United States v. Marini
| Decision Date | 04 November 1936 |
| Citation | 16 F. Supp. 963 |
| Parties | UNITED STATES v. MARINI. |
| Court | U.S. District Court — Southern District of New York |
Lamar Hardy, U. S. Atty., of New York City (Thomas McCall, Asst. U. S. Atty., of New York City, of counsel), for the United States.
S. Samuel DiFalco, of New York City (Arthur N. Field, of New York City, of counsel), for defendant.
My judgment in this cause is that the bill of complaint must be dismissed, but, of course, in view of the fact that it is brought by the United States, the dismissal will be without costs.
I. This is a bill in equity to set aside an order made by Judge Goddard on May 19, 1930, whereby the defendant was admitted to citizenship on recommendation of and after due examination before an examiner designated by this court for examination in naturalization, in pursuance of section 4, subd. 14, of the Act of Congress of June 29, 1906, as added by Act of June 8, 1926, title 8, United States Code, § 399a (8 U.S. C.A. § 399a).
II. Photostat copies of the defendant's declaration of intention, verified March 12, 1924, his petition of naturalization, verified June 26, 1929, and his certificate of naturalization dated May 12, 1930, were certified and offered as exhibits in this cause.
The certificate for naturalization stated inter alia: "Attached hereto and made part of this petition are my declaration of intention to become a citizen of the United States and the certificate from the Department of Labor, together with my affidavit and the affidavits of the two verifying witnesses thereto, required by law."
The affidavits referred to were at the foot of the petition for naturalization. The certificate from the Department of Labor was a separate document and was not included in the exhibits submitted to me.
This was an unfortunate omission, not only in respect of fairness to the defendant, but also in respect of the whole structure of the government's case, for without it, it was extremely difficult to see how the original entry in the manifest hereinafter discussed could assume such a large role in the government's attempt to make out fraud.
Since the trial I have examined the original papers, on which the court acted in respect of this alien, on file in the naturalization part of this court and subject to my judicial notice. I find that the certificate referred to in the petition reads in full as follows:
Across the face of this certificate is stamped with a rubber stamp the words "Naturalization Service Received Apr 27, 1929, District Director, New York, N. Y., Department of Labor." The petition for naturalization to which it was attached was verified on June 26, 1929.
Under the teachings of the case of Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156, the jurisdiction of this court to grant the order of naturalization to the defendant was thus prima facie established.
The granting of the order established the status of the defendant as a citizen of the United States, and that status can only be destroyed by proof that the prescribed qualifications for his citizenship did not exist in fact. In that event the order of naturalization is subject to cancellation by proceedings under section 15 of the Naturalization Act, title 8, United States Code, § 405 (8 U.S.C.A. § 405). A decree or final order in naturalization, which creates a new right, is, therefore, not protected by the usual buttresses which make firm final judgments or decrees fixing existing rights between parties. Maney v. United States, 278 U.S. 17, 22, 23, 49 S.Ct. 15, 16, 73 L.Ed. 156.
Owing to this peculiar structural instability of decrees and orders in naturalization, a proceeding such as this under the said section 15 should not be successful unless the fraud or illegality complained of by the government as leading to granting of the order of naturalization, and the certificate of citizenship issued in pursuance thereto, be proved by the clearest and most satisfactory evidence, for it is obviously unfair that an alien who has become a citizen should feel that his citizenship is an unstable status which can be easily destroyed by government proceedings against him, irrespective of how long he may have lived here or of the ties of family or property by which he may have become bound. This is peculiarly true in this cause, for a decree for the government herein would probably lead to the defendant's deportation.
III. It is common ground that the defendant could not have come in under the Italian quota at the time when he landed in New York, and that under the statutes then existing he could not have come in as a permanent resident except under the provisions of section 2(d) of the Quota Act (42 Stat. 5).
The only basis on which he could have come in for permanent residence, which might lead to his naturalization if he desired it, was under section 2(d) of the Quota Act which provides that "aliens who are * * * lecturers * * * may, if otherwise admissible, be admitted," irrespective of the then quota situation of the particular nation from which they may come.
IV. The government claims that the order of naturalization involved in this cause was secured by the fraud of the defendant, owing to a forgery of the immigration manifest recording the terms of his entry, and the sequelae of such forgery; e. g., the certificate of arrival which has been set forth above.
V. The facts are as follows:
The immigration inspector who examined the respondent prior to his landing was Vincent F. Jankowski, now retired. He was an inspector of considerable experience and was called by the government to establish that there had been a penciled change in volume 7848, of the manifest kept by the Commissioner of Immigration for alien passengers arriving at the port of New York. Jankowski entirely failed to establish this. He admitted that he had made some pencil notations in the manifest, namely, that in column 7, as to the calling or occupation of the immigrant, he had written "Grad of Literary School and author" over the word "Journalist"; but he was unwilling to say that the word "Perm" — meaning permanent — in column 20 of the manifest, which states the purpose of the visit to the United States, had not been written by him. It was, apparently, an obvious substitute for the words "6 mo." or 6 months. He was...
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