United States v. Ness, No. 284

• Court: United States Supreme Court
• Writing for the Court: BRANDEIS
• Citation: 62 L.Ed. 321,245 U.S. 319,38 S.Ct. 118
• Parties: UNITED STATES v. NESS
• Docket Number: No. 284
• Decision Date: 10 December 1917

245 U.S. 319 38 S.Ct. 118 62 L.Ed. 321 UNITED STATES

v.

NESS.

No. 284. Argued Nov. 5, 1917. Decided Dec. 10, 1917.

Mr. Solicitor General Davis, of Washington, D. C., for the United states.

Mr. Denis M. Kelleher, of Ft. Dodge, Iowa, for respondent.

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Mr. Justice BRANDEIS delivered the opinion of the Court.

This suit was brought under Section 15¹ of the Naturalization Act (June 29, 1906; 34 Stat. 596) in the District Court of the United States for the Northern District of Iowa, to cancel a certificate of naturalization issued to Ness by a state court of Iowa on May 21, 1912. The naturalization is alleged to have been 'illegally procured,' because the petitioner failed to file with the clerk the certificate from the Department of Commerce and Labor 'stating the time, place and manner' of arrival as provided in Section 4, subdivision Second.² Ness admitted this failure; but contended that on the facts hereinafter stated he was nevertheless entitled to naturalization, and that, in any event, his right thereto had become res judicata for the following reason: The United States entered its appearance under Section 11³ (by the chief naturalization examiner of

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the Department of Commerce and Labor) 'in opposition to the granting' of naturalization and submitted a motion that the petition be dismissed on the ground that the certificate of arrival was not attached. The motion was duly considered by the court and denied. Then, after hearing the petitioner and his witnesses, the order of naturalization was granted. This bill was filed within six months thereafter.

The facts relied upon by Ness as entitling him to naturalization, although he had not filed the certificate of arrival, were as follows:

He emigrated from Norway and arrived at the port of Buffalo by rail via Canada in August, 1906. Ignorant of the requirements of the immigration and naturalization laws of the United States and unobserved by officials of the government and of the railroad, he entered this country without submitting himself to physical examination, without paying the alien head tax, and without having his entry registered. After filing his petition for naturalization he learned that it was defective for failure to file the certificate of arrival and immediately applied to the Bureau of Immigration and Naturalization for such certificate, but found it could not be furnished, because no registry of his entry had been made. After receiving his certificate of naturalization, he offered to pay the head tax and to submit himself to medical examination; but his offer was refused. He possessed the personal qualifications which entitle aliens to admission and to citizenship.

The District Court dismissed the bill (D. C.) 217 Fed. 169. Its decree was affirmed by the Circuit Court of Appeals, 230 Fed. 950, 145 C. C. A. 144, Ann. Cas. 1917C, 41, and this court granted a writ of certiorari, 242 U. S. 634, 37 Sup. Ct. 18, 61 L. Ed. 538. The case presents questions of importance in the administration of the Naturalization Act.

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First: Whether filing the certificate of arrival as provided in Section 4, subdivision Second is an essential prerequisite to a valid order of naturalization.

It is urged that the certificate of arrival is merely a form of proof which the naturalization court has power to dispense with for cause. The uses served by the certificate, the history of the provision and its relation to other parts of the act show that this contention is unsound.

Section 1 requires that a registry be made of certain facts concerning each alien arriving in the United States; and that 'a certificate of such registry with the particulars thereof be granted' to each alien.⁴ Section 5 (Comp. St. 1916, § 4353) re-

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quires clerks of court to give public notice of each petition for naturalization filed. Section 6 prohibits courts from taking final action upon any petition until 90 days after such notice has been given. That period is provided so that the examiners of the Bureau of Naturalization and others may have opportunity for adequately investigating whether reasons exist for denial of the petition. The certificate of arrival is the natural starting point for this investigation. It aids in ascertaining (a) whether the petitioner was within any of the classes of aliens who are excluded from admission by Sections 2 and 38 of the Immigration Act of February 20, 1907 (c. 1134, 34 Stat. 898, Comp. St. 1916, §§ 4244, 4287); (b) whether he is among those who are excluded from naturalization under Section 7 of the Naturalization Act (Comp. St. 1916, § 4363) for political beliefs or practices; (c) whether he is the same person whose declaration of intention to become a citizen is also attached to the petition under Section 4, subdivision Second; (d) whether the minimum period of five years' continuous residence prescribed by Section 4, subdivision Fourth, has been complied with. The certificate of arrival is in practice deemed so important that in the regulations issued by the Secretary of Labor under Section 28 (Comp. St. 1916, § 4383) 'for properly carrying into execution the various provisions' of the act, the clerk of court is advised that he 'should not commence the execution of the petition until he has received the certificate of arrival.'⁵

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Filing the certificate of arrival being a matter of substance, it is clear that no power is vested in the naturalization court to dispense with it. Section 4 declares:

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

Section 27 declares: 'That substantially the following forms shall be used in the proceedings to which they relate'; and the form of petition therein prescribed recites: 'Attached hereto and made a part of this petition' is 'the certificate from the Department of Labor required by law.' Experience and investigation had taught that the widespread frauds in naturalization, which led to...