disregard for the duty imposed upon him as to create a presumption that he acted fraudulently. Here, however, the respondent supplied the information to one who was apparently an officer of the court, and who inserted the facts given him by the respondent. The respondent did not understand the questions asked and, the entire procedure being clothed with an aura of authority, I feel that the respondent should now now be found to have acted fraudulently.
The Government contends that the Certificate of Citizenship was procured illegally, because the respondent's absence from the United States for more than six months and less than one year raises a presumption, unrebutted in the record of the naturalization proceeding, that the continuity of residence has been broken. Thus, it is contended that the requirement, that the alien must have five years' continuous residence in the United States of America, and immediately preceding the filing of the petition, has not been proved, and consequently the respondent has failed to meet one of the qualifications of the Act.
In support of this contention the Government has quoted at length from Schwinn v. United States, 9 Cir., 112 F.2d 74. In that case, the respondent's witnesses had not known him for the required five-year period, although the record in the cancellation proceeding revealed that the respondent had in fact actually resided continuously in the United States for the requisite period. The lower court cancelled the Certificate of Citizenship on the ground of fraud as well as illegality. The Circuit Court of Appeals affirmed but restricted its decision to the ground of fraud and, therefore, is not authority for the proposition here under consideration. However the Schwinn case is distinguishable on its facts because there one of the requirements of the statute had not been met; i.e., verification of the petition by two witnesses who knew the petitioner for a period of five years. 8 U.S.C.A. § 379, now repealed. See 8 U.S.C.A. 709(a) and 732.
The rule for determining illegality is well stated in United States v. Ginsberg, 243 U.S. 472, 37 S. Ct. 422, 425, 61 L. Ed. 853: "No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in § 15 [ 8 U.S.C.A. §§ 738, 804], and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence nonessential." (Emphasis added.)
The fallacy of the Government's contention is clear when tested by this rule. One of the prescribed qualifications, and sometimes called jurisdictional, Rosenberg v. United States, 3 Cir., 60 F.2d 475, is five years' continuous residence. The provision relative to an absence of more than six months and less than a year relates only to the burden of proof of continuous residence.Illegality consists not of failure of proof but of non-existence of an essential requirement provided by law. Here the facts shown clearly justify the absence of the respondent in 1927 and 1928, and the five years continuous residence exists in fact. Therefore, I feel that the respondent's innocent concealment of his absence, and consequent failure to rebut a presumption which did not appear of record at the time his petition for citizenship was acted upon, extends only to a matter of evidence, and does not taint the proceeding with illegality. Since the qualification of five years' continuous residence did in fact exist, the respondent's Certificate of Citizenship was not procured illegally and should not be cancelled for that reason.
Conclusions of Law.
1. Under the circumstances in this case, the evidence as to fraud on the part of the respondent is not sufficiently clear and satisfactory to justify the revocation of respondent's Certificate of Citizenship.
2. The absence of the respondent from the United States in 1927 and 1928 did not break the continuity of his residence for five years immediately preceding the date of filing of his petition for citizenship, and the respondent did not procure his Certificate of Citizenship illegally.
3. The petition for cancellation of respondent's Naturalization Certificate should be dismissed.
Now, February 7, 1942, it is ordered that the petition for cancellation of Naturalization Certificate of Nicodemo Mazzoni be, and it is hereby, dismissed.
© 1992-2004 VersusLaw Inc.