Petition of Zele, 248.

• Decision Date: 08 February 1944
• Docket Number: No. 248.,248.
• Citation: 140 F.2d 773
• Parties: Petition of ZELE.
• Court: U.S. Court of Appeals — Second Circuit

140 F.2d 773 (1944)

Petition of ZELE.

No. 248.

Circuit Court of Appeals, Second Circuit.

February 8, 1944.

Milton S. Gould, of New York City (Kaufman & Cronan and Samuel H. Kaufman, all of New York City, on the brief), for petitioner-appellant.

John B. Creegan, Asst. U. S. Atty., of New York City (James B. M. McNally, U. S. Atty., of New York City, on the brief), for the United States.

Before SWAN, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal from an order of the District Court accepting the recommendations of the trial examiner and denying the petition for naturalization of Eugene Zele on the ground that good moral character had not been satisfactorily established. The facts of the case can be found in our former opinion, 127 F.2d 578, 580, wherein we reversed an order of the District Court denying Zele's petition and remanded the proceeding for hearing in accordance with the views there expressed. We stated that under 8 U.S.C.A. § 382,¹ the burden of proof to show good moral character rested upon petitioner, but that "good behavior during the five year period i.e., preceding the date of the petition is the only test of moral fitness provided in the statute." (Italics as in the original.) And we went on to speak of petitioner's connection with Harold Van Riper — whose conviction of various offenses in advising aliens to violate the naturalization laws was before us in U. S. v. Van Riper, 2 Cir., 92 F.2d 1020, certiorari denied 303 U.S. 635, 58 S.Ct. 521, 82 L.Ed. 1096; Id., 99 F.2d 816, and 113 F.2d 929, certiorari denied 311 U.S. 696, 61 S.Ct. 134, 85 L.Ed. 451 — as follows: "It would not be reasonable to infer misbehavior during that period from the petitioner's entanglement in 1931 with Van Riper — a crooked lawyer who led aliens to seek citizenship through the use of false documents and lured them on by promises to speed their admission by political influence." The special pertinency of this statement will appear as we discuss later herein the actual course which the rehearing took.

In the opinion we also pointed out that the only black mark in the record against petitioner during the five-year period was the incorporation by reference in his 1940 petition for naturalization of the 1934 declaration of intention, with its false statement concerning prior declarations. Since, however, petitioner had explained the original false statement as having been made on the advice of a woman at the information desk of the naturalization service, "an explanation of his conduct that was not contradicted by the government," we said that "he should be given an opportunity to show by oral testimony that when he incorporated the declaration of November 2, 1934, in his petition he was not intending to conceal from the Examiner his earlier application of 1931, but was doing no more than formally complying with Section 380 of the Naturalization Act without any deception in mind." We added: "His delinquencies in 1931 could have no bearing except on the credibility of his statements," and concluded: "A more adequate record in a proceeding where witnesses may be called and examined and cross examined will enable the court to determine the petitioner's behavior during the five year period and to adjudicate his rights with more certainty than from the scanty record now available." 127 F.2d at page 580. We thus made perfectly clear that the purpose of the further proceedings should be to investigate petitioner's activities from February 19, 1935, to the present, with particular emphasis upon his intentions in making the incorporation by reference in 1940.

Despite these explicit instructions, the rehearing before the examiner was almost wholly concerned with the Van Riper affair and its implications. The hearing opened with the cross-examination of petitioner as to his declaration of intention of 1934, then went back to his declaration of 1931, and continued throughout this day and the second day until almost its end with practically no reference to events later than those periods. Further details were developed to the effect that petitioner realized his declaration of October 19, 1931, was fraudulent two days after he signed it, that he then went to Canada and returned on the basis of the fraudulent declaration so as to cancel the $500 bond for a temporary visitor which his brother had posted, that when he heard the immigration officials were looking for him in March, 1932, he went to California, and that when he returned to the United States in 1934 he used the first name "Evzen," whereas he had used "Eugen" in 1929. Objections of his counsel to this extensive reiteration of details of conduct taken note of by us generally on the previous appeal were summarily overruled on the ground that his credibility was being tested. Not until the third day, when petitioner's counsel took over the examination, did the hearing really come to more recent matters, and then only to a limited extent. Petitioner revealed that on July 3, 1935, he was called into the naturalization service office for questioning, at which time he informed Assistant District Director Muller of his connections with Van Riper. This was corroborated by Muller, who testified briefly as to petitioner's statement to him in July, 1935, concerning the Van Riper association. Only one other witness was presented, an official of the New York State Education Department concerned with the licensing of physicians, who did not claim to know petitioner. Petitioner did, however, present the affidavits of character witnesses under an agreement with the government to produce them for cross-examination upon request; since there was no such request, we must assume them to stand unchallenged so far as they go. The only new matter from the government's standpoint, touching on the crucial five-year period, comprised contentions that petitioner had made certain false statements in the affidavit which he signed before naturalization officials on June 24, 1940, as well as in a letter which he wrote to the New York Board of Medical Examiners on October 14, 1941.

It was on the basis of this hearing that the examiner recommended denial of the petition, a recommendation which the District Court accepted without conducting an independent hearing, in an opinion sharply critical of petitioner's "deliberate and intentional perjury," his "misdeeds," his "immoral character." We do not think the rehearing achieved the purpose we had in mind.

Since one of the purposes of the remand was to give petitioner an opportunity to show by oral testimony that when in 1940 he incorporated his 1934 declaration in his petition he was not intending to conceal his 1931 declaration from the examiner, we should look to see how this matter stands on this record. Petitioner as witness again stated the explanation as to the 1934 declaration which we had before us in affidavit form on the original appeal and which we treated as sufficient to exculpate him if true. Cross-examination by the government failed to cast any real doubt on his testimony, when the extraordinary course of impeachment was undertaken of a tour through the naturalization service office, during which petitioner was asked to point out the woman who he claimed had advised him in 1934 as to the making of his declaration. The lack of probative value of such a negative test, made after eight years, during which the turnover of government personnel has been notorious, would seem obvious; but completely revealing as to the nature of the rehearing is the examiner's comment on counsel's objection, "It is the crucial part of this case to identify this person." Petitioner, on the other hand, did show that in 1935 he had advised Director Muller of the facts surrounding his 1931 declaration. This knowledge on the part of the naturalization officials that the 1934 declaration contained a misstatement...