Matter of Psalidas

• Court: U.S. DOJ Board of Immigration Appeals
• Citation: 11 I&N Dec. 76
• Docket Number: A-12783325,Interim Decision Number 1440
• Parties: MATTER OF PSALIDAS In Deportation Proceedings
• Decision Date: 25 February 1965

11 I&N Dec. 76

MATTER OF PSALIDAS

In Deportation Proceedings

Interim Decision Number 1440

A-12783325

Board of Immigration Appeals

Decided by Board February 25, 1965

(1) Personal notice to defendant in Greece of intention to cancel his United States citizenship pursuant to section 15, Act of June 29, 1906, forwarded via the American Consul, Athens, was not vitiated by the Consul's remailing, which did not interrupt transit of notice which commenced with the registered mailing in New York and ended when received and signed for by defendant, and was adequate under both the federal statute and the laws of New York because it served reasonably to inform defendant of the legal steps which were being taken against him and afforded him an opportunity to appear and to defend his citizenship.

(2) Despite lapse of 5½ months between date of order for publication and date publication commenced, judgment of U. S. District Court, New York, September 28, 1940, cancelling defendant's naturalization for presumptive fraud under section 15, Act of June 29, 1906, is not void for lack of jurisdiction since the order of publication required compliance with Rules 50 and 52, N. Y. Rules of Civil Practice, but made no provision for compliance with Rule 51 which provided that publication commence within 3 months of date of order; any defect in publication of notice was an irregularity rather than a jurisdictional defect and was corrected when personal notice was given to defendant by registered mail.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—Remained longer.

Respondent is 27 years old, single, male, a native of Greece. He was admitted to the United States at New York on or about July 4, 1962, as a nonimmigrant visitor for pleasure. Thereafter, he was authorized to remain until September 15, 1962. He has not departed, and no application has been made to extend his stay beyond September 15, 1962. He claims United States citizenship through the naturalization of his father in New York before his birth. His claim to citizenship has been rejected by the Immigration and Naturalization Service. The special inquiry officer found that respondent has established good moral character and the financial ability to qualify for voluntary departure, and granted respondent voluntary departure with an automatic order of deportation if he fails to depart. Respondent appeals from that decision. The appeal will be dismissed.

Respondent's father, Panos Psalidas, was naturalized in the United States District Court for the Southern District of New York on April 13, 1931. He lived in this country from 1914 until 1935. On August 28, 1922, respondent's parents were married in New York. Panos Psalidas joined his wife in Greece on January 7, 1935. Respondent was born in Greece on December 14, 1936. It is said that Panos intended only to visit in Greece, and then to return with his wife and family to the United States. However, respondent's mother died in 1937, and Panos never returned. Respondent remained in Greece with his father from the time of his birth until his departure for the United States in 1962.

On June 29, 1938, the United States Attorney filed a petition in the United States District Court for the Southern District of New York to cancel the certificate of citizenship granted Panos Psalidas. The petition states that Panos Psalidas' last place of residence in this country was New York, within the jurisdiction of the court. This action is authorized by section 15 of the Act of June 29, 1906 (former 8 U.S.C. 405), which establishes a rebuttable statutory presumption that the naturalization was procured by fraud if within five years after the issuance of the certificate of naturalization the naturalized person should take permanent residence in any foreign country.¹ On January 20, 1938, the United States Vice Consul at Athens, Greece executed a certificate of fraudulent naturalization of Panos Psalidas based on the fact that within five years after obtaining a certificate of naturalization he took up permanent residence in Greece, thereby demonstrating that at the time he became a citizen he did not intend to remain permanently in the United States.

On September 28, 1940, a default judgment revoking Panos Psalidas' naturalization was entered in the United States District Court for the Southern District of New York. The court ordered that the certificate of citizenship issued to him be cancelled, set aside, and surrendered. On December 2, 1940, the surrendered certificate of citizenship was forwarded to the Immigration and Naturalization Service. It is well established that when a grant of citizenship was extinguished by judicial cancellation for presumptive fraud prior to January 13, 1941,² any status dependent upon that citizenship also was extinguished. Thefore, respondent lost his claim to United States citizenship based on his relationship to Panos Psalidas, if the judgment of denaturalization was valid and binding.

In 1955 respondent was an applicant for a fourth preference visa. He served in the Greek Army from October 1958 to June 1960, and he voted at national elections in Greece in 1956 and 1960. We do not reach the question of his possible expatriation by these acts, in view of our finding that respondent has had no claim to United States citizenship since his father's citizenship was cancelled on September 28, 1940.

Respondent contends that the court order cancelling his father's citizenship was improperly issued, in that the court was without jurisdiction by reason of its failure to follow the procedure prescribed for giving notice in such actions. Respondent refers to the language of section 15 of the Act of June 29, 1906, "* * * and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought." The New York law governing service by publication is set forth in Rules 50,³ 51,⁴ and 52⁵ of the Rules of Civil Practice. Respondent contends that the Government failed to comply with the legal requirements for obtaining jurisdiction over Panos Psalidas by publication under the New York rules, in that (1) the mailing to Panos Psalidas did not occur on or before the first date of publication, as required by Rule 50, and (2) the first publication did not take place within three months after the order of publication was granted on December 7, 1938. Respondent contends, therefore, that the denaturalization decree entered on September 28 1940, was absolutely void and may be attacked collaterally at any time.

The record establishes that an affidavit of mailing was made by an employee in the office of the United States Attorney for the Southern District of New York stating that the required papers were mailed to the Vice Consul of the United States at Athens, Greece, on May 13, 1940. There is also an affidavit from the United States Consul at Athens, Greece, stating that he, in turn, mailed the papers to the "defendant" (Panos Psalidas) on June 8, 1940, by registered mail to his residence in Greece. The papers were received by Panos Psalidas, as evidenced by a postal return receipt bearing his signature. The required papers consisted of a copy of the writ of subpoena, petition and notice required by law, and a copy of the order for publication. It is conceded that the writ of subpoena was published for the first time in two New York newspapers, the New York Law Journal and the New York Post, on May 16, 1940, and was published thereafter for six successive weeks.

The special inquiry officer held (1) that the Government met all the requirements set forth in the court's order for service by publication; (2) that even though there may not have been exact compliance with the statutes, the court was not deprived of jurisdiction, and the denaturalization decree is not void ab initio; (3) that there was strict compliance with the order for service by publication and substantial compliance with the New York statutes providing for service by publication; (4) that an administrative agency may not disregard a judgement of a United States court when there is an issue as to whether the court had jurisdiction over the defendant; (5) that respondent may attack the decree cancelling his father's citizenship, but that the attack must be in the court which issued the decree.

The Board concludes that respondent's father received personal notice under the federal statute. This law provides no specific method of service, as pointed out in United States v. Tuteur, infra, and United States v. Cardillo, infra, and the best method would seem to be the one that conforms to the local pattern and is successful. We conclude that respondent's father also received notice by publication under the New York law. Respondent complains that the mailing to Panos Psalidas via the consul at Athens prior to the commencement of publication was not a timely mailing to the defendant himself. The fact that the necessary documents were remailed by the consul to the party at his home did not interrupt their transit which commenced with the registered mailing in New York and ended when he received them, and signed the return receipt. The Board holds also that the lapse of five and a half months between the court's order of publication and the date publication was commenced was not a fatal defect in service. To hold otherwise, to quote from United States v. Nicolay, infra, "would surely be most technical."

Respondent relies heavily in his briefs and in oral argument on our decision, Matter of C----, 6 I. & N. Dec. 366 (November 18, 1954), wherein the respondent's father had only 29 days' notice. We found that this period was inadequate under both the federal statute (providing for 60 days' personal...