The opinion of the court was delivered by: FORMAN
The defendant Vito Genovese was born in Italy in 1897. He immigrated to this country in 1913 and with the exception of a brief interval from May to August of 1933 when he returned to Italy on a pleasure trip he has resided here continously.
Pursuant to his petition for naturalization filed December 19, 1935, he was admitted to citizenship by the United States District Court for the Southern District of New York on November 25, 1936, as is evidenced by the Certificate of Naturalization No. 4,129,975, issued to him.
In November of 1952 the plaintiff commenced this action against him by filing a complaint in which it prayed for an order declaring null and void the order of the United States District Court for the Southern District of New York conferring citizenship upon him as well as the said Certificate of Naturalization issued to him pursuant thereto. The complaint alleged that defendant had procured his naturalization fraudulently and illegally because he practiced deception upon the court in which he was naturalized by making false statements and concealment of facts in the proceedings which led to his naturalization in that the defendant falsely represented that he had not been arrested prior to his application for naturalization, whereas he had been arrested at least eight times previously and that he had not been convicted of crime previous thereto whereas he had been convicted on at least two separate occasions prior to his said application.
In his answer the defendant generally denied the allegations of the plaintiff charging him with fraudulently and illegally procuring his naturalization. A number of separate defenses are set up in the answer such as the unconstitutionality of Section 738(a), Title 8 U.S.C.,
under which the complaint was brought, laches, violation of the due process clause of the Fifth Amendment to the Constitution, etc. These were not particularly pressed by the defendant and the real issue in the case is raised by the allegations of false representation and concealment recited in the complaint and their denial.
The evidence disclosed that the defendant executed the usual Form A-2214, Application for a Certificate of Arrival -- Preliminary Form for Petition for Naturalization. This is the conventional blank that is issued to those seeking citizenship and contains numerous questions to be answered by the applicant in spaces provided therefor. In this case the answers were made in the handwriting of some one other than the defendant, but he placed his signature on the form in several places. There is a rubber stamp on the fourth page of the form indicating that it was received by the Immigration and Naturalization Service New York, New York on March 18, 1935.
On page 1 of the form are check marks in red ink against the defendant's name, place of arrival, date of arrival and name of the vessel.
On the second page are other words, symbols and characters in red ink indicative of the work of the Examiner in checking the answers to the questions. Among the questions on this page is the following:
'31. Have you ever been arrested or charged with violating any law of the United States or State or any city ordinance or traffic regulation? -- if so give particulars -- '
In the handwriting of the person who answered all of the questions on the form originally the answer to the question is 'No', and there is an irregular line after the directive to give particulars. The word 'No' is ringed in red ink and the initials 'NCR' appear in handwriting alongside of the printed question. There can be no doubt that the Examiner made this marking at the time of review of the paper with the defendant to indicate that she had confirmed the question and his answer. The initials 'NCR' stand for 'no criminal record'. This page bears the admitted signature of the defendant.
The third page, which is headed 'Statement of Facts to be Used in Filing my Petition for Citizenship,' contains the defendant's signature on the first line at the top as well as on the line provided for it on the bottom of the page. This page has a large number of red inked entries patently made by the Examiner. There are also words written by the Examiner in red ink amending the answers, with her initials and the date of the examination, December 19, 1935. In all, on pages two and three, the Examiner made seven changes in red ink, numbering each consecutively. At the very bottom of page three there appears the comment 'changes 1 to 7, incl. approved by me' and immediately beneath this writing is the signature of the defendant.
On the same day the defendant executed a petition for naturalization on Form 2203 and his two witnesses executed their affidavits on the said form. This form contains the handwriting of a Naturalization Examiner named J.A.G. Stitzer, who was the superior of Examiner Herckt. He is also deceased. His handwriting was likewise identified by his long contemporary. It is apparent that Mr. Stitzer reviewed the results of Herckt's examination as she summarized it again in red ink on the reverse side of defendant's petition for naturalization.
Mr. Stitzer made comments under the heading 'Adjournments' dated December 19, 1935; May 4, 1936 and June 4, 1936. Eventually the date for final hearing was noted as November 25, 1936. There is a very indistinct rubber stamp on the reverse side of this form filled in in the handwriting of Mr. Stitzer as follows:
Rubber Stamp Wording Answers in Mr. Stitzer's
Absence from U.S. As per Ex's report
No other absence.
Arrests, etc. No.
above-absences, arrests, etc. Yes.
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