Weber v. United States

MATHEWS, Circuit Judge

(dissenting in part).

These are consolidated appeals from orders denying appellants’ petitions for naturalization. The record consists of an agreed statement1 2from which it appears that, in each of the cases, the court below found that the petitioner “did not meet the requirements of 8 U.S.C.A. § 382,”2 which provides:

“No alien shall he admitted to citizenship unless (1) immediately preceding the date of his petition the alien has resided continuously within the United States for at least five years and within the county where the petitioner resided at the time of filing his petition for at least six mouths, (2) he has resided continuously within the United States from the date of his petition up to the time of his admission to citizenship, and (3) during all the periods referred to in this section he has behaved as a person 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 United States. At the hearing of the petition, residence in the county where the petitioner resides at the time of filing his petition, and the other qualifications required by this section during such residence, shall be proved by the oral testimony of at least two credible witnesses, citizens of the United States * *

Thus, in order to be admitted to citizenship, it was necessary for each of these appellants, at the hearing of his or her petition, to prove by the oral testimony of at least two credible witnesses, citizens of the United States, that he or she possessed the qualifications required by § 382. The record discloses no such proof. Indeed, so far as the record shows, no witness other than appellants themselves testified orally at any of the hearings.3 The court, therefore, was compelled to find, as it did, that appellants had not met the requirements of § 382. Accordingly — and properly — it denied their petitions.

The United States Attorney has filed in this court a document entitled “Confession of Error by Appellee,” which reads as follows:

“Comes now the United States of Ameri-ca, appellee herein, by its attorneys, Wm. Eleet Palmer, United States Attorney, and Maurice Norcop, Assistant United States Attorney, and advises the court as follows:
“Under date of October 17, 1940, the Attorney General, in writing, instructed the attorneys of the appellee to confess error in this cause. The precise pertinent language contained in the letter of direction from the Attorney General reads as follows:
“ ‘You are now informed that the Solicitor General has ordered that you be instructed to confess error in this and similar cases which may now be pending, the conclusion having been reached that the position of the court is without statutory warrant and plainly unwise.’ ”

There was and is no basis for the “conclusion” mentioned. The statute (§ 382, supra) not only-warranted, but compelled the action taken by the court below. Any other action would have violated the statute, as would also the reversal here sought, even though consented to by the Attorney General.

Our jurisdiction with respect to these orders is “to review by appeal.” Judicial Code, § 128 (a), 28 U.S.C.A. § 225(a). Such jurisdiction includes the power to reverse for error. It does not include the power to reverse where, as here, no error exists; nor can such power be conferred bv stipulation or consent. Compare People v. Mooney, 176 Cal. 105, 107, 167 P. 696.

The orders should be affirmed.

Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, Rule 76.

Act of June 29, 1906, c. 3592, § 4, subdivision 4, 34 Stat. 598, as amended by the Act of March 2, 1929, c. 536, § 6(b), 45 Stat. 1513.

The hearings referred to were the hearings before the court. An examiner had conducted preliminary hearings pursuant to § 399a(a), title 8, U.S.C.A., but the court, instead of merely approving the examiner’s recommendations, conducted hearings of its own pursuant to § 399a(c) and, thereupon, made its own findings and the orders here appealed from.