T-2591830.
Decided by Board November 18, 1954.
Denaturalization — Jurisdiction of Board to disregard judgment void on its face.
The Board of Immigration Appeals may disregard the decree of a United States District Court cancelling naturalization if the judgment is void on its face. Hence, where such a decree was entered on October 28, 1935, only 28 days after the filing of the complaint, and was based upon the defendant's waiver of notice or summons and consent to entry of such judgment, the judgment is void on its face because the court did not acquire jurisdiction in the absence of the notice or summons to the defendant required by section 15 of the Act of June 29, 1906.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No immigrant visa and passport.
BEFORE THE BOARD
Discussion: Appellant, 24 years old, married, male, was born on November 21, 1929, in Italy. He has been a legal resident of Canada since July 1, 1952, when he was admitted to Canada at Halifax, Nova Scotia, as a landed immigrant. He seeks admission to the United States for permanent residence as a citizen of the United States. He has in his possession an Italian passport which expired on August 10, 1952.
Appellant claims United States citizenship through his father, M---- C----, who was naturalized a United States citizen at Chicago, Illinois, on January 31, 1928. The special inquiry officer found that appellant's father, M---- C----, was denaturalized by a United States District Court at Chicago, Illinois, on October 28, 1935; that cancellation of citizenship for fraud results in loss of citizenship ab initio; and the appellant, therefore, never inherited United States citizenship from his father. The special inquiry officer excluded appellant as an alien, and appellant appeals from that decision.
Appellant testified that his father first came to the United States about 1904, that he made several trips to Italy and was married in that country in 1908. He became the father of four children, born in Italy, the youngest of which is appellant, born in 1929. The special inquiry officer states that after he was naturalized in Chicago in 1928, M---- returned to Italy in the early part of 1929, and remained there until September 1929. He then returned to the United States bringing with him his oldest son, N----, who is now a resident of San Francisco, California. M---- remained here until sometime in 1933, when he returned to Italy where he resided until February 1951 when he reentered the United States with a quota immigrant visa. He stayed less than a year and returned to Italy in November, 1951.
The record shows that on October 1, 1935, a petition to cancel certificate of citizenship was filed in the United States District Court for the Northern District of Illinois by the United States Attorney, reciting that M---- C---- was naturalized a citizen of the United States and that his last place of residence in the United States was Chicago, Illinois, within the jurisdiction of the court. The petition continues to recite that the United States Consul stationed at Naples, Italy, has furnished the Department of Justice with an authenticated certificate dated April 23, 1935, stating that the defendant, M---- C----, on or about ( blank) of November 1928 established permanent residence in Italy, which was within five years after January 31, 1928, the date on which he became a United States citizen. The petition states that M---- C---- has continued to reside in Italy, that he obtained his certificate of naturalization by perpetrating a fraud upon the court, in that within five years after the issuance of the certificate of naturalization he went to Italy and took up permanent residence therein, thereby demonstrating that at the time he became a citizen he did not intend to remain permanently in the United States.
Attached to the petition is an affidavit by the American Consul at Naples, Italy, before whom M---- C---- signed a consent and waiver in connection with the cancellation proceedings reciting that M---- had abandoned his United States citizenship and established permanent residence in Italy. The consent and waiver states that M---- C---- within five years after he received a decree of citizenship, and on or about the ( blank) day of ( blank) 1931 left the United States and became a permanent resident of ( blank). The consent and waiver recites further that the signer consents to entry of a decree by the appropriate district court of the United States setting aside and cancelling the decree of naturalization and declaring it null and void. The copy of the form in this record is alleged to have been signed by M---- C----. It is undated, and contains no other information.
Appellant testified that after his father returned to Italy in 1933 he went to the United States consul, who advised him that if he did not return to the United States within the time limit he would lose his United States citizenship. He did not return to the United States, and he surrendered his certificate of citizenship to the American Consul in Naples, Italy, in 1935. Appellant stated that his father told him he had lost his United States citizenship by failure to return to and take up residence in the United States.
The complaint against M---- C---- was filed on October 1, 1935, in the United States District Court for the appropriate district. The final decree purporting to cancel the citizenship of the appellant's father, was entered on October 28, 1935, less than 30 days after the date of filing of the petition. The court stated that the defendant, "having filed herein his waiver of notice or summons and consent to the entry of an order cancelling his certificate of citizenship" it would be adjudged and decreed that the petition and allegations would be taken as confessed, and the order granting citizenship to M---- C---- was then vacated.
The special inquiry officer held that M---- C---- lost his United States citizenship ab initio under section 15 of the Act of June 29, 1906, and it is as if that citizenship had never been granted him at all. Counsel alleges, however, that the cancellation of citizenship in this case was void, because the United States District Court in Chicago, Illinois, never acquired jurisdiction over the father of appellant in the denaturalization proceedings. It is alleged by counsel that the requirements of the statute with regard to notice and service were not observed by the Government, and therefore the court, having never achieved jurisdiction over M----'s person, was without power to revoke his citizenship.
Counsel cited Stenerman v. Brownell, 204 F. (2d) 336 (C.A. 9, 1953) (cited in appellant's brief as Stenerman v. McGranery) in support of his contention. The special inquiry officer rejected this authority, saying that it is the view of the Immigration and Naturalization Service that such an isolated holding is not binding upon it, and the special inquiry officer preferred to follow the ruling as to loss of citizenship under section 15 of the act of 1906 as set forth in a decision of this Board, Matter of P----, 1415-K-1181, 5 IN Dec. 218 (May 7, 1953). The special inquiry officer also cites Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101; Battaglino v. Marshall, 172 F. (2d) 979 (C.A. 2, 1949); Rosenberg v. United States, 60 F. (2d) 475 (C.C.A. 3, 1932). In none of the cases cited by the special inquiry officer was there any issue raised as to the jurisdiction of the court over the person of the naturalized alien.
There is no question but that a court may hold that a decree of another court of naturalization or denaturalization was ineffective when the defect in the decree appears on the face of the judgment ( Yamashita v. Hinkle, 260 U.S. 199 (1922), 67 L.Ed. 209 (1922), and cases there cited). However, the first question here is whether or not an administrative agency such as this Board can declare a decree of a United States District Court denaturalizing a naturalized citizen to be a nullity. We find no case involving the exact issue, but a similar question arose in United States ex rel. Lapides v. Watkins, 165 F. (2d) 1017 (C.C.A. 2, 1948), wherein the appellant contended that a board of special inquiry could make no determination as to his citizenship, that any question respecting his citizenship could only be resolved by independent judicial proceedings. The appellant had been granted United States citizenship in 1928 and remained in the United States until 1934 when he took his family to live in Palestine. After 13 years of continuous absence he returned to the United States in 1947. He presented an uncancelled certificate of citizenship and an uncancelled "certificate of identity" which had been issued to him by the United States Consulate General in Palestine. He was excluded by a board of special inquiry as an alien without the necessary documents, and the exclusion was upheld by this Board. One of the principal contentions of appellant before the Circuit Court of Appeals was that as a citizen he was unlawfully detained, because neither the Commissioner of Immigration and Naturalization nor a board of special inquiry had the power to exclude a citizen, or the jurisdiction to determine whether or not he was a citizen.
The court said that although a board of special inquiry has no jurisdiction to exclude him if he were a citizen, and though his certificate of citizenship could perhaps be canceled only in judicial proceedings conforming to the statute, the facts upon which his status depended were, in the first instance, for the administrative determination of the Board of special inquiry. The court said:
It (the board of special inquiry) was empowered to determine these facts like any others pertinent to a preliminary decision on the question of its jurisdiction (citing cases). If the appellant's status under the law was that of an alien, the Board has the same jurisdiction to act in respect to him that it would have had as to any other alien.
In a footnote the court said:
Of course the loss of the appellant's American citizenship has been judicially established in the present proceedings in the district court. But this does not meet the appellant's argument which we understand to be that he is entitled to have the initial determination as to his status by a judicial tribunal not to any extent bound by the findings of the immigration authorities.
The court held that the relator had lost his citizenship, and that the certificate of identity issued by the consul had no effect whatever to extend his time abroad without loss of citizenship, but the proceedings left his certificate of citizenship unaffected as such. Important to the present problem, was the re-affirmation by the court that the administrative agent may, and indeed must, as part of its duties re-adjudicate an applicant's citizenship status, and that no judicial proceedings were necessary to bring about his change of status.
The Supreme Court in Yamashita v. Hinkle, ( supra), upheld the action of an administrative officer in refusing to recognize a decree of naturalization erroneously issued to a person ineligible for citizenship.
On the strength of the cited authorities we conclude that we may, if necessary, reject a decree of a United States District Court granting or cancelling citizenship, if the judgement of the court is void on its face.
What is the defect on the face of the decree of denaturalization here involved alleged to be so apparent as to render the judgment void on its face? The complaint against appellant's father was filed on October 1, 1935. The decree of the court purporting to cancel the citizenship of that person was dated October 28, 1935, less than 30 days later. Counsel contends that this fact alone is sufficient to render the judgment void for failure to comply with the terms of the applicable statutes.
Section 15 of the act of 1906 requires that in a proceeding to cancel a certificate of citizenship on the ground of fraud or on the ground that it was illegally procured, the holder of the certificate of citizenship:
* * * shall have sixty days personal notice in which to make answer to the petition of the United States; and if the holder of such certificate be absent from the United States or from the district in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.
If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing of his application for citizenship, * * *.
The statute clearly provided that in the event the naturalized alien is absent from the United States, notice shall be given him in the manner provided by the laws of the state. The laws in effect in Illinois in 1935 provided for publication of notice once a week for three successive weeks, the first publication to be at least 30 days prior to the return day on which defendants are required to appear (Chapter 107, Jones Illinois Statutes Annotated, section 295). Chapter 104, Jones Illinois Statutes Annotated, section 015 provides:
No default or proceeding shall be taken against any defendant not served with summons, or a copy of the complaint and not appearing unless the first publication be at least thirty days prior to the time when such default or other proceeding is sought to be taken.
M---- C----, the naturalized alien, did not receive the 60 days personal notice provided by the act of 1906, or the thirty days notice to an absentee defendant provided by the Illinois Statute. Without proper notice to the holder of the certificate the court never secured jurisdiction over that person, and its judgment is void. In Klapprott v. United States, 335 U.S. 601 (1949), 69 S. Ct. 384, 93 L. Ed. 266, the court clearly considered that the provisions for notice and other precedural requirements are extremely important. It may be assumed from the court's decision that such provisions must be carefully observed and fulfilled.
In Bindczyck v. Finucane, 342 U.S. 76, 72 S. Ct. 130, 96 L.Ed. 100 (1951), the court also held the Government to careful compliance with the technicalities of the procedure provided by Congress for revoking citizenship on the ground of fraud. In that case also the court found that the exclusive denaturalization procedure provided by law had not been observed, and therefore the decree setting aside a naturalization order was ineffective. The court expressly referred to the fact (footnote 12) that Congress had "absorbed" into the law the "existing variations in State practice" with regard to notice and service upon absentees. The Supreme Court specifically upheld United States ex rel. Volpe v. Jordan, 161 F. (2d) 390 (C.C.A. 7, 1947), wherein it was said that only Congress could prescribe the conditions and terms upon which a certificate of naturalization might be revoked, that it had done so, and that no rule in conflict with the prescribed procedure would be of any effect.
These cases are consistent with the rule that substituted service by publication is a statutory invention in derogation of the common law and that there must, therefore, be strict compliance with the statute authorizing such service ( United States v. Sotis, 131 F. (2d) 783 (C.C.A. 7, 1942); Galpin v. Page, 85 U.S. 350, 18 S. Ct. 350, 21 L. Ed. 959; United States v. Kiriaze, 172 F. (2d) 1000 (C.A. 5, 1949); and United States ex rel. Stabler v. Watkins, 168 F. (2d) 883 (C.C.A. 2, 1948)).
It is necessarily the position of the Immigration Service that the form of consent and waiver by which M---- C---- purported to consent to the entry of a decree cancelling his United States citizenship, gave the court jurisdiction to enter a decree against him, even though Federal and state statutory requirements as to notice and procedure had not been met. The reported cases indicate that this is not a sound position.
Contrary to the special inquiry officer, we do feel ourselves bound by the decision of Judge Stephens in the case of Stenerman v. Brownell ( supra). In that case the court states:
It is obvious that judgment canceling Stenerman's citizenship cannot stand if the proceedings on their face show that no jurisdiction of his person was acquired. The question is then presented: Did the Court have the power to receive the document signed by Stenerman as conclusive of the statements in it and proceed in Stenerman's absence and without notice to him to make the denaturalization order?
There is much in the books on the subject of judgment by confession and it will be noted in but a brief study of the subject that such judgments are generally related to the acknowledgment of debt, and are limited to permissive statutes strictly construed. There is no federal statute on the subject. Of course, a party in court may confess a judgment or consent that a judgment may be taken against him, but Stenerman never was in court in the denaturalization proceedings.
Jurisdiction over the person against whom the judgment is to run is never assumed by or through oral testimony or a statement in writing of one who is not known by the court in a legal manner to have the right to act for the person. There is no law authorizing a court to accept a statement even though signed and sworn to before an immigration officer, as conclusive proof of its contents. No matter how real and genuine the statement may appear to be, it may be entirely false or totally void because given under pressure and hence not a free act. If a court could accept such a statement as conclusive of its contents, no person would be free from the possibility of discovering, at any time, that a self-enforcing judgment had been pronounced against him without notice and without his day in court. * * *"
Apparently, the procedure followed by the Government in the Stenerman case was identical with that pursued in the present proceeding. The only distinction is that Stenerman was in jail at the time the consent to cancellation was obtained from him, and he had never left the United States. The court therefore concluded in that case that his naturalization had been in full force and effect up to the day he appeared before the court, and that he had never lost his citizenship. In United States ex rel. Volpe v. Jordan ( supra), the Circuit Court said:
Surely petitioner did not and could not have waived the statutory provision which Congress had enacted providing the specific and definite means by which his citizenship could be revoked. Neither can any statements made or acts performed by petitioner be utilized to legalize the order of April 3, 1920. That order if void when entered is void today.
It is our conclusion that the consent and waiver signed by M---- C---- did not confer jurisdiction on the court to vacate his decree of citizenship, when the court's jurisdiction was defective for lack of proper notice.
Appellant, as son of M---- C----, may attack the decree of the United States District Court cancelling his father's citizenship, even at this late date, because "a void judgment is no judgment," In re Gee Hop, 71 Fed. 274 (N.D. Calif., 1895), and "A judgment void upon its face may be attacked at any time and in any proceeding, and the same may be disregarded," In re Yamashita, 30 Wash. 234 (S. Ct. Wash., 1902), sustained in Yamashita v. Hinkle, ( supra). In Sanders v. Clark, 76 F. Supp. 489 (E.D. Pa., 1948), 85 F. Supp. 253 (E.D. Pa., 1949), the court held that a son was not bound by a consent decree cancelling his father's citizenship for presumptive fraud, and the son was held to be a United States citizen. See also Anderson v. Anderson, 292 Ill. App. 421, 428, 11 N.E. (2d) 216, 219; Freeman on Judgments, (2d ed.) par. 98, and 31 Am. Juris., par. 612.
The special inquiry officer found that there is no evidence that appellant has committed any act which would result in the loss to him of his United States citizenship acquired at birth.
It is our conclusion that the United States District Court for the Northern District of Illinois, Eastern Division, did not acquire jurisdiction of M---- C---- in accordance with the provisions of the applicable statutes, and that, therefore, the decree of that court vacating the order of naturalization of January 31, 1928, entered on October 28, 1935, was void. It is our further conclusion that this Board has the jurisdiction to make this finding, and that appellant may and has successfully attacked that judgment, and that appellant is now and has been since birth a United States citizen, and must be admitted to this country as such.
Order: It is ordered that the appellant be admitted to the United States as a United States citizen.
Footnote: Since the above decision was signed, it is supported and enhanced by the opinion in Laranjo v. Brownell, 126 F. Supp. 370 (N.D. Calif., 1954), wherein the court granted the plaintiff's motion for summary judgment that she be declared a United States national under sec. 360, 1952 act, 8 U.S.C. 1503. The decision was based in part upon Stenerman v. Brownell, (supra), and found a decree of denaturalization in 1931 by the United States District Court in Massachusetts to be a nullity, for inadequate notice to plaintiff's father. The court found further that the decree naturalizing plaintiff's father in 1886 can be collaterally attacked today only by an affirmative plea of fraud going to the jurisdiction of the naturalization court and not by any defense of fraud based on the presumptions of the 1906 and 1907 acts.