United States v. Mulvey

• Decision Date: 18 April 1916
• Docket Number: 251.
• Citation: 232 F. 513
• Parties: UNITED STATES v. MULVEY.
• Court: U.S. Court of Appeals — Second Circuit

232 F. 513

UNITED STATES v. MULVEY.

No. 251.

United States Court of Appeals, Second Circuit.

April 18, 1916

Hough District Judge, dissenting.

H Snowden Marshall, U.S. Atty., of New York City (Earl B Barnes, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Joseph Forrester, of New York City, for appellee.

Before COXE and ROGERS, Circuit Judges, and HOUGH, District Judge.

ROGERS Circuit Judge.

This is a proceeding in which the government of the United States seeks to have the naturalization of the respondent set aside, canceled and declared null and void, and to have him restrained and enjoined from setting up or claiming any rights, privileges, benefits, or advantages whatsoever under his decree of naturalization.

The proceeding is under the provisions of section 15 of the Act of Congress of June 29, 1906, which provides as follows:

'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 cancelling the certificate of citizenship on the ground of fraud or on the ground that such certificate * * * was illegally procured. * * * ' 34 Stat. 601.

The Naturalization Act contains the following provision:

'No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United STATES. ' U.S. Rev. Stat. (2d Ed. 1878) Sec. 2170 (Comp. St. 1913, Sec. 4360).

It appears that the respondent is a native of Ireland and first arrived in the United States from that country in April, 1908, when he reached the port of the city of New York. He remained continuously in New York from that time until July 18, 1912, when he departed from the country taking a ship for Ireland. His return to Ireland was occasioned by news he received of his mother's illness. His intention was to see his mother, who was a widow, and had written him of her illness, and asked that he return; and at the time he left the United States it was with the intention of returning to this country, and of marrying a woman to whom he was engaged, and who lived here. That at the time he left the United States he had the intention of returning is shown by the fact that he left his clothes and a trunk here with his sister, with whom he had lived. After he arrived in Ireland, his mother wanted him to remain with her for a time. This he consented to do, and it was not until September 19, 1914, that he left Ireland, arriving in this country on September 27, 1914. When he first reached the United States, two brothers and three sisters were already living here, and they have since remained here. We have no doubt, upon the testimony in the record, that the respondent fully intended to return when he left this country, and that he never changed his intentions.

Having arrived the second time in the United States, as above stated, on September 27, 1914, he applied for his naturalization papers on December 28, 1914, and a final hearing was had on April 13, 1915. The facts in reference to his absence were known to the District Court, but that court was under the impression that he was entitled to naturalization and had not lost his residence by his visit to Ireland.

The question is whether an alien, who came to the United States five years prior to his naturalization, but has been absent from the United States during the five-year period for a period of two years and two months, and during the entire period of his absence has intended to return to this country, is entitled to have such absence disregarded upon his actual return to the United States, so that the time of his absence may be counted as a part of 'the continued term of five years next preceding his admission' to citizenship during which he must have resided in the United States.

In other words, what did Congress mean when it enacted that no alien should be admitted to become a citizen 'who has not for the continued term of five years next preceding his admission resided within the United States'? Must the alien be actually resident within the country for the entire period of five years, so that a temporary absence at any time during the period will deprive him of the advantage of the previous actual residence, and make it necessary to date the beginning of his 'continued term of five years' from the date of his return, rather than from the date of his original arrival? It cannot be supposed that Congress intended that any such unreasonable construction should be placed upon the act. Where adherence to the strict letter of a statute would lead to injustice or to manifest absurdity, it cannot be supposed that the lawmaking body intended any such result. In such cases the duty devolves upon the court to search out the true meaning of the statute and to permit the spirit or reason of the law to prevail over its letter. A thing may be within the letter of a statute, and yet not within the statute, because not within the letter of a within the intention of its makers. See Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 Sup.Ct. 511, 36 L.Ed. 226 (1892).

This court does not entertain the idea that Congress meant by this enactment that an alien must be actually and physically within the United States for every day of the five-year period. And if it is not necessary that the alien be actually present within the territory of the United States for every moment of the five-year period, then the court is confronted with the question how much of the time may he be absent. This obviously raises a question of some difficulty. But the difficulty it presents must not lead the court into the absurdity of concluding that the continuous character of an alien's residence is fatally destroyed if, for any purpose and for any length of time, he temporarily goes beyond the country's borders. We think that each case of this kind must be decided according to its own circumstances. If an alien departs from the United States with no intention of returning, he may by that act lose his residence in this country, so that if, after a time, he again changes his mind and returns to this country, the continuous character of his previous residence has been fatally destroyed, and the five-year period of continuous residence will date from his return. If, however, he departs for a temporary purpose and with an intention of returning, which exists during the whole period of his absence, and at length does return, then the question of whether his absence has put an end to the continuous character of his residence is one which the court must determine according to the facts of the case.

In the case at bar the respondent was absent for nearly one-half of the prescribed period of five years. The purpose of requiring aliens applying for citizenship to reside continuously within the country for five years is not only to satisfy the government as to the good faith of the applicant and as to his good character, but it is also to afford the alien a sufficient opportunity to understand and familiarize himself with our institutions and mode of government. In the opinion of Congress five years is none too long a period for this purpose. That being the case, we have no doubt that an absence from the United States for a period of two years and two months from the time the alien arrived will preclude him from being entitled to naturalization five years from the date of his original arrival. Actual residence within the country for a little over half of the required time and a constructive residence for the balance of the time is not a compliance with the act of Congress.

The Naturalization Act of 1790 (Act March 26, 1790, c. 3, 1 Stat. 103), and that of 1795 (Act Jan. 29, 1795, c. 20, 1 Stat. 414), and that of 1802 (Act April 14, 1802, c. 28, 2 Stat. 153), did not require aliens applying for citizenship to maintain a 'continuous' residence within the country for the prescribed period. But Act March 3, 1813, c. 42, Sec. 12, 2 Stat. 809, first provided that the alien must have resided in the United States 'for the continued term of five years next preceding his admission,' and added, 'without being at any time during the said five years, out of the territory of the United States. ' The last-mentioned clause was repealed by Act June 26, 1848, c. 72, 9 Stat. 240. But since the act of 1813 the law has required residence for the continuous term of five years, or, as the act now reads, 'for the continued term of five years. ' The fact that in the earliest acts a 'continuous' residence was not required, while in the latter acts and in the existing law it must be for a 'continued term,' is significant. It is also significant that, while retaining 'the continuous term' of the act of 1813, there has been eliminated the clause 'without being at any time during the said five years, out of the territory of the United States. ' And while a resident domicile in this country might not be interrupted by transient absences animo revertendi, we are satisfied that for the purposes of this act it is interrupted by an absence which extends over a period of two years and two months. To hold otherwise, it seems to us, is to destroy and make of little effect the obvious purpose of Congress in establishing the continued term of five years.

This case is somewhat similar in its facts to that of United States v. Cantini, 212 F. 925, 129 C.C.A. 445 (1914) decided in the Third Circuit. In that case, as in this, the government sought to cancel a certificate of naturalization. ...