Reilly, In re
| Decision Date | 15 May 1973 |
| Citation | 73 Misc.2d 1073,344 N.Y.S.2d 531 |
| Parties | In the Matter of the Citizenship Application of Matthias REILLY. |
| Court | New York Supreme Court |
Paul O'Dwyer, New York City, for petitioner.
Marvin Stang, Marjorie Jackson, U.S. Dept. of Justice, New York City for Immigration and Naturalization Service.
O'Dwyer & Bernstien, New York City, for petitioner.
In this controversy arising out of the prodigious efforts by the petitioner, Matthias Reilly, to become a naturalized citizen of the United States--so far frustrated--the introductory language by the late Mr. Justice Frank Murphy, writing for the majority of the United States Supreme Court in Schneiderman v. United States, 320 U.S. 118--120, 63 S.Ct. 1333, 1334, 87 L.Ed. 1796, although relating to the rules of law applicable to a denaturalization proceeding, is well-worth recalling:
'Our concern is with what Congress meant by certain statutes and whether the Government has proved its case under them.
While it is our high duty to carry out the will of Congress in the performance of this duty we should have a jealous regard for the rights of petitioner. We should let our judgment be guided so far as the law permits by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in though and action to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born. And we certainly should presume that Congress was motivated by these lofty principles.
We are directly concerned only with the rights of this petitioner and the circumstances surrounding his naturalization, but we should not overlook the fact that we are a heterogeneous people. In some of our larger cities a majority of the school children are the offspring of parents only one generation, if that far, removed from the steerage of the immigrant ship, children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs. Here they have hoped to achieve a political status as citizens in a free world in which men are privileged to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law.'
The petitioner--depending upon one's viewpoint--is one of the famous or infamous 'Fort Worth Five,' who are imprisoned for contempt in Texas. Their plight has not only engendered considerable comment in the news media, but has also prompted Congressional concern. One distinguished Senator and several Congressmen and Congresswomen have made public statements or participated in legislative inquiries on the fate of these men.
While presiding at a Special Term for Naturalization of the Supreme Court of the State of New York, held in and for the County of Rockland, on March 9, 1973, Paul O'Dwyer, Esq., appeared before me on behalf of the petitioner, Matthias Reilly, to oppose the application by the Immigration and Naturalization Service of the United States Department of Justice (Naturalization Service) that the final hearing on the petitioner's petition for naturalization as a citizen of the United States of America be 'adjourned without date.'
It appears that shortly before the scheduled date for the naturalization ceremonies, the Clerk of the Court was directed by the Examiner of the Naturalization Service to strike the names of both Matthias Reilly and his wife, Mary Reilly, from the listings on the court's calendar of petitioners whose applications for citizenship had been approved and to whom the oath was to be administered. The petitioner had previously been advised by the Naturalization Service in a letter addressed to him at his home to appear in court on that day and was further informed that:
'If the Judge finds you qualified for naturalization, you will be sworn in as a citizen.'
Thereafter, the Naturalization Service reconsidered its action, allegedly prompted by 'State and Federal Representatives', with respect to Mary Reilly for her name was re-inscribed and she was duly admitted to citizenship upon her taking the requisite oath together with all the other applicants.
In open court, counsel for the petitioner protested the omission of the name of Matthias Reilly. After presenting a brief but impassioned version of the facts and circumstances, he moved that the petitioner's petition 'be restored to Your Honor's calendar forthwith.' In opposition, Marvin Stang, Esq., the Agency's Examiner, advised the court that the and 'since Mr. Reilly is not here at the present time that his application be adjourned without date.' I reserved decision on the petitioner's motion and the Naturalization Service's cross-motion.
In the interim, petitioner has moved for an order directing that the Department of Justice, Bureau of Naturalization, produce its complete file and that it 'produce the body of Matthias Reilly on a day certain to be fixed by the court.' In the supporting affidavit, there is an additional request for further relief, to wit: that the court order the petitioner to be transferred to a Federal Detention Center closer to his home and that of his family which is in Rockland County, New York.
From the limited facts contained in the submissions, it appears that the petitioner was born on January 5, 1941, in County Fermanagh, which is in Northern Ireland--a fact not without current significance--and that he entered the United States on Frbruary 10, 1962. It further appears that his wife, nee Mary McHugh, also of County Fermanagh, and the petitioner were married on September 14, 1963. There are three infant children of the marriage, all born in the United States.
In the petitioner's presentation, it is stated that the only organization to which he has belonged is the Ancient Order of Hibernians which he joined in 1964, some two years after his entry into the United States. Gainfully employed as a bus driver since 1965, the petitioner's profile, as further outlined by his counsel, shows ownership of a home with a 'heavy mortgage.'
The petitioner's failure to appear at the naturalization ceremony or, to employ the statutory language, at the 'final hearing,' is quite understandable: he has been confined in a civil jail in Texas for contempt since June 19, 1972. Save for a brief period in September of 1972, during which he was granted bail by United States Supreme Court Justice William O. Douglas, he has been so incarcerated to date. On January 22, 1973, the United States Supreme Court denied certiorari, with Justice Douglas dissenting, and one week thereafter, the petitioner was returned to jail. It is further asserted by his counsel that he is destined to remain in prison until November 2, 1973, when that Grand Jury's term expires.
Ordinarily, the role of a New York State Supreme Court Justice presiding at a Special Term for Naturalization is largely ceremonial. Customarily, the occasion is attended by representatives from various patriotic and civic groups. During my years on the Bench, the only unusual incident I can recall was that of a pacifist to whom the appropriate oath had to be administered separately. I say this by way of preface since the issues presented now compel a review of the pertinent Constitutional and statutory authorities as a predicate for determining jurisdiction and disposition.
However ritualistic the final hearing may have evolved, nevertheless, it is not without judicial significance. In application of Murra, 166 F.2d 605, 606--607, the Seventh Circuit Court of Appeals in reversing the District Court's denial of citizenship, after considering Rules 52 and 81(a)(2) of the Federal Rules of Civil Procedure (U.S. Code, tit. 28), concluded:
A very brief analysis of § 1421 et seq., of title 8 of the United States Code--Nationality and Naturalization--reveals that § 1421 confers jurisdiction to naturalize upon the New York State Supreme Court by virtue of its being a court of record and having jurisdiction in actions at law and equity. Sections 1424 and 1425 bar subversives and deserters, respectfully, from naturalization, and § 1426 disqualifies those aliens who have been relieved of military service. Subdivision (e) of § 1427 imposes upon the petitioner 'the burden of establishing good moral character', and subd. (f) thereof, denies naturalization to one who is an adherent of an organization against whom registration proceedings are pending for registration as subversive. Under § 1429, the burden of proof is imposed upon the petitioner to show that 'he entered the United States lawfully'; and it then proceeds to bar naturalization to any person 'against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest,' i.e., a Federal warrant. Similarly, if there are deportation proceedings, pursuant to a warrant of arrest pending against the applicant,...
To continue reading
Request your trial