Sanders v. Clark

• Decision Date: 09 August 1949
• Docket Number: Civ. A. No. 7744.
• Citation: 85 F. Supp. 253
• Parties: SANDERS v. CLARK, Attorney General, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

85 F. Supp. 253

SANDERS v. CLARK, Attorney General, et al.

Civ. A. No. 7744.

United States District Court E. D. Pennsylvania.

August 9, 1949.

T. Henry Walnut, Philadelphia, Pa., for the plaintiff.

Gerald A. Gleeson, United States Attorney, James P. McCormick, Assistant United States Attorney, Philadelphia, Pa., for the defendants.

FOLLMER, District Judge.

Plaintiff herein filed a bill of complaint asking, —

1. That a preliminary injunction be issued and made permanent after hearing, enjoining the defendant Watson K. Miller, Commissioner of Immigration and Naturalization, his deputies, agents or subordinates, and Karl I. Zimmerman, District Director for District No. 2 at Philadelphia, from prosecuting any proceeding for the removal or deportation of the said Hans Hermann Sanders from the United States, or from otherwise interfering with him or molesting him.

2. That a declaratory judgment be entered declaring Hans Hermann Sanders, the plaintiff above named, to be a citizen of the United States entitled to all the rights and privileges of such citizenship.

Defendants moved to dismiss the complaint on the ground that it fails to state a claim against defendants upon which relief can be granted. That motion came on for argument before, and was dismissed by Judge McGranery in a very carefully considered and thoroughly logical and convincing opinion¹ in which the facts of the case were fully set forth, and all of which I herein adopt.

Subsequently plaintiff moved for summary judgment. This motion came on for argument before, and was dismissed by Judge Ganey in an unreported opinion² dated August 16, 1948. The court here, after quoting from the Nationality Act of 1940, § 338(d), 8 U.S.C.A. § 738(d) held: "Accordingly on the pleadings it seems apparent that by these averments and their denial, the court cannot say as a matter of law that `actual fraud' does not obtain, but recourse should be had to factual proof in order that the court may determine the type and quantity of the fraud allegedly involved in order to make a proper determination under the Act."

Paragraph 5 of the complaint avers as follows:

"Upon motion for a Bill of Particulars filed July 7, 1942, Petitioner in said proceedings filed in answer thereto as its allegations in support of the charge of fraud the following:

"`Bill of Particulars

"`1. He, the respondent, became an American citizen solely for the purpose of social and business convenience.

"`2. He, the respondent, continued to maintain his allegiance to Germany, his former country, in that,

"`(a) Respondent continued to identify himself and the members of his family as Germans;

"`(b) Respondent desired and still desires to repatriate himself as a German and to reacquire his former German citizenship

"`(c) Respondent assisted his son in reacquiring German citizenship.

"`(d) Respondent has on many occasions shown by his statements and by his actions his attachment to the German state, to Adolph (sic) Hitler, and to the principles of Naxism (sic) and Fascism;

"`(e) Respondent has expressed his desire for a speedy Germany victory in the current war.'"

Supplementing the facts set forth in the opinion of Judge McGranery above referred to, from the trial of the case before me, I make the following additional

Findings of Fact

1. George Sanders was born in Germany the 3d day of February, 1871, of native German parents. In 1892 he became a merchant engaged in importing and exporting in the town of Aguadilla, Puerto Rico. In 1906 he returned to Germany and for two years thereafter carried on his business with his brother in London, England, during which time he was married to a woman who was a native of Germany. In 1913, shortly after the birth of his second son, Hans Hermann Sanders, the plaintiff in this case, he, the father, returned to Aguadilla, Puerto Rico, where he has since that time continued to reside and to carry on his export and import business.

2. As of July 29, 1922, George Sanders became a citizen of the United States by Certificate of Naturalization No. 818533.

3. The plaintiff, Hans Hermann Sanders, then seventeen years of age, became a citizen of the United States upon his becoming a resident of Puerto Rico, April 6, 1930.

4. The record of the proceedings in the case of United States v. George Sanders consisted of a "Bill to Cancel Naturalization," which alleged in effect that George Sanders had committed fraud in securing his citizenship in that he retained his allegiance to Germany when he swore allegiance to the United States; a bill of particulars wherein appeared the specific grounds upon which the United States relied to support its charge of fraud, and an answer filed by George Sanders denying the charges made against him and specifically alleging that he took his oath of allegiance in good faith.

5. George Sanders made occasional vacation trips to Germany, usually lasting for two or three months. In more recent years the trips occurred once every two years and one lasted for eight months.

6. The eldest son of George Sanders is a resident and citizen of Germany.

7. For a number of years, during his residence in Puerto Rico, George Sanders was an honorary German vice-consul.

8. George Sanders did not become an American citizen solely for the purpose of social and business convenience.

9. In twenty-three years of business activity in Puerto Rico, George Sanders became fully acquainted with the American form of government and sincerely desired to become an American citizen.

10. George Sanders and his wife are both ethnologically of pure German descent.

11. George Sanders and his wife both had relatives living in Germany.

12. George Sanders and his wife both retained their love for German music.

13. Neither George Sanders, his eldest son in Germany, nor the plaintiff, at any time belonged to the Nazi party.

14. Other than to maintain contact with close relatives, and to acknowledge their love for German music, George Sanders did not continue to identify himself and members of his family as Germans.

15. George Sanders did not desire in 1922, nor did he in 1942 desire, to repatriate himself as a German and to reacquire his former German citizenship.

16. In his capacity as honorary German vice-consul, George Sanders in 1935 forwarded the application of his eldest son for German citizenship to the German Consul General, together with a letter stating, inter alia, "I can, to the best of my knowledge, recommend the reinstatement of my son as a citizen completely. He is in his national views, convictions and sentiments a pure German, and moreover a convinced follower of our Fuehrer and Reichschancellor Adolf Hitler. I am convinced that my son now, and especially later as an independent merchant who hopes to be in Columbia where he plans to go soon, where he will continue to serve the best interests of Germany according to his powers, and hold the love of the Fatherland."

17. George Sanders did in some correspondence, all after 1922 and before the entry of the United States into the war, as honorary German vice-consul, use the expression "Heil Hitler", which he states was merely a salutation.

18. George Sanders did not, with the exception of the letter in connection with his eldest son's German citizenship, express any sentiment that might be construed as indicating an allegiance to the German State and that letter was written in 1935.

19. George Sanders did express a desire for a speedy German victory before the United States entered the war.

20. George Sanders was 72 years of age when he signed the consent to the entry of judgment on which the order of August 11, 1942, revoking his naturalization and cancelling the certificate was predicated.

21. At the time of the entry of the decree of denaturalization the temper of the entire country was strongly anti-German. Due to this war psychosis, and at his advanced age, George Sanders, in an effort to avoid publicity and the penalties that would in all probability follow an adverse decision, signed the consent.

22. George Sanders bore a splendid reputation in Puerto Rico as a loyal citizen of the United States.

Discussion.

The government contends that the naturalization of George Sanders was cancelled for actual fraud which consisted of his retention of a mental reservation of allegiance to Germany, that it must therefore be regarded as a nullity from the beginning with the resultant conclusion that this son, the plaintiff...