United States v. Kolodner

• Decision Date: 17 April 1913
• Docket Number: 1,719.
• Citation: 204 F. 240
• Parties: UNITED STATES v. KOLODNER.
• Court: U.S. Court of Appeals — Third Circuit

204 F. 240

UNITED STATES v. KOLODNER.

No. 1,719.

United States Court of Appeals, Third Circuit.

April 17, 1913

Andrew B. Dunsmore, of Wellsboro, Pa., for the United States.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

GRAY Circuit Judge.

This is an appeal from the order and decree of the district court of the United States for the middle district of Pennsylvania, in a proceeding under section 15 of the Act of June 29, 1906 (34 Stat. 601, c. 3592 (U.S. Comp. St. Supp. 1911, p. 537)) instituted July 13, 1912, by the district attorney of the United States for the middle district of Pennsylvania, to cancel a certificate of citizenship granted to the appellee Jacob Kolodner, by the court below on the 28th day of November, 1910.

The petition of the district attorney represents that on the 24th day of February, 1910, the appellee, an alien, a subject of the Emperor of Russia, filed in the circuit court of the United States for the middle district of Pennsylvania his application for admission to citizenship of the United States, alleging that he had resided continuously in the United States and in the state of Pennsylvania for the term of five years at least, immediately preceding the date of his application; i.e., since the 15th day of June, A.D. 1902. The petition was supported by the affidavits of the petitioner and two witnesses. In these affidavits, the witnesses deposed that the petitioner was personally known to them, and that he had resided in the United States and in the state of Pennsylvania continuously for a period of two years immediately preceding the date of filing his application. In order to establish the other three of the five years of continuous residence required by the act of Congress, the applicant produced to the court, upon the hearing of his application, the depositions of two witnesses taken in the city of Philadelphia. These witnesses deposed to the residence of the petitioner in the United States and in the state of Pennsylvania from February 24, 1905, to a day unstated in the year 1908. Such proof, by deposition, was accepted by the court to complete the proof of that portion of petitioner's five years' residence within the United States, which was not covered by the affidavits accompanying the petition or by the testimony of the affiants in the presence of the court. Upon these proofs, the petitioner was admitted to citizenship by the court below on the 28th day of November, 1910.

After hearing argument on the proceedings for cancellation, the respondent being personally present but filing no answer, the court, on October 26, 1912, entered a decree denying the petition of the government, and from this decree the government takes the present appeal.

The facts, as stated in the petition of the government, are uncontroverted.

The act of Congress of June 29, 1906, above referred to, is entitled 'An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens throughout the United States. ' By its provisions, Congress has indicated its purpose to make more stringent than theretofore the conditions upon which, and the procedure by which, the privilege of citizenship may be obtained by aliens. The portions of the act material to the present case are as follows:

'Section 3. That exclusive jurisdiction to naturalize aliens as citizens of the United States is hereby conferred upon the following specified courts:

'United States circuit and district courts now existing, or which may hereafter be established by Congress in any state, United States district courts for the territories * * * the supreme court of the District of Columbia, and the United States courts for the Indian Territory; also all courts of record in any state or territory now existing. * * *

'That the naturalization jurisdiction of all courts herein specified, state, territorial, and federal, shall extend only to aliens resident within the respective judicial districts of such courts.

'Sec. 4. That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise:

'Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own handwriting and duly verified, in which petition such applicant shall state his full name, his place of residence (by street and number, if possible), his occupation, and, if possible, the date and place of his birth; the place from which he emigrated, and the date and place of his arrival in the United States, and, if he entered trough a port, the name of the vessel on which he arrived; the time when and the place and name of the court where he declared his intention to become a citizen of the United States; if he is married he shall state the name of his wife and, if possible, the country of her nativity and her place of residence at the time of filling his petition; and if he has children, the name, date, and place of birth and place of residence of each child living at the time of the filing of his petition:

'The petition shall also be verified by the affidavits of at least two credible witnesses, who are citizens of the United States, and who shall state in their affidavits, that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously, and of the State, Territory, or district in which the application is made for a period of at least one year immediately preceding the date of the filing of his petition, and that they each have personal knowledge that the petitioner is a person of good moral character, and that he is in every way qualified, in their opinion, to be admitted as a citizen of the United States.

'Sec. 9. 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

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