Opinion — Tutun v. United States

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SUPREME COURT OF THE UNITED STATES.

Nos. 762 and 824.—Ocroser TERM. 1925.

Jacob Joseph Tutun, On Certificate from the United

762 vs. States Cireuit Court of Ap-

The United States of America.) peals for the First Circuit.

Moritz Neuberger, On Certificate from the United

824 vs. States Cireuit Court of Ap-

The United States of America.| peals for the Second Circuit.

{April 12, 1926.]

Mr. Justice Branpeis delivered the opinion of the Court.

These cases present, by certificate, the question whether the

circuit courts of appeals have jurisdiction to review a decree or

order of a federal district court denying the petition of an alien to

be admitted to citizenship in the United States.

The existence of the jurisdiction was assumed by this court,

without discussion, in Ozawa v. United States, 260 U. S. 178. It

has been exercised by the courts of appeals in most of the circuits."

In the Fifth Circuit, jurisdiction was denied in United States v.

Dolla, 177 Fed. 101. Although the correctness of that decision

1In the following cases appellate courts entertained jurisdiction over peti-

tions for naturalization without expressly considering the existence of a right

of appeal: First Circuit: Harmon v. United States, 223 Fed. 425. Second

Circuit: United States v. George, 164 Fed. 45; United States v. Poslusny,

179 Fed. 836; United States v. Cohen, 179 Fed 834; United States v.

Balsara, 180 Fed. 694; United States v. Fokschauer, 184 Fed. 990; Yunghauss

v. United States, 218 Fed. 168; United States v. Meyer, 241 Fed. 305;

United States v. Vogel, 262 Fed. 262. Third Circuit: United States v. Mar-

torana, 171 Fed. 397. Fourth Circuit: Bessho v. United States, 178 Fed.

245; Dow v. United States, 226 Fed. 145, Seventh Circuit: United States

v. Doyle, 179 Fed. 687. Eighth Circuit: United States v. Brelin, 166 Fed.

104; United States v. Ojala, 182 Ped. 51; United States v. Peterson, 182

Fed. 289; Ninth Circuit: United States v. Rodiek, 162 Fed. 469. District

of Columbia: United States v. Daly, 32 App. D. C. 525. See In re Centi,

217 Fed. 833.

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was quest.oned by Judge Amidon in United States v. Lenore, 207

Fed. 865, 869, and by Judge Hough in United States v. Mulvey,

232 Fed. 513, 521-2, it has been followed in the Third Circuit and

in the Eighth.? In the state courts judgments granting or denying

petitions for naturalization have generally been held to be review-

able on appeal, like other cases.*

The ‘‘jurisdiction to naturalize aliens as citizens of the United

States’’ is conferred by Act of June 29, 1906, ¢. 3592, § 3, 34 Stat.

596, upon the district courts, among others. Jurisdiction to re-

view the ‘‘final decision in the district courts . . . in all cases,’’ ex-

cept as otherwise provided, was conferred by Act of March 3, 1891,

e. 517, § 6, 26 Stat. 826, 828, upon circuit courts of appeals. This

provision was re-enacted in Judicial Code, §128,and by Act of Feb-

ruary 13, 1925, ¢. 229, 43 Stat. 936 in § 128(a). The order grant-

ing or denying a petition for naturalization is clearly a final

decision within the meaning of that section. Ex parte Tiffany, 252

U. 8. 32. This is true, although a certificate granted may be can-

celled under § 15 of the Naturalization Act, United States v. Ness,

245 U.S. 319, and a denial of the petition may not preclude another

application for naturalization. Jn re Pollock, 257 Fed. 350. Com-

pare Salinger v. Loisel, 265 U. S. 224, 230. The substantial ques-

tion is whether a petition for naturalization is a case within the

meaning of the Courts of Appeals Act.

The function of admitting to citizenship has been conferred ex-

clusively upon courts continuously since the foundation of our

Government. See Act of March 26, 1790, ¢. 3, 1 Stat. 103. The

federal district courts, among others, have performed that function

since the Act of January 29, 1795, ec. 20, 1 Stat. 414. The consti-

tutionality of this exercise of jurisdiction has never been ques-

2United States v. Neugebauer, 221 Fed. 938; Appeal of Cook, 242 Fed.

932; Marx v. United States, 276 Fed. 295. See United States v. Nopoulos,

225 Fed. 656, 659; United States v. Koopmans, 290 Fed. 545, 547; United

States vr. Wexler, 8 F. (2d) 880, 881.

3In re Fordiani, 98 Conn. 435; United States v. Hrasky, 240 Ill. 560; United

States v. Gerstein, 284 Ill. 174; Ex parte Smith, 8 Blackf. 395; Dean, Peti-

tioner, 83 Me. 489; State v. District Court, 107 Minn. 444; Ex parte John-

son, 79 Miss. 637; State rv. District Court, 61 Mont. 427; State v. Judges of

Inferior Court, 58 N. J. L. 97; United States v. Breen, 135 App. Div. 824;

In re Karasick, 208 App. Div. 844; In re Vura, 5 Ohio App. 334; Ex parte

Granstein, 1 Hill (8S. C.) 141. The right of appellate review was denied in

In re Wilkie, 58 Cal. App. 22; State v. Superior Court, 75 Wash. 239.

Tutun vs. United States. 3

tioned. If the proceeding were not a case or controversy within

the meaning of Art. III, § 2, this delegation of power upon the

courts would have been invalid. Hayburn’s Case, 2 Dall. 409;

United States v. Ferreira, 13 How. 40; Muskrat v. United States,

219 U. S. 346. Whether a proceeding which results in a grant is

a judicial one, does not depend upon the nature of the thing

granted, but upon the nature of the proceeding which Congress

has provided for securing the grant. The United States may create

rights in individuals against itself and provide only an adminis-

trative remedy. United States v. Babcock, 250 U. S. 328, 331. It

may provide a legal remedy, but make resort to the courts avail-

able only after all administrative remedies have been exhausted.

Compare New Orleans v. Paine, 147 U. 8. 261; United States v.

Sing Tuck, 194 U. S. 161; American Steel Foundries v. Robert-

son, 262 U. S. 209. It may give to the individual the option of

either an administrative or a legal remedy. Compare Clyde v.

United States, 13 Wall. 38; Chorpenning v. United States, 94 U.S.

397, 399. Or it may provide only a legal remedy. Compare

Turner v. United States, 248 U. 8. 354. Whenever the law pro-

vides a remedy enforceable in the courts according to the regular

course of legal procedure, and that remedy is pursued, there arises

a case within the meaning of the Constitution, whether the subject

of the litigation be property or status. A petition for naturaliza-

tion is clearly a proceeding of that character.

The petitioner’s claim is one arising under the Constitution and

laws of the United States. The claim is presented to the court in

such a form that the judicial power is capable of acting upon it.

The proceeding is instituted and is conducted throughout accord-

ing to the regular course of judicial procedure. The United States

is always a possible adverse party. By §11 of the Naturalization

Act the full rights of a litigant are expressly reserved to it.

See In re Mudarri, 176 Fed. 465. Its contentions are submitted to

the court for adjudication. See Smith v. Adams, 130 U. 8. 167,

173-174. Section 9 provides that every final hearing must be held

in open court; that upon such hearing the applicant and wit-

nesses shal] be examined under oath before the court and in its

presence; and that every final order must be made under the

hand of the court and shall be entered in full upon the record.

The judgment entered, like other judgments of a court of record,

4 Tutun vs. United States.

is accepted as complete evidence of its own validity unless set

aside. Campbell v. Gordon, 6 Cranch, 176; Spratt v. Spratt,

4 Pet. 393, 408. It may not be collaterally attacked. Pintsch

Compressing Co. v. Bergin, 84 Fed. 140. If a certificate is pro-

cured when the prescribed qualifications have no existence in fact,

it may be cancelled by suit. ‘‘It is in this respect,’’ as stated in

Johannessen v. United States, 225 U. S. 227, 238, ‘‘closely anal-

ogous to a publie grant of land (Rev. Stat., § 2289, ete.), or of the

exclusive right to make, use and vend a new and useful invention

(Rev. Stat., § 4883, ete.).”’

The opportunity to become a citizen of the United States is said

to be merely a privilege and not a right. It is true that the Con-

stitution does not confer upon aliens the right to naturalization.

But it authorizes Congress to establish a uniform rule therefor.

Art. I, § 8, cl. 4. The opportunity having been conferred by the

Naturalization Act, there is a statutory right in the alien to submit

his petition and evidence to a court, to have that tribunal pass

upon them, and, if the requisite facts are established, to receive the

certificate. See United States v. Shanahan, 232 Fed. 169, 171.

There is, of course, no ‘‘right to naturalization unless all statu-

tory requirements are complied with.’’ United States v. Ginsberg,

243 U.S. 472, 475; Luria v. United States, 231 U. S. 9, 22. The

applicant for citizenship, like other suitors who institute pro-

ceedings in a court of justice to secure the determination of an

asserted right, must allege in his petition the fulfilment of all

conditions upon the existence of which the alleged right is made

dependent; and he must establish these allegations by competent

evidence to the satisfaction of the court. In re Bodek, 63 Fed. 813,

814, 815; In re an Alten, 7 Hill (N. Y.) 1387. In passing upon

the application the court exercises judicial judgment. It does not

confer or withhold a favor.

The Government contends that, at all events, a naturalization

proceeding is not a case within the meaning of the Court of Ap-

peals Act. The same phrase may, of course, have different mean-

ings when used in different connections. Lamar v. United States,

240 U.S. 60, 65. The Constitution does not require that a litigant

be afforded the opportunity of having every judicial decision re-

viewed by an appellate court. Compare Rogers v. Peck, 199 U.S.

425, 435. But the Court of Appeals Act conferred upon that court

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Tutun vs. United States. 5

appellate jurisdiction of final decisions of the district courts ‘‘in all

eases’’ except those for which it provided a direct review by this

Court. See Lou Ow Bew v. United States, 144 U. S. 47, 57; The

Paquete Habana, 175 U. S. 677, 683-686. A denial of a review in

naturalization cases would engraft an exception upon an otherwise

universal rule. Compare Craig v. Hecht, 263 U. S. 255, 274-276;

In re Graves, 270 Fed 181. There is nothing in that Act, which

should limit the application of the all-embracing language used.

It is argued that the Naturalization Act denies appellate juris-

diction, since § 3 declares that ‘*exclusive jurisdiction to naturalize

aliens as citizens’’ is conferred upon the federal and state courts

there specified, and these do not include the cireuit courts of

appeals. The term ‘“‘exelusive’’ was used in §3 in order to with-

draw the jurisdiction which minor state courts, being courts of

record, had exercised under the authority conferred by earlier

naturalization statutes. See House Doc. No. 46, 59th Cong., 1st

sess., Ser. No. 4984, pp. 18-24. The section makes no reference to

appellate proceedings. It is also argued that Congress manifested

the intention of denying the usual method of appellate review by

providing in § 15 for a bill in equity to cancel certificates of citizen-

ship. The remedy afforded to the Government by § 15 is narrower

in scope than the review commonly afforded by appellate courts.

Moreover, there is no corresponding provision which would afford

to the applicant for citizenship an independent remedy for cor-

recting errors committed in the district court.

Since the adoption of the Constitution, Congress has by its legis-

lation sought to promote the naturalization of qualified resident

aliens. The Act of 1906 did not introduce any change in policy.

It did change, in some respects, the qualifications. And to carry

out the established policy through more effective application of the

law, it made changes in administrative and judicial machinery.

That end is subserved by the correction of errors of the trial court

through appellate review. Neither United States v. Ness, 245 U.S.

319, 326, nor the history of the legislation there referred to, leads

to a denial of appellate review. In that case attention was ealled

to the fact that Congress had not provided in the Act of 1906 for

an appeal from judgments of the state courts admitting aliens to

citizenship. The question under discussion was whether a judg-

ment of naturalization entered by a state court barred as res

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6 Tutun vs. United States.

judicata a proceeding brought in a federal court under § 15 to

cancel the certificate of naturalization.

To the questions asked in the two cases, we answer that the Cir-

euit Court of Appeals has jurisdiction to review by appeal the

order or decree of the District Court denying the petition to be

admitted to citizenshin in the United States.

A true copy.

Test:

Clerk, Supreme Court, U. 8.