United States v. Tod

• Citation: 3 F.2d 836
• Parties: UNITED STATES ex rel. GOLDMAN v. TOD, Commissioner of Immigration, et al.
• Decision Date: 02 January 1924
• Court: U.S. District Court — Northern District of New York

3 F.2d 836 (1924)

UNITED STATES ex rel. GOLDMAN v. TOD, Commissioner of Immigration, et al.

District Court, N. D. New York.

January 2, 1924.

Ralph Shulman, of Syracuse, N. Y. (Louis Marshall, of New York City, and Lewis M. King, of Schenectady, N. Y., of counsel), for relator.

Oliver D. Burden, U. S. Atty., of Syracuse, N. Y., for respondents.

COOPER, District Judge.

This is a habeas corpus proceeding. A writ was issued out of this court on behalf of the relator, Samuel Goldman, a minor, to the respondent, the Commissioner of Immigration, for the port of New York, to test the validity of the detention of the relator, who was taken by the Commissioner upon a warrant for his deportation issued by the Department of Labor under the Immigration Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 4289¼a-4289¼u).

The facts generally are undisputed, and are as follows:

The relator, Samuel Goldman, was born in Ukrania, Russia, on August 20, 1908. The family thereafter moved to Roumania. He came to the United States at the age of 13, arriving on the Steamship Megantic, at the port of New York, on January 21, 1921, accompanied by his mother and two sisters, and was classed as a Roumanian. At Ellis Island he was examined by medical officers of the Public Health Service, who found him feeble-minded, and on their certificate the Board of Special Inquiry pronounced him to be feeble-minded, and not admissible under section 3 of the Immigration Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼b). An appeal was taken to the Secretary of Labor, and the relator was permitted to enter the United States temporarily under a public charge and departure bond, which was executed March 8, 1921, and which stipulated that the alien would depart from the United States at the expiration of one year, without expense to the United States. Thereupon he proceeded to Syracuse, where his father lived, and has lived there with his father ever since, entering one of the public schools in March, 1921, in the grade of children 6 to 7 years of age, and, except for the periods of time that he came down to Ellis Island for further medical examination, or during vacations, he has been in regular attendance at the school.

The relator appealed to the Board of Medical Officers of the Public Health Service, and was given further medical examinations on February 28, 1922, April 27, 1922, and April 2, 1923, and the original finding of feeble-mindedness was affirmed in each instance.

On March 7, 1922, the Department directed that the relator be deported, but the bond granting temporary admission was extended on May 15, 1922, then to January 1, 1923, and later for a further period of 3 months.

On April 21, 1923, the Department of Labor directed that the bondsmen be called upon to effect departure, as stipulated in the bond, failing which, warrant of arrest would issue. The relator alien failed to depart, and warrant of arrest was issued May 9, 1923, and was served on May 14, 1923, whereupon the court, on relator's petition, issued the writ now before the court.

On November 25, 1922, Isadore Goldman, the father of the relator, was naturalized, and a certificate of citizenship was issued to him by the Supreme Court of the state of New York, in Onondaga County.

Section 3 of the Immigration Law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼b), under which the relator was held for deportation, reads as follows: "That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feeble-minded persons, epileptics * * *."

The relator contends that under section 2172 of the Revised Statutes (Comp. St. § 4367) he became a citizen upon the naturalization of his father November 25, 1922; being then "dwelling" in this country, and cannot be deported.

The government contends that section 2172 of the Revised Statutes has been superseded by section 5 of the Act of March 2, 1907 (34 Stat. L. 1229 Comp. St. § 3962), and that the latter section is applicable.

The government further contends that whichever section is applicable the relator did not become a citizen upon the naturalization of his parent, because he did not "begin to reside permanently" in the United States within the meaning of section 5 of the Act of 1907, nor did he "dwell" in the United States within the meaning of section 2172, at, before, or after the naturalization of his father, or at any time, because not entitled to so legally "reside" or "dwell."

It is not denied by the government that, if the relator is a citizen, he cannot be deported.

The first question, then, is whether or not the relator is a citizen within the meaning of whichever of these statutes is applicable.

The statutes referred to are as follows:

Section 2172 of the Revised Statutes (Comp. St. § 4367): "The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject, by the Government of the United States, may have become citizens of any one of the States, under the laws thereof, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof. * * *"

Section 5 of the Act of March 2, 1907 (34 Stat. L. 1229 Comp. St. § 3962): "That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, that such naturalization or resumption takes place during the minority of such child: And provided further, that the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." 34 Stat. L. 1229.

Section 2172 of the Revised Statutes was enacted in 1802, as part of the Naturalization Law of the United States, and was a codification or re-enactment of Acts of March 26, 1790 (1 Stat. L. 103), and January 29, 1795 (1 Stat. L. 414). This section has never been expressly repealed or amended by any subsequent act, though the General Naturalization Law has been amended and codified since 1802. The next important act relating to alien minors in connection with citizenship was the Act of March 2, 1907 (34 Stat. L. 1228), section 5 of which appears above. There has been no important change of statute with respect to the citizenship of minor aliens since 1907, down to the commencement of this proceeding.

Although the Act of March 2, 1907, is entitled "An act in reference to the expatriation of citizens and their protection abroad," it has been held on good authority that section 5 thereof, above set forth, has, since March 2, 1907, been the law applicable to minor aliens coming to this country, and claiming citizenship because of the naturalization of the parent. This was held by the Circuit Court of Appeals in the Third Circuit in the case of United States ex rel. De Rienzo v. Rodgers, 185 F. 334, 107 C. C. A. 452. It is there held that section 5 of the Act of March 2, 1907, though not in the form of an amendment or repealing act, was passed for the purpose of removing the ambiguity in the word "dwelling" in section 2172, the language being changed in section 5 of the Act of March 2, 1907 (Comp. St. § 3962), to read: "The citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States."

See, also, the well-considered opinion of Winslow, D. J., in United States ex rel. Patton v. Tod (decided July 6, 1923; D. C.) 292 F. 243: "The provisions of the first clause of section 2172, in so far as they apply to the children of aliens born outside the United States, are superseded by the Act of March 2, 1907, § 5 (supra)."

No case has been cited by the relator, and none has been found, holding that, since the Act of March 2, 1907, section 2172, Rev. St., has any application to minor aliens born outside of the United States coming to the United States and claiming citizenship by naturalization of the parent.

True, the title to the Act of March 2, 1907, does not relate to the status or citizenship of minor aliens entering the country. But the title will not be controlling, since the language admits of no doubt that it is intended to apply to alien minors coming to the United States.

The "naturalization or resumption of American citizenship by the parent," and the minor alien's "beginning to reside permanently in the United States," can only take place within the country. Manifestly, this language can have no application to protection abroad, or status abroad. Two statutes covering the same subject cannot both apply. The later one must prevail.

Relator must therefore fail, if his claim of citizenship is based on the contention that section 2172 of the Revised Statutes is the law applicable, and not section 5 of the Act of March 2, 1907.

But, if it be conceded that section 2172 of the Revised Statutes is the law governing the citizenship of minor aliens, based on the naturalization of the father, the relator must, nevertheless, fail.

The relator asks the court to hold that this defective minor alien, who was in the country only under bond for departure, was "dwelling" in the United States within the meaning of section 2172 of the Revised Statutes, when his father became a citizen, and that he thereby became a citizen upon the naturalization of his father.

To hold this is to hold that a defective minor alien, unfit under one statute (Immigration Law) to lawfully enter the United States, is nevertheless under another statute (section 2172, R. S.) made a citizen, with all the rights pertaining to citizenship, including the right to be and reside permanently where he will in the United States, and the right, if it be a right, to public support, if unable to support himself.

Such construction is contrary to reason. By such construction the...