United States v. Lehmann, Civ. A. No. 32108.

• Decision Date: 11 October 1955
• Docket Number: Civ. A. No. 32108.
• Citation: 136 F. Supp. 322
• Parties: UNITED STATES ex rel. Francesco BRANCATO, Relator, v. John M. LEHMANN, Officer in Charge, Immigration & Naturalization Service, Cleveland, Ohio, Respondent.
• Court: U.S. District Court — Northern District of Ohio

136 F. Supp. 322

UNITED STATES ex rel. Francesco BRANCATO, Relator, v. John M. LEHMANN, Officer in Charge, Immigration & Naturalization Service, Cleveland, Ohio, Respondent.

Civ. A. No. 32108.

United States District Court N. D. Ohio, E. D.

October 11, 1955.

Henry C. Lavine, Cleveland, Ohio, for plaintiff.

Sumner Canary, U. S. Atty., Cleveland, Ohio, for defendant.

McNAMEE, District Judge.

Petitioner, Francesco Brancato, an alien and native of Italy, who has been ordered deported, challenges the validity of the order of deportation in his petition for writ of habeas corpus. Petitioner alleges several grounds of invalidity, but they all come down to this — that he was a citizen of the United States at the time of his last entry into this country in April, 1930 and for more than five years thereafter, and that by reason thereof he is not subject to deportation as an alien convicted of a crime of moral turpitude in the year 1932. He claims in addition that he was arbitrarily denied a suspension of deportation in a proceeding "that did not constitute a hearing as required by law."

The Government contends that, although petitioner had been naturalized in 1929, his title to citizenship was annulled and cancelled in 1939 on the ground that it was fraudulently and illegally procured and that the judgment of annulment became effective retrospectively as of the date of the petitioner's unlawful naturalization. It is the Government's position that in fact and in law petitioner was an alien at the time of his entry into this country in April, 1930 and at the time he was convicted of the deportable offense within five years thereafter. No question arises as to petitioner's present status as an alien. The Government denies that petitioner was arbitrarily denied his application for suspension of deportation and that the hearing thereon was conducted otherwise than in accordance with due process.

The pertinent facts are not in dispute. Petitioner, who was a native of Italy, entered this country in 1914. In 1929 he was naturalized as a United States citizen. Shortly thereafter he made a visit to his native country, returning to the United States in April, 1930. In 1932 he was convicted of the crime of perjury in the Common Pleas Court of Cuyahoga County, Ohio and served a period of three years and eight months in the Ohio Penitentiary. In 1939, under favor of Sec. 738 of Title 8 U.S.C., 34 Stat. 601, 603,^* the Government commenced an independent action against petitioner to set aside and revoke his title to citizenship. Among the grounds for revocation that were alleged in the Complaint was the averment that —

"Plaintiff further says that the naturalization of said Francesco Brancato was fraudulently and illegally procured on the following grounds: * * *

"(c) Said petition was not verified by the affidavit of two credible witnesses; and; * * *."

When the denaturalization case was called for trial, the Government counsel and petitioner's attorney entered into a stipulation as follows:

"That the attorneys for the respective parties do hereby stipulate that the answer heretofore filed by the defendant on January 13, 1938 be withdrawn and that the allegations of the complaint set forth on page 3 under (c) are admitted to be true without prejudice to the right of the United States to at any time prove against the defendant in any proceedings all other allegations made in said complaint."

Thereafter, on the basis of the facts as admitted by the petitioner, the court entered its order of judgment which in part provides:

"It is the judgment and order of the court that the order of the United States District Court, at Cleveland, Cuyahoga County, Ohio, entered on November 15, 1929, admitting the defendant, Francesco Brancata, to citizenship be and the same is hereby vacated and said order is annulled and certificate of naturalization No. 3200557 issued by virtue of said order is canceled;

"It is further ordered that the said certificate be surrendered to the Clerk of this court and when received by him that same be canceled, and the defendant, Francesco Brancato, is enjoined from setting up or claiming any right or privilege, benefits or advantages whatsoever by virtue of said order entered by the said United States District Court at Cleveland, Ohio, on November 15, 1929, in which said defendant was admitted to citizenship, * * *"

In 1951 deportation proceedings were commenced against petitioner based upon the charge that within five years of his last entry into the United States he committed a crime involving moral turpitude, to wit, perjury. He was ordered deported by the Special Inquiry Officer, whose decision was affirmed by the Immigration Board of Appeals. Thereafter petitioner sought discretionary relief. His application was granted and the order of deportation suspended. The Immigration Bureau then reopened the question of discretionary relief and in a second hearing reversed its former decision, denied the petitioner's application, and directed that the order of deportation be executed.

In his brief petitioner submits no argument in support of his contention that he was arbitrarily denied an order of suspension of deportation. This omission on his part might well be treated as an abandonment of that claim. However, I have examined the record of the hearing and find there is ample evidence to sustain the finding of the Immigration Service that petitioner was not a person of good moral character for the period required by law and therefore not entitled to discretionary relief. I also find that the hearing on petitioner's application for suspension of deportation was conducted in accordance with the requirements of due process.

Petitioner's challenge of the order of deportation raises the issue whether the judgment of this court on April 12, 1939 operated retrospectively to divest the petitioner of his colorable title to citizenship as of the date of its unlawful procurement in 1929. The judgment of April 12, 1939 is the best evidence of its own validity. It is not subject to collateral attack and no such attack has been made by petitioner in this proceeding. However, the petitioner contends for an interpretation of the operative words of the judgment that is clearly in opposition to their plain meaning and effect. The judgment of 1939 "annulled" and "vacated" the judgment or order of 1929 admitting petitioner to citizenship. The word annul is not technical and may be used interchangeably with "vacate". To annul means to declare invalid; to render void. 3 C.J.S. Annuity — Annus, p. 1389. Annulment is the act of making void retrospectively as well as prospectively. 3A Words and Phrases, Annul; Annulment, p. 3. Deihl v. Jones, 170 Tenn. 217, 94 S.W.2d 47, 48. Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 1358, 87 L.Ed. 1796, was an independent action to set aside and cancel a certificate of citizenship on the ground that it had been illegally procured. While the court was divided on other issues in the case, both the concurring and dissenting members of the court were in apparent agreement as to the effect of a judgment annulling an order of naturalization illegally procured. In his concurring opinion in Schneiderman Mr. Justice Rutledge said:

"The effect of cancellation is to nullify the judgment of admission."

Chief Justice Stone, in his dissenting opinion described the nature of an independent action to denaturalize and said:

"Hence the issue before us is whether petitioner, when naturalized, satisfied the statutory requirements. It is the same issue as would be presented by an appeal from a judgment granting or denying naturalization upon the evidence here presented * * *."

It is too clear to warrant discussion that a reversal of a judgment of naturalization on appeal by the Government would be effective to nullify the judgment as of the date of its rendition. Where the same issue is presented in an independent proceeding that results in a judgment vacating and nullifying an earlier judgment of naturalization the effect is likewise to nullify the former judgment as of the time it was entered. It is held, therefore, that the judgment of April 12, 1939 is an adjudication that the order of 1929 admitting petitioner to citizenship is void. This determination is sufficient to deny petitioner the relief he seeks. However, petitioner vigorously contends that it is only where title to citizenship is annulled on the ground of fraud that the judgment of annulment operates retroactively. This contention is unsound. It is settled that a judgment vacating an order admitting an alien to citizenship on the ground that it was illegally procured is effective to nullify the order of admission as of the time it was made. Section 15, Title 8 U.S.C. § 738, under which the action to denaturalize was brought, provided in part:

"It shall be the duty of the United States district attorneys * * * to institute proceedings in any court specified in subsection (a) of section 701 in the judicial district in which the naturalized citizen may reside * * * for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured."

The statute makes no distinction between the effect of setting aside an order of naturalization on the ground of fraud or on the ground of illegal procurement. Nor do the courts make such distinction. It has been held uniformly that where an alien does not comply strictly with the conditions which Congress has made prerequisite to an award of citizenship, the court is without jurisdiction to naturalize the alien.

Section 4 of the Act of 1906, 34 Stat. 596,^† provides in part:

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

The statute specifies the...