Tutun v. United States Neuberger v. Same, s. 762

• Court: United States Supreme Court
• Writing for the Court: BRANDEIS
• Citation: 270 U.S. 568,46 S.Ct. 425,70 L.Ed. 738
• Parties: TUTUN v. UNITED STATES. NEUBERGER v. SAME
• Docket Number: Nos. 762,824,s. 762
• Decision Date: 12 April 1926

270 U.S. 568 46 S.Ct. 425 70 L.Ed. 738 TUTUN

v.

UNITED STATES. NEUBERGER v. SAME.

Nos. 762, 824. Argued March 3, 1926. Decided April 12, 1926. Messrs. Louis Marshall, of New York City, William H. Lewis, of Boston, Mass., and Matthew M. Levy and Eugene Untermyer, both of New York City, for Tutun and Neuberger.

[Argument of Counsel from pages 568-572 intentionally omitted]

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The Attorney General and Mr. Assistant Attorney General Donovan, for the United States.

[Argument of Counsel from pages 572-574 intentionally omitted]

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Mr. Justice BRANDEIS delivered the opinion of the Court.

These cases present, by certificate, the question whether the Circuit Courts of Appeals have jurisdiction to review a decree or order of a federal District Court denying the petition of an alien to be admitted to citizenship in the United States.

The existence of the jurisdiction was assumed by this court, without discussion, in Ozawa v. United States, 43 S. Ct. 65, 260 U. S. 178, 67 L. Ed. 199. It has been exercised by the Circuit Courts of Appeals in most of the circuits.¹ In the Fifth circuit

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jurisdiction was denied in United States v. Dolla, 177 F. 101, 100 C. C. A. 521, 21 Ann. Cas. 665. Although the correctness of the decision was questioned by Judge Amidon in United States v. Leonore (D. C.) 207 F. 865, 869, and by Judge Hough in United States v. Mulvey (C. C. A.) 232 F. 513, 521, 522, it has been followed in the Third circuit and in the Eighth.² In the state courts judgments granting or denying petitions for naturalization have generally been held to be reviewable on appeal, like other cases.³

The 'jurisdiction to naturalize aliens as citizens of the United States' is conferred by Act of June 29, 1906, c. 3592, § 3, 34 Stat. 596 (Comp. St. § 4351) upon the District Courts, among others. Jurisdiction to review the 'final decision in the

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District Courts * * * in all cases,' except as otherwise provided, was conferred by Act of March 3, 1891, c. 517, § 6, 26 Stat. 826, 828, upon Circuit Courts of Appeals. This provisions was re-enacted in Judicial Code, § 128, and by Act of February 13, 1925, c. 229, 43 Stat. 936, in section 128(a) (Comp. St. Supp. 1925, § 1120). The order granting or denying a petition for naturalization is clearly a final decision within the meaning of that section. Ex parte Tiffany, 40 S. Ct. 239, 252 U. S. 32, 64 L. Ed. 443. This is true, although a certificate granted may be canceled under section 15 of the Naturalization Act (Comp. St. s 4374). United States v. Ness, 38 S. Ct. 118, 245 U. S. 319, 62 L. Ed. 321. And a denial of the petition may not preclude another application for naturalization. In re Pollock (D. C.) 257 F. 350. Compare Salinger v. Loisel, 44 S. Ct. 519, 265 U. S. 224, 230, 68 L. Ed. 989. The substantial question is whether a petition for naturalization is a case within the meaning of the Circuit Court of Appeals Act.

The function of admitting to citizenship has been conferred exclusively upon courts continuously since the foundation of our government. See Act of March 26, 1790, c. 3, 1 Stat. 103. The federal District Courts, among others, have performed that function since the Act of January 29, 1795, c. 20, 1 Stat. 414. The constitutionality of this exercise of jurisdiction has never been questioned. If the proceeding were not a case or controversy within the meaning of article 3, § 2, this delegation of power upon the courts would have been invalid. Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436; United States v. Ferreira, 13 How. 40, 14 L. Ed. 42; Muskrat v. United States, 31 S. Ct. 250, 219 U. S. 346, 55 L. Ed. 246. Whether a proceeding which results in a grant is a judicial one does not depend upon the nature of the thing granted, but upon the nature of the proceeding which Congress has provided for securing the grant. The United States may create rights in individuals against itself and provide only an administrative remedy. United States v. Babcock, 39 S. Ct. 464, 250 U. S. 328, 331, 63 L. Ed. 1011. It may provide a legal remedy, but make resort to the courts available

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only after all administrative remedies have been exhausted. Compare New Orleans v. Paine, 13 S. Ct. 303, 147 U. S. 261, 37 L. Ed. 162; United States v. Sing Tuck, 24 S. Ct. 621, 194 U. S. 161, 48 L. Ed. 917; American Steel Foundries v. Robertson, 43 S. Ct. 541, 262 U. S. 209, 67 L. Ed. 953. It may give to the individual the option of either an administrative or a legal remedy. Compare Clyde v. United States, 13 Wall. 38, 20 L. Ed. 479; Chorpenning v. United States, 94 U. S. 397, 399, 24 L. Ed. 126. Or it may provide only a remedy. Compare Turner v. United States, 39 S. Ct. 109, 248 U. S. 354, 63 L. Ed. 291. Whenever the law provides a remedy enforceable in the courts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status. A petition for naturalization is clearly a proceeding of that character.

The petitioner's claim is one arising under the Constitution and laws of the United States. The claim is presented to the court in such a form that the judicial power is capable of acting upon it. The proceeding is instituted and is conducted throughout according to the regular course of judicial procedure. The United States is always a possible adverse party. By section 11 of the Naturalization Act (Comp. St. § 4370) the full rights of a litigant are expressly reserved to it. See In re Mudarri (C. C.) 176 F. 465. Its contentions are submitted to the court for adjudication. See Smith v. Adams, 9 S. Ct. 566, 130 U. S. 167, 173, 174, 32 L. Ed. 895. Section 9 (Comp. St. § 4368) provides that every final hearing must be held in open court, that upon such hearing the applicant and witnesses shall be examined under oath before the court and in its presence, and that every final order must be made under the hand of the court and shall be entered in full upon the record. The judgment entered, like other judgments of a court of record, is accepted as complete evidence of its own validity unless set aside. Campbell v. Gordon, 6 Cranch, 176, 3 L. Ed. 190; Spratt v. Spratt, 4 Pet. 393, 408, 7 L. Ed. 897. It may not be collaterally attacked. Pintsch Compressing Co.

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v. Bergin (C. C.) 84 F. 140. If a certificate is procured when the prescribed qualifications have no existence in fact, it may be canceled by suit. 'It is in this respect,' as stated in Johannessen v. United States, 32 S. Ct. 613, 615, 225 U. S. 227, 238 (56 L. Ed. 1066) 'closely analogous to a public grant of land (Rev. Stat. § 2289 et seq. (Comp. St. § 4530)), or of the exclusive right to make, use and vend a new and useful invention (Rev. Stat. § 4883, et. seq. (Comp. St. § 9427)).'

The opportunity to become a citizen of the United States is said to be...