Before GOODRICH and KALODNER, Circuit Judges, and LORD, District Judge.
Defendant is a native of Italy. On June 29, 1943 the Common Pleas Court of Lebanon County, Pennsylvania entered its order admitting him to citizenship and issued a certificate of naturalization to him. Almost ten years later, on December 9, 1952, the United States instituted proceedings under Section 338(a) of the Nationality Act of 1940, 54 Stat. 1137, 1158, 8 U.S.C. § 738(a)*fn* to set aside the naturalization decree and cancel the certificate of naturalization on the ground that the latter had been illegally procured and was based on a fraudulent Certificate of Registry issued to defendant in 1931. The District Court for the District of New Jersey entered an order cancelling the defendant's certificate and revoking the order admitting him to citizenship, 1954, 120 F.Supp. 435. The defendant thereupon filed the instant appeal.
To begin at the beginning.
On September 12, 1917, the defendant, then a 15-year old "aspiring seaman" on the S.S. Sardegna, of foreign registry, arrived at the Port of New York and was granted shore leave. He failed to return to his ship and twelve days later was listed as a deserting seaman. Thereafter, he made his home in the United States.
On April 4, 1931, defendant made application for a Certificate of Registry under the Act of March 2, 1929, 45 Stat. 1512. In his application, he stated in part as follows: "I have never been arrested, summoned into court as a defendant, convicted, fined, imprisoned, or placed on probation, or forfeited collateral for an act involving a felony, misdemeanor, or breach of any public ordinance." On May 5, 1931, before an Immigration Inspector, the defendant testified under oath that he had never been arrested nor subjected to criminal or civil prosecution. On the basis of the record as stated, a Certificate of Registry was issued on June 19, 1931. Evidence in the present record discloses that defendant had in fact been arrested five times prior to his filing the "Application for Registry."
Subsequently, on October 30, 1931, the defendant filed a formal Declaration of Intention ("first papers") in the United States District Court for the Eastern District of New York; on November 16, 1933 he filed "Application for a Certificate of Arrival and Preliminary Form of Petition for Citizenship" and in response to a question therein "Have you ever been arrested or charged with violation of any law of the United States or state or any city ordinance or traffic violation" he answered "Yes * * * convicted of misdemeanor in 1923 * * * traffic tickets but does not recall dates"; on December 27, 1933 he filed his "Petition for Citizenship" to which was attached the Declaration of Intention to become a citizen of the United States and a Certificate of Arrival, issued in 1933, which was based on the 1931 Record of Registry proceedings; on March 1, 1934 defendant executed and gave to the government an affidavit in which he admitted that he had concealed his criminal record; on November 20, 1934, the District Director of Immigration and Naturalization filed "Opposition by United States to Granting of Citizenship", reciting inter alia, the defendant's concealment of his criminal record in his interrogation by a United States Naturalization Examiner on December 27, 1933; on February 27, 1935, defendant filed "Consent of Dismissal of Petition for Naturalization."
In 1943, the defendant, then in the United States Army, asked the permission of his Commanding Officer to institute naturalization proceedings under provisions relating to servicemen by filing a "Preliminary Form for Petition for Naturalization" which he had executed on December 30, 1942. The defendant filled out a required ten-page "Personal History Statement" on March 18, 1943, which disclosed that he had a police record. The defendant's Commanding Officer approved the defendant's application to file his petition for naturalization and transmitted it with his approval to the Chief Examiner of the Immigration and Naturalization Service at Philadelphia, Pennsylvania.
Subsequently the defendant's application was sent to the Records and Verification Division of the Immigration and Naturalization Service, which maintains arrival records at the Port of New York. There the crew list of the ship upon which the defendant had arrived was located. The verification clerk made the following entry on April 23, 1943, on the reverse side of defendant's application: "Data taken from Crew List - Deserting Seaman - No record of admission for permanent residence."
On April 28, 1943, a "Certificate of Arrival" was issued to the defendant. The Immigration and Naturalization Service then forwarded to George C. Reich, a designated examiner, its file relating to the defendant's original naturalization proceedings in 1931-1935 (which had been abandoned) and the then current 1943 proceedings. Reich, on June 29, 1943, proceeded to Indiantown Gap, Pennsylvania, where the defendant was stationed, and orally examined him with respect to his application.
Reich's testimony in the denaturalization proceedings in the District Court with respect to his examination of the defendant, is most illuminating.
Reich had with him the file of the Immigration and Naturalization Service relating to the 1931-1935 and 1943 naturalization proceedings when he examined the defendant.*fn1
The file contained police records of the defendant's arrests which he had fraudulently concealed in his 1931 application.*fn2
Reich examined the defendant in detail with respect to his criminal record as it appeared in the file.*fn3
Reich "knew" that the file contained an affidavit which the defendant had executed and given to the government March 1, 1934, in which he admitted that he had concealed his criminal record.*fn4
Reich "knew" from the file that the defendant had been issued a Certificate of Registry and a Certificate of Arrival and that a new Certificate of Arrival was issued him in 1943 supplanting the earlier arrival certificate.*fn5
Reich "knew" when he examined the defendant that he originally entered the United States as a "deserting seaman."*fn6
Reich spent "more time on the review" of the defendant's naturalization files (1931-35 and 1943) and on "his examination" of the defendant than on the "average case" at the Indiantown Gap interview.*fn7
Reich "knew", from his "complete" examination of the "entire file" before he examined the defendant, that his earlier attempt at naturalization in 1931-35 in New York had been "denied".*fn8
Reich recommended that the defendant's application be granted because he was of the opinion "that there was no legal evidence in the file which would sustain an objection"; the defendant's various arrests "disclosed * * * or uncovered in 1934" were at the time "outside the statutory period and the defendant's commanding officer had approved his application."*fn9
On the record as stated the District Court found (Finding of Fact VIII) "The Certificate of Arrival (granted on April 28, 1943) had its origin in the false record of registry (issued in 1931) * * * theretofore made by the defendant, and therefore its use in the naturalization proceedings (in 1943) was a fraud upon the Court. The fraud tainted every step of the naturalization proceedings (from 1931 to 1943)."
We are of the opinion that the District Court erred in its determination. On the score of the latter it must be observed that the District Court made no findings with respect to Reich's testimony and its impact upon the critical issue as to whether the government had been defrauded in 1943 in recommending the defendant's naturalization.
A denaturalization proceeding is essentially an action for rescission. As in all rescission actions, the government in order to prevail must establish that (1) the defendant was guilty of fraud or ...