 8 U.S.C.A. § 733. (Sections hereinafter referred to will be to the same title and volume unless otherwise noted.) On June 8, 1948, the Immigration and Naturalization Service filed with the court its recommendation that the petition be denied. On the same date, the matter came on for final hearing, pursuant to Sec. 734. The court had before it at that time only the Petition for Naturalization and the recommendation that it be denied. No demand was made by the petitioner, and the court did not exercise its discretion to require "the examination of the petitioner and witnesses under oath before the court and in the presence of the court," as provided in § 734(b), where a preliminary hearing has been conducted by a designated examiner under Sec. 733 (a). In a colloquy between the court and counsel, it appears that the defendant (government) moved for the entry of findings of fact by the court and for the dismissal of the petition. The colloquy also indicates that the court denied or ignored the request of the government to offer evidence in support of its motion to dismiss, the exact nature of such evidence not being revealed.

The contested issues upon which the government relies for reversal are (1) that the court erred in not specifically finding the facts on which it predicated its order and judgment and in not separately stating its conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; (2) that the court erred in not sustaining the motion to dismiss because a valid certificate, showing the date, place and manner of petitioner's arrival in the United States, was not filed with the petition and that petitioner did not establish exemptions from such requirement; (3) that the court erred in not sustaining the motion to dismiss because a valid Declaration of Intention was not filed with the Petition for Naturalization and that petitioner did not establish exemptions from such requirement, and (4) that the court erred in allowing the petition because the petitioner was never admitted into the United States of America for permanent residence and was admitted only temporarily, as a non-immigrant alien.

The contention that the court erred in not specifically stating its findings of fact and conclusions of law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure is predicated upon the holding of this court in Application of Murra, 166 F.2d 605. Such contention misapprehends our opinion in that case. More than that, it fails to take into consideration and to give effect to what we think is the plain and unambiguous procedure prescribed by Secs. 733 and 734 relative to a hearing on a Petition for Naturalization.

Insofar as procedure is concerned, the Murra case and the one now before us are similar in one respect, that is, that in both the petition was referred to an Examiner to conduct a preliminary hearing under Sec. 733(a), which was done and a recommendation made that the petition be denied. There the similarity ends. In the Murra case, upon a final hearing under Sec. 734, the court heard the testimony of witnesses in open court, which it was authorized to do in its discretion and which it was required to do upon demand of the petitioner. Under those circumstances we said 166 F.2d 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."

And we held Rule 52(a) of the Federal Rules of Civil Procedure applicable to such a situation.

On the other hand, in the instant case, no demand was made by petitioner that the witnesses be heard "before the court and in the presence of the court." Neither did the court exercise its discretion to order such a hearing. Thus, no order having been made for an examination of witnesses in open court, either upon the demand of the petitioner or upon the court's own volition, there was nothing before the court other than the petition and the recommendation that it be denied. The court having heard no testimony there was nothing upon which to predicate findings of fact. The government comes close to conceding this point in its reply brief, wherein it states:

"On the state of the record in this appeal, it is suggested that this appeal should be reversed and remanded with directions to hold a hearing on petitioner's application for citizenship. This suggestion is made since there is no evidence below which would warrant a reversal solely for the purpose of making findings of fact and stating conclusions of law."

Even though we were inclined to comply with this suggestion, we seriously doubt our authority to give such a direction for the reasons, as already shown, that the examination of witnesses in open court, where a Petition for Naturalization has been referred to an Examiner, is, in the absence of a demand by the petitioner, a matter solely within the discretion of the court.

This brings us to a consideration of the statutory procedure where a designated Examiner has conducted a preliminary hearing and where the court has not ordered an examination of witnesses in open court. Sec. 733(a), entitled "Hearing of petitions; preliminary hearings," provides that the Commissioner shall designate members of the Service to conduct preliminary hearings upon Petitions for Naturalization to any Naturalization Court and "to make findings and recommendations thereon to such court." The Examiner designated for such purpose is authorized "to take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization, to subpena witnesses, and to administer oaths, including the oath of the petitioner to the petition for naturalization and the oath of petitioner's witnesses." Par. (b) of the same section provides, "The findings * * * shall be submitted to the court at the final hearing * * * with a recommendation that the petition be granted, or denied, or continued, with the reasons therefor. Such findings and recommendations shall be * * * signed by the designated examiner."

Insofar as is evidenced by any reported decision, the courts appear to have given scant consideration to the importance of the provision which Congress has made for a preliminary hearing by an Examiner. Concerning the duty of an Examiner under this provision, the court in Petition of Kelly, D.C., 61 F.Supp. 467, stated, "The practice of making recommendations without calling to the attention of the court the underlying facts, or to conceal questions of law, is improper. Since the process of admission to citizenship leads to a judgment, the court should have the opportunity and the duty of applying the law to the facts."

In Gaglione v. United States, 1 Cir., 35 F.2d 496, the court considered a situation wherein the appellant had been convicted of perjury alleged and found to have been committed at a preliminary hearing before a Naturalization Examiner. The court, after reviewing the statutory provisions relative to such preliminary hearing, stated 35 F.2d at page 497:

"It was the duty of the examiner to take all evidence pertinent to the proper performance of his duty in making a recommendation to the court concerning the fitness of the applicant for naturalization, including his moral character. His function was closely analogous to that of a master in equity."

The dearth of judicial interpretation as to the purpose of the preliminary hearing, as well as the duty imposed upon the Examiner, is not strange in view of a statute so plain in its terms as hardly to be susceptible of misunderstanding. Having authorized the Examiner to take testimony, what could be more logical than the requirement that findings and recommendations thereon be made to the court? And how could a court attach any weight to recommendations in the absence of findings upon which they are predicated? It is required that they be "signed by the designated examiner," so it is obvious that the statute contemplates that the findings and recommendations be in writing.

Sec. 734(a) provides that "every final hearing" shall be had in open court and that at such final hearing "the witnesses shall be examined under oath before the court and in the presence of the court", except that this requirement is dispensed with by Par. (b) of the same section "in any case where a designated examiner has conducted the preliminary hearing authorized by subsection (a) of section 733." It is further provided, however, in the same paragraph that even though a designated examiner has conducted the preliminary...