United States v. Nopoulos

• Decision Date: 15 September 1915
• Citation: 225 F. 656
• Parties: UNITED STATES v. NOPOULOS.
• Court: U.S. District Court — Southern District of Iowa

225 F. 656

UNITED STATES v. NOPOULOS.

United States District Court, S.D. Iowa, Davenport Division.

September 15, 1915

Claude R. Porter, of Centerville, Iowa, for the United States.

M. V Gannon, of Davenport, Iowa, for defendant.

WADE District Judge.

On November 15, 1911, John Nopoulos, a subject of the king of Greece, was admitted to citizenship by the district court of Scott county, Iowa. On September 7, 1912, a petition was filed by the district attorney to set aside the order admitting him to citizenship, upon the claim that said order was procured by fraud and illegality, that he had not prior thereto declared his intention to become a citizen of the United States, and for other reasons.

Defendant admits that he never filed any prior intention to become a citizen of the United States, but claims that he never made application or declaration of intention, because of misinformation in regard to citizenship, or the requirements of the law concerning the naturalization of citizens, and has labored and acted under the impression that he was or could become a citizen of the United States, and has in good faith exercised the rights and duties of a citizen or intended citizen of the United States, because of such wrongful information, and for this reason he claims that he was entitled to citizenship by reason of the provisions of section 3 of the act of Congress approved June 25, 1910. He also pleads as defenses that the court has no jurisdiction that the proper remedy is by appeal, and that no appeal was taken. He also relies upon an estoppel, because he alleges that the application for citizenship was heard before a court of competent jurisdiction, in the presence of representatives of the government, who examined witnesses, and were heard by the court in opposition to the order made.

The first question to be determined is whether or not this court has jurisdiction. It is contended by defendant that the sole remedy is by appeal. Section 15 of the Act of June 29, 1906 is 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 canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate * * * was illegally procured. In any such proceeding the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days personal notice in which to make answer to the petition of the United States. * * * '

Speaking of this section, Mr Justice Pitney, in the case of Johannessen v. United States, 225 U.S. 227, 32 Sup.Ct. 613, 56 L.Ed. 1066, said:

'Whether the judicial review of a certificate of naturalization should be conducted in one mode or another is a matter plainly resting in legislative discretion. Section 15 of the act of June 29, 1906 (34 Stat. 601), provides for a proceeding in a 'court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit,' upon fair notice to the party holding the certificate of citizenship that is under attack. No criticism is made of this mode of procedure.'

In the case of Luria v. United States, 231 U.S. 24, 34 Sup.Ct. 10, 58 L.Ed. 101, Mr. Justice Van Devanter, speaking for the court, says:

' * * * The section makes no discrimination between the rights of naturalized and native citizens, and does not in any wise affect or disturb rights acquired through lawful naturalization, but only provides for the orderly cancellation, after full notice and hearing, of certificates of naturalization which have been procured fraudulently or illegally. It does not make any act fraudulent or illegal that was honest and legal when done, imposes no penalties, and at most provides for the annulment, by appropriate judicial proceedings, of merely colorable letters of citizenship, to which their possessors never were lawfully entitled. Johannessen v. United States, 225 U.S. 227 (32 Sup.Ct. 613, 56 L.Ed. 1066). See, also, Wallace v. Adams, 204 U.S. 415 (27 Sup.Ct. 363, 51 L.Ed. 547).'

In United States v. Dolla, 177 F. 104, 100 C.C.A. 521, 21 Ann.Cas. 665, the court says:

'As the act of 1906 is silent with regard to any appeal or writ of error, while sedulous in placing guards and restrictions around the proceedings and fully protecting the United States by authorizing a suit to annul any certificate fraudulently obtained or improperly granted, it is not to be supposed that it was the intention of the said act to make a reviewable case of every application for naturalization. The mischief to be remedied was not in that line, but was the hasty and improvident way in which many of the courts under the prior laws naturalized aliens without examination and proper proof. Naturalization of aliens is an act of grace, not right, and it is not necessarily a business of the courts. It is lodged in the courts for convenience, and, at the pleasure of Congress, can be taken entirely away and lodged in the Bureau of Commerce and Labor, which is now charged with the supervision of the operations under the act, or with any executive officer, as is now lodged the right and power to determine whether certain aliens shall be permitted to come into the country at all. See Lee Lung v. Patterson, 186 U.S. 168, 22 Sup.Ct. 795, 46 L.Ed. 1108. If naturalization is a judicial act, it is because done by judges. We therefore conclude that the action and proceedings of the District Court on Abba Dolla's petition for naturalization did not constitute a 'case' within the meaning of the sixth section of the Judiciary Act of 1891, and this court is without jurisdiction to review the same.

'The same conclusion may be reached on another line. The admission of an alien to citizenship is not only a political act of grace, but the power vested in the court to grant or order the same is on proof to the satisfaction of the court, with the petitioner and witness as necessary exhibits; that is to say, the question of admission is committed to the discretion of the courts, and discretionary rulings of courts are not reviewable on error or appeal, except, perhaps, when the discretion is shown to have been abused, and abuse of discretion in naturalization cases is provided for in section 15 of the act of 1906, not by error or appeal, but by a direct suit to annul and cancel.'

The foregoing case is followed by the Circuit Court of Appeals for the Third Circuit in United States v. Neugebauer, 221 F. 938, . . . C.C.A. . . . . See, also, State v. Court, 75 Wash. 239, 134 P. 916; United States v. Kolodner, 204 F. 240, 124 C.C.A. 1; United States v. Cantini, 212 F. 925, 129 C.C.A. 445; United States v. Nisbet (D.C.) 168 F. 1005.

In United States v. Simon (C.C.) 170 F. 682, it is said:

'The respondent contends that this court is without jurisdiction to vacate an order or decree of naturalization granted by another court which had jurisdiction of the subject-matter. But the language of the statute explicitly contradicts this contention. The act gives jurisdiction to cancel the naturalization certificate, not to the court which granted it, but to any court of naturalization in the district of the residence of the naturalized person.'

From the language of the act, and the foregoing cases, it cannot be questioned that this court has jurisdiction to entertain this application, regardless of the question as to whether an appeal from the original...