United States v. Aakervik

• Decision Date: 20 June 1910
• Docket Number: 5,085.
• Citation: 180 F. 137
• Parties: UNITED STATES v. AAKERVIK.
• Court: U.S. District Court — District of Oregon

180 F. 137

UNITED STATES v. AAKERVIK.

No. 5,085.

United States District Court, D. Oregon.

June 20, 1910

[Copyrighted Material Omitted]

John McCourt, U.S. Atty., and Andrew J. Balliet, Sp. Asst. U.S Atty.

Snow &amp McCamant, for respondent.

WOLVERTON District Judge (after stating the facts as above).

The vital question propounded is whether the respondent's certificate of citizenship can be revoked and canceled by a proceeding of this nature on the ground that it was illegally issued. The act of Congress of June 29, 1906, authorizes the bringing of a suit on the part of the United States District Attorney, in any court having jurisdiction to naturalize aliens, in the judicial district in which the naturalized citizen may reside, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud, or because illegally procured. The petition here does not contain any pertinent allegations of fraud practiced in procuring the certificate in question, so that further inquiry on that branch of relief may be dismissed. There remains but the one inquiry, whether the certificate can be set aside because illegally issued. The question is one of great moment, for it involves the rights, privileges, and immunities of citizenship. A citizen by adoption is entitled, under the federal Constitution, to all the privileges and immunities of one native born, save the right to hold the office of President of the United States-- the highest office within the gift of the people. He is further safeguarded by the declaration of the fourteenth amendment that he is a citizen of the United States and of the state wherein he resides. So that a person's citizenship in this country is a status that affects him vitally.

In the view I take of this controversy, it may be assumed that the respondent duly filed his declaration of intention, and we need not go behind the time when he departed from the United States in the fall of 1893, and returned to Norway. It is contended by counsel for respondent that, when respondent left for Norway, he left with the intention of returning to the United States, and that, adhering to such intention, he changed neither his residence nor his domicile while sojourning abroad; that the true status of respondent while abroad was that of a resident here, and that such a status is within the intendment of section 2170 of the Revised Statutes (U.S. Comp. St. 1901, p. 1333) which was the law at the time the respondent was admitted to citizenship. The section reads as follows:

'No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States.'

The section as it stood before revised, being the twelfth section of the act of March 3, 1813, c. 42, 2 Stat. 811, read as follows:

'No person who shall arrive in the United States, from and after the time when this act shall take effect, shall be admitted to become a citizen of the United States, who shall not, for the continued term of five years next preceding his admission as aforesaid, have resided within the United States without being at any time during the said five years out of the territory of the United States.'

This latter statute has received construction at the hands of Betts, District Judge, Anonymous, Fed. Cas. No. 465, to the effect that by its terms it inhibits the grant of naturalization when the applicant has been during any part of the five years out of the territory of the United States. Previously the same learned judge, in passing upon a prior statute, that of Act April 14, 1802, c. 28, 2 Stat. 153, which required five years' residence in the United States, held that residence meant domicile, and that said act did not require that the alien remain constantly in this country for five years. In re An Alien, Fed. Cas. No. 201a. Thus much for the history and interpretation of the present statute. The sense of the present statute is the same as before its revision, except that the words 'without being at any time during the said five years out of the territory of the United States' are eliminated. The elimination by the revision would seem to indicate that it was the purpose of Congress not to require that the petitioner remain continuously within the United States. But the law does require a continuous residence, and that for a period of five years, next preceding admission to citizenship.

From the facts stated, both in the petition herein and the answer, it appears that the respondent was, from the fall of 1893 to the spring of 1898, a period of four and one-half years, in Norway with his family, working at his trade and sailing on coastwise vessels, presumably those of Norway. It would take nearly one year of this period to make up five years of residence in this country next preceding his admission. While it may be true that residence depends largely upon intention, yet the intention is not always what the party says about it, but is to be gathered from his acts and demeanor, and the facts and circumstances attending his abiding place, wherever it may be. All the conditions disclosed by this record show unmistakably a residence in Norway during the four years and a half the respondent was absent from this country. He was not only living there, but his family was there with him, and he was pursuing his usual occupation. Against this evidence as to his place of residence is the declaration that he claimed his residence in the United States all this time. If he acquired a residence in this country by living here absent from his family in the first instance, he surely acquired a new residence in Norway by returning to his family, and living with and supporting them there. The time spent there in that way is too long for him to say, as against that, that his residence was not there. It seems to me there can be no question as to this. A person cannot have a residence in two countries at one and the same time for the purpose of citizenship. The facts being admitted, as they are, the question becomes one of law merely as to whether the respondent was entitled to admission to citizenship. That question was evidently determined in his favor. In this there was error, and his certificate was illegally granted.

It is further contended, however, that it is not competent under the equity practice to impeach or set aside a judgment for intrinsic fraud in the procurement thereof, or for error of law committed in its rendition. But, whatever may be the rule under the general equity procedure and practice, the present statute has enlarged the remedy as it pertains to the granting of naturalization papers, and it would seem that the proper court is empowered to set aside the certificate of citizenship on the ground of fraud or illegality in its procurement. This would comprehend false swearing by means of which the certificate was procured to be issued, as well as error of the court in rendering judgment upon a given state of facts. United States v. Mansour (D.C.) 170 F. 671; United States v. Simon (C.C.) 170 F. 680.

But the more serious question urged is that the act of June 29, 1906, is unconstitutional in so far as it is made to apply to all certificates of citizenship which may have been issued prior to the passage of the act. This contention is based upon the proposition that the issuance of the certificate constitutes a judgment to all intents and purposes, and that Congress is without power to authorize the vacation or annulment of judgments retrospectively on the ground that such judgments were procured through false swearing, or that the court granted the same through error of law, and therefore illegally. The suggestion that it is not competent for a federal court to vacate the judgment of a state court and a state court that of a federal court is not persuasive, because the authority of state courts to naturalize aliens, as well as that of the federal courts, emanates from Congress. All are, for the purposes of the naturalization acts, federal courts, and one set of courts is not foreign to the other. So that relief in the particular matter may as readily be adjudged by a federal court against the judgment of a state court, and vice versa, as by a federal court against the judgment of a federal court or a state court against that of a state court.

As to whether the act of the court in admitting the alien to citizenship is a judgment, it has been held that the oath, when taken, confers upon the applicant the rights of a citizen, and amounts to a judgment of the court for his admission to those rights, and implies that all prerequisites have been complied with. Campbell v. Gordon, 6 Cranch, 176, 182, 3 L.Ed. 190. In this case the question as to the effect of the admission to citizenship came up collaterally. A like ruling was had in a similar case, the question arising as there. Stark v. Chesapeake Insurance Co., 7 Cranch, 420, 3 L.Ed. 391. So again, in Spratt v. Spratt, 4 Pet. 393, 408, 7 L.Ed. 897, the question came up collaterally in the Supreme Court, as in these cases, and Chief Justice Marshall, in rendering the opinion of the court, says:

'The various acts upon the subject submit the decision on the right of aliens to admission as citizens to courts of record. They are to receive testimony to compare it with the law, and to judge on both law and fact. This judgment is entered on record as the judgment of the court. It seems to us, if it be in legal form, to close all inquiry; and, like every other judgment, to be complete evidence of its own validity. The inconvenience which might arise from this principle has been pressed upon the court. But the inconvenience might be still greater, if the opposite opinion be established. It

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