the provisions of subsection (a) of section 738 shall not, where such action takes place after the effective date of this chapter, result in the loss of citizenship or any right or privilege of citizenship which would have been derived by or available to a wife or minor child of the naturalized person had such naturalization not been revoked, but the citizenship and any such right or privilege of such wife or minor child shall be deemed valid to the extent that it shall not be affected by such revocation: Provided, That this subsection shall not apply in any case where the revocation and setting aside of the order was the result of actual fraud.' (Emphasis supplied.)
In the meantime, deportation proceedings had been instituted against plaintiff, charging that he was an alien unlawfully in the United States. These proceedings culminated in an order of deportation, entered by the Commissioner of Immigration and Naturalization on September 2, 1947. The plaintiff has not yet been taken into custody under this order.
In his complaint, plaintiff seeks a declaration of his citizenship and an injunction against the pending deportation proceedings. The government has moved to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, alleging that the plaintiff cannot collaterally attack the denaturalization decree, that it rested upon 'actual fraud', and that in any event no injunctive relief can be granted.
The issue as to the effect of the prior judgment against plaintiff's father is a difficult one because it poses the legality of a harsh result. Judicial interpretation of the denaturalization statute has provided, in effect, that plaintiff can be divested of his citizenship without ever having a chance at an effective day in court. The first statute providing for the revocation of naturalization contained no provision as to the effect of cancellation upon the derivative citizenship of a defendant's wife or child. 34 Stat. 601, 8 U.S.C.A. 405. However, some of the earlier cancellation cases based upon the ground of fraud intimated that a cancellation proceeding simply deprived the naturalized person of a privilege that was never rightfully his. Johannessen v. United States, 225 U.S. 227, 32 S. Ct. 613, 56 L. Ed. 1066; Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101. Subsequent cases reasoned that since no rights were conferred on the denaturalized person by the fraudulent naturalization, no rights could be derived by his wife or child. Cf. Rosenberg v. United States, 3 Cir., 60 F.2d 475; see In re Findan, D.C., 4 F.Supp. 189, 190. This derivative reasoning received Congressional sanction in the Nationality Act of 1940, 8 U.S.C.A. 501 et seq. Cf. United States v. Orth, D.C., 51 F.Supp. 682. However, it was also held that in the denaturalization proceeding, these derivative citizens need not be parties. Thus, in Rosenberg v. United States, 3 Cir., 60 F.2d 475, certiorari denied 287 U.S. 645, 53 S. Ct. 91, 77 L. Ed. 558, a wife who claimed derivative citizenship petitioned to intervene in a denaturalization proceeding against her husband. The petition was denied. And United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 136 F.2d 935, certiorari denied Krause v. United States, 327 U.S. 781, 66 S. Ct. 680, 90 L. Ed. 1008, affirmed the action of a trial court in denying an application for the appointment of a guardian ad litem to protect the interests of defendant's three year old son. Under the reasoning of those cases, therefore, the derivative citizenship of a child or wife may be effectively cancelled without a chance to contest it, if a prior denaturalization decree has conclusive effect. Moreover, it seems at least implicit in the opinions dealing with the problem that this is so, i.e., that the former judgment binds the wife or child, if the issue of actual fraud was there decided. Cf. In re Findan, D.C., 4 F.Supp. 189; In re Bolter, D.C., 66 F.Supp. 566.
Whether this view is correct is, at least, open to doubt. A naturalization proceeding is a determination of status, similar, for example, in this respect to an adjudication of majority, sanity, marriage or divorce. See Freeman, Judgments, Sec. 1534. A denaturalization proceeding is the reverse side of the shield. There is a difference of opinion as to what a judgment settling a status decides, beyond the fact of status itself; i.e., whether the facts upon which the judgment of status rests are established as against those not parties to the suit. Thus, the Restatement of Judgment, Section 74, c, provides: 'Although a valid judgment in rem is binding on all the world as to the existence of a status which is the subject of the action, it is not conclusive as to a fact upon which the judgment is based in any subsequent action (not involving the existence of the status), except as to persons who have appeared and actually litigated the question of the existence of the fact.' But a different formulation is not difficult to locate. See Freeman, Section 15. There is no question, I feel, that plaintiff's father's status was changed in the former proceeding from citizen to alien, and that plaintiff is bound by that insofar as it affects him. But the crucial issue in this case is whether the facts which would justify a legal conclusion of actual fraud were also established in that case, and whether plaintiff is bound by that as well. Where a fact is important to the outcome of an action and that fact was involved in a former adjudication of status, precedent can be found to support any of three different positions; that the former judgment is of no evidence (Cf. Stricker v. Scott, 283 Mass. 12, 186 N.E. 45); that it is of some evidence (Cf. Messinger v. Prudential Ins. Co., Sup., 32 N.Y.S.2d 48; In re Cole's Estate, 75 Colo. 264, 226 P. 143) and that it is conclusive ( State v. McDonald, 108 Wis. 8, 84 N.W. 171, 81 Am.St.Rep. 878) in the subsequent proceedings as to the existence of the fact. Of these three views, the second seems preferable to me. It neither unduly extends principles of res judicata nor discards evidence of obvious probative value.
Moreover, the facts of the instant case, suggest further reason for following the middle course. The right upon which plaintiff seeks a judicial declaration is a very dear one today. Accepting as true the facts as alleged in the complaint in the former denaturalization proceeding might in effect destroy plaintiff's citizenship. It is true, of course, that the merits or equities of plaintiff's case are actually irrelevant, and that short of taking the view that derivative denaturalization is unconstitutional (see Knauer v. United States, 328 U.S. 654, 679, 66 S. Ct. 1304, 90 L. Ed. 1500) his right to citizenship stands or falls with his father's, where the latter was guilty of actual fraud in obtaining his certificate. But the effect of a rule should not be ignored, especially so when the proceeding in which it is to be used involves grave issues. Moreover, the judgment which the government seeks to invoke as a bar in this proceeding was entered upon the consent of the parties. Nothing was there actually litigated; no evidence was produced. While there is no doubt that the status itself was established, within the confines of allowable collateral attack, it is going far indeed to attribute conclusiveness to the facts which the government was urging as ground for revocation of citizenship. Upon the facts of this case, there is some doubt in my mind whether even the father would be precluded by principles of res judicata from relitigating the issue of fraud as distinguished from the issue of status in some other cause of action between the same parties.
It may well be that the proper way to handle this situation is to afford a child or spouse representation in the prior denaturalization proceeding. Certainly, where for reasons of malice or ineptitude, the father would not defend his naturalization against government attack to the best of his ability, this procedure might be justified. But in the absence of such protection it seems a harsh result to deny a person a chance to participate and then bind him conclusively by the result, where the effect may be to deprive him of citizenship. Accordingly, therefore, I shall deny the government's motion to dismiss. The government's contention that plaintiff, in any event, would not be entitled to injunctive relief would seem to fall under the recent decision of the Circuit Court of Appeals, United States ex rel. Trinler v. Carusi, 3 Cir., 166 F.2d 457.
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