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Published online by Cambridge University Press: 02 September 2013
The experience of recent years has shown that espionage, sabotage, and subversive propaganda have everywhere been preliminary to, and an integral part of, the program of Axis military aggression. That such activity constituted a threat of increasing gravity to the United States was recognized, even prior to our entry into the present war, by the enactment of legislation designed to strengthen our defenses against propagandist and subversive activities of foreign agents and organizations under foreign control, to tighten up the surveillance of aliens, and to make more rigid the requisites for naturalization. Since the United States became an active belligerent, additional measures have been adopted for the control of alien enemies and nationals of Axis origin.
1 Act of June 8, 1938, 52 Stat. 631; 22 U.S.C.A. §§601, 611–616.
2 Act of Oct. 17, 1940, 54 Stat. 1201; 18 U.S.C.A. §§14–17.
3 Act of June 28, 1940, 54 Stat. 670; 8 U.S.C.A. §§451–460.
4 Act of Oct. 14, 1940, 54 Stat. 1137, 305; 8 U.S.C.A. §705.
5 Annual Report of the Attorney-General of the United States (1918), p. 39.
6 Information Digest, Office of Government Reports, No. 458 (May 6, 1942), p. 8. Numerous cases have since been referred to the courts, but information as to the exact number is not available. During the first six months after the entry of the United States into the war, denaturalization decrees were handed down in 65 cases. Office of Government Reports Division, Office of War Information, No. 502 (July 7, 1942), p. 9.
7 34 Stat. 601.
8 In general, the term “illegally procured” refers to cases in which the applicant or the court has failed to follow the requirements of the statute, or where, after disclosure of all facts, the court has erred in its finding of the facts or in its application of the law. See United States v. Ginsberg, 243 U.S. 472 (1917). Thus, for example, a certificate may be canceled for illegal procurement if the applicant has not resided continuously in the United States for a period of five years next preceding his petition, if he was not within the required qualifications as to race, or if the certificate of arrival was not filed with the petition. For a brief discussion of revocation on the ground of illegal procurement, see Gettys, Luella, The Law of Citizenship in the United States (1934), p. 98 ff.Google Scholar In the fraud cases, with which we are here alone concerned, the applicant has obtained naturalization through intentional falsehood or deception, or through intentional or unintentional failure to disclose certain material facts. See Univ. of Pa. Law Rev., Vol. 88 (1940), p. 842 ff.
9 United States v. Norsch, 42 Fed. 417 (C.C.E.D. Mo. 1890); Johannessen v. United States, 225 U.S. 227, 240 (1912); In re Malocluso's Naturalization, 237 Pa. 132, 137 (1912); United States v. Albertini, 206 Fed. 133, 135 (D. Mont. 1913). In United States v. Spohrer, 175 Fed. 440, 447 (C.C.D.N.J. 1910), Judge Cross stated: “The legislation of 1906 simply permits to be done by different courts and somewhat different procedure what could, under like conditions, in my judgment, have been done by a bill in equity, for the reason that the jurisdiction of the court was fraudulently invoked by the petitioner in an ex parte proceeding. The fraud was practiced in the very act of obtaining the judgment, and it, and it alone, induced the judgment, and where that is the case the judgment is open to attack by a direct proceeding in equity.”
10 See cases cited, note 21, infra.
11 Act of Oct. 14, 1940, 54 Stat. 1137; 8 U.S.C.A. §§501–907.
12 “This affidavit is not jurisdictional, but merely makes it the duty of the district attorney to proceed. The district attorney could institute proceedings of this character sua sponte whenever he had reason to believe that the law had been violated in the respect alleged in the petition.” Schwinn v. United States, 112 F. (2d) 74, 75 (CCA. 9th, 1940).
A record of naturalization can be impeached only by the United States, United States v. Norsch, 42 Fed. 417 (C.C.E.D. Mo. 1890); and not by a state, Petersen v. State, 40 Tex. Civ. App. 175 (1905); or by a private person, Commonwealth v. Paper, 1 Brewst. 263 (Pa., 1868). It is not subject to collateral attack, Johannessen v. United States, 225 U.S. 227 (1912).
13 That is, in any district court of the United States, and in courts of record in any state or territory having jurisdiction in law or equity in which the amount in controversy is unlimited. Jurisdiction to revoke a certificate of naturalization is vested in any court having jurisdiction to naturalize aliens, whether the certificate was granted by that court or by any other court, state or federal. “The suggestion that it is not competent for a federal court to vacate a judgment of a state court and a state court that of a federal court is not persuasive, because the authority of state courts to naturalize aliens, as well as that of the federal courts, emanates from Congress. All are, for the purposes of the naturalization acts, federal courts, and one set of courts is not foreign to the other. So that relief in the particular matter may as readily be adjudged by a federal court against the judgment of a state court, and vice versa, as by a federal court against the judgment of a federal court or a state court against that of a state court.” United States v. Aakervik, 180 Fed. 137, 141 (D. Ore. 1910); United States v. Ovens, 13 F. (2d) 376 (C.C.A. 4th, 1926).
14 In holding that service of subpoena by publication is not a denial of due process, Judge Bourquin, in United States v. Knight, 291 Fed. 129, 131, said: “The relations between state and citizen, the latter's obligations to the former, are unchanged by his absence. The state is where he left it. He is bound to hear and to respond to its call to render the service of allegiance and to account for default therein at any time in any place. It is not obliged to pursue him with personal notice, but may adopt publication or other convenient method. For the state's purposes, the res and situs of the relation between it and the absent citizen remain in the territory of the state. There is analogy in marriage and divorce. Hence, jurisdiction and due process.”
15 Sec. 334 (d), Nationality Act of 1940; 8 U.S.C.A. §734 (d).
16 In Johannessen v. United States, 225 U.S. 227, 238 (1912), the Supreme Court denied that a certificate had any conclusive effect when procured ex parte in the ordinary way, but left open the question whether the doctrine of res judicata was applicable where the government had appeared and litigated. This question was answered in the negative in United States v. Ness, 245 U.S. 319, 327 (1917), in which it was held that”§11 and §15 were designed to afford cumulative protection against fraudulent naturalization.” Accord, United States v. Milder, 284 Fed. 573 (C.C.A. 8th, 1922); United States v. Khan, 1 F. (2d) 1006 (W.D. Pa. 1924); United States v. Turlej, 18 F. (2d) 435 (D. Wyo. 1927), aff'd, Turlej v. United States, 31 F. (2d) 696 (C.C.A. 8th, 1929); United States v. Unger, 26 F. (2d) 114 (S.D. N.Y. 1928); United States v. Parisi, 24 F. Supp. 414 (D.Md. 1938); Maney v. United States, 278 U.S. 16 (1928). The principle is summarized by Judge Tuttle in United States v. Ali, 7 F. (2d) 728, 730 (E.D. Mich. 1925): “It is now settled law that the statutory naturalization proceeding by which an alien seeks the privilege of citizenship is not a judicial adversary proceeding in any true legal sense, and that an order directing the issuance of a certificate of citizenship in such naturalization proceeding is, in essence, not a judgment rendered by a court in a pending suit between adverse parties, and as such final and binding upon said parties as to all matters involved in the suit and decided by the judgment, but is merely a grant, in special proceedings authorized by Congress, of a political privilege conferred by the government upon the petitioning alien purely as a gratuity, and subject to whatever terms and conditions Congress may impose therein, including the right of government to insist upon a eancelation of such certificate, if found to have been illegally procured.” See Hazard, Henry B., “The Doctrine of Res Judicata in Naturalization Cases in the United States,” Am. Jour. of Internat. Law, Vol. 23 (1929) pp. 50–55.CrossRefGoogle Scholar
An acquittal in a criminal prosecution for fraudulent procurement of naturalization has been held not res judicata of the issue whether a certificate of naturalization has been fraudulently procured. It does not constitute estoppel by judgment in subsequent proceedings for eancelation, since the latter proceeding is not the same cause of action as the criminal prosecution. Sourino v. United States, 86 F. (2d) 309 (C.C.A. 5th, 1936); cert. denied, 300 U.S. 661 (1936). In this case, the sole issue in the criminal prosecution was the bar of the statute of limitations. The doctrine of laches is inapplicable in eancelation proceedings. In United States v. Ali, 7 F. (2d) 728, 730 (E.D. Mich. 1925), it was stated: “It is not, and cannot be, claimed that there is any applicable statute of limitations; and it is elementary that the doctrine of laches does not apply as against the government, when suing in its capacity as a sovereign and asserting governmental rights.” Accord, Maibaum v. United States 232 U.S. 714 (1914); United States v. Marino, 27 F. Supp. 155 (S.D.N.Y. 1939); United States v. Brass, 37 F. Supp. 698 (E.D.N.Y. 1941).
17 Although the contrary had been stated in United States v. Ness, 245 U.S. 319, 326 (1917), it is now settled law that the United States can appeal from a decree granting a petition for naturalization. Tutun v. United States, 270 U.S. 568 (1926); United States v. Ovens, 13 F. (2d) 376 (C.C.A. 4th, 1926); United States v. Bischof, 48 F. (2d) 538 (C.C.A. 2d, 1931); Estrin v. United States, 80 F. (2d) 105 (C.C.A. 2d, 1935); United States v. Villaneuva, 17 F. Supp. 485 (D.Nev. 1936). See Hazard, Henry B., “The Right of Appeal in Naturalization Cases in the Federal Courts,” Amer. Jour. of Internat. Law, Vol. 21 (1927), pp. 40–52.CrossRefGoogle Scholar
18 United States v. Ginsberg, 243 U.S. 472, 475 (1917).
19 Johannessen v. United States, 225 U.S. 227, 241 (1912).
A certificate of naturalization has frequently been compared to a patent for land or for an invention, revocable by judicial proceedings on the ground of fraudulent procurement. See Luria v. United States, 231 U.S. 9, 28 (1913); United States v. Albertini, 206 Fed. 133, 135 (D. Mont. 1913); and United States v. Spohrer, 175 Fed. 440, 446 (C.C.D.N. J. 1916), in which it was said: “That the government, especially when thereunto authorized by Congress, has the right to recall whatever of property has been taken from it by fraud, is … well settled, and, if that be true of property, then by analogy and with greater reason it would seem to be true where it has conferred a privilege in answer to the prayer of an ex parte petitioner. A recall of this character injures no one but the fraud doer, and his discomfiture is entitled to but slight consideration.”
20 The provisions of Section 15 of the Act of 1906 were expressly made applicable to certificates issued prior to 1906. The Nationality Act of 1940, Section 338(g) (8 U.S.C.A. §738(g)) stipulates: “The provisions of this section shall apply not only to any naturalization granted and to certificates of naturalization issued under the provisions of this Act, but to any naturalization heretofore granted by any court, and to all certificates of naturalization and citizenship which may have been issued heretofore by any court or by the Commissioner based upon naturalization granted by any court.”
21 225 U.S. 227 (1912); Luria v. United States, 231 U.S. 9 (1913).
22 225 U.S. 227, 241, 242 (1912).
23 United States v. Mansour, 170 Fed. 671, 676 (S.D.N.Y. 1908).
24 231 U.S. 9, 28 (1913).
25 Luria v. United States, 231 U.S. 9 (1913). Section 15, par. 2 [8 U.S.C.A. §738 (f)] provided that if a naturalized citizen takes up permanent residence abroad within five years after his naturalization, it shall be prima facie evidence of a lack of intention to become a permanent citizen at the time of filing his petition for citizenship. In the absence of countervailing evidence to overcome the adverse presumption, cancelation for fraud was authorized. In holding that Section 15 “prescribes a rule of evidence, not of substantive right,” Justice Van Devanter said: “Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue, is but to enact a rule of evidence, and quite within the general power of government…. That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate….” Ibid., at 25. See Glaser v. United States, 289 Fed. 255 (C.C.A. 7th, 1923); United States v. Turlej, 18 F. (2d) 435 (D. Wyo. 1927), aff'd, Turlej v. United States, 31 F. (2d) 696 (C.C.A. 8th, 1929); Rothman v. United States, 18 F. (2d) 577 (C.C.A. 6th, 1927).
26 249 Fed. 908 (D.N.J. 1918).
27 Ibid., at 910.
28 United States v. Darmer, 249 Fed. 989 (W.D. Wash. 1918); United States v. Kramer, 262 Fed. 395 (C.C.A. 5th, 1919); Schurmann v. United States, 264 Fed. 917 (C.C.A. 9th, 1920). In the latter case, the respondent, after war was declared against Germany, had stated: “I have sworn allegiance to your flag or country; but I am going to tell you this much: That I didn't swear away my birthright.” Judge Hunt commented on this statement as follows: “One who spoke in that way, and whose frequent expressions were so plainly against the United States and in favor of Germany, must have taken the oath of full faith and allegiance with a reserved determination, to be kept down, but nurtured, until a momentous time might come. In years, however, the time did come, and the criterion of original fraud must be the later conduct, which, in its relation to the earlier attitude, will furnish safe ground for judgment.” Ibid., at 920.
29 272 Fed. 278 (W.D. Wash. 1921).
30 Ibid., at 290, 291.
31 United States v. Woerndle, 288 Fed. 47 (C.C.A. 9th, 1923). See United States v. Rovin, 12 F. (2d) 942 (E.D. Mich. 1926), in which it was held that mere advocacy of a resumption of trade relations with the Soviet Government was not indicative of a disloyal attitude, justifying cancelation on the ground of fraud. There was no evidence that the respondent, at the time of his naturalization or at any subsequent time, advocated any change in the governmental system of the United States by other than lawful means. In Rowan v. United States, 18 F. (2d) 246 (C.C.A. 9th, 1927), the court considered it to be “far too conjectural” to suppose that the respondent, who had joined the I.W.W. in 1912 and remained a member through 1917, must at the time of his naturalization in 1907 have been opposed to organized government, or lacking in allegiance to the United States. Nor was the fact that Rowan was convicted in 1917 of a violation of the Espionage Act logically probative of his state of mind in 1907.
32 United States v. Olsson, 196 Fed. 562 (W.D. Wash. 1912).
33 United States v. Swelgin, 254 Fed. 884 (D. Ore. 1918).
34 United States v. Stuppiello, 260 Fed. 483 (W.D.N.Y. 1919).
35 United States v. Tapolcsanyi, 40 F. (2d) 255 (C.C.A. 3d, 1930); United States v. Schneiderman, 33 F. Supp. 510 (N.D. Cal. 1940), aff'd, Schneiderman v. United States, 119 F. (2d) 500 (C.C.A. 9th, 1941), cert, granted, 62 S. Ct. 98 (1941). See Bill of Rights Review, Vol. 2 (1941), pp. 64–65.
36 Act of June 29, 1906, Sec. 4; 8 U.S.C.A. §707 (a). See Henry Hazard, B., “‘Attachment to the Principles of the Constitution’ as Judicially Construed in Certain Naturalization Cases in the United States,” Amer. Jour. of Internat. Law, Vol. 23 (1929), pp. 783–808, esp. 802–806.CrossRefGoogle Scholar
37 See dissenting opinion by Judge Booth in Turlej v. United States, 31 F. (2d) 696, 699, 700 (C.C.A. 8th, 1929).
38 276 Fed. 30, 32 (D. Mont. 1921). Also, United States v. Tedesco, 31 F. Supp. 322 (S.D.N.Y. 1940); United States v. Zgrebec, 38 F. Supp. 127 (E.D. Mich. 1941); United States v. Der Manelian, 39 F. Supp. 959 (D.R.I. 1941).
39 See Black, Forrest R., “Disloyalty and Denaturalization,” Ky. Law Jour., Vol. 29 (1941), pp. 143–171, esp. 168–171.Google Scholar “Offenses Against the Existence of Government” are defined in Title 18, U.S.C.A., Ch. 1.
40 Nationality Act of 1940, Sec. 401 (g), (h); 8 U.S.C.A. §801 (g), (h).
