In re Di Giovine

242 F. 741, 1917 U.S. Dist. LEXIS 1263

• Court: District Court, W.D. New York
• Decided: May 7, 1917
• Status: Published

Opinion

HAZEE, District Judge.

Objection was at first made because the proceeding to cancel was not brought under section 15 of the naturalization law of June 29, 1906 (34 Stat. 601, c. 3592 [Comp. St. 1916, § 4374]), upon a petition and hearing; but, as this objection has not been insisted upon, I shall give consideration to the merits.

[1] It is contended by the government that, if respondent had not made false statements at the preliminary examination before the naturalization examiner, the fact that he had not resided in the United States continuously for a period of 5 years would have been ascertained. It now appears that he was absent from this country for about 18 months immediately next preceding the filing of his petition for citizenship, and the question is presented whether it was his intention, upon leaving the United States, to remain temporarily or permanently in Italy. It is shown that he had declared his intention to become a citizen of the United States and had received his first papers some time between July, 1910, and May, 1914, when he and his wife returned to Italy, continuously residing there until October 26, 1915, when respondent left Italy, arriving in New York November 15th.

While in Italy respondent entered into partnership with his brother-in-law for the manufacture mid repair of jewelry, but he asserts that his failure to return more promptly to the United States was owing to the European war, Italy refusing to issue passports to all persons of military age, and that he was therefore unable to obtain a passport, and was delayed1 in Italy until he left there clandestinely. Although the applicant first came to the United States in 1906, going back to Italy in 1908, and returning to the United States in 1910, I find .nothing to satisfy me that he intended to return to the United States after his last visit here, and believe that his return was due to the war and the possibility of enforced military service in Italy. His untruthful replies to questions put to him by the naturalization examiner leave no doubt of this in my mind.

[2] In enacting the statute requiring aliens applying for citizenship to reside continuously in the United States for a period of 5 years, it was doubtless the intention of Congress to afford the government an opportunity to observe the conduct of applicants, and to give the applicants time in which to acquire the language and to familiarize themselves with our habits and institutions. As respondent has failed to comply with the statute, I hold that the certificate of naturalization issued to him must be canceled, but without prejudice to his right to file another application.

So ordered.