Simons v. United States

• Decision Date: 24 May 1971
• Docket Number: No. 70 Civ. 1222.,70 Civ. 1222.
• Citation: 333 F. Supp. 855
• Parties: Iracema Philippina SIMONS, Plaintiff, v. UNITED STATES of America and the Estate of John Simons, Deceased, Defendants.
• Court: U.S. District Court — Southern District of New York

333 F. Supp. 855

Iracema Philippina SIMONS, Plaintiff, v. UNITED STATES of America and the Estate of John Simons, Deceased, Defendants.

No. 70 Civ. 1222.

United States District Court, S. D. New York.

May 24, 1971.

COPYRIGHT MATERIAL OMITTED

Gerald J. McMahon, New York City, for plaintiff; Edward J. Ennis, New York City, of counsel.

Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., for U.S.A.; T. Gorman Reilly, Asst. U. S. Atty., of counsel.

Guzik & Boukstein, New York City, for Estate of John Simons, Deceased, Leo Guzik, Harris Rakov, New York City, of counsel.

LASKER, District Judge.

The motions here raise novel questions of law in an unusual factual setting. The plaintiff alleges that she and her late, divorced husband obtained their naturalization decrees in this court by fraud. She seeks to have both decrees set aside. The motivation for such an unusual action is apparent from the papers. Despite the observation of Mr. Justice Black that "not only is United States citizenship a `high privilege,' it is a priceless treasure," Johnson v. Eisentrager, 339 U.S. 763, 791, 70 S.Ct. 936, 950, 94 L.Ed. 1255 (dissenting) (1950), it seems that the plaintiff here seeks a treasure which she would value more, a share of her former husband's substantial estate in which she may have rights under Dutch law. She apparently does not subscribe to the view expressed in Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500 (1946), that "denaturalization * * * may result in the loss `of all that makes life worth living.'"

Plaintiff predicates jurisdiction on 28 U.S.C.A. § 1331 (federal question) and § 1346 (suits against the United States).¹ She has also filed contemporaneously herewith two petitions under the file number for the naturalization decrees which she and her husband obtained in 1948, requesting the cancellation of the decrees. So presented, the case raises issues as to (a) the private interests of the plaintiff and the Estate of John Simons, (b) the public interest of the United States in alleged frauds as to the naturalization of its citizens, and (c) the public interest of this court in the validity of its own decree allegedly induced by fraud.

By its motion here, defendant United States of America moves for summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure.² Defendant Estate of John Simons moves for dismissal of the complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted under Rule 12(b) (1) and (6), F.R. Civ.P.³ Plaintiff opposes both motions.⁴

GENERAL BACKGROUND

With the outbreak of World War II in 1939, John Simons fled The Netherlands, where he conducted his family business, Simons Metaalhandel N.V., in Rotterdam. On April 15, 1940, he entered the United States on an immigrant visa arriving from Genoa, Italy, and made a declaration of intention to become a citizen of the United States on January 7, 1941, after having initially filed on July 18, 1940.

John Simons returned to Holland on February 28, 1946. He appears to have been in the employ of an American corporation in going to Europe, although plaintiff alleges that John Simons used the American corporation and others "as subterfuges to enable my husband to return to Holland to rebuild the family concern, `Simons Metaalhandel' of Rotterdam." (Affidavit of plaintiff, sworn to July 31, 1970).

While in Europe, John Simons married plaintiff on December 23, 1946, in Amsterdam. Both traveled to the United States on January 21, 1947, returning again to Europe on May 20, 1947. The couple again came to the United States on April 23, 1948. On May 5, 1948, John Simons was naturalized as a citizen of the United States (Petition No. 553957 and Naturalization Certificate No. 6706307). On or about May 10, 1948, John Simons traveled to Europe alone. On July 22, 1948, remaining in the United States allegedly at her husband's instructions, plaintiff was naturalized as a United States citizen (Petition No. 568739 and Naturalization Certificate No. 6867228). On August 1, 1948, plaintiff left the United States to join her husband in Europe.

Plaintiff relates that on June 1, 1948, John Simons rented an apartment in Brussels where he and plaintiff resided for four years. During this time John Simons commuted to Rotterdam to conduct the family business. In June of 1952, the family business rented a large estate for the Simonses in Wassenaar, near The Hague. The United States asserts that John Simons and plaintiff "remained in Europe during the period from 1948 to 1964. This was to enable John Simons to carry out his functions as vice president of Hercules Steel Corporation, an American corporation with its headquarters in New York." Throughout this period plaintiff and her husband filed New York and United States income tax returns. (Affidavit of T. Gorman Reilly, sworn to June 30, 1970).

Plaintiff asserts that at no time did she or her husband rent or maintain an apartment in New York, although the United States asserts the contrary, albeit without supporting evidence.

Plaintiff urges that, contrary to the declarations he made in the process of his naturalization, her husband never intended to take up residence in the United States. She claims that her own declarations were similarly false. She alleges this to be the fraud by which both received their naturalization decrees in this court.

Plaintiff initiated a divorce proceeding against John Simons in the Supreme Court of New York County on December 14, 1962, and both she and her husband entered into a separation agreement at the United States Consulate in Amsterdam on January 29, 1964. On February 19, 1964, plaintiff received a decree of divorce and termination of marriage in the District of Bravos, State of Chihuahua, Mexico. The New York Supreme Court action was discontinued April 2, 1964.

The complaint states that the divorce decree "was obtained solely by the threats of John Simons to plaintiff, which plaintiff believed and which forced her consent, that John Simons would kill or injure her or arrange for her confinement in a mental institution if she did not consent to the discontinuance of the New York action and the Mexican divorce." Plaintiff appeared in Chihuahua in person and by counsel to obtain the divorce decree there; John Simons appeared by counsel.

Neither party remarried. John Simons died on November 8, 1968, in Pully, Switzerland. There were no children, and John Simons' estate after a few money bequests was willed to scientific and educational purposes.

The complaint alleges (paragraph 16) that: "Upon determination that plaintiff and John Simons were not lawful citizens of the United States Dutch law will govern their status and the legality of the Mexican divorce between them." Plaintiff's Memorandum in opposition to the instant motions states as "The Purpose of This Action":

"This action is brought by plaintiff as the person directly concerned who has sustained substantial injury resulting from her deceased husbands fraud. Her husband's fraudulent procurement of United States citizenship for himself and for the plaintiff, and the Mexican divorce decree secured as a result of the husband's duress and undue influence upon plaintiff have deprived the plaintiff of substantial property rights to which she is entitled as a Dutch national."

JURISDICTION

Defendants contend that 8 U.S. C.A. § 1451(a) is an exclusive method to attack naturalization decrees, that only the United States Attorney is authorized to sue under its provisions, and that a court's inherent power to correct its decrees is limited by the statute, as indeed, it is argued, it was limited even before the statute. An exhaustive exploration of the history of denaturalization proceedings and a review of the present state of the law lead us to find that defendants' position lacks merit.

Prior to the first federal effort to codify the law of naturalization pursuant to the constitutional authority in Article I, § 8, cl. 4, "to establish a uniform Rule of Naturalization," the authorities are contradictory as to who had the right to challenge naturalization decrees.⁵ The court's jurisdiction appears to have been assumed, and the real issue was who had standing to raise the matter.

Section 15 of the Naturalization Act of 1906 provided that "it shall be the duty of the United States district attorneys" to initiate denaturalization proceedings.⁶ Although on balance the authorities appear to support the conclusion that this authorization was to be the exclusive means to attack naturalization decrees,⁷ there were occasions when the courts permitted direct attacks on such decrees by others.⁸

Section 15 was subsequently re-enacted as § 338(a) of the Nationality Act of 1940.⁹ The same language was used with the same resulting ambiguities. The issue of whether or not the authority given the United States Attorney was exclusive was finally determined in Bindczyck v. Finucane, 342 U.S. 76, at 83, 72 S.Ct. 130, 96 L.Ed. 100 (1951), where, the Court held that § 338(a) was a "self-contained, exclusive procedure."

This holding in Bindczyck was specifically abrogated by § 340(j) of the Immigration and Nationality Act of 1952:¹⁰

"Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of any naturalization court, by or in which a person has been naturalized, to correct, re-open, alter, modify, or vacate its judgment or decree naturalizing such person, during the term of such court or within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action."

The Supreme Court took cognizance in United States v. Zucca, 351 U.S. 91, 95, 76 S.Ct. 671, 674, 100 L.Ed. 964 (note 8) (1956), that § 340(j) constituted a legislative mandate overruling Bindczyck in certain respects:

"The specific holding, that § 338(a) of the

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