and consequently his residence here from the time of his admission to the date of his naturalization was not such a permanent residence as qualified him for naturalization. If the premise of illegal admission be granted, we must admit that this contention is sound. Fanariotis v. U.S. (C.C.A.) 63 F.2d 352. The government also contends that the respondent's naturalization was fraudulently and illegally procured by reason of the fact, that, in his petition for naturalization, he falsely stated that he was born in Ragnit, Germany. It will thus be seen that the government's position depends entirely upon proof by it that the respondent was not born in Germany, but rather in Lithuania as it contends.
To support the burden of proof thus cast upon it, the government introduced at the hearing copies of two documents duly certified and authenticated by the proper American Consular officers and the Acting Secretary of State, which were received by the trial judge subject to objection and later ruling as to their admissibility. The first was a baptismal certificate, issued by the Rector of the Roman Catholic Church at Kupiskis, Lithuania, certifying from the church record that on June 13, 1902, a child named Jones Bukys was baptized there. The certificate contained recitals of the date and place of birth of the child and of the names of his parents. This was merely a church record of baptism and it was not admissible to prove the date or place of birth, even though it contained recitals of those facts. Dailey v. Grand Lodge, 311 Ill. 184, 142 N.E. 478; State v. Larocca, 157 La. 50, 101 So. 868, 36 A.L.R. 686; Durfee v. Abbott, 61 Mich. 471, 475, 28 N.W. 521; Houlton v. Manteuffel, 51 Minn. 185, 53 N.W. 541; Supreme Assembly, Royal Society v. McDonald, 59 N.J.Law 248, 35 A. 1061; State v. Snover, 63 N.J.Law, 382, 43 A. 1059; Clark v. Trinity Church, 5 Watts & S.(Pa.) 266, 269; Herman v. Mason, 37 Wis. 273; Lavin v. Mutual Aid Society, 74 Wis. 349, 43 N.W. 143; Sitler v. Gehr, 105 Pa. 577, 600, 51 Am.Rep. 207.
The other document offered by the government was a certificate dated July 11, 1934, by the civil registrar of Ragnit that he was authorized to issue birth certificates and that the local civil registers did not show that Johann Bukis was born in Ragnit. This was also inadmissible since proof that something is not to be found in the records may not be made by a mere certificate of the custodian, but is a matter of fact which must be shown by the testimony of a person who has searched the records, with an opportunity to cross-examine. United States v. Bass (C.C.A.) 64 F.2d 467, 470; Polk's Lessee v. Wendell, 5 Wheat. 293, 310, 5 L. Ed. 92.
The two documents referred to constituted the only relevant evidence offered by the government to prove that the respondent was born in Lithuania and not in Germany and, since neither of them was competent for that purpose, it follows that the government has failed to meet the burden of proof cast upon it.
The petition is dismissed.
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