United States v. Luria

• Decision Date: 27 January 1911
• Citation: United States v. Luria, 184 F. 643 (S.D. N.Y. 1911)
• Parties: UNITED STATES v. LURIA.
• Court: U.S. District Court — Southern District of New York

184 F. 643

UNITED STATES v. LURIA.

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

January 27, 1911

Addison S. Pratt and John N. Boyle, for the United States.

Albert M. Friedenberg, for defendant.

This is a suit to cancel a certificate of naturalization under section 15 of the act of June 29, 1906 (34 Stat. 601, c. 3592 (U.S. Comp. St. Supp. 1909, p. 485)). It was heard upon the following agreed state of acts:

(1) This action was commenced by the filing of a praecipe in the office of the clerk of this court, and the issuing of a summons thereon on the 18th day of September, 1909. The complaint was filed in the office of the clerk of this court on the 20th day of September, 1909. The defendant appeared by Albert M. Friedenberg, his attorney, and filed his answer in the office of the clerk of this court on the 28th day of January, 1910; a summons having been served upon the defendant by publication in accordance with an order directing such service to be made, entered on the 21st day of September, 1909.

(2) That the defendant, George A. Luria, was born at Wilna Russia, on the 22d day of February, 1868.

(3) That the said George A. Luria emigrated to the United States sailing on board the steamship Werra, from Bremen, Germany on the 28th day of April, 1888, and arriving at the port of New York on or about the 8th day of May, 1888.

(4) That the said George A. Luria matriculated as a medical student at the Medical College of New York University in the city of New York, on the 7th day of May, 1889, and attended said college as a medical student during the sessions of 1889-1890, 1890-1891, 1891-1892, and 2891-1893, and received a degree of M.D. therefrom on the 4th day of April, 1893.

(5) That on the 30th day of June, 1892, the said George A. Luria declared his intention to become a citizen of the United States of America and to renounce forever all allegiance and fidelity to the Czar of Russia, of which he was at the time a subject, in the Superior Court of the City and County of New York, in the State of New York, a copy of which declaration of intention is hereto annexed and marked Exhibit 'A.'

(6) That on the 3d day of July, 1894, the said George A. Luria applied to be admitted to become a citizen of the United States of America, in the Court of Common Pleas for the City and County of New York- and took the oath of allegiance and renunciation, and that on the 3d day of July, 1894, the said Court of Common Pleas made and entered its decree or order admitting the said George A. Luria to be and become a citizen of the United States of America, and that thereupon a certificate of citizenship was issued to him by the said court, copies of which application, affidavit, oath, and order or decree are hereto annexed and marked Exhibit 'B.'

(7) That on the 27th day of August, 1894, the said George A Luria applied to the Department of State of the United States of America for a passport for himself, a copy of which application is hereto annexed and marked Exhibit 'C,' and that on the 29th day of August, 1894, a passport numbered 16,093, was issued to the said George A. Luria upon the said application, by the said Department of State.

(8) That during the year 1894 and for some time prior thereto the said George A. Luria owned a drug store at No. 482 Sixth avenue in the city of Brooklyn, county of Kings, state of New York, which drug store he sold on or about October 24, 1894, to one Dr. I. I. Lourie.

(9) That on the 19th day of June, 1893, the said George A. Luria applied for membership in the New York County Medical Association, which association is composed of persons practicing medicine in the county of New York, but he was never elected to membership.

(10) That on or about the 21st day of November, 1894, the said George A. Luria left the United States and arrived at the Transvaal, South Africa, on or about the 22d day of December, 1894.

(11) That the said George A. Luria sojourned in the city of Johannesburg, South Africa, continuously from the said 22d day of December, 1894, to some time in the spring of 1907, he claiming that his health was impaired, and that it was therefore necessary for him to sojourn in a climate similar to that of South Africa; and that during the said period the said George A. Luria, for purpose of earning his livelihood, practiced his profession as a physician in the said city of Johannesburg and joined the South African Medical Association composed of persons practicing medicine in South Africa, and also served in the Boer War.

(12) That during the said period from 1894 to 1907 the said George A. Luria applied to the United States Consular Officers at Pretoria and Johannesburg, South Africa, on three separate occasions, to wit, June 29, 1899, March 20, 1902, and February 6, 1905, for passports, copies of which applications are hereto annexed and marked Exhibits 'D,' 'E,' and 'F,' respectively, and that passports numbered 29, 151, and 168 were issued to him upon such applications by the United States Consular Officers.

(13) That in the spring of 1907 the said George A. Luria returned to the United States and remained in the United States until on or about the 21st day of August, 1907.

(14) That from the 18th day of June, 1907, to the 30th day of July, 1907, the said George A. Luria attended a six weeks' course in general at the Post-graduate Medical School and Hospital in the city of New York, and that he gave his address upon entering the said school post office box 188, Johannesburg, South Africa.

(15) That on or about the 25th day of June, 1907, the said George A. Luria applied to the Department of State of the United States of America for a passport, a copy of which application is hereto annexed and marked Exhibit 'G,' and that on the 26th day of June, 1907, passport No. 36,693 was issued to him upon the said application.

(16) That during the said spring and summer of 1907 the said George A. Luria did not practice his profession as a physician in the city of New York, and stated to several persons in New York City that he did not then expect to stay in the United States, but was going to return soon to South Africa, giving no reason therefor.

(17) That on or about the 21st day of August, 1907, the said George A. Luria left the United States for the Transvaal and arrived at Cape Town, South Africa, on or about the 17th day of September, 1907, and left immediately for the city of Johannesburg, South Africa, where he has since continued to sojourn and to practice his profession as a physician; it being necessary to enable him to earn his livelihood, he having no other profession or business.

HAND, District Judge (after stating the facts as above).

This case raises, and is meant to raise, only one question-- the constitutionality of section 15 of the act of June 29, 1906. The act does not forfeit the defendant's right of citizenship as he supposes; it merely gives jurisdiction to the courts of naturalization to cancel a previous, naturalization for fraud, or illegal procurement in its inception. 'Illegally procured' means procured by subornation or some other illegal means used to impose upon the court; it does not mean that the certificate was issued through error of law. The causes upon which the suit lies are therefore those for which any court may cancel its own judgments, and all that the act does is to give one court such a power over the proceedings of another. Since the original bestowal of jurisdiction was by Congress, this is a mere procedural regulation, no different because state courts are included than if the jurisdiction was wholly vested in District Courts. The substance of the relief remaining the same, e.e., proof of some original fraud or illegal means, it is no substantial invasion of the function of a court to permit the suit to be brought in another tribunal. Indeed, the defendant does not assert that this makes the act unconstitutional. The real challenge is because the suit so prescribed Congress has established one presumption and one rule of evidence.

The presumption is that evidence of the acquisition of a new domicile, i.e., 'permanent residence,' within five years shall be prima facie evidence of fraud. The only ground to question this is because it denied due process of law, or interferes with a judicial function. A presumption is only a rule of procedure. It provides that certain evidence shall throw upon the other side the duty of showing his hand, if he has any, or of losing his case, and that is all it does. If once the defendant puts in material evidence of his own, then the evidence which constitutes the presumption merely takes its place as such for whatever probative force it may have, and the tribunal which judges the facts need not regard it as having any further weight than if no presumption existed. Once the issue be opened, the facts are judged like any other facts. Any other rule would require some quantitative valuation of testimony which is in almost every case unknown to our law. Therefore, a presumption does not either take from the court its duty to decide upon the facts, or even take from the moving party the burden of proof, i.e., the requirement of satisfying the judgment of the tribunal of fact upon each of the essential facts which together make up the 'cause of action.'

Being a rule of procedure, such a presumption is within the power of a Legislature. Fong Yue Ting v. U.S., 149 U.S. 698 729, 13 S.Ct. 1016, 37 L.Ed. 905; Ex Parte Fisk, 113 U.S. 713, 721, 5 Sup.Ct. 724, 28 L.Ed. 1117. Even in criminal cases. People v. Cannon, 139 N.Y. 34, 34 N.E. 759, 36 Am.St.Rep. 668; Board of Com'rs of Excise v. Merchant, 103 N.Y. 143, 8 N.E. 484, 57 Am.Rep. 705; Com. v. Williams, 6 Gray(Mass.) 1; Com. v. Rowe, 14 Gray(Mass.) 4...