The opinion of the court was delivered by: WORTENDYKE
This action is brought under 8 U.S.C.A. § 1451(a) to set aside and cancel a decree of naturalization entered in the Passaic County Court of Common Pleas of the State of New Jersey, on September 20, 1933, and Certificate of Naturalization No. 2643888, respectively admitting and evidencing the admission of the defendant to the status of a citizen of the United States of America. On June 13, 1956 there was filed with the Clerk of this Court the affidavit of Maurice A. Roberts, an attorney of the Immigration and Naturalization Service of the United States Department of Justice, showing good cause for the institution of this action. Although the action was commenced prior to the filing of the affidavit, it constituted a sufficient compliance with the provisions of the foregoing enabling statutory section. United States v. Lucchese, 2 Cir., 1957, 247 F.2d 123.
Upon the evidence presented upon the trial of this action before me on November 25, 1957, I find the following facts and reach the following conclusions of law thereon:
1. On February 25, 1902, the defendant Bartolo Failla was lawfully admitted to the United States of America for permanent residence, following his arrival at the Port of New York, New York, on the S. S. Citta di Milano. Defendant was, at the time of his said arrival in the company of his mother, just short of three years of age. His mother was present in Court but did not testify on the trial of this action.
2. On May 6, 1933 there was received at the office of the United States Naturalization Service in Newark, New Jersey, Form A-2214, 'Application for a certificate of arrival and preliminary from for petition of citizenship No. 3-17248.' This document, dated April 25, 1933, also bears the stamped number 24115 and is a printed form furnished by the Naturalization Service of the United States Department of Labor. Its blanks are filled in by typewriter and in handwriting, and was concededly signed by the defendant as he is named in this action. This document, consisting of four pages, and with a certificate of arrival dated August 27, 1930 thereto attached, was admitted in evidence and marked Exhibit G-2.
3. The foregoing preliminary petition for citizenship was in due course referred for investigation and verification to Frank M. Steadman, an examiner duly designated for that purpose who was then territorially assigned to Passaic County and certain other Counties in the northerly portion of the State of New Jersey. In the course of the discharge of his duty as examiner, Mr. Steadman interviewed the defendant and questioned him respecting certain of the typewritten insertions in the printed petition form. The items with respect to which the examiner questioned the defendant were indicated by the examiner in certain instances by a check mark and in other instances by a circle, both drawn by pen and ink upon the document. The names of the witnesses at the foot of page 3 of the document, together with information respecting them, were inserted by the examiner in his own handwriting by pen and ink. The examiner testified, and I find, that, among the statements contained in the document concerning which he questioned the defendant, the latter stated, under oath, that he had never been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation; and that he had resided continuously in the United States since February 25, 1902.
4. Examiner Steadman, after verifying, under the oath of the defendant, the contents of the preliminary form for petition for citizenship, turned the document over to the defendant for filing in the Office of the Clerk of the Passaic County Court of Common Pleas. The examiner testified, and I find, that it was the practice, at the time, for a petitioner for admission to citizenship to further verify the petition under oath before the Clerk of the Court or his deputy, and also the practice to post notice of the filing of the document in the Clerk's office.
5. Examiner Steadman testified, and I find, that it was the further practice, at the time of defendant's petition for naturalization, to make no investigation respecting prior arrests of the petitioner where the verifying examination elicited the petitioner's denial thereof and no information to the contrary was evoked as a result of the posting in the Clerk's office of the notice of the filing of the preliminary petition.
6. There was also furnished by the United States Naturalization Service, a document in printed form which was admitted in evidence and marked Exhibit G-3, known as Form No. 2208. It bears the stamped number 24115 (the same as that on Exhibit G-2), is signed by the defendant and by each of his two witnesses, and was sworn to by them on June 14, 1933 before Thomas F. Vigorito, Special Deputy Clerk of Passaic County. On the reverse of this document is the stamped name 'Halstead,' who was an examiner for the United States Naturalization Service. This name is placed below a legend indicating that the petitioner for naturalization was admitted to citizenship on September 20, 1933. There also appears on the same side of this document, in the handwriting of Examiner Steadman, the legend that the defendant (petitioner for naturalization) had not been absent from the United States within the critical period, had suffered no arrests, had read 'O.K.', had 'Fair' knowledge of the United States Government, and that his English was 'O.K.'
7. On September 20, 1933 the defendant (petitioner for naturalization) together with his two witnesses previously referred to, and in the presence of Examiner Halstead, appeared before Judge Delaney of the Passaic County Court of Common Pleas, on which occasion, after further verificatory interrogation of the applicant and his witnesses, the oath of allegiance was administered, whereupon defendant was admitted to citizenship and received a certificate thereof.
8. Examiner Halstead attended in the Court of Common Pleas upon administration of the oath of allegiance and he testified that it was the practice at that time to inquire respecting the criminal record of a petitioner for naturalization and to endorse upon the reverse of the copy of the petition for naturalization any information relative to such criminal record. The same examiner testified that at the time it was also the custom to inquire of the petitioner for naturalization, on his final hearing before the Court preceding the administration to him of the oath of allegiance, whether or not he had been arrested or charged with any crime.
10. On January 22, 1927 at Paterson, New Jersey, the defendant was arrested under the name of Frank Failla, charged with being a material witness to murder.
11. Upon an indictment by the Passaic County New Jersey Grand Jury, against him under the name of Frank M. Failla, for unlawful possession and transportation of liquor, the defendant pleaded non vult on November 24, 1922 and was sentenced on December 1, 1922 to pay a fine of $ 150.
12. On March 11, 1925 defendant was arrested in New York City under the name of Frank Failla Martini upon charges of possessing a revolver.
13. On October 2, 1925, defendant, under the name of Frank Failla, was indicted by the Passaic County Grand Jury for unlawfully carrying a concealed weapon. To this indictment defendant, on October 19, 1925, retracted a previous plea of not guilty and pleaded non vult, and a fine of $ 25 was imposed upon him.
14. On October 2, 1925, defendant, under the name of Frank Failla, was indicted by the Passaic County Grand Jury for assault with a pistol, to which the defendant pleaded not guilty. ...