The filing of a certificate of arrival, as provided in § 4,
subdivision 2, of the Naturalization Act, is an essential
prerequisite to a valid order of naturalization.
The court of naturalization having assumed to dispense with this
requirement upon proof of reasons why the certificate of arrival
could not be obtained,
held that the certificate of
naturalization was subject to be set aside, in a suit by the United
States under § 15 of the act, as a certificate "illegally
procured."
Sections 11 and 15 of the Naturalization Act afford cumulative
protection against fraudulent or illegal naturalization. In a suit
under the latter to set aside a certificate granted in disregard of
an essential requirement of the statute, the United States is not
estopped by the order of naturalization, although, pursuant to the
former section, it entered its appearance in the naturalization
proceedings and there unsuccessfully raised the same objection.
230 F. 950 reversed.
The case is stated in the opinion.
Page 245 U. S. 320
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This suit was brought under Section 15 [
Footnote 1] of the Naturalization Act (June 29, 1906;
34 Stat. 596) in the District Court of the United States for the
Northern District of Iowa, to cancel a certificate of
naturalization issued to Ness by a state court of Iowa on May 21,
1912. The naturalization is alleged to have been "illegally
procured" because the petitioner failed to file with the clerk the
certificate from the Department of Commerce and Labor "stating the
time, place and manner" of arrival as provided in Section 4,
subdivision Second. [
Footnote
2] Ness admitted this failure, but contended that, on the facts
hereinafter stated, he was nevertheless entitled to naturalization,
and that, in any event, his right thereto had become
res
judicata for the following reason: the United States entered
its appearance under Section 11 [
Footnote 3] (by the chief naturalization examiner of
Page 245 U. S. 321
the Department of Commerce and Labor) "in opposition to the
granting" of naturalization and submitted a motion that the
petition be dismissed on the ground that the certificate of arrival
was not attached. The motion was duly considered by the court and
denied. Then, after hearing the petitioner and his witnesses, the
order of naturalization was granted. This bill was filed within six
months thereafter.
The facts relied upon by Ness as entitling him to naturalization
although he had not filed the certificate of arrival were as
follows:
He emigrated from Norway and arrived at the port of Buffalo by
rail via Canada in August, 1906. Ignorant of the requirements of
the immigration and naturalization laws of the United States and
unobserved by officials of the government and of the railroad, he
entered this country without submitting himself to physical
examination, without paying the alien head tax, and without having
his entry registered. After filing his petition for naturalization,
he learned that it was defective for failure to file the
certificate of arrival, and immediately applied to the Bureau of
Immigration and Naturalization for such certificate, but found it
could not be furnished, because no registry of his entry had been
made. After receiving his certificate of naturalization, he offered
to pay the head tax and to submit himself to medical examination,
but his offer was refused. He possessed the personal qualifications
which entitle aliens to admission and to citizenship.
The district court dismissed the bill, 217 F. 169. Its decree
was affirmed by the circuit court of appeals, 230 F. 950, and this
Court granted a writ of certiorari. The case presents questions of
importance in the administration of the Naturalization Act.
Page 245 U. S. 322
First: Whether filing the certificate of arrival as
provided in Section 4, subdivision Second is an essential
prerequisite to a valid order of naturalization.
It is urged that the certificate of arrival is merely a form of
proof which the naturalization court has power to dispense with for
cause. The uses served by the certificate, the history of the
provision, and its relation to other parts of the act show that
this contention is unsound.
Section 1 requires that a registry be made of certain facts
concerning each alien arriving in the United States, and that "a
certificate of such registry with the particulars thereof be
granted" to each alien. [
Footnote
4] Section 5 requires
Page 245 U. S. 323
clerks of court to give public notice of each petition for
naturalization filed. Section 6 prohibits courts from taking final
action upon any petition until 90 days after such notice has been
given. That period is provided so that the examiners of the Bureau
of Naturalization and others may have opportunity for adequately
investigating whether reasons exist for denial of the petition. The
certificate of arrival is the natural starting point for this
investigation. It aids in ascertaining (a) whether the petitioner
was within any of the classes of aliens who are excluded from
admission by §§ 2 and 38 of the Immigration Act of February 20,
1907, c. 1134, 34 Stat. 898; (b) whether he is among those who are
excluded from naturalization under § 7 of the Naturalization Act
for political beliefs or practices; (c) whether he is the same
person whose declaration of intention to become a citizen is also
attached to the petition under § 4, subdivision second; (d) whether
the minimum period of five years' continuous residence prescribed
by § 4, subdivision fourth, has been complied with. The certificate
of arrival is, in practice, deemed so important that, in the
regulations issued by the Secretary of Labor under § 28 "for
properly carrying into execution the various provisions" of the
act, the clerk of court is advised that he "should not commence the
execution of the petition until he has received the certificate of
arrival." [
Footnote 5]
Page 245 U. S. 324
Filing the certificate of arrival being a matter of substance,
it is clear that no power is vested in the naturalization court to
dispense with it. Section 4 declares: "That an alien may be
admitted to become a citizen of the United States in the following
manner, and not otherwise." Section 27 declares: "That
substantially the following forms shall be used in the proceedings
to which they relate," and the form of petition therein prescribed
recites: "Attached hereto and made a part of this petition" is "the
certificate from the Department of Labor required by law."
Experience and investigation had taught that the widespread frauds
in naturalization, which led to the passage of the Act of June 29,
1906, were, in large measure, due to the great diversities in local
practice, the carelessness of those charged with duties in this
connection, and the prevalence of perjured testimony in cases of
this character. A "uniform rule of naturalization," embodied in a
simple and comprehensive code under federal supervision, was
believed to be the only effective remedy for then existing abuses.
And, in view of the large number of courts to which naturalization
of aliens was entrusted and the multitude of applicants, [
Footnote 6] uniformity and strict
enforcement of the law could not be attained unless the Code
prescribed also the exact character of proof to be adduced. The
value of contemporary documentary evidence was recognized, and the
certificate of arrival was therefore specifically included among
the prerequisites to naturalization. [
Footnote 7] Naturalization granted
Page 245 U. S. 325
without the certificate having been filed is therefore
"illegally procured," [
Footnote
8]
United States v. Ginsberg, 243 U.
S. 472, and it may, at least where the proceedings were
ex parte, be set aside under § 15.
Second: Whether an order entered in a proceeding to
which the United States became a party under § 11 is
res
judicata as to matters actually litigated therein, so that the
certificate of naturalization cannot be set aside under § 15, as
having been "illegally procured."
This question, discussed and left undecided, in
Johannessen
v. United States, 225 U. S. 227,
225 U. S. 238,
is, in effect: do § 11 and § 15 afford the United States
alternative or cumulative means of protection against illegal or
fraudulent naturalization under the Act of June 29, 1906?
The remedy afforded by § 15 for setting aside certificates of
naturalization is broader than that afforded in equity,
independently of statute, to set aside judgments,
United States
v. Throckmorton, 98 U. S. 61;
Kibbe v.
Benson, 17 Wall. 624; but it is narrower in scope
than the protection offered under § 11. Opposition to the granting
of a petition for naturalization may prevail because of objections
to the competency or weight of evidence or the credibility
Page 245 U. S. 326
of witnesses, or mere irregularities in procedure. A decision on
such minor questions, at least of a state court of naturalization,
is, though clearly erroneous, conclusive even as against the United
States if it entered an appearance under § 11. For Congress did not
see fit to provide for a direct review by writ of error or appeal.
[
Footnote 9] But where fraud or
illegality is charged, the act affords, under § 15, a remedy by an
independent suit "in any court having jurisdiction to naturalize
aliens in the judicial district in which the naturalized citizen
may reside at the time of bringing the suit." If this suit is
brought in the federal district court, its decision will also be
subject, under the general law, to review by the circuit court of
appeals, and, on certiorari, by this Court. Such an independent
suit necessarily involves considerable delay and expense, and it
may subject the individual to great hardship. On the other hand, a
contest in the court of naturalization is usually disposed of
expeditiously, and with little expense. The interest of all
concerned is advanced by encouraging the presentation of known
objections to naturalization at the earliest possible stage of the
proceedings, so that the petitioner may, if the defects are
remediable, remove them, and if not, may adopt without delay such
course, if any, as will ultimately entitle him to citizenship. It
would have defeated this purpose to compel the United States to
refrain from presenting any objection, or the objection of
illegality, in the court of naturalization, unless it is willing to
accept the decision of that court as final.
Page 245 U. S. 327
It was the purpose of Congress, by providing for appearances
under § 11, to aid the court of naturalization in arriving at a
correct decision, and so to minimize the necessity for independent
suits under § 15. In most cases, this assistance could be given
best by an experienced examiner of the Bureau of Naturalization
familiar with the sources of information. § 11, unlike § 15, does
not specifically provide that action thereunder shall be taken by
the United States district attorneys, and if appearance under § 11
on behalf of the government should be held to create an estoppel,
no good reason appears why it should not arise equally whether the
appearance is by the duly authorized examiner or by the United
States attorney. [
Footnote
10] But, in our opinion, § 11 and § 15 were designed to afford
cumulative protection against fraudulent or illegal naturalization.
The decision of the Circuit court of appeals is therefore
Reversed.
[
Footnote 1]
"Sec. 15. That it shall be the duty of the United States
district attorneys for the respective districts, upon affidavits
showing good cause therefor, to institute proceedings in any court
having jurisdiction to naturalize aliens in the judicial district
in which the alien may reside at the time of bringing the suit, for
the purpose of setting aside and cancelling the certificate of
citizenship on the ground of fraud or on the ground that such
certificate of citizenship was illegally procured."
[
Footnote 2]
"Sec. 4. Second: . . . At the time of filing his petition, there
shall be filed with the clerk of court a certificate from the
Department of [Commerce and] Labor, if the petitioner arrives in
the United States after the passage of this act, stating the date,
place, and manner of his arrival in the United States, and the
declaration of intention of such petitioner, which certificate and
declaration shall be attached to and made a part of said
petition."
[
Footnote 3]
"Sec. 11. That the United States shall have the right to appear
before any court or courts exercising jurisdiction in
naturalization proceedings for the purpose of cross-examining the
petitioner and the witnesses produced in support of his petition
concerning any matter touching or in any way affecting his right to
admission to citizenship, and shall have the right to call
witnesses, produce evidence, and be heard in opposition to the
granting of any petition in naturalization proceedings."
[
Footnote 4]
The requirement of such registry was first introduced by the Act
of June 26, 1906, but its importance in connection with
naturalization had long been recognized, and had been pressed upon
Congress. The Commissioner General of Immigration recommended, in
his report for 1898, p. 36:
"Each arriving immigrant, when admitted into the United States,
should be provided with a landing certificate setting forth the
name, age, sex, birth place of the immigrant, government to which
allegiance is due, the port from which the vessel sailed, the name
of the vessel, the line which it belongs to, the port it arrives
at, and the date of landing. The immigrant should be instructed, by
means of a circular, to retain the certificate for presentation
when applying for naturalization papers. A record of the facts
stated in the said circular [certificate] as to each immigrant, to
be known as an Immigration Directory, should be kept for each
fiscal year by the Bureau of Immigration. An act of Congress
authorizing such a course of procedure and requiring of the alien
presenting himself for naturalization to produce such a certificate
or a duplicate from the Immigration Directory would facilitate the
work of the courts and go far toward preventing the issuance of
fraudulent naturalization papers in the future."
Without express authority from Congress, the Bureau of
Immigration undertook, in 1900, to make such a registry and issue
certificates of arrival (McBonynge, 40 Cong. Record, p. 3644), and,
in 1902-03, a card system was introduced
"by means of which such an accurate and accessible record is
kept at every port of arrival, that at any subsequent time the
name, date of arrival, and other particulars in regard to every
alien entering the United States can be readily ascertained."
Report of Commissioner General, 1903, p. 120. For this reason,
while other provisions of the Act of June 29, 1906, did not take
effect until 90 days after its passage (see § 31), it was possible
to make § 1 effective immediately, and, under § 4, subdivision
second, the certificate of arrival is required "if the petitioner
arrives in the United States after the passage of this Act."
[
Footnote 5]
Beginning with regulations issued May 22, 1911, and including
those issued February 15, 1917.
See § 5 of the
Regulations. For a description of the practice pursued,
see Report of the Commissioner of Naturalization for 1914,
pp. 22, 23. Until Act of March 4, 1913, c. 141, 37 Stat. 736,
creating the Department of Labor, the Bureau of Naturalization was
in the Department of Commerce and Labor.
[
Footnote 6]
The average number of aliens naturalized for several years
preceding 1906 was estimated at 100,000. Report of Special
Commission on Immigration appointed by the President March 1, 1905
(59th Cong. 1st Session, Doc. 46, p. 26). In the year ending June
30, 1916, 93,911 certificates of naturalization were granted and
11,927 petitions were denied. Of these, 399 were denied for failure
to file certificate of arrival. Report of Commissioner of
Naturalization, pp. 4, 6.
[
Footnote 7]
The Act of June 29, 1906, embodies in the main the legislation
recommended in the Report of the Special Commission. The
requirement therein proposed (p. 98) concerning the certificate of
arrival was adopted in terms, except that the Commission had
proposed it should apply to all aliens arriving after Jan. 1, 1900.
The Report of Special Examiner Van Deusen, thereto annexed, states
(p. 80):
"The Code should also specifically set forth the exact proof to
be adduced by the alien and his witnesses as a precedent to the
admission of the alien. Such proof should include documentary or
other evidence of the date and place of birth and a certificate of
immigration showing the date of arrival and the port or place of
entry of the alien into the United States."
See Mr. Hayes, 40 Congressional Record, pp. 7043-44.
Report of Commissioner General of Immigration for 1909, p. 209.
[
Footnote 8]
In
In re Liberman, 193 F. 301, and
In re
Hollo, 206 F. 852, where naturalization was refused on this
ground, the petitions were dismissed without prejudice.
Compare Report of Commissioner General of Immigration for
1908, p. 191.
[
Footnote 9]
The bill submitted by the Commission on Naturalization provided
for such appellate proceedings and its proposal was recommended to
the House by the Committee on Immigration and Naturalization as §
13 (Report of Feb. 6, 1906, p. 5), but, after debate in the
Committee of the Whole (40 Cong.Rec. pp. 7784-7787), was stricken
from the bill. The bill proposed by the Commission and recommended
by the House Committee contained in addition (as § 17) the
provision for cancellation proceeding enacted as § 15.
[
Footnote 10]
In
United States v. Mulvey, 232 F. 513, where an order
for naturalization was cancelled under § 15 on grounds which the
Examiner of the Bureau of Naturalization had presented in
opposition to the granting of naturalization, stress was laid upon
the fact that the representative of the Bureau was not a law
officer of the government, and that he appeared as
amicus
curiae; but, in view of the language of § 11, the distinction
does not seem of importance.
See also Report of
Commissioner of Naturalization for 1915, pp. 20-21.