Neuberger v. United States , 13 F.2d 541 ( 1926 )

HAND, Circuit Judge

(after stating the facts as above). That Neuberger’s domicile remained in New York there is not the slightest question. On the record, his detention until December, 1918, was involuntary, and while the explanation of his subsequent delay of over two years before returning might prove inadequate upon cross-examination, or upon a trial under a bill to eaneel, we shall accept it for the purposes of this appeal. Indeed, even if he voluntarily lingered for a part of that time, it would not have lost him his domicile. New York was his adopted home, and he clearly never meant to abandon it. But residence is another thing from domicile, though just what it is, is not altogether plain. In U. S. v. Mulvey, 232 F. 513, 146 C. C. A. 471, we held that an alien, who, having established a residence here, had voluntarily absented himself for over two years out of the five, had lost his residence, though his domicile remained. We have no question of the correctness of that decision, or of the language in it which involves the conclusion that a man may have continuous residence if he is away for one year; but not if he is away for two. In so far, however, as it may be thought to hold that there is a period of absence which of itself and without more will break the continuity of the alien’s residence, it is misapprehended. Absence or absences may be, and, when voluntarily, generally are, a controlling test, but only as evidence of the alien’s state of mind towards the place of supposed residence. Of themselves they are immaterial, once the residence is established; in this, residence is like domicile. Were it not so, the rule must have been that any absence is fatal to continuous residence, which is contrary to all the books. In re An Alien, Fed. Cas. No. 201a; In re Schneider (C. C.) 164 F. 335; U. S. v. Rockteschell, 208 F. 530, 125 C. C. A. 532 (C. C. A. 9); In re Deans (D. C.) 208 F. 1018; Id., 230 F. 957, 145 C. C. A. 151 (C. C. A. 8); In re Timourian (D. C.) 225 F. 570; U. S. v. Jorgenson, 241 F. 412; In re Reichenburg, 238 F. 859; U. S. v. Cantini, 212 F. 925, 129 C. C. A. 445 (C. C. A. 3); In re Mulvey, 232 F. 513, 146 C. C. A. 471 (C. C. A. 2).

We shall not try to define what is the necessary attitude of mind to create or retain a residence under this statute, and how it differs from the choice of a “home,” which is the test of domicile. Frankly it is doubtful whether courts have as yet come to any agreement on the question. But there is substantial unanimity that, however construed in a statute, residence involves sonje choice, again like domicile, and that presence elsewhere through constraint has no effect upon it. Stadtmuller v. Miller, 11 F.(2d) 732 (C. C. A. 2); U. S. v. Gronich (D. C.) 211 F. 548; American Surety Co. v. Cosgrove, 40 Misc. Rep. 262, 81 N. Y. S. 945; Grant v. Dalliber, 11 Conn. 234; Millett v. Pearson, 143 Minn. 187, 173 N. W. 411, 5 A. L. R. 256; Lindsey v. Holly, 105 Miss. 740, 63 So. 222; Huffman v. Smyth, 47 Or. 573, 84 P. 80, 114 Am. St. Rep. 938, 8 Ann. Cas. 678; Northfield v. Vershire, 33 Vt. 110; Baltimore v. Chester, 53 Vt. 315, 38 Am. Rep. 677. The rule in Connecticut is otherwise in pauper settlement eases (Reading v. Westport, 19 Conn. 561; Washington v. Kent, 38 Conn. 249), though it is not quite clear how these decisions accord with Grant v. Dalliber, 11 Conn. 234. Perhaps the form of the Maine statute, which makes “home” the test, prevents Topsham v. Lewiston, 74 Me. 236, 43 Am. Rep. 584, and Pittsfield v. Detroit, 53 Me. 442, from being in point, though nothing in the opinion suggests such a difference. People v. Cady, 143 N. Y. 100, 37 N. E. 673, 25 L. R. A. 399, turned on a clause of the New York Constitution.

If, therefore, Neuberger’s story be true, and, as we have said, we think it must on this appeal be so taken, his residence, once established, was* not lost by his enforced absence in Germany. It is true that we must face the consequence that it would not have been lost, if he had been absent for the whole preceding five years. We are quite aware that the result might be altogether to prevent that direct observation of him by his witnesses which the statute contemplates, and to deprive him of those contacts through which he is supposed to become assimilable to our national group. But Congress has very deliberately chosen residence as the test, repealing in 1848 (9 Stat. 240) the act of 1813 (2 Stat. 811), whieh required continued presence. Anonymous, Fed. Cas. No. 465. We cannot interpret the word in any other way, without involving the inconsistency at once of making mere presence the test, and yet asserting that presence for four years is continuous presence for five.

We do not, therefore, agree with the learned District Judge in thinking that Neuberger was not continuously resident here for the preceding five years. Certainly the facts justify close scrutiny, not only as to the bona tides of his excuse, but as to his compliance with the other requirements. The best way to inquire into these is by bill in equity, and possibly the department will prefer to allow the certificate to issue and attack it by this means. Sinee, however, the record does not show that the applicant ever satisfied the District Judge on either score, the proper disposition of the case, unless the department chooses to proceed by suit, is to send it back to the District Court for further proceedings. Wé decide nothing now, except that, if Neuberger’s story be found true, he was continuously resident here for the five years previous to his application, and that his affidavits do not as matter of law prove him to be otherwise disqualified.

Decree reversed, and cause remanded.