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'It applies to the settlement of a decree upon the mandate of the Supreme Court.38 It has been said that it does not require three judges to hear a motion for a preliminary injunction or for any interlocutory relief sought before the formal hearing.39

"In the taking of depositions of witnesses for use in any suit in equity brought by the United States under the Act entitled. 'An Act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety, and in the hearings before any examiner or special master appointed to take testimony therein, the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from attendance on any such proceedings shall be valid or enforceable." 40 This statute was passed to obviate the effects of a ruling that the testimony might be taken in secret.41

§ 151b. Suits and proceedings to cancel certificates of citizenship and to set aside naturalization. A bill in equity will lie to set aside a certificate of citizenship or of naturalization obtained by fraud.1 It has been held that such a suit cannot be maintained when there is an error in the proceedings but no willful misconduct on the part of the holder of the certificate or those who have acted on his behalf. Errors in proceedings for naturalization have been reviewed by writ of error 2 and appeal.3 The more usual remedy however is the institution of summary proceedings under the Act of June 29, 1906. This provides :

38 Ibid.

39 Southern Pac. Terminal Co. v. Interstate Commerce Commission, 166 Fed. 134, 136.

40 37 St. at L. 731, Comp. St. § 8826.

41 U. S. v. United Shoe Machinery Co. of New Jersey, 198 Fed. 870.

§ 151b. 1 U. S. v. Norsch, 42 Fed. 417. But see U. S. v. Andersen, 169 Fed. 20. Contra, U. S. v. Schurr, 163 Fed. 648; U. S. v. Meyer, 170 Fed. 983; U. S. v. Plaistow, 189 Fed. 1007; U. S. v. Nishit, 168 Fed. 1005; U. S. v. Vandermolen, 163 Fed. 650. But see Johanessen, 225 U. S. 227, 240.

2 U. S. v. Lenore, 207 Fed. 866. See U. S. v. Luria, 184 Fed. 643, 646. Contra, U. S. v. Nisbit, 168 Fed. 1005; U. S. v. Vandermolen, 163 Fed. 650. See U. S. v. Andersen, 169 Fed. 201.

3 U. S. V. Ozala, C. C. A., 182 Fed. 51; U. S. v. Balsara, C. C. A., 180 Fed. 694, Bessho v. U. S., C. C. A. 178 Fed. 245; U. S. v. Poslusny, C. C. A., 179 Fed. 836; U. S. v. Martorana, C. C. A., 171 Fed. 397; U. S. v. Doyle, C. C. A., 179 Fed. 687. See also. U. S. v. Lenore, 207 Fed. 865; U. S. v. Smith, 247 Fed. 131; U. S. v. Ozala, C. C. A., 182 Fed. 51.

4 Ch. 3592, § 15, 34 St. at L. 601.

"It shall be the duty of the United States district attorney for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. In any such proceedings the party holding the certificate of citizenship alleged to have been fraudulently or illegally procured shall have sixty days personal notice in which to make answer to the petition of the United States; and if the holder 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 the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.

"If any alien who shall have secured a certificate of citizenship under the provisions of this Act, shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship and who have taken permanent residence in the country of their nativity; or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship.

"Whenever any certificate of citizenship shall be set aside or cancelled, as herein provided, the court in which such judgment or decree is rendered shall make an order cancelling such certificate of citizenship and shall send a certified copy of such order

to the Bureau of Immigration, and Naturalization; and in case such certificate was not originally issued by the court making such order it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such certificate of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the court to enter the same of record and to cancel such original certificate of citizenship upon the records and to notify the (Bureau of Immigration) and Naturalization of such cancellation.

"The provisions of this section shall apply not only to certificates of citizenship issued under the provisions of this Act, but to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws." 6

10

This statute is constitutional," although it applies to naturalizations made before its enactment and establishes a presumption from facts previously existing. It is valid when the proceedings are directed at a certificate of naturalization granted without any appearance on the part of the United States.1 Whether it can be applied to a certificate issued after the Government has appeared and been heard is left open by the Supreme Court.11 It has been held by District Courts, that they had jurisdiction in this manner to set aside certificates of State courts when no fraud was committed by the applicants for error in the construction of the statute.12 even where the Government had appeared and objected to the original proceedings.13 This

5 34 St. at L. 596, as amended, 36 St. at L. 830, 40 St. at L., Comp. St. §§ 4351, 4352, 4352a, 4352aa, 4353, 4354.

634 St. at L. 601, Comp. St. § 4374. This has been transferred to the Department of Labor by the Act of March 4, 1913, ch. 141, § 3; 37 St. at L. 737, Comp. St. § 934.

7 Luria v. U. S., 231 U. S. 9, 17; Johanessen v. U. S., 225 U. S., 227, 32 Sup. Ct. 613, 56 L. ed. 1066.

8 Johanessen v. U. S., 225 U. S. 227, 242, Luria v. U. S., 231 U. S. 9, 17.

9 Luria v. U. S., 231 U. S. 9, 17. 10 Ibid.

11 Johanessen v. U. S., 225 U. S. 227, 237, 32 Sup. Ct. 613, 56 L. ed. 1066.

12 U. S. v. Simon, 170 Fed. 680; U. S. v. Meyer, 170 Fed. 983, 985; U. S. v. Plaistow, 189 Fed. 1006, 1009. Contra, U. S. v. Andersen, 169 Fed. 201, 205; U. S. v. Lenore, 207 Fed. 865, 868; U. S. v. Akervik, 180 Fed. 137, 147.

13 U. S. v. Plaistow, 189 Fed. 1006, U. S. v. Albertini, 206 Fed. 133.

was done where the hearing had taken place in chambers and not in open court.14

It has been held that the finding of fact by a State court when there was no fraud cannot be thus reviewed.15

Certificates were set aside because of fraud in testimony concerning the moral character of the applicants: when the petition for naturalization stated that the applicant was not a married man, but in fact he had abandoned his wife and children in Europe; 16 where, when admitted, he was engaged in an immoral and illegal business, letting rooms for use in prostitution.17 When he admitted that he advocated the elimination by the power of the ballot of constitutional rights to property and the abolition of the existing political government as the result of a change from individual to common ownership of all land, buildings, and industrial institutions. 18 When he expressed during the Great War his sympathy with Germany.19

The certificate was not set aside because of an error in the form of the signature of the petitioner. 20 Nor when the petitioner was under twenty-one years of age, there being no charge of fraud, concealment, or lack of knowledge by the State court of the date of the applicant's birth.21 Nor because of the failure to attach to the original papers the certificate by the Department of Commerce and Labor of the arrival of the defendant in the United States.22 But a mistake in a description of the nationality of the petitioner is fatal and cannot be corrected after the term at which the certificate is issued.23 Nor can an error in his name be subsequently corrected.24

14 U. S. v. Ginsberg, 243 U. S. 472.

15 U. S. v. Butikofer, 228 Fed. 918.

16 U. S. v. Albertini, 206 Fed. 133.

17 U. S. V. Raverat, 222 Fed. 1018.

18 U. S. v. Olssen, 196 Fed. 562. See ex parte Sauer, 81 Fed. 355, note; U. S, v. Swelgiu, 254 Fed. 884.

19 U. S. V. Wursterbarth, 249 Fed. 908.

20 U. S. v. Lenore, 207 Fed. 866. 21 U. S. v. Butikofer, 228 Fed. 918, 23; U. S. v. Ness, 217 Fed. 169.

22 U. S. v. Ness, 217 Fed. 169. 23 I. S. v. Vogel, C. C, A., 262 Fed. 262, and cases cited, overruling U. S. v. Viatopulos, 221 Fed. 485; U. S. v. Orend, 221 Fed. 777; Re Denny, 240 Fed. 845.

24 Re Perkins, 204 Fed. 350,

But it has been held that the certificate may be set aside when the application was made in the wrong district or county.26 Or where the State court erred in overruling the objection of the government because of no previous declaration of intention to become a citizen when the applicant was a member of the United States Marine Corps; 27 or was the widow of an honorably discharged soldier; 28 or the court erred in considering depositions not authorized by the statute.29 Or where the State court by a misconstruction of the statute granted the certificate before two years had expired following the date of the declaration of intention.30

The residence described in the statute is one where the applicant has voluntarily sojourned.31 The Federal court of a district where the naturalized citizen is confined in a penitentiary has no jurisdiction to cancel a certificate of citizenship when at the time of the conviction he resided in another district.3 32

The affidavit submitted to the District Attorney need not comply with the formalities of the statements in the pleadings,33 and may be made upon information and belief.34 But it has been held that an averment in a bill or petition that the certificate was "fraudulently and illegally procured" is a mere conclusion and ineffectual unless facts are alleged indicating such fraud or illegality.35

An averment is insufficient which states that in the petition for naturalization the applicant, contrary to fact, represented that he had been in the United States for more than five years, there being attached to the petition of the Government as an exhibit an affidavit made by a special agent setting forth in

26 U. S. v. Schurr, 163 Fed. 648. 27 U. S. v. Plaistow, 189 Fed.

1006.

28 U. S. v. Meyer, 170 Fed. 982. 29 U. S. v. Nisbit, 168 Fed. 1005. 30 U. S. v. Vandermolen, 163 Fed. 650.

31 U. S. v. Gronich, 211 Fed. 548. 32 Ibid.

38 U. S. v. Leles, 227 Fed. 189. 34 Ibid.

35 U. S. v. Rose, 166 Fed. 999. See U. S. v. Luria, 184 Fed. 643, aff'd 648; Luria v. U. S., 231 U. S. 9, 17; 34 Sup. Ct. 105, 58 L. ed. 101; U. S. v. Rockteschell, 208 Fed. 530.

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