court specified in subsection (a) of section 1421 of this title [ 8 U.S.C.A. § 1421(a)] in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation."
The affidavit showing good cause has been held to be an indispensable procedural prerequisite to suit under this section. See United States v. Zucca, 351 U.S. 91, 76 S. Ct. 671, 100 L. Ed. 964 (1956). No statute of limitations is involved and the time within which the action must be commenced is not circumscribed. The standard of proof required to denaturalize a naturalized citizen is strict, and the burden of proof is on the government to prove its case by clear, unequivocal and convincing evidence. Costello v. United States, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961).
The second method, apparently authorized under subsection (j) of 8 U.S.C. § 1451, is the method by which the INS now brings this action. Subsection (j) reads: " Power of court to correct, reopen, alter, modify or vacate judgment or decree. Nothing contained in this section shall be regarded as limiting, denying or restricting the power of any naturalization court, by or in which a person has been naturalized, to correct, reopen, alter, modify, or vacate its judgment or decree naturalizing such person, during the term of such court or within the time prescribed by the rules of procedure or statutes governing the jurisdiction of the court to take such action."
This language ostensibly allows a summary procedure under Federal Rule of Civil Procedure 60(b) within one year of the entry of the original judgment. If the motion under Rule 60(b) were granted, the parties would be placed back in the position they were in prior to the granting of the order or naturalization; that is, the burden would shift to Mr. de Roma to prove his qualifications for citizenship.
I note that Section (j) only ostensibly authorizes a denaturalization action under the instant circumstances because I do not accept the assumption made in some cases that 8 U.S.C. § 1451(j) was enacted in order to overrule the holding in Bindczyck v. Finucane, 342 U.S. 76, 72 S. Ct. 130, 96 L. Ed. 100 (1951). See, for example, Simons v. United States, 452 F.2d 1110, 1114 (2d Cir.1971). Bindzyck held that Section 338 of the Nationality Act of 1940, the precursor of the present Section 1451(a), was the exclusive procedure to be used for revoking naturalizations on the ground of fraud or illegal procurement. My reading of the only subsequent Supreme Court decision touching on this issue, United States v. Zucca, 351 U.S. 91, 76 S. Ct. 671, 100 L. Ed. 964 (1956), leads me to believe that Bindczyck is still good law in many respects. See Zucca, Page 95 at footnote 8, 76 S. Ct. page 674 at footnote 8.
There is, however, no need to reach the issue of whether the INS legally may bring this action under the method they have chosen, for I find that even under the theory of law under which the INS proceeds, the motion to reopen the order of naturalization should be denied.
As noted in In re Campbell's Petition, 326 F.2d 101 (2d Cir.1964), section (j) is a grant of power to the Court to reopen its naturalization judgments, but it is stated in permissive terms.
It is well settled that motions for relief under Rule 60(b) are addressed to the discretion of the Court. See, for example, Greco v. Reynolds, 416 F.2d 965 (3d Cir.1969); England v. Doyle, 281 F.2d 304 (9th Cir.1960).
In considering how I should exercise my discretion, I find that to allow the precious right of American citizenship to be revoked by such a summary procedure as is sought here would debase the value of the right of that citizenship and raise serious doubts in any citizen's mind that the law is in accord with the dictates of humanity and justice.
The exercise of my discretion in this way is in accord with the few other courts who have considered this issue. See Petition of Zabala, 573 F. Supp. 665 (E.D.N.Y.1983); In re Campbell's Petition, supra., Petition of Arevalo, 352 F. Supp. 215 (D.Hawaii 1972); but see Petition of Cardines, 366 F. Supp. 700 (D.Guam 1973).
Once citizenship has been granted, a naturalized citizen may not be deprived of his status without due process. This is especially true where the attack on the citizenship is due to the government's mistake, and not due to a misrepresentation or omission on the part of the petitioner.
I note that the vast majority of cases I have found concerning denaturalization arise out of an intentional omission or misrepresentation by the petitioner of a fact, which, if known by the INS, might have denied the petitioner citizenship. See, for example, Arevalo, supra., Petition of Field, 117 F. Supp. 154 (S.D.N.Y.1953); and In re Bartkiw, 199 F. Supp. 762 (E.D.Pa.1961).
The history of the denaturalization provision found today in Section (a) demonstrates that Congress formulated a carefully safeguarded method for denaturalization because of their experience with the evils inherent in widely diverse naturalization procedures. Prior to the act of 1906 containing the first detailed denaturalization procedure, elections were influenced by irregular denaturalizations geared by government officials. See Bindczyck at 81-83, 72 S. Ct. at 133-134. Although no such evils are even intimated by this action today, there are still sufficient reasons for requiring the government to proceed under the safeguards established by Congress. The affidavit of good cause, for example, as noted in United States v. Minerich, 250 F.2d 721 (7th Cir.1958), allows the experienced judge to detect a reckless categorization or noncritical selection of candidates for denaturalization.
An affidavit of good cause, along with an adequate hearing would be an important step in making a fair determination on this matter. As the scanty record before me now stands, I have little more than the INS's unsworn statement that they made a mistake in analyzing Mr. de Roma's petition. This is not a sufficient basis on which to revoke a person's citizenship. The record is inadequate concerning details of what the statutory and factual basis of Mr. de Roma's naturalization was, how the alleged mistake was uncovered and why the INS has decided to expend their limited resources on this matter.
If the government wishes to proceed further to invalidate Mr. de Roma's judgment of naturalization, it must resort to a plenary action under 8 U.S.C. § 1451(a).
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