¹ Federal supervision of all naturalization began in 1906, under the administration of the Bureau of Naturalization. Problems involving both substantive and adjective law continually arise in practice. The Supreme Court has aided in the solution of a number of them. See footnotes 1 to 14. Tutun v. United States, and Neuberger v. United States (April 12, 1926), 270 U. S. 568 (Advance Sheets), held: that the United States Circuit Courts of Appeals have jurisdiction to review by appeal a decree or order of a Federal District Court denying the petition of an alien to be admitted to citizenship in the United States.

² Johannessen v. United States (1912), 225 U. S. 227, held: that the provisions of Sec. 15, Naturalization Act of June 29, 1906, 34 Stat. 596, 601, to cancel naturalization certificates for fraud or illegality are constitutional and not ex post facto, such cancelation not being a punishment, and the authority not an unwarranted exercise of judicial power by the legislative branch of government; such certificates issued ex parte can be canceled for fraud, and the government is not estopped from impeaching naturalization where it did not appear at original proceedings; the naturalization law must be strictly construed against the alien applicant.

³ Mansour v. United States (1912), 226 U. S. 604, affirmed the District Court's decree in United States v. Mansour (1908, 1909), 170 Fed. 671, 676, in which it was held: that a suit for cancelation of a certificate of naturalization under Sec. 15, supra, for fraud, is not one in which defendant is entitled as of right to a jury trial, and such section is not unconstitutional.

⁴ Luria v. United States (1913), 231 U. S. 9, held: that the spirit of the naturalization laws has always required that if the applicant be admitted, he should be a citizen in fact as well as name, and bear the obligations and duties of citizenship as well as enjoy its rights and privileges; taking permanent residence in a foreign country within five years after naturalization has a bearing on the purpose for which naturalization was sought, and it is reasonable to presume that such action indicates absence of intention at the time of the application to reside permanently in the United States; Sec. 15, supra, making such residence a rebuttable presumption of intent not to reside permanently in the United States, is not unconstitutional as a denial of due process of law; such section, as to evidentiary effect of taking up such foreign residence, applies to naturalization certificates granted both under the Act of 1906, supra, and prior laws; Act of 1906, supra, not unconstitutional as making any act fraudulent or illegal that was honest and legal when done, or as imposing penalties; proceeding to cancel certificate under such section not a suit at common law but one in equity, and defendant not entitled to jury under seventh Amendment, U. S. Constitution.

⁵ Maibaum v. United States (1914), 232 U. S. 714, affirmed the District Court's decree in which it was held: that naturalization procured illegally by prejured testimony in 1900, was subject to revocation by a proceeding to cancel under Sec. 15, supra.

⁶ Mackenzie v. Hare (1915), 239 U. S. 299, held: that the marriage in the United States in 1909 of a native-born American woman citizen with a subject of Great Britain who failed to become naturalized, was an act as voluntary and distinctive as expatriation, and was therefore tantamount to voluntary expatriation; Congress, without exceeding its power, had made it so by Sec. 3, Expatriation Act of March 2,1907, 34 Stat. 1228 (since repealed by Sec. 7, “ Cable” Act of September 22, 1922, 42 Stat. 1021, 1022).

⁷ United States v. Ginsberg (1917), 243 U. S. 472, held: that a final hearing on a petition for naturalization in a judge's chambers adjoining the court room does not satisfy the requirement of Sec. 9, Act of 1906, swpra, p. 599, that every final hearing be held in open court; every certificate of naturalization granted when prescribed qualifications do not exist, is subject to cancelation in independent suit brought by the United States.

⁸ United States v. Ness (1917), 245 U. S. 319, held: that the filing of the certificate of arrival from : he Department of Labor, showing the date, place, and manner of alien's arrival in the United States, required by subdiv. 2, Sec. 4, Act of June 29, 1906, supra, p. 597, where arrival is after that date, is an essential prerequisite to a valid order of naturalization; Sec. 11, supra, p. 599, conferring right upon United States to appear before any court in opposition to granting any naturalization petition, and Sec. 15, supra, authorizing United States to institute proceedings to cancel any certificate of citizenship illegally or fraudulently procured, are cumulative and not alternative protection against such procurement; an order entered where United States appeared under Sec. 11, supra, is not res judicata so that certificate cannot be set aside under Sec. 15, supra, as “ illegally procured.”

⁹ United States v. Morena (1918), 245 U. S. 392, held: that the seven-year limitation on declarations of intention to become citizens, prescribed by subdiv. 2, Sec. 4, Act of 1906, supra, is applicable to those made before such Act was passed; it does not invalidate them, but the time begins to run upon them at the date of the Act.

¹⁰ Ozawa v. United States (1922), 260 U. S. 178, held: that the Naturalization Act of 1906, supra, is not complete in itself, but is limited by Sec. 2169, U. S. Revised Statutes (1878), confining naturalization to aliens being white persons, those of African nativity, and persons of African descent; the words “ white persons” in Sec. 2169, supra, import a racial and not an individual (color) test; a person of the Japanese race, bom in Japan, is not eligible to naturalization under any circumstances.

¹¹ Yamashita v. Hinkle (1922), 260 U. S. 199, held: upon authority of Ozawa v. United States, supra, that persons of the Japanese race are not entitled, under Sec. 2169, supra, to become naturalized citizens of the United States; a court which renders a judgment purporting to naturalize a person whose ineligibility appears upon the face of the judgment, is without jurisdiction and the judgment is void. “ United States v. Thind (1923), 261 U. S. 204, held: that “ free white persons,”

¹² Sec. 2169, supra, are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word “ Caucasian” only as that word is popularly understood; cases of doubtful racial eligibility are to be dealt with by the“ process of judicial inclusion and exclusion;” a high caste Hindu, of full Indian blood, bom in Punjab, India, is not a “ white person” within the meaning of Sec. 2169, supra.

¹³ Kaplan v. Tod (1925), 267 U. S. 228, held: that a feeble-minded alien child, ordered excluded from the United States by the immigration authorities, who, while awaiting deportation, was in custody of an immigrant aid society, did not become a citizen under Sec. 2172, U. S. Revised Statutes, through naturalization of her father during her minority, as she could not lawfully have landed in the United States, and until she legally landed “ could not have dwelt within the United States;” she was still in theory of law at the boundary line and had gained no foothold in the United States, never had been “ dwelling in the United States,” as required by Sec. 2172, s pra, and still more clearly never had begun to reside permanently in the United States within Sec. 5, Citizenship Act of March 2, 1907, 34 Stat. 1229.

¹⁴ Toyota v. United States (1925), 268 U. S. 402, held: that a person of the Japanese race, bom in Japan, who served honorably substantially all the time from November, 1913, to May, 1923, in the U. S. Coast Guard Service—a part of the United States naval force nearly all the time this country was engaged in the World War—may not legally be naturalized under subdiv. 7, Sec. 4, Act of 1906, supra, as amended by Sec. 1, Act of May 9, 1918, 40 Stat. 542, as the words “ any alien” therein are limited by Sec. 2169, supra, to aliens of the color and race therein specified; nor may such person be legally naturalized under Act of July 19, 1919, 41 Stat. 163, 222, as the words “ any person of foreign birth” therein are not more comprehensive than the words “ any alien ” in the Act of 1918, supra. Obiter: Filipinos, not being “ free white persons” or “ of African nativity,” were not eligible to naturalization prior to the Act of 1918, supra, and under that Act are eligible only if they have declared their intention to become citizens and served not less than three years in the United States Navy, Marine Corps, or Naval Auxiliary Service, and have received honorable discharges, or ordinary discharges with recommendation for re§nlistment.

¹⁵ Tutun v. United States, and Neuberger v. United States, supra, pp. 574-575, and footnote. Jurisdiction was assumed in the appellate court of the District of Columbia: United States v. Daly (1909), 32 App. D. C. 525.

¹⁶ In re Fordiani (1923), 98 Conn. 435; 120 Atl. 338; United States v. Hrasky (1909), 240 111. 560; 88 N. E. 1031; United States v. Gerstein (1918), 284 111. 174; 119 N. E. 922; Ex parte Smith, an Alien (1847), 8 Blackf. (Ind.) 395; In re Dean (1891), 83 Me. 489; 22 Atl. 385; State ex rel. United States v. District Court of 17th Dist. et al. (1909), 107 Minn. 444; 120 N. W. 898; Ex parte Johnson (1902), 79 Miss. 637; 31 So. 208; State ex rel. Rushworth v. Judges of Inferior Court of Common Fleas of Hudson County (1895), 58 N. J. Law, 97; 32 Atl. 743 [application for mandamus to compel judges to naturalize relator]; United States v. Breen (1909), 135 App. Div. (N. Y.) 824; 120 N. Y. Supp. 304; In the Matter of the Application of Abraham S. Karasick (1924), 208 App. Div. (N. Y.) 844; 204 N. Y. Supp. 919; Inre Naturalization of Vura (1913), 5 Ohio App. 334; Ex parte Granstein (1833), 1 Hill. (S. C.) Law Rep. 141.

¹⁷ In re Wilkie (1922), 58 Cal. App. 22; 208 Pac. 144; State ex rel. Weisz v. District Court of 16th Judicial Dist. for Garfield County et al. (1921), 61 Mont. 427; 202 Pac. 387 [held: that as there was no right of appeal, and no other plain, speedy, and adequate remedy, certiorari would lie to modify order of denial where lower court had exceeded jurisdiction]; State ex rel. Gorelick v. Superior Court of King County (1913), 75 Wash. 239; 134 Pac. 916.

¹⁸ 169,236 petitions for naturalization were denied by Federal and State courts during the ten fiscal years ended June 30, from 1916 to 1925, inc., being from 9% to 15% of annual total.

¹⁹ Sec. 6, Act of March 3, 1891; 26 Stat. 826, 828.

²⁰ Sec. 128, Act of March 3, 1911; 36 Stat. 1087,1133.

²¹ Sec. 128 (a), Act of February 13, 1925; 43 Stat. 936.

²² 2 Tutun v. United States, and Neuberger v. United States, supra,pp. 575-576.

²³ Sec. 15, Act of 1906, supra, p. 601.

²⁴ Sec. 3, Act of 1906, supra, p. 596.

²⁵ “ Subdiv. 1, Sec. 1, Act of January 29,1795; 1 Stat. 414.

²⁶ Sec. 11, Act of 1906,supra, p. 599.

²⁷ Sec. 9, Act of 1906,supra. When this decision was rendered, Sec. 9 required that at the final hearing “ the applicant and the witnesses shall be examined under oath before the court and in the presence of the court.” Since then, by the Act of June 8, 1926, 44 Stat. 709-710, the judge of any United States District Court, or the senior judge, if there be more than one, is authorized in his discretion to designate an examiner or officer of the Bureau of Naturalization, including the Naturalization Service, to conduct preliminary hearings upon petitions for naturalization, and to make findings and recommendations thereon to the court. For such purposes, the designated examiner or officer is authorized to administer oaths, subpoena witnesses, and take testimony concerning any matter touching or in any way affecting the admissibility of any petitioner for naturalization. Where such preliminary hearing has been held, the requirement that the petitioner and his witnesses be examined under oath before the court and in the presence of the court does not apply, except that the court may, and, on demand of the petitioner must, require such examination. Otherwise, the witnesses are excused from attendance upon the final hearing in the favorable cases, and the petitioner does not testify thereat, but merely appears and takes the oaths of renunciation and allegiance.

²⁸ Art. 1, Sec. 8, cl. 4, U. S. Constitution.

²⁹ Tutun v. United States, and Neuberger v. United States, swpra, p. 578.

³⁰ “ No alien has the slightest right to naturalization unless all statutory requirements arecomplied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it as provided in Section 15 [supra] and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence non-essential.” United States v. Ginsberg, supra, p. 475.

³¹ Tutun v. United States, and Neuberger v. United States, supra, p. 578.

³² “ Subdiv. 4, Sec. 4, Act of 1906, supra, p. 598.

³³ Tutun v. United States, and Neuberger v. United States, supra.

³⁴ Tutun v. United States (May 29, 1926), 12 F. (2d) 763-765 (Advance Sheets).

³⁵ Sec. 2, Act of May 18, 1917; 40 Stat. 76, 77-78, provided that: “ Such draft … shall be based upon liability to military service of all male citizens, or male persons not alien enemies who have declared their intention to become citizens … ”

³⁶ Ch. XII, Sec. 4; 40 Stat. 845, 885: “ Provided, That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen and he shall forever be debarred from becoming a citizen of the United States.” This provision was duplicated in Sec. 1, Act of August 31, 1918; 40 Stat. 955.

³⁷ United States v. Siem (1924), 299 Fed. 582, 583-584.

³⁸ Ibid., p. 584.

³⁹ The Circuit Court decisions in the Tutun and Siem cases, supra, are of course, binding only upon the Federal District Courts of the First and Ninth Circuits, respectively. There has been great variance in the decisions of the Federal District Courts as to the effect upon the applicant's eligibility for naturalization of his claim for exemption from United States military service in his questionnaire under the Selective Service Act, during the World War. The reported cases, so far as the information is available as to those courts, may be roughly classified as to nationality and status in chronological order as follows: Denial of petition for naturalization by State court is res judicata,so as to prevent filing of subsequent petition in Federal court. In re Norman (Mont., 1919), 256 Fed. 543. Declaration of intention repudiated by surrender to Norwegian consul, but not acted on before Armistice; applicant inducted into service; petition denied with prejudice for unstated probationary period to establish attachment to Constitution. In re Loen (Wash., 1919), 262 Fed. 166.

⁴⁰ In re Neuberger (April 16,1925), 6 F. (2d) 387 [opinion of District Court].

⁴¹ Joint Res. of July 2, 1921, supra.

⁴² Sec. 2170, Revised Statutes (1878), provides: “ No alien shall be admitted to become a citizen who has not for the continued term of five years next preceding his admission resided within the United States.” Subdiv. 4, Sec. 4, Act of 1906, supra, p. 598, provides: “ It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, … ”

⁴³ “ In re Neuberger, supra, p. 387.

⁴⁴ Neuberger v. United States (Nov. 24,1925), 9 F. (2) 1020 [certification by Circuit Court of Appeals to Supreme Court of questions concerning right of review].

⁴⁵ Neuberger v. United States (July 13, 1926), 13 F. (2d) 541 (Advance Sheets) [decision of Circuit Court of Appeals on the merits].

⁴⁶ United States v. Mulvey (1916), 232 Fed. 513, 516.

⁴⁷ Act of June 26,1848; 9 Stat. 240.

⁴⁸ Sec. 12, Act of March 3, 1813; 2 Stat. 809, 811, provided: “ That no person … shall be admitted to become a citizen of the United States, who shall not for the continued term of live years next preceding his admission as aforesaid have resided within the United States, without being at any time during the said five years, out of the territory of the United States.”

⁴⁹ Neuberger p. United States, 13 F. (2d) 543-544[decision of Circuit Court of Appeals on the merits].

⁵⁰ “ The United States of America, petitioner, *, Moritz Neuberger, No. 697, docketed October 18, 1926, in Supreme Court of the United States; certiorari granted, November 29, 1926.