Simons v. United States, 286

Decision Date13 December 1971
Docket NumberDocket 71-1734.,No. 286,286
Citation452 F.2d 1110
PartiesIracema Philippina SIMONS, Plaintiff-Appellant, v. UNITED STATES of America, and the Estate of John Simons, Deceased, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Gerald J. McMahon, New York City (Edward J. Ennis, New York City, of counsel), for plaintiff-appellant.

Leo Guzik, New York City (Guzik & Boukstein, and David C. Birdoff, New York City, of counsel), for defendant-appellee, Estate of John Simons, Deceased.

T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, Stanley H. Wallenstein and Joseph P. Marro, Special Asst. U. S. Attys., of counsel), for defendant-appellee, United States.

Before FRIENDLY, Chief Judge, and HAYS, Circuit Judge, and DAVIS, Associate Judge.*

FRIENDLY, Chief Judge:

This appeal raises interesting and important questions concerning the right of a former wife to attack the naturalization decrees of her deceased husband and herself entered over a score of years before the instant proceedings were begun.

The allegations of Iracema Philippina Simons, the plaintiff and movant, which for present purposes we must assume to be true, were as follows: She was born in 1922 in Brazil, a citizen of Holland by virtue of her parentage. In 1946 she married, in Holland, John Simons, also a Dutch citizen. Mr. Simons had come to the United States during World War II, on an immigrant visa, in order to remain out of the hands of the Nazis, but had returned to Holland thereafter. After a brief trip to the United States in 1947, the couple returned to Europe. They again came back to this country in April, 1948. On May 5, 1948, John Simons secured a decree of naturalization from the District Court for the Southern District of New York, having made the required allegation of his intention to become a permanent resident. See Nationality Act of 1940, ch. 876, § 332(a) (18), 54 Stat. 1155. About five days later he returned to Europe and instructed his wife to remain in the United States until she also obtained American citizenship. Declaring an intention ultimately to reside permanently in the United States, she secured citizenship on July 22, 1948 under the provisions of § 312 of the Nationality Act of 1940, 54 Stat. 1145, which waived the required period of continuous residence within the United States in the case of the spouse of a United States citizen stationed abroad in the employ of an American firm engaged in developing the foreign trade and commerce of the United States. John's allegation of intention to become a permanent resident, Iracema's allegation—made at John's direction— that John was stationed abroad in the employ of Hercules Steel Corporation, 120 Broadway, New York, N. Y., and Iracema's allegation of an intention to take up permanent residence in the United States on the termination of John's employment, were knowingly false. John's real intention since the end of World War II was to revive the family metal business in Rotterdam, "and the business of Hercules Steel Corporation, of which John Simons was the Vice President, was wholly incidental" to his presence in Europe to that end.

On August 1, 1948, Iracema, on John's instructions, left the United States to join him in Europe. They lived together at first in Brussels and thereafter in Holland, but paid income taxes as United States citizens in order to avoid higher Dutch taxation. In December, 1962, Iracema began an action for separation in the Supreme Court, New York County; in consequence of a separation agreement executed before the United States consul at Amsterdam, the action was discontinued. Meanwhile, in February, 1964, a Mexican decree of divorce was entered in an action instituted by Iracema, in which both parties appeared by attorney. Her consent to the discontinuance of the New York separation action and the institution of the Mexican divorce action was obtained by John's threat otherwise to kill or injure her or arrange for her confinement in a mental institution. John died in Switzerland in November, 1968, leaving a large estate, which except for some minor bequests, he willed entirely for educational and scientific purposes. Although the papers do not say this, we were told at argument that, since the divorce, Mrs. Simons had been living in Spain.

In March, 1970, Mrs. Simons filed a complaint in the District Court for the Southern District of New York against the United States and the Estate of John Simons, seeking a decree that at no time was she or John a lawful citizen of the United States. In August, 1970, she filed motions in the two naturalization proceedings for the same relief. Her avowed purpose was to place herself in a position where Dutch law would govern their status and the legality of the Mexican divorce, the hope being that this would be declared invalid and that she would thereby become entitled to share in John's estate.1 The United States filed an answer and moved for summary judgment dismissing the complaint; the Estate moved under F.R.Civ.P. 12(b) to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court denied all of the defendants' motions, 413 F.Supp. 531, concluding that a private person was entitled to attack her own naturalization or, assuming the presence of a legal interest which would be affected, that of another (even if the latter was deceased). Nevertheless the court sua sponte dismissed the complaint on the ground that Mrs. Simons was estopped from maintaining the action because of her long acceptance of the benefits of American citizenship. It thus also effectively denied Mrs. Simons' motions in the naturalization proceedings, for it deemed these to be mere "surplus" in light of the independent action initiated by her complaint. We affirm the court's orders of dismissal and denial, but on grounds different from those on which it relied.

The only federal statute dealing expressly with denaturalization is § 340 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451, the pertinent parts of which are set out in the margin.2 This is the lineal descendant, by way of § 338 of the Nationality Act of 1940, 54 Stat. 1158, of § 15 of the Nationality Act of June 29, 1906, 34 Stat. 601. As developed by Mr. Justice Frankfurter in Bindczyck v. Finucane, 342 U.S. 76, 79-83, 72 S.Ct. 130, 132, 96 L.Ed. 100 (1951), the 1906 Act "was the culmination of half a century's agitation directed at naturalization frauds, particularly in their bearing upon the suffrage." To cope with that problem Congress devised measures to prevent fraudulent naturalization and also "a carefully safeguarded method for denaturalization," since "experience was not wanting of the dangers and hardships attendant on haphazard denaturalization."

The question before the Supreme Court in Bindczyck was whether a Maryland court which had issued a certificate of naturalization had power to vacate this seven days later, at the same term of court, on motion of an Immigration and Naturalization Examiner (rather than the United States attorney) and without complying with the procedural safeguards of what is now § 340(b). The question arose by way of an action by Bindczyck for a declaratory judgment that he was still a citizen. The Court of Appeals for the District of Columbia Circuit held that the provision authorizing United States attorneys to bring plenary actions for the denaturalization was "cumulative in effect and does not exclude the other available remedies for setting aside and vacating naturalization orders as judgments at least while the issue is still in the course of its original proceeding." Finucane v. Bindczyck, 87 U.S.App.D.C. 137, 184 F.2d 225, 232 (1950). The Supreme Court reversed, saying, 342 U.S. at 83, 72 S.Ct. at 134, 96 L.Ed. 100:

In the light of the legislative history we cannot escape the conclusion that in its detailed provisions for revoking a naturalization because of fraud or illegal procurement not appearing on the face of the record, Congress formulated a self-contained, exclusive procedure. With a view to protecting the Government against fraud while safeguarding citizenship from abrogation except by a clearly defined procedure, Congress insisted on the detailed, explicit provisions of § 15. To find that at the same time it left the same result to be achieved by the confused and conflicting medley, as we shall see, of State procedures for setting aside local judgments is to read congressional enactment without respect for reason.

The Court also said, 342 U.S. at 84, 72 S.Ct. at 134, that once citizenship was granted,

it was to be proof against attacks for fraud or illegal procurement based on evidence outside the record, except through the proceedings prescribed in § 15. The congressional scheme, providing carefully for the representation of the Government\'s interest before the grant of citizenship and a detailed, safeguarded procedure for attacking the decree on evidence of fraud outside the record, covers the whole ground. Every national interest is thereby protected.

It denounced the argument that a naturalization decree, like any other judgment, "is subject to revocation for fraud or illegal procurement during the term of the court that granted it" as "mechanical jurisprudence in its most glittering form," since the contention disregarded "all those decisive considerations by which a provision like § 338 derives the meaning of life from the context of its generating forces and its purposes." 342 U.S. at 85, 72 S.Ct. at 135. If this were where matters still stood, it would be hard to avoid the conclusion that § 340 affords the only method for attacking a naturalization decree, and thus that only United States attorneys could institute such attacks. To be sure, the precise issue in Bindczyck was narrow...

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