UNITED STATES v. NESS.

This suit was brought under Section 151 of the Naturalization Act (June 29, 1906; 34 Stat. 596) in the District Court of the United States for the Northern District of Iowa, to cancel a certificate of naturalization issued to Ness by a state court of Iowa on May 21, 1912. The naturalization is alleged to have been 'illegally procured,' because the petitioner failed to file with the clerk the certificate from the Department of Commerce and Labor 'stating the time, place and manner' of arrival as provided in Section 4, subdivision Second.2 Ness admitted this failure; but contended that on the facts hereinafter stated he was nevertheless entitled to naturalization, and that, in any event, his right thereto had become res judicata for the following reason: The United States entered its appearance under Section 113 (by the chief naturalization examiner of the Department of Commerce and Labor) 'in opposition to the granting' of naturalization and submitted a motion that the petition be dismissed on the ground that the certificate of arrival was not attached. The motion was duly considered by the court and denied. Then, after hearing the petitioner and his witnesses, the order of naturalization was granted. This bill was filed within six months thereafter.

The facts relied upon by Ness as entitling him to naturalization, although he had not filed the certificate of arrival, were as follows:

He emigrated from Norway and arrived at the port of Buffalo by rail via Canada in August, 1906. Ignorant of the requirements of the immigration and naturalization laws of the United States and unobserved by officials of the government and of the railroad, he entered this country without submitting himself to physical examination, without paying the alien head tax, and without having his entry registered. After filing his petition for naturalization he learned that it was defective for failure to file the certificate of arrival and immediately applied to the Bureau of Immigration and Naturalization for such certificate, but found it could not be furnished, because no registry of his entry had been made. After receiving his certificate of naturalization, he offered to pay the head tax and to submit himself to medical examination; but his offer was refused. He possessed the personal qualifications which entitle aliens to admission and to citizenship.

The District Court dismissed the bill (D. C.) 217 Fed. 169. Its decree was affirmed by the Circuit Court of Appeals, 230 Fed. 950, 145 C. C. A. 144, Ann. Cas. 1917C, 41, and this court granted a writ of certiorari, 242 U. S. 634, 37 Sup. Ct. 18, 61 L. Ed. 538. The case presents questions of importance in the administration of the Naturalization Act. First: Whether filing the certificate of arrival as provided in Section 4, subdivision Second is an essential prerequisite to a valid order of naturalization.

It is urged that the certificate of arrival is merely a form of proof which the naturalization court has power to dispense with for cause. The uses served by the certificate, the history of the provision and its relation to other parts of the act show that this contention is unsound.

Section 1 requires that a registry be made of certain facts concerning each alien arriving in the United States; and that 'a certificate of such registry with the particulars thereof be granted' to each alien.4 Section 5 (Comp. St. 1916, § 4353) requires clerks of court to give public notice of each petition for naturalization filed. Section 6 prohibits courts from taking final action upon any petition until 90 days after such notice has been given. That period is provided so that the examiners of the Bureau of Naturalization and others may have opportunity for adequately investigating whether reasons exist for denial of the petition. The certificate of arrival is the natural starting point for this investigation. It aids in ascertaining (a) whether the petitioner was within any of the classes of aliens who are excluded from admission by Sections 2 and 38 of the Immigration Act of February 20, 1907 (c. 1134, 34 Stat. 898, Comp. St. 1916, §§ 4244, 4287); (b) whether he is among those who are excluded from naturalization under Section 7 of the Naturalization Act (Comp. St. 1916, § 4363) for political beliefs or practices; (c) whether he is the same person whose declaration of intention to become a citizen is also attached to the petition under Section 4, subdivision Second; (d) whether the minimum period of five years' continuous residence prescribed by Section 4, subdivision Fourth, has been complied with. The certificate of arrival is in practice deemed so important that in the regulations issued by the Secretary of Labor under Section 28 (Comp. St. 1916, § 4383) 'for properly carrying into execution the various provisions' of the act, the clerk of court is advised that he 'should not commence the execution of the petition until he has received the certificate of arrival.'5

Filing the certificate of arrival being a matter of substance, it is clear that no power is vested in the naturalization court to dispense with it. Section 4 declares:

'That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise.'

Section 27 declares: 'That substantially the following forms shall be used in the proceedings to which they relate'; and the form of petition therein prescribed recites: 'Attached hereto and made a part of this petition' is 'the certificate from the Department of Labor required by law.' Experience and investigation had taught that the widespread frauds in naturalization, which led to the passage of the Act of June 29, 1906, were, in large measure, due to the great diversities in local practice, the carelessness of those charged with duties in this connection, and the prevalence of perjured testimony in cases of this character. A 'uniform rule of naturalization,' embodied in a simple and comprehensive code under federal supervision, was believed to be the only effective remedy for then existing abuses. And in view of the large number of courts to which naturalization of aliens was intrusted and the multitude of applicants6—uniformity and strict enforcement of the law could not be attained unless the Code prescribed also the exact character of proof to be adduced. The value of contemporary documentary evidence was recognized; and the certificate of arrival was, therefore, specifically included among the prerequisites to naturalization.7 Naturalization granted without the certificate having been filed, is, therefore, 'illegally procured';8United States v. Ginsberg, 243 U. S. 472, 37 Sup. Ct. 422, 61 L. ed. 853; and it may, at least where the proceedings were exparte, be set aside under Section 15.

Second: Whether an order entered in a proceeding to which the United States became a party under Section 11 is res judicata as to matters actually litigated therein, so that the certificate of naturalization cannot be set aside under Section 15, as having been 'illegally procured.'

This question, discussed and left undecided, in Johannessen v. United States, 225 U. S. 227, 238, 32 Sup. Ct. 613, 56 L. Ed. 1066, is, in effect: Do Section 11 and Section 15 afford the United States alternative or cumulative means of protection against illegal or fraudulent naturalization under the Act of June 29, 1906?

The remedy afforded by Section 15 for setting aside certificates of naturalization is broader than that afforded in equity, independently of statute, to set aside judgments, United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Kibbe v. Benson, 17 Wall. 624, 21 L. Ed. 741; but it is narrower in scope than the protection offered under Section 11. Opposition to the granting of a petition for naturalization may prevail, because of objections to the competency or weight of evidence or the credibility of witnesses, or mere irregularities in procedure. A decision on such minor questions, at least of a state court of naturalization, is, though clearly erroneous, conclusive even as against the United States if it entered an appearance under Section 11. For Congress did not see fit to provide for a direct review by writ of error or appeal.9 But where fraud or illegality is charged, the act affords, under Section 15, a remedy by an independent suit 'in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit.' If this suit is brought in the federal District Court, its decision will also be subject, under the general law, to review by the Circuit Court of Appeals, and, on certiorari, by this court. Such an independent suit necessarily involves considerable delay and expense; and it may subject the individual to great hardship. On the other hand, a contest in the court of naturalization is usually disposed of expeditiously and with little expense. The interest of all concerned is advanced by encouraging the presentation of known objections to naturalization at the earliest possible stage of the proceedings; so that the petitioner may, if the defects are remediable, remove them, and if not, may adopt, without delay, such course, if any, as will ultimately entitle him to citizenship. It would have defeated this purpose to compel the United States to refrain from presenting any objection, or the objection of illegality, in the court of naturalization, unless it is willing to accept the decision of that court as final.

It was the purpose of Congress, by providing for appearances under Section 11, to aid the court of naturalization in arriving at a correct decision and so to minimize the necessity for independent suits under Section 15. In most cases this assistance could be given best by an experienced examiner of the Bureau of Naturalization familiar with the sources of information. Section 11, unlike Section 15, does not specifically provide that action thereunder shall be taken by the United States district attorneys; and if appearance under Section 11 on behalf of the government should be held to create an estoppel, no good reason appears why it should not arise equally whether the appearance is by the duly authorized examiner or by the United States attorney.10 But in our opinion Section 11 and Section 15 were designed to afford cumulative protection against fraudulent or illegal naturalization. The decision of the Circuit court of appeals is therefore

Reversed.