Bogunovic v. United States Department of Labor

EDMONDS J., Dissenting.

In my opinion, there is substantial evidence in the record to support the finding of the *167trial court that the appellant “is not attached to the principles of the Government of the United States.” An alien has no right to citizenship unless he complies with the terms imposed by Congress (United States v. Macintosh, 283 U. S. 605 [51 Sup. Ct. 570, 75 L. Ed. 1302]), and the decisions in naturalization cases for the last 100 years are based upon the principle that the door to citizenship will not be thrown open to an alien unless he proves, to the satisfaction of the court, that he is attached to the principles of the Constitution of the United States. And attachment to our government means much more than a sympathy with or preference for the Constitution and laws of the United States; it implies devotion to those principles upon which our democratic institutions stand and a willingness to support them with more than lip service.

That devotion must, of course, be based upon a depth of conviction concerning law and order which cannot adequately be measured by perfunctory answers to questions framed in the language of the Naturalization Act. Through naturalization high political as well as civil privileges are conferred upon an alien. By it he is invested with most of the rights of a native born citizen. Whereas an alien is ineligible to vote, has no suffrage in public elections, and even in peace time is subject to various disabilities, citizenship confers important and valuable rights. These rights are merited by an alien only when he has complied with the terms which Congress imposes. “Citizenship is a high privilege and when doubts exist concerning the grant of it . . . they should be resolved in favor of the United States and against the claimant”. (Swan & Finch Co. v. United States, 190 U. S. 143, 146 [23 Sup. Ct. 702, 47 L. Ed. 984]; United States v. Manzi, 276 U. S. 463, 467 [48 Sup. Ct. 328, 72 L. Ed. 654].)

In the present case, there is evidence from which the court might well have concluded that the applicant is not attached to the principles of the Constitution but is sympathetic with the purposes of Communism. To disprove the evidence to that effect he offered no positive, frank or outspoken avowal of his attachment to the principles of our Government. His meager testimony came forth only in response to leading questions from his own counsel to the effect that he is “well disposed to the good order of the United States”, and that he has not done “anything detrimental to the best causes and *168interest of the Constitution, Government and laws of the United States ’ ’ and did not know anything which he had done for which he could be criticized.

A reading of the record reveals indisputably that the trial court might well be in doubt as to the sincerity and conviction of this testimony. Petitioner was obviously unwilling to submit to examination and he was represented by counsel who strenuously objected to many proper questions. It is significant that he failed to offer testimony expressly disavowing his attachment to the principles of Communism. Whether he has the attachment to the principles of this Government which is required by the Naturalization Act is a question which it was the duty of the trial court to determine. In reaching its conclusion the court was not limited to a consideration of the words of the applicant’s answers. His attitude toward the court and the examination of him, as well as his frankness or evasion in answering questions should have been, and undoubtedly were, considered by the trial judge in passing upon his honesty of mind and intention.

A trial court is not always bound by the positive and uncontradicted testimony of a witness and this is particularly true where the witness is- an interested one and the issue concerns his attitude or state of mind. Unquestionably, under the decisions in naturalization cases, if the record in such a proceeding shows affirmatively that there is any substantial reason for the trial court to doubt whether the applicant is attached to the principles of our Constitution, its finding to that effect should be sustained upon appeal.

The test in any naturalization proceeding is whether the applicant is entitled to citizenship, with the purpose of excluding from citizenship persons disbelieving in our government or hostile to it. An applicant should be granted citizenship only when the court is satisfied that his citizenship will be beneficial to our country (In re Sigelman, 208 Fed. 217) and, as I read the record, the evidence presented by the appellant shows a person concerning whose allegiance there may reasonably be much more than a grave doubt.

For these reasons I believe that the judgment of the trial court should be affirmed.