Schneiderman v. United States

Mb. Justice Douglas,

concurring:

I join in the Court’s opinion and agree that petitioner’s want of attachment in 1927 to the principles of the Constitution has not been shown by “clear, unequivocal and convincing” evidence. The United States, when it seeks to deprive a person of his American citizenship, carries a heavy burden of showing that he procured it unlawfully. That burden has not been sustained on the present record, as the opinion of the Court makes plain, unless the most extreme views within petitioner’s party are to be imputed or attributed to him and unless all doubts which may exist concerning his beliefs in 1927 are to be resolved against him rather than in his favor. But there is another view of the problem raised by this type of case which is so basic as to merit separate statement.

Sec. 15 of the Naturalization Act gives the United States the power and duty to institute actions to set aside and cancel certificates of citizenship on the ground of “fraud” or on the ground that they were “illegally procured.” Sec. 15 “makes nothing fraudulent or unlawful that was honest and lawful when it was done. It imposes no new penalty upon the wrongdoer. But if, after fair hearing, ic is judicially determined that by wrongful conduct he has obtained a title to citizenship, the act provides that he shall be deprived of a privilege that was never rightfully his.” Johannessen v. United States, 225 U. S. 227, 242-243 . And see Luria v. United States, 231 U. S. 9, 24 . “Wrongful conduct” — like the statutory words “fraud” or “illegally procured” — are strong words. Fraud con *162 notes perjury, concealment, falsification, misrepresentation or the like. But a certificate is illegally, as distinguished from fraudulently, procured when it is obtained without compliance with a “condition precedent to the authority of the Court to grant a petition for naturalization.” Maney v. United States, 278 U. S. 17, 22 .

Under the Act in question, as under earlier and later Acts, 1 Congress prescribed numerous conditions precedent to the issuance of a certificate. They included the requirement that the applicant not be an anarchist or polygamist (§7), the presentation of a certificate of arrival (United States v. Ness, 245 U. S. 319 ), the requirement that the final hearing be had in open court (United States v. Ginsberg, 243 U. S. 472 ), the residence requirement (R. S. § 2170), the general requirement that the applicant be able to speak the English language (§8), etc. The foregoing are illustrative of one type of condition which Congress specified. Another type is illustrated by the required finding of attachment. Sec. 4, as it then read, stated that it “shall be made to appear to the satisfaction of the court” that the applicant “has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” 2 It is my view that Congress by that provision made the finding the condition preced *163 ent, not the weight of the evidence underlying the finding. Such a finding can of course be set aside under § 15 on grounds of fraud. But so far as certificates “illegally procured” are concerned, this Court has heretofore permitted § 15 to be used merely to enforce the express conditions specified in the Act. It is of course true that an applicant for citizenship was required to come forward and make the showing necessary for the required findings. § 4. But under this earlier Act, it was not that showing but the finding of the court which Congress expressed in the form of a condition. If § 15 should be broadened by judicial construction to permit the findings of attachment to be set aside for reasons other than fraud, then the issue of illegality would be made to turn not on the judge being satisfied as to applicant’s attachment but on the evidence underlying that finding. Such a condition should not be readily implied.

If an anarchist is naturalized, the United States may bring an action under § 15 to set aside the certificate on the grounds of illegality. Since Congress by § 7 of the Act forbids the naturalization of anarchists, the alien anarchist who obtains the certificate has procured it illegally whatever the naturalization court might find. The same would be true of communists if Congress declared they should be ineligible for citizenship. Then proof that one was not a communist and did not adhere to that party or its belief would become like the other express conditions in the Act a so-called “jurisdictional” fact “upon which the grant is predicated.” Johannessen v. United States, supra, p. 240. But under this Act Congress did not treat communists like anarchists. Neither the statute nor the official forms used by applicants called for an expression by petitioner of his attitude on, or his relationship to, communism, or any other foreign political creed except anarchy and the like.

*164 The findings of attachment are entrusted to the naturalization court with only the most general standard to guide it. That court has before it, however, not only the applicant but at least two witnesses. It makes its appraisal of the applicant and it weighs the evidence. Its conclusion must often rest on imponderable factors. In the present case we do not know how far the naturalization court probed into petitioner’s political beliefs and affiliations. We do not know what inquiry it made. All we do know is that it was satisfied that petitioner was “attached to the principles of the Constitution of the United States.” But we must assume that that finding which underlies the judgment granting citizenship (cf. Tutun v. United States, 270 U. S. 568 ) was supported by evidence. We must assume that the evidence embraced all relevant facts since no charge of concealment or misrepresentation is now made by respondent. And w;e must assume that the applicant and the judge both acted in utmost good faith.

If the applicant answers all questions required of him, if there is no concealment or misrepresentation, the findings of attachment cannot be set aside on the grounds of illegality in proceedings under § 15. It does not comport with any accepted notion of illegality to say that in spite of the utmost good faith on the part of applicant and judge and in spite of full compliance with the express statutory conditions a certificate was illegally procured because another judge would appraise the evidence differently. That would mean that the United States at any time could obtain a trial de novo on the political faith of the applicant.

It is hardly conceivable that Congress intended that result under this earlier Act except for the narrow group of political creeds such as anarchy for which it specially provided. Chief Justice Hughes stated in his dissent in United States v. Macintosh, 283 U. S. 605, 635 , that the *165 phrase “attachment to the principles of the Constitution” is a general one “which should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.” We should be mindful of that criterion in our construction of § 15. If findings of attachment which underly certificates may be set aside years later on the evidence, then the citizenship of those whose political faiths become unpopular with the passage of time becomes vulnerable. It is one thing to agree that Congress could take that step if it chose. See Turner v. Williams, 194 U. S. 279 . But where it has not done so in plain words, we should be loath to imply that Congress sanctioned a procedure which in absence of fraud permitted a man’s citizenship to be attacked years after the grant because of his political beliefs, social philosophy, or economic theories. We should not tread so close to the domain of freedom of conscience without an explicit mandate from those who specify the conditions on which citizenship is granted to or withheld from aliens. At least when two interpretations of the Naturalization Act are possible we should choose the one which is the more hospitable to that ideal for which American citizenship itself stands.

Citizenship can be granted only on the basis of the statutory right which Congress has created. Tutun v. United States, supra. But where it is granted and where all the express statutory conditions precedent are satisfied we should adhere to the view that the judgment of naturalization is final and conclusive except for fraud. Since the United States does not now contend that fraud vitiates this certificate the judgment below must be reversed.

Dor the Act in its present form see 8 U. S. C. § 501 et seq.

This provision was recast by the Act of March 2, 1929, 45 Stat. 1513 -1514, 8 U. S. C. § 707 (a) (3), into substantially its present form. For the legislative history see 69 Cong. Rec. 841; S. Rep. No. 1504, 70th Cong., 2d Sess. The provision now reads: “No person, except as hereinafter provided in this chapter, shall be naturalized unless such petitioner ... (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”