Johnson v. United States

• Decision Date: 24 January 1951
• Docket Number: No. 136,Docket 21849.,136
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

186 F.2d 588 (1951)

JOHNSON v. UNITED STATES.

No. 136, Docket 21849.

United States Court of Appeals Second Circuit.

Argued January 3, 1951.

Decided January 24, 1951.

Irving H. Saypol, U. S. Atty., New York City, John M. Cunneen, New York City, for appellant.

Herman Englander, New York City, Englander & Englander, New York City, for petitioner-appellee.

Before L. HAND, Chief Judge, and SWAN and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Chief Judge.

The United States appeals from an order admitting Johnson, an alien, to citizenship on the ground that the evidence did not show that he had been a person of "good moral character" for the five years preceding the filing of his petition on June 27, 1944. The petitioner was born in Russia on April 28, 1897, and was admitted to this country on June 3, 1913; he has always lived here, was married on November 14, 1923, and has a son born on April 19, 1926. The most intelligible way to present the other evidence in the record is in the sequence in which the "Naturalization Service" apparently discovered it. On July 11, 1944, about two weeks after the petition was filed, the Probation Officer of the Domestic Relations Court in the City of New York answered an inquiry of the "Naturalization Petitions Section" that Johnson and his wife had been "known to this Court since 1931"; that on April 15, 1940, he "was placed under order of $15 a week," and that a warrant had been issued for him on July 1, 1940, which had never been executed. The "Naturalization Petitions Section" next procured an affidavit from Johnson's wife on December 30, 1944, in which she said that he left her in 1932 and that the Domestic Relations Court had ordered him to pay her $20 a week which he never completely performed. The affidavit continued that in November, 1944, she had haled him once more into court and he "promised" to pay her six dollars a week, which also he failed to do, and that, for the preceding ten years he had been living with a married woman, who at the time he began to live with her was only twenty years old. Finally, it alleged that he had once paid his wife $12 for four weeks and "recently" $6 for two weeks; that their son, who was in the Army, had allowed her an "allotment"; "but I think my husband should support me." On May 25, 1945, the Probation Officer wrote again that the order of the Domestic Relations Court had been "modified" on July 21 to $10 but that Johnson had paid nothing after April 3, 1945, so far as the records showed. On February 24, 1945, Johnson answered his wife's affidavit with one of his own in which he swore that he had lived with her till 1932 when they had been "dispossessed," and had separated until 1935, when they again lived together for three months. They separated finally, he swore, "because she was always demanding money" which he did not have, because he was out of a steady job till 1936; though they had been "many times" in court, and in November, 1944, her allowance had been reduced to six dollars a week which he had paid except for the last two weeks. He denied that he had "been living with any other woman since I left my wife," although he had taken one to dances and had visited another at the farm where she lived with her husband.

Apparently no further inquiries were made for two years, but on December 11, 1946, Johnson swore to another affidavit in the first part of which he declared that he had refused (apparently at an examination before some official) to answer as to his relations with a woman named Urich, because it might incriminate him. However, he did admit that they had occupied an apartment together from December 1944 to January 1945, though innocently; but he still refused to answer whether their relations had also been equally innocent during the whole of the five years before June 27, 1944, when he filed his petition. Finally, when the hearing came on before the judge he admitted that he had lived in illicit relations with Urich between 1939 and 1942, when she broke down nervously and had to go to a hospital till 1944; yet, when she came out in 1944 and resumed living with him for a month or so their relations were innocent, as he had said before. The evidence taken as a whole leaves it uncertain why Johnson left his wife in 1935. On the one hand she swore that his liaison with Urich began ten years before December 30, 1944; on the other, he swore that he did not begin with Urich until two years later, which does not accord with hers. All that was clearly proved was that for five years — from 1937 to 1942 — he was living with a paramour.

We held in Estrin v. United States, 2 Cir., 80 F.2d 105, that even a single lapse from marital fidelity, if there were no "extenuating circumstances," was not consistent with the requirement of five years of unbroken "good moral character".¹ That decision we regarded as still law when we decided Petitions of Rudder, 2 Cir., 159 F.2d 695, eleven years later; and it still holds good. Moreover, it rests upon the applicant to prove the "extenuating circumstances." We thought that the applicants in Petitions of...