United States v. Ellis , 185 F. 546 ( 1911 )

FOSTER, District Judge.

In this case the United States brings its bill against one Moses Ellis to cancel his naturalization, and alleges that it was obtained by fraud, in that he bad no intention to become a permanent citizen at the time be applied to be naturalized.

The proceeding is by virtue of section 15 of the Act of June 29, 1906 (Act June 29, 1906, c. 3592, 34 Stat. 601 [U. S. Comp. St. Supp. 1909, p. 485]), which provides that, if a naturalized citizen shall establish a permanent residence in any foreign country within five years after obtaining his certificate of citizenship, proof of that fact shall be prima facie evidence of his lack of intention to become a permanent citizen of the United States at the time he applied for naturalization, and further provides for service of the absentee. An attorney at law was appointed curator ad hoc to represent him, and service of subpoena was made on the curator. Be demurred to the service on the ground that the act requires service by publication, but his demurrer was overruled. The act provides, with regard to service, as follows:

“ * * * And if the bolder 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 service of summons by publication, or upon absentees as provided by the laws of the State or Xfiaee where such suit is brought.” (Italics mine).

Under the laws of Louisiana, no service by publication could be made in a case such as this, but interpreting the section so as to give it effect in all of the states, as Congress plainly intended, the words “by publication” may be considered merely directory and the clause construed to read as follows: “Such notice shall be given in the manner provided for service upon absentees,” etc. The laws of Louisiana provide for the appointment of an attorney at law as curator ad hoc to represent an absentee, and I consider service on him as in this case to be sufficient. The defendant has filed an answer through his curator, and sets up the defenses that his naturalization amounted to a contract between the United States and himself and by it he acquired vested rights; that said section 15 is void, as an ex post facto law, as it applies a severe penalty to him, to wit, expatriation. The facts as shown by the certificate of the American consul a,t Pretoria and the certificate of naturalization, both offered by the government and not, rebutted, are as follows: Moses Ellis, a subject of the Sultan of Turkey, was admitted to citizenship by the civil district court for the parish of Orleans, state of Louisiana, within the Eastern district of Louisiana, on August 11, 1899, and a certificate of citizenship was issued to him by said court. He left the United States shortly thereafter, and arrived in South Africa November 23d of the same year, and •engaged in business at Johannesburg, Transvaal, where he continuously resided until after the institution of this suit March 11, 1910. The certificate of the consul shows that he applied for registration as an American citizen at Pretoria, and was notified to produce evidence to overcome the presumption that he had ceased to be an American citizen in consequence of his prolonged absence abroad; that he stated he could not tell when he would be able to leave South Africa and return to the United States; that he was not engaged solely as a representative of American trade and commerce; that his residence abroad was not for reasons of health or education; and that no controlling exigency beyond his power to foresee had prevented him from carrying out a bona fide intention of returning to the United States.

The section, as it applies to naturalizations granted before the passage of the act, is undoubtedly retrospective, but it is not therefore void. The Constitution itself contemplates that only those who intend to become permanent residents shall be naturalized or retain their citizenship, as section 1 of the fourteenth amendment provides:

“All persons born or naturalized in tbe United States and subject to the jurisdiction thereof are citizens of tbe United States and of tbe states wherein they reside.”

Under the law as it was at the time the defendant was admitted to citizenship (Rev. St. 2165 [U. S. Comp. St. 1901, p. 1329]), only those persons possessing the necessary qualifications and intending bona fide to become citizens could be naturalized, so that, if the defendant did not in good faith intend to become a permanent citizen and made his oath with a mental reservation to that effect, he was guilty of fraud in procuring the decree. It is doubtful that any action was ever instituted to cancel and set aside a judgment of naturalization before the adoption of the act of 1906, but the United States could always have sued to cancel a decree of naturalization obtained by fraud. If such a suit had been instituted, evidence of a long uninterrupted absence from the United States would certainly have been admissible. Public policy requires that no one should be naturalized except he be in the utmost good faith, and in enacting section 15 of the act of 1906 Congress has done no more than to accentuate what was already apparent, and it has not thereby deprived a naturalized citizen of a vested right nor imposed any penalty upon him.

There will be a decree as prayed for, setting aside the judgment and decree of naturalization, canceling the certificate of citizenship issued to the defendant, and perpetually enjoining him from setting itp or claiming any rights as a citizen thereunder.