Petition of Cardines

• Citation: 366 F. Supp. 700
• Decision Date: 28 September 1973
• Docket Number: No. 6847.,6847.
• Parties: Petition of Shebs CARDINES, also known as Eusebio Torres Cardines To be Admitted a Citizen of the United States of America.
• Court: United States District Courts. U.S. District Court — Panama Canal Zone

366 F. Supp. 700

Petition of Shebs CARDINES, also known as Eusebio Torres Cardines

To be Admitted a Citizen of the United States of America.

No. 6847.

District Court of Guam.

September 28, 1973.

COPYRIGHT MATERIAL OMITTED

MOTION TO REOPEN ORDER AND JUDGMENT OF NATURALIZATION

DUENAS, District Judge.

ORDER

Cardines, hereinafter referred to as the petitioner, became a citizen of the United States through naturalization on order of this Court dated September 18, 1972.

The United States Government, by the Officer in Charge of the Guam Office of the Immigration and Naturalization Service, hereinafter referred to as INS, under the provisions of Section 340(j) of the Immigration and Nationality Act 8 U.S.C. § 1451(j) and Rule 60(b)(2) of the Federal Rules of Civil Procedure, now moves to have said order of this Court, insofar as it relates to the petitioner, reopened and held in abeyance, to have the petition for naturalization of the petitioner restored to a pending status, to have a further determination on the merits of the petitioner's qualifications for naturalization made, and to have said order vacated in the event the petitioner is found ineligible for naturalization.

The Government, in its motion, alleges that since the entry of this Court's order it came to the attention of the INS that at the time the petitioner filed his petition for naturalization and at the time he was naturalized he was well aware that he had married his second wife without first legally terminating his prior marriage which information he knowingly and wilfully concealed and withheld from the naturalization examiner for the purpose of facilitating his naturalization. The Government further contends that these facts, if known at the time the petitioner filed his petition for naturalization and appeared in court for naturalization, would have precluded his naturalization, that the INS was ignorant of this information which was material to his naturalization, and if in possession thereof would have made a denial recommendation of his petition to this Court and that by due diligence the INS could not have discovered this evidence in time to move for a denial of his petition.

The petitioner raises several questions in opposing the Government's motion.

It is the contention of the petitioner that the motion should have been filed by the United States attorney and not by the Officer in Charge of the INS on Guam. He further objects on the ground that the motion should have been supported by an affidavit showing good cause.

By raising these questions it appears that the petitioner is attempting to imply that, in spite of the existence of Section 340(j), the Government should have instituted proceedings under Section 340(a) as said section is and should be the exclusive procedure for cancelling citizenship.

This is not a denaturalization proceeding under Section 340(a) where the burden rests on the Government to prove that the naturalized citizen obtained naturalization by fraud or concealment. On the contrary, the Government is proceeding under Section 340(j) and invoking Rule 60(b)(2) for the purpose of having the naturalization judgment of this Court reopened upon the ground of newly discovered evidence and having the petition for naturalization restored to its pending status for further determination on the merits of the petitioner's qualifications.

The Immigration and Nationality Act of 1952 provides two methods by which the Government may attack a judgment of naturalization that it believes was wrongfully obtained In re Campbell's Petition, 326 F.2d 101 at 102, 2 Cir., 1964.

Section 340(a) 8 U.S.C. § 1451(a) authorizes a plenary action to set aside a naturalization order "procured by concealment of a material fact or by wilful misrepresentation * * *" and designates the United States attorneys specifically to institute the proceedings. Under this procedure an affidavit showing good cause is an indispensable procedural prerequisite to suit United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964 (1956). No statute of limitations is involved and the time within which the action must be commenced is not circumscribed. The standard of proof required to denaturalize a naturalized citizen is strict, and the Government must carry its burden of proving by clear, unequivocal, and convincing evidence, which does not leave the issue in doubt, that the citizen who is sought to be restored to status of an alien obtained his naturalization certificate illegally or fraudulently United States v. Wisdom, 320 F.Supp. 286, USDC Tenn., 1970; Knauer v. United States, (1946), 328 U.S. 654, 657, 66 S. Ct. 1304, 1307, 90 L.Ed. 1500, 1503 (headnote 4).

Section 340(j) 8 U.S.C. § 1451(j) authorizes the invocation of the summary procedure of Rule 60(b) of the Federal Rules of Civil Procedure to reopen a naturalization judgment within one year after it was entered. On motion and upon such terms as are just, the court may relieve a party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

The court in the case of Simons v. United States, 333 F.Supp. 855, pages 861 through 866, 1971, offers as follows, in part, an excellent résumé of the historical aspect of these two subsections:

"Prior to the first federal effort to codify the law of naturalization pursuant to the constitutional authority in Article I, Sec. 8, cl. 4, `to establish a uniform Rule of Naturalization,' the authorities are contradictory as to who had the right to challenge naturalization decrees. The court's jurisdiction appears to have been assumed, and the real issue was who had standing to raise the matter.

"Section 15 of the Naturalization Act of 1906 provided that `it shall be the duty of the United States district attorneys' to initiate denaturalization proceedings. Although on balance the authorities appear to support the conclusion that this authorization was to be the exclusive means to attack naturalization decrees, there were occasions when the courts permitted direct attacks on such decrees by others.

"Section 15 was subsequently re-enacted as Section 338(a) of the Nationality Act of 1940 54 Stat. 1137, 1158. The same language was used with the same resulting ambiguities. The issue of whether or not the authority given the United States Attorney was exclusive was finally determined in Bindczyck v. Finucane, 342 U.S. 76, at 83, 72 S.Ct. 130, 96 L.Ed. 100 (1951), where, the Court held that Section 338(a) was a `self-contained, exclusive procedure.'

"This holding in Bindczyck was specifically abrogated by Section 340(j) of the Immigration and Nationality Act of 1952: * * *

"The Supreme Court took cognizance in United States v. Zucca, 351 U.S. 91, 95, 76 S.Ct. 671, 674, 100 L.Ed. 964 (note 8) (1956), that Section 340(j) constituted a legislative mandate overruling Bindczyck in certain respects:

`The specific holding, that Section 338(a) of the 1940 Act overrode local rules concerning time limitations upon the power of state courts to reopen their judgments, was abrogated by Section 340(j) * * *.'

"This view of the effect of Section 340(j) of the 1952 Act appears equally applicable to the prior Bindczyck holding that Section 338(a) was a `self-contained, exclusive procedure.'

"By the explicit language of Section 340(j) we are directed to look to the rules and statutes governing the jurisdiction of the court. Rule 60(b), F. R.Civ.P., now guides the exercise of this court's authority to modify its judgments. Rule 60(b) states:

`This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, * * * or to set aside a judgment for fraud upon the court.'

"Thus the rule does not limit this aspect of the court's `inherent power to set aside a judgment for fraud practiced upon it.' 7 Moore's Federal Practice Par. 60.16 15, p. 89 (1970 Ed.). More specifically, it provides that within a reasonable time `(o)n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for * * * (6) any other reason justifying relief from the operation of the judgment.'

"Rule 60(b) further provides that `the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.' * * *

"Just as Rule 60(b) alone has been applied to challenges to denaturalization decree, see, e. g., United States v. Kunz, 5 F.R.D. 391 (S.D.N.Y.1946), aff'd 163 F.2d 344 (2d Cir. 1947); United States v. Karahalias, 205 F.2d 331 (2d Cir. 1953); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), so also the same rationale supports recourse to the rule in challenging a naturalization decree under Rule 60(b) and Section 340(j). `Thus it appears that Congress does not consider the exercise of such power to be inconsistent with statutory denaturalization.' Note, `Developments in the Law of Immigration and Nationality,' 66 Harv. L.Rev., 643, 718 (see also 717-19, 728-31) (1953).

"As was stated in In re Campbell's Petition, 326 F.2d 101, 102 (2d Cir. 1964):

`Section 340(j) is a grant of power to the court to reopen its naturalization judgments and is stated in permissive terms. It is well settled that motions for relief under Rule 60(b) are addressed to the discretion of the court. Fischer v. Dover S. S. Co., 218 F.2d 682 (2d Cir. 1955); England v. Doyle, 281 F.2d 304,

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