Petitions of Rudder, 131-134

• Decision Date: 27 January 1947
• Docket Number: No. 131-134,Docket 20420.,131-134
• Citation: 159 F.2d 695
• Parties: Petitions of RUDDER et al.
• Court: U.S. Court of Appeals — Second Circuit

159 F.2d 695 (1947)

Petitions of RUDDER et al.

Nos. 131-134, Docket 20420.

Circuit Court of Appeals, Second Circuit.

January 27, 1947.

J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith and Edward S. Szukelewicz, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for appellant.

Lawrence Pomeroy, of Buffalo, N. Y., for appellees.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

These four appeals in naturalization proceedings present similar questions and have been argued together. In each case a preliminary hearing was conducted by a duly designated examiner of the Naturalization Service of the Department of Justice, resulting in his recommendation that the petition be denied on the ground that the petitioner had failed to establish good moral character during the five year period immediately preceding the date of filing his petition, as required by 8 U.S.C.A. § 707(a). In each case the district court disapproved the examiner's recommendation and admitted the petitioner to citizenship. The appellant contends that in so ruling the court abused its discretion.

In support of this contention the appellant refers in its briefs and argument to facts concerning the marital relations of the particular alien involved, which counsel for the appellees contends are not disclosed by the record on appeal. This raises a preliminary question for determination before the merits of the controversy are reached. As certified by the clerk of the district court, the record in each case consists of (1) the alien's petition for naturalization, with accompanying affidavits by his character witnesses, (2) examiner's recommendation, (3) the stenographic minutes of the proceedings in open court on February 26, 1946, (4) the court's order, (5) the notice of appeal, and (6) the appellant's designation as to the record on appeal. The first five items are copies of original papers and records filed in the district court, and no objection is, or could be, made to their inclusion in the record. In addition to them, the appellant's designation calls for certain papers described as "Copies of papers in the files of the Naturalization Bureau which were submitted to this Court for its consideration at the time when it entertained the application of the above named petitioner for citizenship." In each case such additional material has been presented to us in the form of an Appendix to the appellant's brief.¹ The appellees object that it is not properly before us. Technically they are right. The rules of this court as to appendices permit the appellant to print such parts of the record as he has designated. See Rule 17. What the appellant has presented as an appendix is not part of the record as certified by the clerk. The appellant did not attempt to have the record settled by the district judge, as is permissible if differences arise as to whether the record truly discloses what occurred in the district court. Rule 75(h), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.² Nor does it appear that anything was omitted from the record on appeal "by error or accident," in which case the omission might be cured pursuant to Rule 75(h). See United States v. Brodbeck, 3 Cir., 139 F.2d 916; Moore's Federal Practice, Vol. 3, p. 3406. Since the material printed in the appendices has not been incorporated into the records on appeal, we shall not consider it in determining the merits of the appeals.³

The basis for the appellant's contention that each alien failed to establish good moral character during the requisite five year period is to be found in the examiner's oral statement to the court. This statement was made in open court in the presence of the petitioner,⁴ was taken down by the official stenographer, and appears in the transcript of the hearing contained in the record. The appellees, however, contend that the statement of the examiner, who was not sworn as a witness, can be given no weight as evidence to establish the facts he narrates concerning the alien's marital relations; that the statute, 8 U.S.C.A. § 734(d), gives the United States the right to produce evidence and to be heard in opposition to the granting of the petition in naturalization proceedings, and since no evidence was produced by the United States, there is nothing to overcome the prima facie proof of good moral character made by the alien's petition with its accompanying affidavits. We think this is too narrow a view of the procedure contemplated by the statute. Section 733 of Title 8 provides for preliminary examinations of the petitioner before a designated examiner and for the submission of his findings and recommendation to the court at the final hearing. Section 734 provides the procedure at final hearing. It must be had in open court. If there has been a preliminary hearing by an examiner, the court may, in its discretion, examine the petitioner and the witnesses, and must do so if the petitioner so demands. If the United States appears in opposition, it has "The full rights of a litigant," Tutun v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 427, 70 L.Ed. 738, and may cross-examine the petitioner and the witnesses and produce evidence on its own behalf. But we do not think this reservation of the rights of a litigant requires the United States to put the petitioner upon the stand and by cross-examination to extract from him in the presence of the court the admissions already made at the preliminary hearing before the examiner. Such hearing is one step in ascertaining whether the applicant is a fit candidate for citizenship. See United States v. Saracino, 3 Cir., 43 F.2d 76, 77. We think that it should suffice, if no more is required by the court, for the examiner to state to the court in the presence of the petitioner the facts brought out by the preliminary hearing. If the petitioner wishes to contradict them he may demand that witnesses be called; if he does not so demand, he should be taken for purposes of the hearing to admit the facts as stated. In the only case we have found involving the identical situation Judge Bondy remarked, "It is assumed that the facts are as stated by the district director of naturalization without contradiction." In re Spiegel, D.C.S.D.N. Y., 24 F.2d 605. It is apparent from the stenographic minutes of the proceedings that Judge Kennedy made a similar assumption in the cases at bar. We shall likewise so assume in considering the merits of the appeals.

In Johnson's case, the alien was born in Finland and came to the United States in 1912; he is 54 years old and by occupation a dock builder. His petition for naturalization, filed in April 1943, states that he was married in New York in 1924, and has no children. The examiner informed the court that Johnson was not legally married because the "wife," who had been previously married, was divorced by her husband in January 1923, and a New York statute prohibits a divorced defendant from remarrying within the state without first obtaining permission so to do from the state court, Domestic Relations Law, N. Y., Consol. Laws, c. 14, § 8; that the petitioner admitted his wife had not received such permission, and "we have been living together without being married." Because of the statutory impediment, the relationship did not constitute a common law marriage; and the examiner urged that the parties to it, "now, at least," know that their relationship is "meretricious." The district judge, however, ruled that the situation had existed openly for so many years that it was tantamount to a common law relationship and was not meretricious. In so ruling we do not think the district judge abused the discretion vested in him to determine whether the...