A-2544646
Decided by the Board August 11, 1953
Denaturalization — Retroactive effect — Deportability for crime within 5 years of entry as a United States citizen whose naturalization is subsequently revoked.
(1) The effect of a decree of denaturalization, as distinguished from expatriation or forfeiture of citizenship, is to declare that the "naturalized" person never was in fact naturalized because either by fraud or illegality the statutory prerequisites were not met. The provisions of the 1906 act relative to revocation of naturalization were made retroactive.
(2) An individual who was convicted of the crime of perjury in 1932 is deportable under the Immigration Act of 1917 even though he was readmitted to the United States in 1930 as a United States citizen, since his denaturalization in 1939 revoked his naturalization ab initio.
CHARGE:
Warrant: Act of 1917 — crime within 5 years, to wit: Perjury.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of special inquiry officer, dated March 20, 1953, directing the subject's deportation from the United States in the manner provided by law, on the above-stated grounds.
This record relates to a 55-year-old male, a native of Italy. He first arrived in the United States at New York on May 25, 1914, and was then lawfully admitted for permanent residence. He was admitted to United States citizenship in the United States District Court, Cleveland, Ohio, on November 15, 1929. He departed for a 3-month visit to Italy in November of 1929, and upon his return to this country was admitted as a citizen hereof upon presentation of a United States passport, at New York on March 1, 1930.
The record shows that B---- was convicted of the crime of perjury in the Common Pleas Court, Cuyahoga County, Cleveland, Ohio, on June 2, 1932 (the crime was committed on or about April 7, 1932); that he was sentenced to imprisonment in the Ohio State Penitentiary, Columbus, Ohio, for an indeterminate period; that he was committed to that institution on April 24, 1933; and that he served 44 months until December 1, 1936, when his sentence was commuted by the Governor of Ohio. There was entered into evidence a certified copy of Order 5664, issued in the United States District Court. Cleveland, Ohio, on April 12, 1939, in which it was directed that the order of the United States District Court, Cleveland, Cuyahoga County, Ohio, entered on November 15, 1929, admitting B---- to citizenship be vacated and annulled, and certificate of naturalization No. 3200557, issued by virtue of said order, cancelled.
On the basis of the foregoing, the special inquiry officer concluded that B----'s naturalization was cancelled on the grounds of fraud and, therefore, that his citizenship was erased ab initio. Accordingly, that official considered that B---- must have been an alien at the time of his last entry, March 1, 1930; that perjury is a crime involving moral turpitude (which is so well recognized as to obviate further discussion); and that, since B----'s conviction occurred in 1932, he was deportable on the charge contained in the warrant of arrest.
The Service has pointed out that section 15 of the Naturalization Act of 1906 ( 34 Stat. 601; 8 U.S.C. 405), set forth two grounds for revocation of naturalization, viz-fraud or illegal procurement, and takes the position that when naturalization is canceled on either ground, the individual's citizenship is revoked ab initio and he is placed in the status of one who never was a citizen. Counsel, on the other hand, contends that naturalization is erased ab initio only in those instances where it has been canceled for fraud. It is then alleged that B----'s naturalization was not revoked for fraud because the court order itself does not show fraud and that we cannot go behind that order.
The pertinent portion of the court order reads as follows: "* * * by stipulation it was agreed that the defendant withdraw his answer heretofore filed herein, and the allegations of the complaint set forth on page 3 thereof under `C', to wit: `(C) Said petition was not verified by the affidavits of two credible witnesses,' are admitted to be true, * * *."
It is clear that, on the basis of the present record, we cannot determine in just what respects B----'s witnesses were not credible. But it is also clear that he had the burden of producing credible witnesses, for the courts have held that, "The obligation is clearly the petitioner's to secure witnesses who shall meet the statutory requirements and testify truthfully concerning their knowledge of his residence, moral character and attachment to the principles of the Constitution." ( United States v. Moskowitz, 39 F. Supp 989.) In addition, the courts have stated that, "The term `illegally procured' connotes affirmative, willful misconduct on the part of the holder of a certificate of citizenship or those acting for him, to impose on the court or to induce the governmental agents to act in a manner not authorized by law." ( United States v. Bialoglowski, 21 F. Supp. 613.)
While perhaps we cannot hold, on the basis of this record, that B----'s naturalization was revoked for fraud, it is interesting to note that the courts have revoked naturalization for fraud in a case where it has been obtained through the perjured testimony of witnesses as to the petitioner's residence. ( Johannessen v. United States, 225 U.S. 227.) In that case the court stated: "It is his (the petitioner's) province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist, and if they do not he takes nothing by his paper grant. Fraud cannot be substituted for facts." In that same case the court made it clear, also, that the revocation of naturalization wiped out citizenship ab initio.
In view of the foregoing judicial pronouncements it is obvious to us that B----'s naturalization was canceled because of affirmative and willful misconduct, if not on his part, then on the part of witnesses for whose testimony he was responsible. If this conduct does not constitute fraud, actual or constructive, then, in our opinion at least, it constitutes conduct akin to fraud.
While we are not prepared to find, on the basis of this record, that B----'s naturalization was revoked for fraud, we do not feel that such a finding is required to hold him deportable on the grounds urged by the special inquiry officer. We have carefully considered the arguments advanced both by counsel for the alien and the Service. We have exhaustively examined the cases cited by them and we have conducted our own research. As a result, it is our conclusion that the effect of the order revoking B----'s naturalization was retroactive.
The effect of a decree of denaturalization, as distinguished from expatriation or forfeiture of citizenship, is to declare that the "naturalized" person never was in fact naturalized, because either by fraud or illegality the statutory prerequisites were not met. The naturalization laws make certain reservations, saving the naturalization of children who derive citizenship from a parent from the alienage which they would otherwise incur because of the fraudulent or illegal naturalization (Nationality Act of 1940, section 338 (d).
See Report of the Committee on the Judiciary pursuant to S. Res. 137, S. Rep 1515, 81st Cong., 2d sess., p. 755, et seq.
Although the courts have not in every case distinguished between fraudulent and illegal naturalization, the statute lists these terms separately. The failure of the courts to distinguish between these terms or upon occasion to denaturalize for "fraud and illegality" has resulted in considerable confusion, not only of abstract legal theory but of concrete status of derivative citizens. However, there is no question but that the provisions of the 1906 act relative to revocation of naturalization were made retroactive ( supra).fn2
Nor is B----'s deportation under the act of 1917 precluded because of the circumstance that he was admitted to this country as a citizen hereof in 1930, upon presentation of a valid passport. The proper scope of the act of 1917 as applied to this case is found in the ordinary meaning of its words.
The provisions of the act of 1917, as amended, here pertinent, are as follows: "Section 19 (a) * * * Any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within 5 years after the entry of the alien to the United States * * *."
The words of the act require that all persons to be deported thereunder shall be aliens. They do not limit its scope to aliens who have never been naturalized. They do not exempt those who have secured certificates of naturalization, but then have lost them by court order. They do not suggest that such persons are not as clearly "aliens" asthey were before their naturalization. B----'s conviction for the designated offense is a condition precedent to his deportability, and his status as an alien is a necessary further condition. When both conditions are met, and they are here, the act is satisfied ( Eichenlaub v. Shaughnessy, 338 U.S. 521).
The case of Mangoang v. Boyd, 186 F. (2d) 191 (C.A. 9, 1950), required the coexistence of alienage and Communist Party membership to support an order of deportation, but we do not think that case controls here. In the first place, the court therein was confronted with an alleged ambiguity in sec. 22 of the Internal Security Act of 1950 ( 40 Stat. 1012, 41 Stat. 1008, 54 Stat. 673), which is not presented by the 1917 act. Secondly, Mangoang enjoyed a peculiar status under the law ( Cabebe v. Acheson, 183 F. (2d), 795).
We have previously pointed out that B----'s denaturalization revoked his naturalization ab initio. On the basis of the foregoing, we find that he is deportable under the Immigration Act of 1917, as amended. No other questions have been presented for our consideration. Accordingly, the appeal must be dismissed and we will now so order.
Order: It is ordered that the appeal be and the same is hereby dismissed.