Manha v. Brownell

• Decision Date: 19 November 1956
• Docket Number: Civ. No. 7244.
• Citation: 146 F. Supp. 411
• Court: U.S. District Court — Northern District of California
• Parties: Matheus Thomas MANHA, Plaintiff, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Defendant.

146 F. Supp. 411

Matheus Thomas MANHA, Plaintiff, v. Herbert BROWNELL, Jr., as Attorney General of the United States, Defendant.

Civ. No. 7244.

United States District Court N. D. California, N. D.

November 19, 1956.

A. M. Frad, Modesto, Cal., for plaintiff.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendant.

HALBERT, District Judge.

Plaintiff was born in 1889 in Portugal, and lawfully entered the United States for permanent residence in 1908. He has remained in this country since his entry. His father, Manuel Faustino Manha, was naturalized as a United States citizen by the Superior Court of the State of California, at San Francisco, on September 12, 1904. If the naturalization of his father was valid, the plaintiff was entitled to the status of a citizen of the United States by virtue of § 5 of the Naturalization Act of March 2, 1907, 34 Stat. 1228.¹ However, on June 30, 1933, the United States District Court for the Northern District of California, Southern Division, entered a final decree revoking and canceling the certificate of naturalization of plaintiff's father, Manuel Faustino Manha, by virtue of a proceeding brought under § 15 of the Naturalization Act of June 29, 1906, 34 Stat. 596.² Manuel Faustino Manha was, at the time of these proceedings, residing in Portugal, made no appearance in the action, and interposed no defense to the revocation and cancellation of his naturalization certificate. No question is raised with respect to the jurisdiction of the court which rendered that decree, and it appears both from the evidence, and the stipulations of the parties in the case at bar, that all the necessary procedural prerequisites in that action were fulfilled.

In March of 1955, the plaintiff filed an application for a Certificate of Citizenship with the District Director of Immigration and Naturalization, and in April, 1955, made a personal appearance before an officer of the Immigration and Naturalization Service claiming that he was a citizen and national of the United States. The plaintiff's application was denied. Plaintiff thereupon appealed the decision of the District Director to the acting Regional Commissioner, who, on May 4, 1955, affirmed the decision and order of the District Director. By virtue of such appeal, plaintiff has exhausted all the administrative remedies afforded him.

This Court has jurisdiction of this action under and by virtue of § 360 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1503, and 28 U.S. C.A. § 2201, since the plaintiff has been denied a claimed "right or privilege as a national of the United States." This is true notwithstanding the position which the defendant has sought to take in contravention of his own stipulation.

Plaintiff seeks a declaration by this Court:

(1) That he has been a citizen of this country since his entry into the United States on April 19, 1908; and

(2) That the decree revoking his father's certificate of naturalization has no force or effect with respect to his status as a citizen.

The principal issue in this case is whether the 1933 decree rendering the citizenship of the plaintiff's father void ab initio could operate to nullify the plaintiff's derivative citizenship as well. The general rule is that there can be no derivative citizenship from a person whose naturalization has been declared void ab initio. Rosenberg v. United States, 3 Cir., 60 F.2d 475, certiorari denied 287 U.S. 645, 53 S.Ct. 91, 77 L.Ed. 558; United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 136 F.2d 935, certiorari denied in Krause v. United States, 327 U.S. 781, 66 S.Ct. 680, 90 L.Ed. 1008. Plaintiff contends that derivative citizenship is not affected by the denaturalization of the person from whom it is derived where (1) the decree of denaturalization is based on presumptive fraud as distinguished from actual fraud, and (2) where the decree is not supported by substantial evidence.

The record shows that plaintiff's father returned to Portugal only one month after he became a naturalized citizen of the United States. Under the terms of § 15 of the Nationality Act of 1906, a fraudulent intent in the procurement of naturalization papers may be presumed from the fact of departure by the naturalized person within five years from the date on which he was naturalized. Plaintiff's first contention is that a decree of denaturalization based on this presumption cannot affect his derivative citizenship. In support of this position plaintiff urges this Court to follow the holdings in In re Findan, D.C., 4 F.Supp. 189, and In re Bolter, D.C., 66 F.Supp. 566, in its construction of § 338(d) of the Nationality Act of 1940, 8 U.S.C. § 738(d), as that section read in 1942. The Findan case held in no uncertain terms that derivative citizenship cannot be affected by a denaturalization decree based on presumptive fraud, and the Bolter case reached a similar conclusion on the basis of the language of § 338(d), holding that it was merely declaratory of the law as it then existed and did not purport to change the law. The provisions of § 338(d) (8 U.S.C.A. § 1451 (e) as it read in 1953), which are of concern in the case now before me, read as follows:

"The revocation and setting aside of the order admitting any person to citizenship and canceling his certificate of naturalization under the provisions of subsection (a) of section 338 of the Nationality Act of 1940 shall not, where such action takes place after the effective date of this chapter, result in the loss of citizenship or any right or privilege of citizenship which would have been derived by or been available to a wife or minor child of the naturalized person had such naturalization not been revoked: Provided, That this subsection shall not apply in any case in which the revocation and setting aside of the order was the result of actual fraud * * *."³ (Emphasis added.)

I might be persuaded by the Findan and Bolter cases, supra, were it not for: (1) the long standing rule established by the case of Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; (2) the express language of § 338 (d), cited supra; and (3) the authority of Battaglino v. Marshall, 2 Cir., 172 F.2d 979, certiorari denied in 338 U.S. 829, 70 S.Ct. 56, 94 L.Ed. 504. In the Luria case the Supreme Court upheld the constitutionality of § 15 of the 1906 Act, and declared that the presumptions of fraud which Congress designated as having evidentiary value in denaturalization proceedings were sufficient to give rise to a decree having the same force and effect as one based on an actual showing of fraud. Such being the case, I am not at liberty to create a distinction which the Supreme Court has expressly declared does not exist. To say that a pre-1940 denaturalization decree supported by evidence flowing from rebuttable presumptions cannot have the effect of annulling derivative citizenship is tantamount to a declaration that such a decree does not render the denaturalized person's citizenship void ab initio. Sympathetic as I may be with the plaintiff's plight, I am not warranted in affording him an escape hatch which has been long since closed by the Supreme Court.

In 1940, Congress obviously was aware of the effect on derivative citizenship, which resulted from a denaturalization decree rendered under § 15 of the 1906 Act. The change in policy, as embodied in § 338(d) of the 1940 Act, was directed at the preservation of derivative citizenship even though a parent's or husband's citizenship had been revoked and cancelled ab initio, excepting, however, those cases where such revocation and cancellation is based on actual fraud. Notwithstanding this revision of the law which Congress made, it is perfectly clear in § 338(d) that the policy change promulgated applied only to denaturalization decrees "after the effective date of this chapter." What the Bolter case 66 F.Supp. 568 apparently overlooks, when it declares that these words were added only "out of an obvious abundance of caution," is that there was no room for such an interpretation of policy under the 1906 Act as construed by the Supreme Court in Luria v. United States, supra, and the Third Circuit in Rosenberg v. United States, supra. Judge Chase of the Second Circuit, in reply to a position identical to that sought to be taken by the plaintiff in this case, said in Battaglino v. Marshall, supra,⁴ 172 F.2d at page 981:

"Indeed, as the case just mentioned shows, i. e., Luria v. United States the distinction between what is called presumptive fraud and actual fraud is but a difference in the manner of proof to establish the fact that the applicant for citizenship did not intend `to become a permanent citizen of the United States at the time of filing his application for citizenship'. * * * The fraud consisted in the false representation that he intended to become a permanent citizen and its effect was the same however proved. It made the naturalization void and the certificate a nullity ab initio.

"Congress did, in the Nationality Act of 1940, soften the effect prospectively of cancellations of certificates of citizenship upon those claiming derivatively under them. Since the effective date of that Act, it is true that by virtue of Section 338(d), 8 U.S.C.A. § 738(d), cancellation for what is called presumptive fraud does not `* * * result in the loss of citizenship or any right or privilege of citizenship which would have been derived by or available to a wife or minor child of the naturalized person had such naturalization not been revoked, but the citizenship and any such right or privilege of such wife or minor child shall be deemed valid to the extent that it shall not be affected by such revocation: * * *.' But that came too late to be of any aid to this appellee. Its only significance, if it has any at all, would be to emphasize that the law controlling this appeal was thereby changed." (Emphasis added

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