United States v. Dick

• Decision Date: 23 July 1923
• Citation: 291 F. 420
• Parties: UNITED STATES v. DICK.
• Court: U.S. District Court — Northern District of New York

291 F. 420

UNITED STATES v. DICK.

United States District Court, N.D. New York.

July 23, 1923

Oliver D. Burden, U.S. Atty., of Syracuse, N.Y., and Benjamin C Mead, First Asst. U.S. Atty., of Auburn, N.Y.

Strong & Golden, of Schenectady, N.Y. (Marvin H. Strong, of Schenectady, N.Y., of counsel), for respondent.

COOPER District Judge.

The respondent was admitted to citizenship on the 7th day of February, 1922, and this proceeding is brought to cancel the certificate of citizenship on the ground that it was illegally obtained. The matter was submitted to this court upon an agreed state of facts. The essential facts thus established are:

That the respondent was born in Glasgow, Scotland, on April 16 1887, and at the age of 16 came with his parents to the United States, arriving in the city of New York about October 1, 1903; that respondent and his parents went directly to Schenectady, N.Y., and established a home there; that on the 13th day of October, 1903, Dick entered the employ of the American Locomotive Company, at Schenectady, N.Y., and has since been continuously in the employ of said company, except between September, 1911, and July, 1913, when he was a student at Union College; that in July, 1913, he was sent by the company to the office of its sales agents in Santiago Chile. In January, 1915, he was transferred from Santiago to Buenos Aires, and later to Rio De Janerio, where he has since been located in charge of the office of the American Locomotive Sales Corporation, a subsidiary of the American Locomotive Company. That the duties of respondent, while so employed, necessitated frequent trips to other parts of South America, as well as trips to Europe and the United States that during all the time mentioned respondent's father resided in Schenectady, and his mother resided in Schenectady until her death in December, 1921, and that she was buried at Schenectady; that during all the time that respondent was away from home in the foreign service of the American Locomotive Company he contributed more than one-half of the expenses of maintaining the family home in Schenectady; that he never married or purchased a residence in any foreign country; that he has returned to his home in Schenectady as often as business affairs would permit him; that on the 5th day of November, 1921, respondent filed in the Supreme Court of the state of New York, Schenectady county, a petition to be admitted as a citizen of the United States, and on the 7th day of February, 1922, after a hearing in open court, the objections of the examiner that the respondent was not entitled to citizenship being duly considered and overruled, respondent was admitted as a citizen of the United States, and a certificate of naturalization in due form was issued to him.

The government has now brought this proceeding to cancel Dick's certificate of citizenship, contending Dick had not continuously resided within the United States for five years immediately preceding his admission, as required by the naturalization statute. The section applicable 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. ' Rev. St. Sec. 2170 (Comp. St. Sec. 4360).

It has been established by a long line of authorities that Congress did not mean by this enactment that an alien must be actually and physically within the United States for every day of the five-year period. In re Schneider (C.C.) 164 F. 335; U.S. v. Cantini (D.C.) 199 F. 857; Id., 212 F. 926, 129 C.C.A. 445; In re Deans (D.C.) 208 F. 1018; Id., 230 F. 958, 145 C.C.A. 151; In re Rockteschell, 208 F. 530, 125 C.C.A. 532; In re Timourian (D.C.) 225 F. 571; U.S. v. Shanahan (D.C.) 232 F. 169; U.S. v. Griminger (D.C.) 236 F. 285; U.S. v. Jorgenson (D.C.) 241 F. 413, 415.

It is also established that physical absences from the country, even for considerable periods, do not as a matter of law destroy the continuous character of the residence, within the meaning of the statute, if such absences are consistent only with an intention to retain a residence in this country and to return thereto, which intention must remain throughout such absence or absences. In U.S. v. Mulvey, 232 F. 513, 516, 146 C.C.A. 471, 474, Judge Rogers, writing for the Circuit Court of Appeals in the Second Circuit, says:

'If an alien departs from the United States with no intention of returning, he may by that act lose his residence in this country, so that if, after a time, he again changes his mind and returns to this country, the continuous character of his previous residence has been fatally destroyed, and the five year period of continuous residence will date from his return. If, however, he departs for a temporary purpose, and with an intention of returning, which exists during the whole period of his absence, and at length does return, then the question whether his absence has put an end to the continuous character of his residence is one which the court must determine according to the facts of the case.'

In U.S. v. Jorgenson (D.C.) 241 F. 413, 415, the court said:

'The intention of an alien as to his residence or domicile, once established, is a most important, and usually a controlling, factor in determining his right to citizenship. The adoption by the courts of a fixed rule as to the time of absence from the United States which, in every case, shall bar an alien from admission to citizenship, would be both inconsistent and illogical, and would constitute forbidden judicial legislation. An absence of a single day accompanied by an actual intention to change or abandon residence would be fatal, while an absence of one or more years with a continuing and fixed intention to return and to maintain meanwhile a previously established residence might not be a bar to the granting of citizenship. The question of intention is always one of fact to be determined from both actions and declarations, and ofttimes conduct is more persuasive than words.' Tested by this standard of intention, can there be any reasonable doubt that the respondent established a residence at Schenectady, N.Y., upon his arrival with his parents in 1903, and has maintained and intended to maintain a residence there, and has resided in Schenectady from that time to this day, within the meaning of the statute? His parents resided in Schenectady from their arrival in America until the death of the mother in 1921, and the father still resides there. The respondent had no other home than that of his parents during the 20 years since his arrival in America. When he left the country it was on business for his employer. He never married while absent, or established a home abroad in any legal sense. He has contributed continuously to the maintenance of the family home in Schenectady during his absence in South America on his employer's business. His entire conduct, both in word and in deed, are consistent only with an intention to retain a residence in Schenectady, N.Y. There is no single thing inconsistent therewith. If he did not reside at Schenectady, N.Y., where else can he be said to have had a residence? Certainly not in Glasgow, since h

...