Rosenberg v. United States, 4768.

• Citation: 60 F.2d 475
• Decision Date: 19 July 1932
• Docket Number: No. 4768.,4768.
• Parties: ROSENBERG v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

60 F.2d 475 (1932)

ROSENBERG v. UNITED STATES.

No. 4768.

Circuit Court of Appeals, Third Circuit.

July 19, 1932.

A. E. Hurshman, of Philadelphia, Pa., and Everett Kent, of Bangor, Pa., for appellant.

Edward W. Wells, U. S. Atty., of Philadelphia, Pa., and Charles M. Bolich, Asst. U. S. Atty., of Allentown, Pa.

Before BUFFINGTON and THOMPSON, Circuit Judges, and THOMSON, District Judge.

BUFFINGTON, Circuit Judge.

This case concerns the cancellation of a certificate of naturalization. The pertinent act, 34 Stat. at Large, 596, § 4 (8 USCA § 382), provides that a court may grant a petition for naturalization where the applicant "immediately preceding the date of his application * * * has resided continuously within the United States, five years at least, and within the State or Territory where such court is at the time held one year at least."

In pursuance of that statute, one Louis Rosenberg presented a petition to a New York court praying naturalization and asserting that he had resided continuously within that state for one year preceding the date of his application. Thereupon that court, after hearing, granted his petition and issued a certificate of naturalization. Under the law, such residence was a necessary element to confer jurisdiction on that court.

In the case of United States v. Spohrer (C. C.) 175 F. 440, 442, it was held: "An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist, and if they do not he takes nothing by his paper grant. Fraud cannot be substituted for facts."

In Johannessen v. United States, 225 U. S. 227, 32 S. Ct. 613, 617, 56 L. Ed. 1066, it was held: "An alien has no moral nor constitutional right to retain the privileges of citizenship if, by false evidence or the like, an imposition has been practiced upon the court, without which the certificate of citizenship could not and would not have been issued. As was well said by Chief Justice Parker in Foster v. Essex Bank, 16 Mass. 245, 273, 8 Am. Dec. 135, `there is no such thing as a vested right to do wrong.'"

To prevent such wrongs, Congress made it the duty of district attorneys "to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured." 8 USCA § 405.

In pursuance thereof, the district attorney, alleging that Rosenberg was a resident of the state of Pennsylvania and that he was such resident at the time of the granting of his naturalization by the New York court, filed a petition on March 17, 1927, on behalf of the United States, in the court below, praying the certificate of naturalization be canceled. In this proceeding Rosenberg appeared, made defense, and a large amount of testimony was taken. After hearing, the court on January 23, 1931, entered a decree canceling the certificate of...