20 F.R.D. 399 | N.D. Cal. | 1957
The Immigration and Naturalization Service, by Bruce G. Barber, District Director, hereinafter referred to as movant, has moved this Court, under the provisions of Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., to vacate its order of May 7, 1956, admitting Pui Lan Yee, also known as Yee Pui Lan, and Virginia Yee, hereinafter referred to as petitioner, to United States citizenship. It is the contention of the movant Director that a proceeding of this nature is proper under the provisions of § 1451 (j), Title 8 U.S.C.A. Counsel for petitioner, Mrs. Yee, has challenged the jurisdiction of this Court by way of a motion to dismiss on the ground that the procedure sought to be employed by the Director is tantamount to a revocation proceeding, which may be instituted only in the manner prescribed by § 1451(a) et seq., Title 8 U.S.C.A.
Assuming arguendo that a motion to vacate under Rule 60(b) may with propriety be utilized for such purposes, the motion of the Director is manifestly lacking in allegations sufficient to meet the requirements of Rule 60(b).
Based on a statement of Fong (Yee) Min Hee, the husband of petitioner, given on September 26, 1956, which the Director contends, establishes the fact that said Fong (Yee) Min Hee “is not now and has never been a citizen of the United States as alleged in the petition for naturalization and in the application for a nonquota immigration visa filed on behalf of the petitioner”, the Director alleges that the order of this Court of May 7, 1956, admitting petitioner to citizenship should be vacated on the grounds of mistake and inadvertence (Rule 60(b) (1) ) and newly discovered evidence (Rule 60(b) (2) ). However, apart from these formal allegations, no facts are alleged to show any excuse which would justify the movant’s failure to avoid such mistake or inadvertence, nor has the movant attempted to allege any facts showing why this newly discovered evidence could not have been obtained with due diligence in time to make a motion for a new trial under Rule 59(b).
Where the motion under Rule 60(b) is sought to be based on mistake
It Is, Therefore, Ordered that petitioner’s motion to dismiss the movant’s motion to vacate the naturalization decree, heretofore entered in favor of the petitioner, be, and the same is, hereby granted, but with the right granted to the movant to file in this proceeding within 20 days from this date an amended motion, which will conform to the Court’s views as set forth in this memorandum and order.