United States v. Ali

• Decision Date: 03 August 1925
• Docket Number: No. 614.,614.
• Citation: 7 F.2d 728
• Parties: UNITED STATES v. ALI.
• Court: U.S. District Court — Western District of Michigan

7 F.2d 728 (1925)

UNITED STATES v. ALI.

No. 614.

District Court, E. D. Michigan, S. D.

August 3, 1925.

Delos G. Smith, U. S. Atty., and Wallace Visscher, Asst. U. S. Atty., both of Detroit, Mich.

Humphreys Springstun, of Detroit, Mich., for defendant.

TUTTLE, District Judge.

This is a suit duly brought by the United States, through the United States attorney for this district, for the cancellation of a certificate of citizenship pursuant to section 15 of the Naturalization Act (Act Cong. June 29, 1906, c. 3592, 34 Statutes at Large, 601, being section 4374 of West's United States Compiled Statutes). That section contains the following provision:

"It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured."

The petition by which the suit was instituted alleges in proper detail that the defendant herein, John Mohammad Ali, on May 26, 1921, received a certificate of citizenship issued to him by this court; that at the time when said certificate was so issued said defendant was not a free white person nor a person of African nativity or descent; and that, therefore, said certificate was illegally procured within the meaning of section 15 of the Naturalization Act (hereinbefore cited). The petition prays that said certificate of citizenship be set aside and canceled by this court.

The petition further recites that it is based on the affidavit of one Martin J. Kilsdonk, a United States naturalization examiner. This affidavit, which was signed and sworn to before the filing of said petition, and was filed herein after the filing of said petition, describes and refers to the naturalization proceedings which resulted in the issuance of the aforesaid certificate of citizenship, and alleges in substance that said defendant was born in Karpurthala, in the province of Punjab, India, on January 10, 1875, arrived in the United States on June 2, 1900, and has resided in the state of Michigan, in this district, since April 1, 1911; that when the said certificate was issued to him he was not a free white person nor a person of African nativity or descent; that such certificate was illegally procured, within the meaning of section 15 of the Naturalization Act, as decided by the United States Supreme Court in the case of United States v. Bhagat Singh Thind, 261 U. S. 204, 43 S. Ct. 338, 67 L. Ed. 616, on February 19, 1923; and that, therefore, good and sufficient grounds exist for the cancellation of said certificate.

After the filing of the petition the plaintiff filed a so-called amendment to said petition, alleging that the defendant is a native of Punjab, India, and "is either a Hindu or an Arabian," and that, "whether said defendant be a Hindu or an Arabian, he is not a free white person, nor an alien of African nativity, nor a person of African descent, within the meaning of section 2169, Revised Statutes of the United States." The defendant has moved to strike said amendment from the files as indefinite and insufficient.

The defendant, by answer and motion to dismiss, denies that plaintiff is entitled to a cancellation of his certificate of citizenship, and prays a dismissal of the petition on various grounds, which will be hereinafter considered.

1. At a hearing in open court evidence was produced by both parties in support of their respective contentions, and by such evidence and by the briefs subsequently submitted such contentions have been fully presented and developed, and it is not now claimed by either party that any of the allegations in any of the pleadings have resulted in present uncertainty, confusion, or surprise. The objections, therefore, made by the defendant to the sufficiency of the form and manner of pleading by the plaintiff in certain minor respects, must now be regarded as purely formal and technical, and are overruled, especially in view of the provision of federal equity rule 19 that "the court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the party." It should, however, be pointed out that the form of the amendment to the petition mentioned is not to be commended, as it does not show what particular language of such petition is sought to be amended, nor indicate the place or part of such petition where the so-called amendatory words are sought to be inserted. It would also have been better practice to file the affidavit, or a copy thereof, on which the petition was based, as a part of the petition.

2. It is urged on behalf of the defendant that the question whether he is entitled to citizenship was conclusively decided in his favor by the action of this court in granting him his certificate of citizenship in the naturalization proceedings already referred to, and that such question is therefore res judicata, and cannot be raised by the government in the present proceeding. This contention cannot be sustained. It is now settled law that the statutory naturalization proceeding by which an alien seeks the privilege of citizenship is not a judicial adversary proceeding in any true legal sense, and that an order directing the issuance of a certificate of citizenship in such naturalization proceeding is, in essence, not a judgment rendered by a court in a pending suit between adverse parties, and as such final and binding upon said parties as to all matters involved in the suit and decided by the judgment, but is merely a grant, in special proceedings authorized by Congress, of a political privilege conferred by the government upon the petitioning alien purely as a gratuity, and subject to whatever terms and conditions Congress may impose therein, including the right of the government to insist upon a cancellation of such certificate, if found to have been illegally procured. Johannessen v. United States, 225 U. S. 227, 32 S. Ct. 613, 56 L. Ed. 1066; United States v. Ness, 245 U. S. 319, 38 S. Ct. 118, 62 L. Ed. 321.

3. The contention of the defendant that the right of the government to maintain this suit is barred by lapse of time is equally without merit. It is not, and cannot be, claimed that there is any applicable statute of limitation; and it is elementary that the doctrine of laches does not apply as against the government, when suing in its capacity as a sovereign and asserting governmental rights. Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123, 39 S. Ct. 407, 63 L. Ed. 889.

4. The defendant further insists that the only grounds on which...