The opinion
LORD, District Judge
(dissenting).
Defendant has argued many issues on his appeal. However, there is only one real question to be determined and that is: — was the Certificate of Naturalization procured by fraud? In the deter-ination of this issue it is necessary to decide whether the Certificate of Registry was a part of the naturalization proceeding.
What “naturalization proceedings” were required in this case? Defendant’s application for citizenship in 1942 was controlled by the Nationality Act of 1940, 8 U.S.C. §§ 501-907 , as amended, 8 U.S.C. § 1001 (1942 Supp.). * Section 1001 provides:
“Notwithstanding the provisions of sections 703 and 726 of this title, *920 any person not a' citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and who, having been lawfully admitted to the United States, * * * shall have been at the time of his enlistment or induction a resident thereof, may be naturalized upon compliance with ail the requirements of the naturalization laws except that * * (Emphasis supplied.)
The necessity to attach a Certificate of Arrival to the petition for naturalization was not eliminated by any of the exceptions noted in the Act. Such Certificate of Arrival was required under the Naturalization Act' (1940) in effect at the time defendant applied for citizenship, 8 U.S.C. § 732 (c) (1940), 1 and therefore was a necessary part of defendant's naturalization proceedings in 1942 and 1943.
The evidence in the record indicates-that the Certificate of Arrival attached to-defendant's petition for citizenship was based on the fraudulent Application for Registry made by defendant in 1931.. There can be no doubt that defendant-needed a Record of Registry and Certificate of Arrival for his original naturalization proceedings initiated in 1931. See pertinent provisions of the Act of June 29, 1906, 34 Stat. 596 , 2 as amended by the Act of March 2, 1929, 45 Stat. 1512 3 The substance of these requirements appear also in the Nationality Act of 1940, 8 U.S.C. §§ 728 , 729. **
*921 A reading of the statutory requirements clearly reveals the necessity for a Certificate of Arrival. United States v. Ness, 1917, 245 U.S. 319 , 38 S.Ct. 118 , 62 L.Ed. 321 ; Maney v. United States, 1928, 278 U.S. 17 , 49 S.Ct. 15 , 73 L.Ed. 156 . That the Certificate of Arrival was based on the Record of Registry is also clear by the evidence revealed in the record and by the fact that such procedure was required under Section 2 of the Act of March 2, 1929, 45 Stat. 1512 , supra, footnote 3.
It is true, as the majority points out, the crew-list substantiates the necessary information on the Certificate of Arrival. However, the Record of Registry was required (when defendant in 1931 applied for citizenship) under the Act of Mar. 2, 1929, 45 Stat. 1512 , before a Certificate of Arrival could be given. Thus it follows that the court below was correct in its finding that the Certificate of Arrival had its origin in the fraudulent Record of Registry made by the defendant. The fraud in the original proceeding permeated the subsequent issuance of the Certificate of Arrival which was attached to defendant’s naturalization petition in 1943. Defendant’s contention that a Record of Registry would not have been necessary for the issuance of a Certificate of Arrival is without substance, because, in fact, the Certificate of Arrival was based on the Record of Registry in this case. Since the Record of Registry was procured by fraud, it follows that the Certificate of Arrival was tainted with the same fraud.
As indicated by the majority opinion, Reich’s testimony is important. However, in support of the District Court’s finding that the Certificate of Arrival had its origin in the fraudulent Record of Registry, the following highlights of Reich’s testimony should not be ignored: Reich did not have the complete file relating to the 1931-1935 naturalization proceedings when he examined the defendant, and, particularly, did not have the registry file 4
Reich’s office was not part of the New York Office. 5
While Reich knew of the affidavit made by the defendant in 1934, it merely recited instances of prior arrests and the fact that such arrests were not stated to a previous examiner in 1933. However, the affidavit was made after the Application for Registry was filed in 1931 and after defendant had given false answers to the Registry inspector as a result of which the Certificate of Registry was granted in 1931. There is nothing in the affidavit to show a concealment in the Record of Registry since the affidavit referred only to the naturalization proceedings in 1933. 6
Reich spent only 15 minutes reviewing the file of defendant and only 10 minutes of oral examination before recommending the granting of citizenship. 7
Reich’s recommendation to grant defendant’s application was based only on *922 evidence before him which did not include the Registry Certificate. 8
While the officers of the Naturalization Service knew of the previous arrests about which defendant was truthful in 1943, these were discounted then because they occurred ten years prior to 1943 and were outside the statutory period. However, the fact remains that the petition for naturalization was granted on the basis of the 1943 examination of defendant and the 1931 Registry Certificate which was fraudulently obtained. Defendant’s subsequent revelations of his arrest record did not purge the original fraud.
The Government examiner, while knowing of the defendant’s criminal record in 1943, did not know that the defendant had affirmatively concealed his arrests in the 1931 Record of Registry, on which the examiner relied. True, somewhere in the files of the New York Central Office of the Immigration and Naturalization Office the information was available, but the official (Reich) who recommended approval of the naturalization in 1943 (over twelve years after the fraudulent Record of Registry) did not know of the fraud and was deceived thereby. Can it be said that the Government should be estopped now in its charge of fraudulent naturalization because the information concerning the fraud was somewhere in a twelve-year-old file which was not brought to the attention of the examiner? The fraud still had been perpetrated on the Government and defendant’s citizenship was granted partly on the basis of the fraudulent Record of Registry which the examiner did not have before him in 1943. The fraud was never condoned by such action.
The majority states that:
“ * * * He [Reich] must have realized, * * * that the defendant had fraudulently concealed his criminal record in his registry proceeding in 1931 * * * else he would not have been granted his Registry Certificate.”
I can find nothing in the record to justify this conclusion.
Reich attested to defendant’s then “good moral character” in 1943 on the ground that “there was no legal evidence in the file which would sustain an objection” (emphasis supplied), since the defendant’s criminal record was then “outside the statutory period.” The majority argues that a new registry could have been secured on such a record in 1943. But the facts are that no new registry proceeding was conducted. The old fraudulent Registry Record was used. Reich did not have in his file the records of the old Registry Record. As careless and inefficient as this may appear, the act of proceeding on an incomplete file should not bar the Government from reconsidering the case in the future, when all the information is assembled properly.
Citizenship is a privilege that should be jealously guarded, and the defendant did not meet the requirements of entire good faith. He was definitely benefited in the granting of his application by the fraudulent Record of Registry on which the Certificate of Arrival was based. The Government had a right to rely on the statements of the defendant when the 1931 Registry Certificate was granted. It had no burden in 1943 to ascertain whether the defendant had been untruthful during the previous proceedings in 1931 which the majority opinion holds.
True it is, as the majority points out, that the burden of proof in a de-natural-ization proceeding is admittedly greater than in an application for citizenship. Where a petitioner, in his original application for citizenship falsely denies being arrested or charged with violations of any law, such false statements of themselves involve moral turpitude and exhibit the unfitness of the applicant for the high privilege of citizenship. Del *923 Guercio v. Pupko, 9 Cir., 1947, 160 F.2d 799 . A fortiori, if an applicant is refused citizenship because the Government has knowledge of the false statement, should any naturalized person be permitted to keep his citizenship as a reward for having been successful in his deceit? It is a fair statement to say that the defendant knew and realized the significance of his prior deceit when he withdrew his initial application. Since the information then requested was deliberately concealed, and a truthful answer then might possibly have prevented defendant from obtaining his citizenship in the first instance, the misrepresentation continued in his case and was present throughout the subsequent proceedings.
It would appear to be clear that the naturalization was illegally procured. It is evident that the Record of Registry was induced by fraud. The failure of the defendant to reveal his arrests was certainly sufficient cause for revocation of a certificate of naturalization. Brenci v. United States, 1 Cir., 1949, 175 F.2d 90 ; United States v. Saracino, 3 Cir., 1930, 43 F.2d 76 ; United States v. Accardo, D.C.D.N.J.1953, 113 F.Supp. 783 , affirmed 3 Cir., 1953, 208 F.2d 632 , certio-rari denied 1954, 347 U.S. 952 , 74 S.Ct. 677 , 98 L.Ed. 1098 . Such deceitful conduct of the defendant colored the entire naturalization proceeding.
Consequently, the statutory requirement of a valid Certificate of Arrival was not met by the defendant. As such, he has no right to naturalization. United States v. Ginsberg, 1917, 243 U.S. 472, 475 , 37 S.Ct. 422 , 61 L.Ed. 853 ; Maney v. United States, 1928, 278 U.S. 17, 22 , 49 S.Ct. 15 , 73 L.Ed. 156 .
I would affirm the judgment of the district court.
On Petition for Rehearing.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGIILIN, KALODNER, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
The petition for rehearing raises no issue not previously considered and correctly decided. On the facts of this case we do not regard our prior decision in United States v. Accardo, 3 Cir., 1954, 208 F.2d 632 , certiorari denied 1954, 347 U.S. 952 , 74 S.Ct. 677 , 98 L.Ed. 1098 , as requiring a contrary result.
Accordingly, the petition for rehearing is hereby denied.
Now Immigration and Nationality Act of 1952, 8 U.S.C.A. §§ 1101 et seq., 1440.
. “At tlie time of filing the petition for naturalization there shall be filed with the clerk of court a certificate from the Service, if the petitioner arrived in the United States after June 29, 1906, stating the date, place, and manner of petitioner’s arrival in the United States, and the declaration of intention of such petitioner, which certificate and declaration shall be attached to and made a part of said petition.” Now 8 U.S.C.A. § 1445 (a, b).
. Section 1 of the Act of June 29, 1906:
“That it shall be the duty of the said Bureau to provide, for use at the various immigration stations throughout the United States, books of record, wherein the commissioners of immigration shall cause a registry to be made in the case of each alien arriving in the United States from and after the passage of this Act of the name, age, occupation, personal description * * *, the place of birth, the last residence, the intended place of residence in the United States, and the date of arrival of said alien, and, if entered through a port, the name of the vessel in which he comes. And it shall be the duty of said commissioners of immigration to cause to be granted to such alien a certificate of such registry, with the particulars thereof.”
. “That * * * the registry of aliens at ports of entry required by section 1 of the act of June 29, 1906 * * *, as amended, may be made as to any alien not ineligible to citizenship in whose case there is no record of admission for permanent residence, if such alien shall make a satisfactory showing to the Commissioner General of Immigration, in accordance with regulations prescribed by the Commissioner General of Immigration, with the approval of the Secretary of Labor, that he—
“(1) Entered the United States prior to-June 3, 1921;
“(2) Has resided in the United States, continuously since such entry;
“(3) Is a person of good moral character ; and
“(4) Is not subject to deportation. *****
“Sec. 2. Upon the making of a record! of registry as authorized by section 1 of this Act, the certificate of arrival required by the fourth paragraph of the second subdivision of section 4 of such-Act of June 29, 1908, as amended, may be issued upon application to the Commissioner of Naturalization, in accordance-with regulations prescribed by the Commissioner of Naturalization, with the -approval of the Secretary of Labor, and; upon payment of the fee prescribed by-section 5 of this Act.
“Sec. 3. For the purposes of the immigration laws and the naturalization), laws an alien, in respect of whom a record of registry has been made as authorized by section 1 of this Act, shall be deemed to have been lawfully admitted to-the United States for permanent residence as of the date of his entry.”
Now Immigration and Nationality Act-1952, 38 U.S.C.A. §§ 1230 , 1259 (a, b).. 1429.
. “Q. Was there a certificate of arrival attached to the petition when yon got it? A. There was a certificate of arrival — ” {N.T. p. 71) * * * # *
“Q. On top of that it indicates that a similar certificate of registry had been issued at another time in connection with this Now York naturalization application? A. That is correct.
“Q. Now, did you have the registry file before you at that time? A. No, sir, I did not.” (N.T. p. 72)
. “Q. Incidentally, at that time you were attached to the Philadelphia Field Office? A. That is correct.
“Q. And that is separate and apart and distinct from the Central Office? A. That is correct.” (N.T. p. 75)
. Exhibit P-13:
*****
“That during the course of his examination deponent was asked various questions as to his eligibility for naturalization and at that time was also asked if he had ever been arrested or convicted of any crime. Deponent stated to the naturalization examiner that * *
. “Q. How much time did you spend examining his file? A. Fifteen minutes.
“Q. That means you questioned him for about 10 minutes? A. That’s right.” (N.T. pp. 101-102)
. “Q. Will you tell us, please, what it was that motivated your recommendation of ‘Grant’? * * * A. I felt that there was no legal evidence in the file which would sustain an objection.” (N.T. p. 154) (Emphasis added.)