United States v. Cantini

J. B. McPHERSON, Circuit Judge.

This appeal is from an order dismissing a petition in which the government sought to cancel a certificate of naturalization on the ground that it had been illegally obtained.

[1] The facts are set out so fully in the opinion of the District Court, which will be found in 199 Fed. 857, that we need not repeat them. The brief for the government concedes that the question for decision is whether Cantini “resided continuously” within the United States for at least five years before the date of his application. To quote from the argument:

“Does that pbrase require an applicant for naturalization to live and have his abode within the United States for the entire period of five years immediately preceding his application? Or may the applicant during a considerable part of such period maintain a constructive residence within the United States, by the mere intent on his part to return thereto while actually living outside its limits? If an actual physical existence within the United States is necessary, then the court below was undoubtedly in error in dismissing the bill of the United States, because it was admitted that the respondent had spent almost two years of the five years immediately preceding his application in his native land, and therefore he had been illegally admitted to citizenship. On the other hand, it is admitted that the respondent, although he married and lived in his native land for two years of said period of five years, intended ultimately to return to the United States and make his home there; and, if such intent is sufficient to establish the continuous residence mentioned in the statute, then the action of the court in refusing to cancel his certificate of citizenship was proper.”

The case is not free from difficulty. It is scarcely to be doubted, we think, that the phrase'“resided continuously” would be unreasonably restricted if' it should be confined to the precise and literal meaning of the words. The continuous character of an alien’s residence would thus be fatally interrupted by the.briefest visit of pleasure, or friendship, or business, beyond the boundaries of the United States; and the rules of construction admonish us that we are not to suppose that Congress intends, any statute to produce an unreasonable result, unless the language used be such as to leave no fair doubt that such a result was the object of the law. In the act of 1906 (Act June 29, c. 3592, § 4, par. 4, 34 Stat. 596 [U. S. Comp. St. Supp. 1911, p. 531]), the phrase in its common -and ordinary use appears to have an elastic meaning, so elastic in fact that we may easily imagine two sets of circumstances in each of which the intention of the alien would be the same, although the conclusion would be different. For example, let us suppose that Cantini’s absence in Italy had been due to the fact that he had been immediately arrested in that country on a groundless charge, and had been detained in prison for the period in question. Having left the United States with the intention of returning in a short time, and having been prevented by force from carrying his intention into effect, the continuous character of his residence would probably not be disturbed. On the other hand, it would be idle to contend that his residence had not been abandoned in fact, if he had bought a farm, established a family and a home, and entered the Italian army as a volunteer, although he might have continued to cherish the intention of returning. In a word, the question must of necessity be a question of fact in any given case, and the mere declaration by the alien that he intended to maintain his residence here may not be sufficient to overcome the persuasive facts that point in an opposite direction.

[2, 3] This record therefore presents a question of fact rather than a question of law. At all events, we do not feel called upon to attempt the difficult and elusive task pf defining the phrase referred to, and for this reason we see no occasion to discuss any of the cases that have been cited. Among these are In re Walton, Fed. Cas. No. 17,127; Ex parte Saunderson, Fed. Cas. No. 12,378; In re An Alien, Fed. Cas. No. 201a; In re Schneider (C. C.) 164 Fed. 335; Penfield v. Railroad, 134 U. S. 351, 10 Sup. Ct. 566, 33 L. Ed. 940; U. S. v. Simon (C. C.) 170 Fed. 680; U. S. v. Aakervik (D. C.) 180 Fed. 137; U. S. v. Rockteschell, 208 Fed. 530, 125 C. C. A. 532; and In re Deans (D. C.) 208 Fed. 1018. We are merely required to decide whether an inference of fact drawn by the District Court from other conceded facts meets with our approval. The presumption in favor of. a finding below exists, even where the hearing is upon bill and answer, but in such a case the presumption is naturally less strong than where a trial or hearing of the usual kind has taken place. In such a situation, differences of opinion will inevitably arise, and the prevailing opinion will reflect the view of the court of final appeal. Recognizing the difficulties of the present controversy, and disclaiming the intention to lay down a general rule, we can only say that the undisputed facts before us seem to establish the fact that Cantini had not resided continuously within the United States for at least five years preceding his application. As a result, we.think that the government’s attack upon his certificate should have been sustained.

The decision dismissing the petition is reversed, with instructions to enter an order of cancellation, but without prejudice to the alien’s right to make a new application at the proper time.