Stasiukevich v. Nicolls, 4279.

• Citation: 168 F.2d 474
• Decision Date: 27 May 1948
• Docket Number: No. 4279.,4279.
• Parties: STASIUKEVICH v. NICOLLS.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

168 F.2d 474 (1948)

STASIUKEVICH v. NICOLLS.

No. 4279.

Circuit Court of Appeals, First Circuit.

May 27, 1948.

Carol King, of New York City (Frederick Cohen, of Boston, Mass., on the brief), for appellant.

Arthur J. B. Cartier, Asst. U. S. Atty., of Boston, Mass. (William T. McCarthy, U. S. Atty., of Boston, Mass., on the brief), for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

This is an appeal from an order denying a petition for naturalization.

The petition, which was filed March 3, 1944, met the formal requirements of the statute. It was accompanied by an affidavit of two citizens attesting to their personal knowledge that the petitioner has continuously resided in the United States since 1932; that he "is now and during all such period has been a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States, and in my opinion the petitioner is in every way qualified to be admitted a citizen of the United States." Petitioner executed the statutory oath of allegiance. In accordance with § 333 of the Nationality Act of 1940, 54 Stat. 1156, 8 U.S.C.A. § 733, the Immigration and Naturalization Service made its recommendation to the court, which was that the petition should be denied on the ground of "lack of attachment".

On January 20, 1947, the petition came on for hearing before the district court. Stasiukevich testified in support of his petition. He came to this country from Poland in 1906 and thereafter has continuously resided in Maynard, Massachusetts. In 1910 he married an alien who has since become naturalized. As to his occupation, he testified, "I examine cloth, and dry finish." Since 1926, or 1928, he has been a member of the International Workers Order, which describes itself as a "people's fraternal benefit society". A booklet containing its declaration of principles, its constitution and by-laws, which is before us as an exhibit, does not appear to indicate anything of a "subversive" character in its professed aims and purposes. Stasiukevich is an officer of the Maynard lodge of the International Workers Order. The lodge meets in a building owned by the Russian Educational Society, subject to a mortgage held by Stasiukevich and others. "Some people" call the building "Red Hall". At this hall Stasiukevich has done some teaching of the Russian language. He made a visit to Leningrad and Moscow in 1933, and found life there "not satisfactory" at that time. He denied being a member of the Communist Party; said that he had never advocated sabotage or the forceful overthrow of government, and stated that if he became a citizen he would "support the principles of the Constitution of the United States".

The two citizens who executed the affidavit aforesaid, attached to the petition, testified in the sense of the affidavit.

One Lewis Marks, "assistant manager of the American Electric Supply, wholesale electric house in Boston", holding the office of treasurer of the International Workers Order in the State of Massachusetts, testified as to the operation of the Order as a fraternal benefit society. He said members were accepted "regardless of their race, creed, color or political affiliations"; that some of the members of the Order might be Communists, since their political affiliation is not questioned; but that the Order "definitely is not Communistic", and operates on democratic principles.

The only witness offered by the Immigration Service in opposition to the petition was Joseph S. Apelman, an immigration inspector. He testified that he had made an investigation of Stasiukevich; that he had visited Maynard and had talked with perhaps fifteen or twenty members of the community where Stasiukevich resides. In answer to a question on direct examination as to what was Stasiukevich's "reputation in the community", the witness answered: "His reputation in the community is of being a Communist."¹

Apelman further testified that he had had occasion to investigate the character of the International Workers Order; that he had "studied the report of the Special Commission to investigate the activities within the Commonwealth of the Communists, Fascists, Nazis, and other subversive organizations, so-called; also the report of the Special Committee on un-American activities, House of Representatives, 78th Congress". Counsel for petitioner interposed "objection to this report, or series of reports, through the witness." Upon being assured that the government was going to offer the reports in evidence, the court allowed the examination to proceed. In answer to a question as to what was the "general trend" of the report of the Legislative Committee, Apelman read, somewhat inaccurately, a couple of sentences from the report, indicating that the aims and objectives of the International Workers Order are in support of the entire program of the Communist Party. Upon being asked to summarize the report of the Congressional Committee, Apelman quoted one brief excerpt from that report, as follows: "The International Workers Order is a mere adjunct of the Communist Party." Subsequently, the two reports referred to were introduced as exhibits.

At the close of the hearing, the district court stated: "The burden is on the plaintiff to show that he is attached to the principles. I will rule that the man has not sustained the burden of proving his attachment. Therefore, I deny his application." The court made no further findings. The order now appealed from, entered January 20, 1947, denied Stasiukevich's petition for naturalization.

Since the decision in Tutun v. United States, 1926, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738, it has been settled that a naturalization proceeding is a "case" or "controversy" within the meaning of Article III, § 2, of the Constitution and of § 128 of the Judicial Code, 28 U.S.C.A. § 225, and that an order denying a petition for naturalization is a "final decision" within the meaning of § 128 of the Judicial Code and as such is appealable to the circuit court of appeals. Congress having, in the Nationality Act of 1940, afforded to aliens an opportunity to be naturalized, "there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate. * * * In passing upon the application the court exercises judicial judgment. It does not confer or withhold a favor." (270 U.S. at page 578, 46 S.Ct. at page 427, 70 L.Ed. 738.)²

As one of the statutory conditions upon eligibility for naturalization, which a petitioner has the burden of establishing, § 307(a) of the Nationality Act, 54 Stat. 1142, 8 U.S.C.A. § 707(a), provides that naturalization may not be granted unless the petitioner "during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States."

It is not easy to state what are the "principles of the Constitution" within the meaning of the Nationality Act, and the courts have generally shied off from concrete definition. In Schneiderman v. United States, 1943, 320 U.S. 118 at pages 137-140, 63 S.Ct. 1333 at pages 1342-1344, 87 L.Ed. 1798, a denaturalization case, the point was raised, and discussed somewhat, but the court found that in the case before it "precise definition" was unnecessary (if indeed such was possible), because, even accepting the test advanced by the Solicitor General, the government had not sustained the heavy burden of proof resting upon it in a proceeding for cancellation of a grant of naturalization. The court did indicate that one might be attached to the principles of the Constitution, within the statutory meaning, notwithstanding his belief that many changes should be made in it. Further, it noted as an "extreme position" (320 U.S. at page 140, 63 S.Ct. at page 1344, 87 L.Ed. 1798), without considering its validity, that since Article V of the Constitution contains no limitation on the subject matter of possible amendments, "a person can be attached to the Constitution no matter how extensive the changes are that he desires, so long as he seeks to achieve his ends within the framework of Article V." We are confident that "attached to the principles of the Constitution" means more than that. The phrase goes back to the naturalization act of January 29, 1795, 1 Stat. 414. It is hardly to be supposed that the members of Congress of that day, having so recently completed a successful revolution, conceived that the phrase "the principles of the Constitution" comprehended only one principle, namely, that changes in the basic law must be effectuated only by the procedure laid down in Article V. The statutory word is in the plural — "principles", not "principle". It is true enough, as Holmes, J., noted in his dissent in United States v. Schwimmer, 1929, 279 U.S. 644, 654, 49 S.Ct. 448, 451, 73 L.Ed. 889, that "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate." But it does not follow from this that the Congress would wish to admit to the privilege of citizenship aliens who were so far out of sympathy with our established form of government that they would like to see it supplanted by a totalitarian regime under which all individual liberties, including freedom of thought and freedom of speech, are swept into the discard.³ A person is not attached to the kindred principles of free thought and free speech when he invokes the protection of those constitutional freedoms in aid of the struggle of his party to achieve power, being all the...