131 F. Supp. 545 | S.D.N.Y. | 1955
These motions, one of them to dismiss the complaint under Rule 12, Fed.Rules Civ.Proc., 28 U.S.C.A. and the other to vacate a notice to take defendant’s deposition under Rule 30(b), again raise the much bruited question whether the complaint in an action for cancellation of naturalization under Section 340(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1451(a), must be supported by an affidavit of good cause. The question arises from this language of Section 340(a) of the act, 8 U.S.C.A. § 1451(a) that “It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor * * * ”, in a context that reads:
“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 courts specified in subsection (a) of section 1421 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting side of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: * *
Proponents for dismissal apparently argue that an affidavit of good cause is a jurisdictional prerequisite deliberately set up by Congress as an additional hurdle for the government to surmount and subject to test on motion before civil trial as an additional safeguard to naturalized citizens who may be the target of an action for cancellation of citizenship. The government in turn insists that such affidavit at most makes the institution of such proceedings a duty and that this provision does not curtail the thereto
Judicial opinion is divided on the question. A number of cases have held that such affidavit of good cause is not jurisdictional and need not be filed at the time of commencement of the action.
On the other hand, three cases appear to support the proposition that such affidavit must be filed at time of institution of the suit, two of them from this district court but none of them controlling this court.
The language of the instant statute does not require, as it might well have, the filing of any affidavit at the time of instituting the action. No doubt denaturalization is a serious matter requiring the utmost scrutiny of the evidence.
In any event, there is little justification for considering the matter jurisdictional. If such were the case, the Supreme Court could have, but did not raise the question of such alleged defect on its own motion in the Schwinn case. Many instances may be called to mind where statutory requirements of
Accordingly the motion to dismiss is denied.' The motion to vacate which is made to turn upon the same question, is also denied.
This is an order. No settlement is necessary.
. Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed 311 U.S. 616, 61 S.Ct 70, 85 L.Ed. 390; United States v. Tuteur, 7 Cir., 215 F.2d 415; United States v. Knight, D.C.D.Mont., 291 F. 129, affirmed, 9 Cir., 299 F. 571; United States v. Jerome, D.C.S.D.N.Y., 115 F. Supp. 818; United States v. Ronch, D.C.S.D.N.Y.1953, 16 F.R.D. 137; United States v. Radzie, D.C.S.D.N.Y., 14 F.R.D. 151; United States v. Lustig, D.C.S.D.N.Y., 110 F.Supp. 806; United States v. Fauorito, D.C.D.Ohio, 7 F.R.D. 152; United States v. Schuchhardt, D.C.D.Ind., 48 F.Supp. 876.
. Schuchhardt, Tuteur, Leles, supra, note 1.
. Eonch, Lustig, supra, note 1. See also Eadzie relying upon Eonch and Lustig, and Jerome following Eonch, Lustig and Eadzie, supra, note 1.
. 9 Cir., 112 F.2d 74.
. Schwinn v. United States, 9 Cir., 112 F.2d 74; United States v. Knight, D.C.D.Mont., 291 F. 129, affirmed 9 Cir., 299 F. 571.
. Cohen v. United States, 38 App.D.C.123; United States v. Zucca, D.C.S.D.N.Y., 1954, 125 F.Supp. 551; United States v. Candela, D.C.S.D.N.Y.1954, 131 F.Supp. 249.-
. Holmes, Collected Legal Papers, 207.
. Cf. Schneiderman v. United States, 320 U.S. 118, at page 122, 63 S.Ct. 1333, 87 L.Ed. 1796.
. Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232.
. N.Y.Code Crim.Proc. § 344(1).
. Application of McDonald, 2d Dept., 281 App.Div. 830, 118 N.Y.S.2d 911; Murphy v. Extraordinary Term, 294 N.X. 440, at page 442, 63 N.E.2d 49, 161 A.L.R. 937.