In re Vasicek

• Decision Date: 12 March 1921
• Parties: In re VASICEK.
• Court: U.S. District Court — Eastern District of Missouri

271 F. 326

In re VASICEK.

United States District Court, E.D. Missouri, Eastern Division.

March 12, 1921

M. R Bevington, of St. Louis, Mo., for the United States.

DYER District Judge.

The candidate, Frantisek Vasicek, during the final hearing on his petition for naturalization, testified that he did not know the meaning of the words 'anarchy' or 'polygamy.' Thereupon the government prayed the denial of his application. Pertinent portions of the petition filed in this cause by said candidate follow:

'I am not a disbeliever in or opposed to organized government or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government. I am not a polygamist nor a believer of polygamy.'

The fourth subdivision of section 4 of the Act of June 29, 1906 34 Stat. 596 (Comp. St. Sec. 4352), prescribes that before admitting any alien to citizenship the court concerned shall be satisfied the candidate is in truth and in fact 'attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same. ' It is self-evident from the candidate's own testimony that that portion of his petition in which he solemnly declares he is not an anarchist or polygamist, etc., is meaningless to him. The question is accordingly at once raised: What does the Naturalization Act require of an applicant in the way of proof of the averments contained in his petition?

Turning to the authorities, we find the law declared to be that the burden of proof rests on a petitioner for naturalization affirmatively to establish by relevant, material, competent positive, and direct evidence that he has fully met the requirements of the statute. In re Kornstein (D.C.) 268 F. 174; Johannessen v. United States, 225 U.S. 240, 32 Sup.Ct. 613, 56 L.Ed. 1066, and United States v. Ginsberg, 243 U.S. 474, 475, 37 Sup.Ct. 422, 61 L.Ed. 853. As illustrating this rule, it has been held that the candidate must establish that his verifying witnesses are citizens of the United States (In re Aprea (C.C.) 158 F. 702; United States v. Martorana, 171 F. 397, 96 C.C.A. 353, reversing In re Martorana (D.C.) 159 F. 1010, and In re Welch et al. (C.C.) 159 F. 1016; In re Wolf (C.C.) 188 F. 519); that such witnesses must possess personal knowledge of the facts testified to (In re Kornstein, supra); that they must have known the petitioner for the statutory period (In re Toomey (Sup.) 111 N.Y.Supp. 600; In re Manning (D.C.) 209 F. 499; United States v. Gulliksen, 244 F. 727, 157 C.C.A. 175), that they are credible (In re Kornstein, supra); that they actually possessed personal knowledge of the facts testified to (In re Kornstein, supra); that the petitioner is attached to the principles of the Constitution (In re Meakins (D.C.) 164 F. 334; In re Bear Goldberg (D.C.) 269 F. 392); that he has not evaded military service through pleading his alienage (In re Loen (D.C.) 262 F. 166; In re Silberschutz (D.C.) 269 F. 398; In re Sebastiano Tomarchio (D.C.) 269 F. 400); that his family is actually in the United States (In re Sigelman (D.C.) 268 F. 217; In re Rustigan (C.C.) 165 F. 980); that he has not deserted from the army (In re Albert Ernest Julius Gnadt (D.C.) 269 F. 189); that he has not, after taking steps to acquire citizenship, claimed the protection of the country of his nativity (In re Francesco Aldani (D.C.) 269 F. 193); that at the time of petitioning he had attained his majority (In re Cardaro (D.C.) 246 F. 735); that he is in truth and in fact a man of good moral character (In re Di Clerico (D.C.) 158 F. 905; In re Ross (C.C.) 188 F. 685; In re Talarico (D.C.) 197 F. 1019; In re Trum (D.C.) 252 F. 361; In re Centi (D.C.) 211 F. 559; In re Addis (D.C.) 252 F. 887; In re Kornstein (D.C.) 268 F. 172-173); that he intends to permanently reside in the United States (In re Naturalization of Aliens (D.C.) 250 F. 316); that all provisions of the Naturalization Act have been fully met (United States v. Nisbet (D.C.) 168 F. 1005; United States v. Mansour (D.C.) 170 F. 671; United States v. Spohrer (C.C.) 175 F. 440; United States v. Rodgers, 185 F. 334, 107 C.C.A. 452; United States v. Plaistow (D.C.) 189 F. 1006; United States v. Kolodner, 204 F. 240, 24 C.C.A. 1, reversing (D.C.) 190 F. 809; United States v. Albertini (D.C.) 206 F. 133; In re Schrape (D.C.) 217 F. 142; United States v. Nopoulos (D.C.) 225 F. 656; United States v. Leles (D.C.) 227 F. 189, and (D.C.) 236 F. 784; In re Mondelli (D.C.) 228 F. 920; In re Markun (D.C.) 232 F. 1018; In re Horecsny (D.C.) 238 F. 448, and cases there collected; In re Mallari (D.C.) 239 F. 416; United States v. Morena, 247 F. 484, 159 C.C.A. 538; United States v. Ginsberg, 247 F. 1006, 159 C.C.A. 665; United States v. Kramer (C.C.A.) 262 F. 395; Gerrard v. United States, 43 Ct.Cl. 67 (note that the stream of crime flowing from any relaxation of this rule is well illustrated by the cases of Levin v. United States, 138 F. 826, 63 C.C.A. 476, Dolan v. United States, 133 F. 440, 69 C.C.A. 274, Holmgren v. United States. 156 F. 439, 88 C.C.A. 301, Id., 217 U.S. 509, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778, United States v. Dupont (C.C.) 176 F. 824, United States v. Bressi (D.C.) 208 F. 369, and Gregorat v. United States, 249 F. 470, 161 C.C.A.

428) ); that legal notice has been given of the date of final hearing (United States v. Peterson, 182 F. 289, 104 C.C.A. 571; In re O'Dea (C.C.) 158 F. 703; United States v. Daly, 32 App.D.C. 525; In re Giaquinto (D.C.) 230 F. 1004); that the petitioner labors under no legal disability in seeking citizenship (In re Rionda (D.C.) 164 F. 368; United States v. Cohen, 179 F. 834, 103 C.C.A. 28, 29 L.R.A. (N.S.) 829; Mackenzie v. Hare, 239 U.S. 299, 36 Sup.Ct. 106, 60 L.Ed. 297, Ann. Cas. 1916E, 645); that he actually resided, where petition is filed in a state court, in the county in which the court concerned sits (United States v. Schurr (D.C.) 163 F. 648; United States v. Wayer (D.C.) 163 F. 650; United States v. Johnson (D.C.) 181 F. 429; Petition of Briese (D.C.) 267 F. 600 (see In re Pearlman (D.C.) 226 F. 60, for rule when application is filed in federal court)); that he is not a radical (United States v. Olsson (D.C.) 196 F. 562; United States v. Swelgin (D.C.) 254 F. 884); that he is an alien, and not theretofore naturalized (In re Buck (D.C.) 204 F. 701); that proper proof had been made concerning his entry in the United States (In re Kestelman (C.C.) 165 F. 265; In re Liberman (D.C.) 193 F. 301; In re Hollo (D.C.) 206 F. 852; In re Elliott (D.C.) 263 F. 143; United States v. Ness, 245 U.S. 319, 38 Sup.Ct. 118, 62 L.Ed. 321, ¢=BCH¢=reversing¢=ECH¢= (D.C.) 217 F. 169, and 230 F. 950, 145 C.C.A. 144, Ann. Cas. 1917C, 41; Ex parte Joseph Eberhardt (D.C.) 270 F. 334); that he has not been debarred from naturalization by a prior adjudication (In re Centi (D.C.) 217 F. 833; In re Hartman (D.C.) 232 F. 797; In re Norman (D.C.) 256 F. 543; In re Kornstein, supra, and cases there collected); that he is not an inadmissible enemy alien (Grahl v. United States (C.C.A.) 261 F. 487; In re Pfleiger (D.C.) 254 F. 511; United States v. Kamm (D.C.) 247 F. 968; In re Lindner (D.C.) 247 F. 138; In re Duus (D.C.) 245 F. 813; Ex parte Bourchardt (D.C.) 242 F. 1006; In re Naturalization of Subjects of Germany (D.C.) 242 F. 971; In re Hass (D.C.) 242 F. 739; In re Jonasson (D.C.) 241 F. 723; Ex parte Overington, 5 Bin. (Pa.) 371; Ex parte Newman, 2 Gall. 11, Fed. Cas. No. 10,174); that he has been an actual physical resident of the United States for the jurisdictional period, constructive residence being excluded by the spirit of the Naturalization Act (United States v. Ginsberg (D.C.) 244 F. 214, and cases there cited (see, also, Ex parte Walton, 1 Cranch, C.C. 186, Fed. Cas. No. 17,127; Ex parte Saunderson, 1 Cranch, C.C. 219, Fed. Cas. No. 12,378; In re Hawley, 1 Daly (N.Y.) 531; Ex parte Paul, 7 Hill (N.Y.) 56; Ex parte Merry, 14 Phila. (Pa.) 212; United States v. Simon (C.C.) 170 F. 680; United States v. Aakervik (D.C.) 180 F. 137; United States v. Ellis (D.C.) 185 F. 546; Luria v. United States, 231 U.S. 9, 34 Sup.Ct. 10, 58 L.Ed. 101, ¢=BCH¢=affirming¢=ECH¢= (D.C.) 184 F. 643; United States v. Cantini, 212 F. 925, ¢=BCH¢=reversing¢=ECH¢= (D.C.) 199 F. 857; United States v. Mulvey, 232 F. 513, 146 C.C.A. 471; In re Brash (D.C.) 235 F. 1003; United States v. Grimminger (D.C.) 236 F. 285; In re Cook (D.C.) 239 F. 782; In re Di Giovine (D.C.) 242 F. 741; United States v. Bragg (D.C.) 257 F.

588) ); that renunciation of allegiance has been made to the proper sovereignUnited States v. Vogel (C.C.A.) 262 F. 262); that the petitioner is a 'white person'In re Saito (C.C.) 62 F. 126; In re San C. Po, 7 Misc.Rep. 471, 28 N.Y.Supp. 383; In re Kanaka Nian, 6 Utah, 259, 21 P. 993, 4 L.R.A. 726; In re Burton, 1 Alaska, 111; In re Camille (C.C.) 6 Sawy. 341,

While Congress, in dealing with the naturalization problem, recognized it to be impolitic to perpetuate the character of alien longer than was absolutely necessary, the law-making body still recognized that a reasonable probationary term should be prescribed to enable candidates to get rid of foreign and to acquire American attachments, to learn the principles and imbibe the spirit of our government, and to admit of a probability, at least, of their feeling a real interest in our affairs. A residence of not less than five years was, therefore, required of an alien before he might petition for citizenship, this to conciliate the feelings of the candidate to the manners, laws, and government of this country.

Vasicek resided within the United States for the jurisdictional period, prior to executing his application, and in this particular fully met the requirements of the...