United States v. Knight

299 F. 571, 1924 U.S. App. LEXIS 3097

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 1924
• Docket: No. 4222
• Status: Published

Opinion

RUDKIN, Circuit Judge

(after stating the facts as above). No countervailing evidence was offered, and if the consular certificate shows that the appellee returned to the country of his nativity, or went to some other foreign country and took permanent residence therein, within five years after the issuance of the certificate of citizenship, the decree should be reversed. Luria v. United States, 231 U. S. 9, 34 Sup. Ct. 10, 58 L. Ed. 101.

1. [1] The court below was of opinion, however, that the consular certificate fails to show that the appellee took' permanent residence at Cape Town within the 5-year period, and in that conclusion we concur. In the absence of the statute in question, the statement of the consular officer would be mere hearsay, and its competency as evidence does not extend beyond the duty imposed by law, namely, to furnish the Department of Justice, through the Department of State, the names of those within his jurisdiction who have certificates of citizenship, and who have taken permanent residence in the country of their nativity, or in some other foreign country. The material parts of the certificate now before us show merely that the appellee was bom in London in 1875; that he came to the United States in 1890; that he was naturalized in 1900; that he went to Cape Town in 1901, for the purpose of representing the Mercantile Agency of R. G. Dun & Co., of New York City; that he has constantly represented that firm in South Africa ever since; and that he intends to return to the United States for permanent residence whenever his employers so desire.

These facts are entirely consistent with permanent residence in the United States, or at least with a lack of permanent residence in South Africa. An American citizen does not become a permanent resident of a foreign country by simply taking employment there with an American firm, however long his employment may continue. _ No dates are given for the acts and conduct set forth in the remaining parts of the certificate, but at least some of the acts complained of were committed 20 years after naturalization. And in this connection it is a significant fact that the name of the appellee was not furnished to the Department of State or the Department of Justice as a permanent resident of Cape Town until upwards of 15 years after the passage of the acts of 1906, although the consul had full knowledge of lids status as a naturalized citizen and of his employment at Cape Town as early as 1917, when he registered at the consulate as an American citizen. It would seem to be a fair inference from this that the certificate of the consul is based largely upon acts committed and claims made by the appellee nearly 20 years after naturalization. The government rested its case entirely upon the presumption arising from the fact of taking permanent residence in a foreign country within 5 years after naturalization, and, having failed to prove the fact which gives rise to the presumption, the court below properly ruled that there was a failure of proof.

Decree affirmed.