No. 266 | 2d Cir. | Apr 12, 1917
Lead Opinion
This is an appeal from an order of Judge Mayer in the District Court of the United States for the Southern District of New York admitting the appellee, Jonas Meyer, to citizenship April 6, 1917, a state of war then existing between the empire of Germany and the United States of America.
Meyer came to this country from Germany with his parents, who were German citizens, August 3, 1863, when he was 4 years of age. He has lived in this city ever since, and, was told and has always supposed that his father, who died here in 1871, had been naturalized, which would have made him a citizen under section 2172, U. S. Rev. Stat. (Comp. St., 1916, § 4367). He had also been informed that coming here at the tender age of 4 years he was for this reason also a citizen of the United States. His attention having been lately called to the matter, he took advice, and was able to find no evidence whatever that his father had been naturalized, and learned that he had been misinformed as to the other ground. Acting, however, under this mistake of fact and of law, he has voted here and served as a juror in this county, where jurors are required to be citizens of the United States. Section 598, Judicial Law, c. 30, Con. Laws of New; York. Because he has acted in good faith as a citizen, he was relieved of the obligation of making any declaration of intention by the provision added to paragraph 2, § 4, c. 3592, Laws of 1906, by section 3, c. 401, Laws of 1910 (36 Stat. 830), which provides as follows :
“Provided further, that any person belonging to the class of persons authorized and qualified under existing law to become a citizen of the United States who has resided constantly in the United States during a period of five years next preceding May 1st, nineteen hundred and ten, who, because of misinformation in regard to his citizenship or-the requirements of the law governing the naturalization of citizens has labored and áeted under the impression that he was or could become a citizen of the United States and has in good faith exercised the rights or duties of a citizen or intended citizen of the United States because of such wrongful information and belief may, upon making a showing of such facts satisfactory to a court having jurisdiction to issue papers of naturalization to an alien, * * • and said court may issue such certificate without requiring proof of former declaration, ' * * * but such applicant for naturalization shall comply in all other respects with the law relative to the issuance of final papers of naturalization to aliens.”
Section2171 of the Revised Statutes of the United States reads:
“No alien who is a native citizen or subject, or a denizen of any country, state, or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United*309 States; but persons resident within the United States, or the territories thereof, on the 18th day of Juno, in the year one thousand eight hundred and twelve, who had before that day made a declaration, according to law, of their intention to become citizens of the United States, or who were on that day entitled to become citizens without making such declaration, may be admitted to become citizens thereof, notwithstanding they were alien enemies at the time and in the manner prescribed by the laws heretofore passed on that subject; nor shall anything herein contained be taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien,”
The first part of this section comes from the act of April 14, 1802, and the remainder from the act of July 30, 1813. At the time these acts were passed the whole procedure for naturalization was Begun by the alien’s making a declaration of his intention to become a citizen two years at least prior to his admission upon hearing in open court. The application and the hearing for admission were contemporaneous. The act of 1802 expresses the intention of Congress not to admit an alien subject of a country at war with the United States at the time of the hearing in open court.
The rest of the section applies only to the War of 1812, but shows that Congress had changed its earlier view so as to permit the admission of citizens of other countries at war with the United States at the time of the hearing in open court, provided that before the war they had made their declarations of intention or were entitled to citizenship without making such declarations. The act of June 29, 1906, establishing a bureau of immigration and naturalization, treated the subject of naturalization much more elaborately than theretofore. It did not repeal section 2171, but introduced a new step in the procedure between the declaration of intention and the hearing in open court, viz., a petition for naturalization to be filed by the alien not less than 2 nor more than 7 years after his declaration of intention. Consequently the application and the hearing are now no longer contemporaneous. Sec. 4 of the act of June 29, 1906, reads:
“First. He shall declare on oath bei'ore tbe clerk of any court authorized by this act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years a,t least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. * * *
“Second. Not less than two years nor moro than seven years after he has ma.de such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own handwriting and duly verified, in which petition such applicant shall state his full' name, his place of residence (by street and number, if possible), his occupation, and, if possible, the date and place of his birth. * 5: *
“The petition shall also be verified by the affidavits of at least two credible witnesses, who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously, and of the state, territory, or district in which the application is made for a period of at least one year immediately preceding the date of the filing of his petition, and that they each have personal knowledge that the petitioner is a person of good moral character, and that he is in every way Qualified, in their opinion, to be admitted as a citizen of the United States.”
“That petitions for naturalization may be made and filed during term time or vacation of the court and shall be docketed the same da.y as filed, but final action thereon shall be had only on stated days, to be fixed by rule of the court, and in no case shall final action be had upon a petition until at least ninety days have elapsed after filing and posting the notice of such petition. * * * ”
The question for determination, is, What it, under the act of 1906, “the time of his application,” at which time section 2171 excludes an alien from citizenship if his country is at war with the United States ? The government contends that it is the time of the hearing in open court, while the appellee insists that it is the time of the filing of the petition. Obviously the petition was an application for citizenship. The two witnesses who verified it were required to swear that “the applicant” was continuously a resident of the United States for at least 5 years and of the state, etc. “in which the application is made” at least 1 year preceding the date'of filing the petition. The government regards the application as a continuous act from the time of filing the petition down to and including the hearing in open court. If so, as a state of war existed April 6, 1917, between the empire of Germany and the United States, this alien should not have been admitted to citizenship by virtue of the provisions of section 2171, supra. But we think the application complete when the petition is filed, although 90 days must elapse from “the date of his application” before the hearing in open court, which is itself an independent step, and the last step in the whole proceeding. We are quite clear that “the time of his application” prescribed in section 2171 is the time of filing the petition under the act of 1906. The intervening period of 90 days is to give the government an opportunity of looking up the antecedents of the applicant and of his witnesses. This is the fair and natural construction of the language of the statutes, and is, moreover, quite consistent with the intention of Congress expressed in the act of 1813 during the war then existing with England that aliens who had declared their intention before the war should not be excluded from citizenship though war existed at the time of the hearing in open court upon the question of their admission.
The order is affirmed.
Dissenting Opinion
(dissenting). That “application” as used in Rev. Stat. 2171, is synonymous with “petition” in the act of 1906 I cannot believe. The majority agree that Congress intended not to admit to citizenship the subject of a country “at war with the United States at the time of the hearing in open court,” and yet find a statutory right to citizenship complete and perfect at a date which must always (except in the cases of soldiers and sailors) be 90 days at least before' any “hearing in open court,” legal under the act of 1906. These two propositions are, I think, inconsistent.
In 1802 Congress declared (section 2171), that no one, being an alien enemy “at the time of his application, shall be then admitted” to citizenship. It is agreed that when that statute was passed, and for over an hundred years after, “application” meant hearing in open court.
Indeed the construction adopted by this judgment makes section 2171 declare the following: An alien enemy shall not be “admitted’.’ at “the time of his application”; but “application” means “petition”; therefore such alien cannot be “admitted” at the date of his “petition.” As no alien (with the exceptions noted) can, since 1906, be admitted at date of petition, whether, he be an enemy or not, it is (to say the least) somewhat difficult to harmonize the legislation of 1802 and 1906 on the construction adopted. The “final hearing” specifically required by the present statute, and agreed to be one equivalent of the “application” under the act of 1802, becomes an idle ceremony.
Tor the reasons foregoing, I think that “application” still means hearing in open court, and that means the present statutory “final hearing” ; therefore I dissent.