In re Friedl , 202 F. 300 ( 1913 )

GEIGER, District Judge

(after stating the facts as above). The facts may be summarized thus: The petitioner’s original declaration averred his place of birth to have been Eisenberg, Germany, and his intention to forever renounce allegiance particularly to “William II, emperor of Germany, of which I am now a subject.” In truth he was born at Eisenberg, Austria-Hungary, and was, at the time of his attempted declaration, a subject of its sovereign. More than three years thereafter', the court receiving such declaration ordered its amendment to accord with the truth, reciting in such order that the “error as to his birthplace and allegiance as given in said declaration is a clerical error, and due to a misunderstanding on the part of the clerk recording said declaration.”

There is at once suggested the basis of the government’s challenge of the petitioner’s right to citizenship, namely, noncompliance with the statute requiring the making and proof of a declaration of intention to become a citizen, and renunciation of allegiance to a particular foreign sovereign, and that the attempted amendment is wholly nugatory, because beyond the power of the court to grant it.

The alien’s declaration of intention and its reception by a court, as prescribed in the statute, in no sense, constitute a judicial proceeding, incident to which there resides in or is reserved control over either the declarant or the declaration. Nor is the power to receive the declaration to be considered as a grant of jurisdiction. It enables the alien to take a step imperatively prerequisite to a later special judicial proceeding. If the power of substantive amendment exist, then it must follow that naturalization can be effected in any case without amending an insufficient declaration; that is, if the declaration is insufficient, as not complying with the statute, the court, having the power to amend, may proceed to naturalize without amendment, and, while its judgment may be erroneous, it would not be void. It seems'to me that such view would frustrate the whole act, because it would place the power of the court above the terms of the act. In a sense it may be said that, before,the applicant can invoke the subsequent jurisdiction for an order of naturalization based upon the petition prescribed by the act, he must at his peril have complied with the exact terms of the section respecting his declaration of intention, and must also have seen to it that the precise and true declaration is received by the court and evidenced of record. It is a step embodying, not only the substantive elements specified, but one which, to avail, must be taken at or before a particular time. If a declarant or a petitioner may obtain the benefit of the act upon parol proof of his compliance with its terms respecting his declaration, then the latter become merely advisory, and the act as it has been construed in practice is really superseded and nullified.

The hardship resulting to the petitioner cannot be relieved against merely because it may appear that the error is clerical, and not his own. If the power to amend is to be recognized at all, 'its exercise may well be invoked in every case where facts are presented -disclosing reasonable excuse or meritorious grounds for the exercise of a discretion. It may be noted, however, that in the present case the applicant can hardly claim to be wholly free from fault. As a matter of practice, a copy of the declaration has always been delivered to the declarant. It appears here that such copy, and doubtless disclosing upon its face the error complained of, was retained by declarant for about three years; and, if the merits of the amendment could be considered, declarant could not well claim to have been diligent.

I am well satisfied that the power to amend the declaration does not exist, and hence the government’s objections, being based as they are upon a defect disclosed in a petition, are well taken. The views above expressed are fully sustained in other districts, notably In re Lewkowicz (D. C.) 169 Fed. 927, and In re Lange (D. C.) 197 Fed. 769, as well as In re Stack (U. S. District Court, Western District of Missouri) 200 Fed. 330.

The application for naturalization is denied, but without prejudice to its renewal.