United States v. Ginsberg

• Decision Date: 13 July 1914
• Docket Number: 11.
• Citation: 244 F. 209
• Parties: UNITED STATES v. GINSBERG.
• Court: U.S. District Court — Western District of Missouri

244 F. 209

UNITED STATES v. GINSBERG.

No. 11.

United States District Court, W.D. Missouri, Western Division.

July 13, 1914

Francis M. Wilson, U.S. Atty., of Kansas City, Mo., and M. R Bevington, Chief Naturalization Examiner, of St. Louis, Mo for the United States.

George N. Elliott, of Kansas City, Mo., for respondent.

VAN VALKENBURGH, District Judge.

The respondent was admitted to citizenship in this court on the 18th day of December, 1912. April 29th the government filed its bill to cancel the certificate under section 15 of the act of 1906, which provides:

That '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 affidavits filed are annexed to the bill as exhibits. They were tendered and accepted upon the hearing as the evidence upon which a decree of cancellation should be granted or denied. Respondent in his answer admits the truth of the statements in the affidavits of himself and his two witness, Casey and Kirtley, but counsel differ as to the legal effect thereof. Respondent denies the jurisdiction of this court in this proceeding to cancel and set aside the decree originally rendered and the certificate issued pursuant thereto, and further contends that he was entitled to be received as a citizen, and that the bill should be dismissed. The government bases its prayer for cancellation upon three grounds:

'That hearing was not had upon the petition in open court as prescribed by the statute, but the case was disposed of in chambers, a place not an 'open court' within the meaning of the statute, and without the United States being given an opportunity to be heard in opposition thereto.

'(2) That the applicant did not have the continuous United States and state residence, immediately preceding the date of petitioning, required by the statute to confer naturalization jurisdiction upon the court, and to entitle Ginsberg to citizenship.

'(3) That the verifying witnesses, who were permanent residents of Missouri, were incompetent to act in this case, inasmuch as the applicant did not possess the United States and state residence demanded by the statute, and which it was necessary for them to swear to to give the court naturalization jurisdiction in said case, he being an actual physical resident of Brazil for practically all such period of time.'

With respect to the first of these contentions the court record of December 17th shows that it was ordered 'that court do now adjourn until tomorrow morning at 9:30 o'clock. ' The affidavit of Ginsberg on this point is as follows:

'That said petition for naturalization 505 was first called for hearing at a night session of the aforesaid court held December 16, 1912 (evidently meant for December 17th), that objection was raised to said petition at that time, and that, after a brief questioning on the part of the court, said petition was passed over with instructions for said affiant and his witnesses to appear at chambers, that is, the judge's room behind the courtroom, the following Wednesday morning, to wit, December 18, 1912, at some time after eight o'clock, when the hearing on said petition 505 would be had;

'That said affiant, together with his witnesses, appeared in the room indicated, to wit, the judge's chambers or room behind the courtroom, about half past 8 in the morning of said December 18, 1912, when all parties were examined by the judge, and order of admission to citizenship made.'

In his answer respondent alleges:

'That on said 18th day of December, 1912, at a time fixed by the judge of the court by public announcement, and at the room in the federal court building in Kansas City, Mo., as publicly directed by the judge of the court, he appeared with his two witnesses named in the petition filed herein, and before Hon. Smith McPherson, presiding and acting as the judge of said court, with a clerk and a marshal present and duly acting as such officers, respectively, of said court, as shown by the records of said court, and by a public hearing in such open court.'

Then follows a recital of the subsequent proceedings.

Mr. Bevington, chief naturalization examiner for this district, in his affidavit quotes and adopts the foregoing statements of Ginsberg as correctly setting forth what occurred. He concludes therefrom:

'That said naturalization was contrary to the plain and specific terms of the statute, in that final hearing was not had 'in open court,' and was therefore illegal.' The bill upon this point refers to section 9 of said act, which provides as follows:

That 'every final hearing upon such petition shall be had in open court before a judge or judges thereof, and every final order which may be made upon such petition shall be under the hand of the court and entered in full upon a record kept for that purpose, and upon such final hearing of such petition the applicant and witnesses shall be examined under oath before the court and in the presence of the court.'

The District Attorney in the bill then concludes:

'That the hearing on the application and petition of respondent for naturalization was held in the judge's chambers adjoining the courtroom, and not in open court as by law required.'

Upon the record, as thus presented, this court must determine whether, in this respect, the procedure was so irregular and so far in contravention of the statute as to constitute an illegal procurement of the certificate of citizenship.

In conjunction with section 9, supra, section 11 should be read and considered:

That 'the United States shall have the right to appear before any court or courts exercising jurisdiction in naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of his petition concerning any matter touching or in any way affecting his right to admission to citizenship, and shall have to call witnesses, produce evidence, and be heard in opposition to the granting of any petition in naturalization proceedings.'

If this court, without due announcement and notice to the government, should take up a naturalization case at an unseasonable hour, and an unusual place, and should grant a certificate upon the ex parte showing of petitioner, I have no doubt that such action would be so irregular as to import illegality in the procurement of that certificate; but a court may sit as a court in chambers adjoining the regular courtroom, and may adjourn and hear any proceeding there upon proper announcement and notice; and this may be done, at some reasonable hour fixed, for the purpose of expediting business and avoiding delay and interference with the regular call in the courtroom at the conventional hour. If the government has been advised of this arrangement, in order that it may exercise its right to appear and take such action as it may see fit concerning any matter touching or in any way affecting the petitioner's right to admission to citizenship, the entire spirit and purpose of the law has been satisfied. I am unable to say from this record that these requirements were not observed. On the contrary, it seems to be sufficiently established that they were substantially observed.

Grounds 2 and 3 may properly be discussed in the same connection. With respect to his residence, the respondent in his affidavit has the following, among other things, to say:

'That in said petition for naturalization said affiant is made to say that he has been a continuous resident within the United States since August 15, 1904, and in the state of Missouri since August 23, 1904.

'That at no time has said affiant made any such claim, and the claim thus made is a result of the action of the clerk of the aforesaid court in framing said petition.

'That as he then explained to the said clerk of court, and to the court itself afterwards this affiant had been an actual physical resident of Brazil, South America, from August 5, 1905, until February 24, 1912, during all of which time he was employed in said country as a missionary by the Baptist Board of Foreign Missions.

'That from August 15, 1904, until June 15, 1905, this affiant had been in the United States, on leave, of absence; that for a period of some seven years prior to said August 15, 1904, he had been living continuously in said republic of Brazil.

'That during the period of five years immediately preceding the date on which his application for naturalization was filed, or from June 7, 1907, to June 7, 1912, this affiant had been actually and physically resident within the United States only from April 10, 1912, to June 7, 1912.

'That during all of said period of employment by the said Baptist Board of Foreign Missions, as a missionary, in Brazil, the said affiant has at the end of each seven years been given a vacation of some 14 months.

'That it has been the affiant's practice to spend such vacations in the United States, visiting with his wife's relatives, following which he would return to his home in Brazil.

'That in the year 1893, this affiant was married in Brazil to Miss Emma Morton, a native of Missouri, and that as a result of this union there have been born and raised in Brazil seven children.

'That this affiant finished his school studies in the year 1890 in England, and thereafter departed for the republic of Brazil, where he served,

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