Interim Decision #1440
MATTER OF PSALIDAS
In Deportation Proceedings
..11.-12783225
Decided by Board February 25, 1965
(1) Personal notice to defendant in Greece of intention to cancel his United
States citizenship pursuant to section 15, Act of June 29, 1906, forwarded
via the Arierican Consul, Athens, was not vitiated by the Consul's remailing, which did not interrupt transit of notice which commenced with the
registered mailing in New York and ended. when received and signed for
by defendatt, and was adequate under both the federal statute and the
laws of New York because it served reasonably to inform defendant of
the legal steps which were being taken against him and afforded him an
opportunity to appear and to defend his citizenship.
(2) Despite lapse of 5'12 months between date of order for publication and
date publication commenced, judgment of II. S. District Court, New York,
September 28, 1940, cancelling defendant's naturalization for presumptive .
fraud under section 15, Act of June 29, 1906, is not void for lack of jurisdiction elude the order, of publication required compliance with Tittles 60
and 52, N. Y. Rules of Civil Practice, but made no provision for compliance
'with Rule 51 which provided that publication commence within 8 months
of date of order; any defect in publication of notice was an irregularity
rather than a itirtsdictional defect and was corrected when personal notice
was given to defendant by registered mail.
CEMIGE:
Order: Act of1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant—Remained longer.
Respondent is 27 years old, single, male, a native of Greece. He
was admitted to the United States at New York on or about July 4,
1962,. as a nonimmigrant visitor for pleasure. Thereafter, he was
authorized to remain until September 15, 1962. He has not departed,
and no application has been made to extend his stay beyond Sep-
• tember 15, 1962. He claims 'United States citizenship through the
naturalization of his father in New York before his birth. His
claim to citizenship has been rejected by the Immigration and Naturalization Service. The special inquiry officer found that respon-
76
Interim Decision #1440
dent has established good moral character and the financial ability
to qualify for voluntary departure, and granted respondent voluntary departure with an automatic order of deportation if he fails to
depart. Respondent appeals from that decision. The appeal will
be dismissed.
Respondent's father, Panos Psalidas, was naturalized in the United
States District Court for thb Southern District of New York on
April 13, 1931. He lived in this country from 1914 until 1935. On
August 28, 1922, respondent's parents were married in New York.
Panes Psalidas joined' his wife in Greece on January 7, 1935. Respondent was born in Greece on December 14, 1936. It is said that
Panes intended only to visit in Greece, and then to return with his
wife and family to the United States. However, respondent's
mother died in 1937, and Panes never returned.' Respondent remained in Greece with his father from the time of his birth until
his departure for the United States in 1962.
On June 29, 1938, the United States Attorney filed a petition in
the United States District Court for. the Southern District of New
York to cancel the certificate of citizenship granted Panos Psalidas.
The petition states that Paws Psalidas' last place of residence in
this country was New Fork, within the jurisdiction of the court.
This action is authorized by section 15 of the Act of June 29, 1906
(former 8 U.S.C. 405), which establishes a rebuttable statutory presumption that the naturalization was procured. by fraud if within
five years after the issuance of the certificate of naturalization the
naturalized person should take permanent residence in any foreign
country.1 On January 20, 1938, the United States Vice Consul at
1 Act of Stine 29,1905: Sec. 15. That it shall be the duty of-the United
States district attorneys for the respective districts or the Commissioner or
Deputy Commissioner of fumigation and Naturalization- upon affidavit showing
good cause therefor, to institute proceedings in any court having jurisdiction
to naturalize aliens in the judicial district in which the naturalized citizen
may reside at the time of bringing the snit, for the purpose of setting aside
and canceling the certificate of citizenship on the- ground of fraud or on the
ground that such certificate' of citizenship was illegally procured. In any
such proceedings the party holding the certificate of citizenship alleged to
have been fraudulently or illegally procured shall have sixty days personal
notice in which to make answer to the petition of the United States; and if
the holder of such certificate be absent from the United States or from the
dlatrict in =bleb be last had his residence, finch notice' shall be given by
publication in the manner provided for the service of summons by publication
or upon absentees by the laws of the State or the place where such suit is
brought.
If any alien who shall have secured a certificate of citizenship under the
provisions of this Act shall, within five years after the issuance of such
77 •
a
Interim Decision #1440 .
Athens, Greece executed a certificate of fraudulent naturalization
of Panos Psalidas based on the fact that within five years after
obtaining a certificate of naturalization he took up permanent residence in .Greece, thereby demonstrating that at the time he became
a citizen he did not intend to remain permanently in the United
States.
On September 28, 1940, a default judgment revoking Panos
Psalidas' naturalization was entered in the United States District
Court for the Southern District of New York. The court' ordered
thak the' certificate of citizenship issued to him be cancelled, set
aside, and surrendered. On December 2, 1940, the surrendered certificate of citizenship was forwarded to the Immigration and Naturalization Service. It is well established that when a grant of
citizenship was extinguished by judicial cancellation for presumptive
fraud prior to January 18, 1941,' any status dependent upon that
citizenship also was extinguished. Thefore, respondent lost his
claim to United States citizenship based on his relationship to Penns
Psalidas, if the indorttent of denaturalization was valid and binding.
In 1955 respondent was an applicant for a fourth preference visa.
lie served in the Greek Army from October 1958 to June 1960, and
he voted at national elections in Greece in 1956 and 1960. We do not
reach the question of his possible expatriation by these acts, in view
of our finding that respondent has had no claim to United Stites
citizenship since his father's citizenship was cancelled on September
28,-1940. • ...
Respondent contends' that the court order cancelling his father's
citizenship was improperly issued, in. that the court was without jureorneeste return to the country of his nativity, or gd to- any other foreign
country, and take permanent. residence therein, it shall be considered prima
facie evidence of a lack of intention , on the part of such alien to become a
permanent citizen of the United Staes at the time of filing his application
for citizenship, and, in the 'absence of countervailing evidence, it shall be
Sufficient in the proper proceeding to antborlie the cancelation of his certificate
of citizenship as fraudulent, and the diplomatic and consular officers of the
United States in foreign countries shall from time to time, through the
Department of State, furnish the Department of Justice with the names of
those -within their respective jurisdictions who have such certificates of
citizenship and who.have taken permanent residence is the country of their
nativity, or in any other . foreign country, and such 'statements, duly certified.
shall be admissible in evidence in all. courts in proceedings. to cancel certificates of eitizeTIAILL
The Nationality, Act of 1945, Section 338(d), 8 USOA.,,738(d), made a
distinction between cancellation for actual fraud and cancellation- for liresuinptive fraud, but this change came too late to 130 of aid to respondent
Batiaglino v Marshall; 172 F. 2d 979 (2d Cir. 1949); Manisa v. Brownell,
•
148 F. Sapp. 411 (NIX Cal. 1850).
78
Interim Decision #1440 .
isdiction by reason of its failure to follow the procedure prescribed
for giving notice in such actions. Respondent refers to the language
of section 15 of the Act of June 29, 1908, … and if the holder of
such certificate be absent from the United States or from the district
• in which he last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where
such suit is brought." The New York law governing service by publication is set forth in Rules 50,' 51, 4 and 52' of the Rules of Civil
Practice. Respondent contends that the Government failed to comply with the legal requirements for obtaining . jurisdiction over .
- Pans Psalidas by publication under the New York rules, in that (1)
the mailing to Panes Psalidas did not occur on or before the first
date of publication, as required by Rule 50, and (2) the first publication did not take place within three months after the order of publication was granted on December 7, 1938. Respondent contends,
therefore, that the denaturalization decree entered on September 28,
*Rule 50. Order for service of summons by publication; contents. The order
for service of a summons by publication must direct that such service be
made by publication thereof in, two newspapers, hi the :English language,
designated in, the order as most likely to give notice to the defendant to be
served, for a specified time, not less than once in each of six successive weeks.
It must also contain either a direction that on or before the day of the first
publication the mint= deposit in a post-office, or in any post-office box
regularly maintained by the government of the United States, one or more
sets of copies of the summons, complaint and order, and of the notice required
by role fifty-two, each set properly inclosed in a postpaid wrapper addressed
to the defendant to be nerved, and It the detembuit be an Infant, addressed
to his father, mother or guardian or a person having the care or control of
bim or with .whom he resides at a place specified in the order; or a statement
that the court or judge, being satisfied by the affidavibi on vihich the order
was granted that with reasonable diligence the plaintiff cannot ascertain a
place or places where such defendant, or any such persoiv^ probably would
receive matter transmitted thrbugh the post-office, dispenses with the deposit
of any papers therein .
▪Rule 51. Time of publication; when service complete. The first publication
of a summons in each newspaper designated in the order therefor, must be
made within three months after the order is granted. For the purpose of
reckoning the time within which the defendant must appear or answer,
service by publication is complete on the forty-second day after the day of
/1r0.imblication.
' Rule 52. Papers to be filed on service by publication -or without the state;
notice to defendant. If service be made by publication, or without the state
in lieu thereof, the summons, complaint and order and the papers on -which
the order was made must be flied with the clerk on or before the day of the
first publication or the day of such personal service.
79
Interim Decision 4E1440
1940, was absolutely void and may be attacked collaterally at any
time.
The record establishes that an affidavit of mailing was made by an
employee in the office of the United States Attorney for the Southern .
District of New York stating that the required papers were mailed to
the Vice Consul of the United States at Athens, Greece, on May 18,'
1940. There is also an affidavit from the United States Consul at
Athens, Greece, stating that he, in turn,. mailed the papers .to the
"defendant" (Patios Psalidas) on June 8, 1940, by registered mail to
liis residence in Greece. The papers were received by Panos Psalida4, as evidenced by a postal return -receipt bearing his signature.
-
The required papers consisted of a copy of the writ of subpoena,
petition and notice required by law, and a copy of the order for publication. It is conceded that the writ of subpoena was published iOr
the first time in two New York newspapers, the New, York Law
Journal and the New York Post, on May ).6, 1940, and was published
thereafter for six successive Weeks.
The special inquiry officer held. (1) that the Government Met all
the requirements set forth in the court's order for service by publication; (2) that even: though there may not have been exact compliance
with the statutes, the court was not deprived of jurisdiction, and the
denaturalization decree is not void. .25 initio; (3) that there was
strict compliance with the order for service by publication and substantial compliance with the New York statutes providing for service
by publication; (4) that an administrative -agency may not disregard
a judgement of a United States wad when there is an Issue as to
whether the court had jurisdiction over the defendant; '(5) that
respondent may attack the decree cancelling his father's citizenship,
but that the attack must.be in the court which issued the decree.
The Boqrd concludes that respondent's fathei received personal
notice under the federal statute. This law provides no specific
method of service, as pointed out in United States v. Tutersi., infra,
and United States v. , Cardillo, -infra, and the best method would
seem to be the one that conforms to the local pattern and its successful. We conclude that respondent's father also received notice by
publication under the New York law. Respondent complains that
the mailing to Patios Psalidas via the consul at Athens prior to the
commencement of publication was not a timely mailing to the defendant himself. The fact that the necessary documents were remailed by the consul to the party at his home did not interrupt their,
transiwhcomedtrgismalnNewYork
and ended when he •ineeived 'them, and signed the return receipt.
The 13oard holds also That the lapse of five and a half months be- -
80
Interim Decision #1410
tween the court's order of publication and the date publication was
commenced was not a fatal defect in service. To hold otherwise, to
quote from United States. v. Nieolay, infra, "would surely be most
technical."
Respondent relies heavily in his briefs and in oral argument on our
dicision, Matter of C—, 6 I. & N. Dec. 366 (November 18, 1954),
wherein the respondent's father had only 29 days' notice. We found
that this period was inadequate imdei both the federal statute (providing for 60 days' personal notice) and the law of Illinois (providing for 30 days' notice to an absentee defendant). The complaint
against, C—'s father was filed on October 1, 1935. The decree of the
court purporting to cancel the citizenship of that person was dated.
October 28, 1995. We relied on Yantaskita. v. Hinkle, 260 U.S_ 199
(1922), and on U.S. en rel. Lapides v. Watkins,
165 F.2d 1017 (2d
Cir. 1948) and found that we may, if necessary, reject a judicial
decree granting or cancelling citizenship, .if the judgiment of the
court is void on its face. We held that service by publication must
comply with the statute authorizing such service. The Government
had used a "consent and waiver" signed by C-L- (in lieu. of formal
notice or service), which has been disapproved by the courts in sev:
eral cases; and which was not used in the instant case. This is a
signal distinction between C— and the instant case.
There is no doubt that a certificate of citizenship may be revoked
by default when the procedure prescribed by Congress has been
strictly followed. We will refer again to the use of the waiver of
notice and consent to judgement. The facts in the instant matter
take it outside the scope of Matter of 0 , supra, and the cases cited
—
therein. We have reviewed the cases wherein judgements of denaturalization were entered by default and were later attacked for procedural defects. We agree with counsel that the principal issue is
whether or not there was adequate notice to Panos Psalidas. Most of
-the cases fit into a rationale, as follows:
A. If there was adequate notice or service of process by the
Government upon the denaturalized citizen so that the court had
jurisdiction:
1. The party claiming citizenship is bound by the rule that
he must respond or appeal promptly, and he cannot use a
dilatory motion to reopen in lieu of a defense undertaken, or
an appeal taken, within a reasonable time. Smell v. Large,
67 S.Ct. 1588,
332 U.S. 174 (1947) ; Title v. United States,
263
F.2d 28 (9th Or., 1959) ; Zurini v. United States,
189 F.2d
722 (8th Cir., 1951) ; United States v. lirting.
163 F.2d 341
81
Interim Decision #1440
(2d 'Cir., 1947) ; United States v. Cardillo, 185 F. Supp. 798
.(D.C. Pa., 1955). •
2. The party claiming citizenship is bound by the rule that
a derivative citizen has no standing to attack a denaturalize.,
tionjudgemakpriothNnalyAc-of.1940b
default against a parent who did. not defend. Battaglino v.
Marshall, 172 F.2d 979 (2d Cir., 1949), cert. den.
338 U.S.
829; Krause v. United States,
136 F.2d 935 (7th Cir., 1943),
cert. den. 327 U.S. 781,
66 S.Ct. 680 (1946); U.S. ere rel. Harrington v. Solaotfeldt,
136 F.2d 935 (7th Cir., 1943) ; Rosenberg v. United States,
60 F.2d 476 (3d CIE., 1952), cert. don.
287 U.S. 645; In re Naturalization of Estevez, 189 F..Supp.
705 (D.C. Pa., 1960) ; Ranks v. Brownell,,148 F. Supp. 411
(N.D. Cal., 1956) ; Antonacei v. Brownell, 133 F. Supp. 201
(S.D. Ill., 1955) ; ganders v. Clark, et a2, 76 F. Supp. 489
(D.C. Pa., 1948).
B. If there was not adequate notice or service of process by
the Goverzunent upon the denaturalized person, so that the court
issuing the denaturalization order bad no jurisdiction:
1. It makes no difference that a long period. of time has
elapsed during which the denaturalized person has done nothing to Protect his citizenship or to protest the proceedings.
atwitter: man v. Brownell, 204 F.2d. 336 (9th Cir., 1953) ;
United States v. Kiriase, 172 F.2d 1000 (5t11 Cir., 1949) ; U.S.
eat rel. Stabler v. Watkins, 168 F.2d 883 (2d Ch., 1947) th.g.
ex rel. Volpe v. Jordan, 161 F.2d 390 (7th Cir., 1948) ; United
States v. Bogs, 131 F.2d 783 (7th Cin, 1912) ; United States
v. Milan, 149 F. Supp: 152 (E.D. Mich., 1957).
2. It makes no difference that the party attacking the dens,-
' turalization judgement collaterally is claiming citizenship as a
derivative. United States v. Nicolay, 148 F.2d 608 (2d Cin,
1945) ; Laranjo v. Brownell, 126 F. Supp., 370 (N.D. Cal.,
1954).
There are numerous cases in all the state reports concerning the
subject of adequate service, as typified by Ferguson v. Crawford, 70
N.Y. 253 (N.Y. Ct. App., 1877), cited by respondent. We limit our
discussion principally to cases concerning denaturalization, because
(1) the case arises under federal statute; (2) the courts tend to treat
citizenship inattprs dllferently• from estate and property controver r
a rule of practice, or a sie;and(3)th4loc sfenur
statute derineaft=procedure for special situations, or in a particular
court.
82
Interiri Decision #1440
Reapondent's father received adequate "personal notice" under the
Act of June 29, 1906.
The statute (section 15, Act of June 29, 1908) gives the defendant_
in revocation proceedings "sixty days' personal notice;" and if he is
absent from the United States "such notice shall be given by publication in the .manner provided for the service of summons by publication . . . by the laws of the State . . . where such suit is brought"
The cases differ widely in interpreting the notice and service requirements. What constituted adequate notice in one ease is found to be
noncompliance in another. In United States v. Tuteur,.215 F.2d 415.
(7th Cir., 1954), the order against defendant was not entered- by
default, and the case was remanded for trial of questions of fact.
The court found, however, that respondent had been given adequate
notice. The circuit court was asked to review a summary judgement
cancelling respondent's 'certificate of naturalization, wherein . the
• respondent contended that the district court did not acquire jurisdiction over him because he did not have sixty days' "personal
notice" of the action. It was stipulated that service "was effected"
on the wife of respondent by a Deputy United States Marshal.- The
district court found that notice and manner of service was sufficient
to meet the requirement of the statute. The circuit court said
• The controlling question, therefore, is what kind of notice is required by
the term "personal noUce". Giving to the words their common place meaning
personal notice is communication of. information, orally or in writing, according to the circumstances, directly to the person affected or to be charged.
68 C.I.S., Notice, par. 8, p. 641.
Notice in its legal sense may be defined as information concerning a fact,
actually communicated to a person by an authorized person, or actually derived
by him from a proper source. Notice is regarded in law as actual when the
person sought to be affected by it knows thereby of the existence of the
particular feet in question. 66 C.S.S., Notice, par. 2, pp. 835, 637.
•
The statute makes no reference to service of the required notice and indeed
the method of giving the required notice is not specified by the statute. If,
as a matter of fact, personal notice to the respondent results from any method
which petitioner uses, the purpose of the statutory provision has been met
and no rights of the respondent have been infringed.
The court recites that the undisputed facts of record sustain' the
trial judge's finding that the notice was "sufficient, and that the
record establishes that the respondent personally and actually received notice of the pending• petition.
In the cases cited under paragraph A (1) and (S) above, the Government's notice and service procedure was found adequate. In
Zurini v. United States, 189. F.2d 722 (8th Cir. 1951), Zurini came
into court in 1948 declaring that he had no knowledge that his decree
83
Interim Decision # 1440
-10
of naturalization had been cancelled in 1935. The court said, "It is
not conceivable to us that a district court, except in the most extraordinary circumstances, could be charged with an abuse of discretion in
refusing to vacate, after the lapse of more than fourteen years, a
judgement which it had jurisdiction to .enter." The court considered
that the notice given Zurini by registered mail through the American
Consulate in Italy and the publication, copies of which were mailed
to him, were adequate to advise him that the United States was seeking the cancellation of his citizenship, and that he was charged with
knowledge of the proceeding.
In United States v. Cardillo, 135 F. Supp. 798 (D.C. Pa., 1955),
the Government petitioned to revoke a certificate of naturalization.
The sole issue was whether 'jurisdiction existed when service was
made by registered mail and publication, and the proper address of
the respondent was not set forth. As in Taiga", the court observed
that the statute did not specify any form of notice or process, by
registered mail or otherwise, quoted from Rule 4 of the Federal
Rules of Civil Procedure and declared that the Act must be liberally construed, requiring merely that respondent have personal notice
60 days prior to hearing. That actual notice was effected was evidenced hy the registered mail receipt which was signed either by the
respondent or by some person on behalf of respondent. There was
also publication once a week for three successive -weeks in two publications, as ordered by the court. The court said that no one should
be deprived of his citizenship without the strongest cloak of protection, but "a corresponding duty rests upon such person to come forth
with his,defense where actual notice has been given him and receipt
of such notice has been exemplified by his own writing or writing by
an authenticated representative in his behalf." The .court stated that
the publication contained an erroneous address which could have resulted in confusion, and therefore the publication of notice was
defective, but the defect was cured when registered notice was given
the respondent.
Antonaooi v. Brownell,
133 F. Supp. 901 (S.D. Ill., 1955), is similar on its facts to the instant case. The court held that the suit by
'Rule 4. Process
a • • •
(d) Summons: Personal Service • • •
(7) 'Upon a defendant • • • is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States
or in the manner prescribed by the law of the state in which the service is
made for the service of summons or other like process upon any such defendant in an action brought in the courts of general Jurisdiction of that
state.
84
Interim Decision #1440
the son of a naturalized citizen whose certificate of naturalization
has been cancelled in a proceeding under 8 U.S.C. 405 (1927) is a
collateral attack, and all legal presumptions arise in favor of the
decree of denaturalization; the 'findings of fact contained in the
denaturalization decree with respect to the questions of jurisdiction,
the service of process and the publication of notice, are conclusive,
and such findings may not be attacked by evidence not found in the
record. A finding in the denaturalization. decree that there was due
notice of the filing of the suit by publication three times as required
by law is also conclusive, although the record contained no certificate
that publication was had during three consecutive weeks; a presumption arises that the court heard evidence with respect to the publica-.
Lion of notice, and based its findings thereon, and it is not necessary
that the proof of publication be by affidavit of the publisher.
We find that Zurini, Cardillo, Antonacci, and Tuteur, all supra,
and other cases cited above under A(1) and (2), are adequate authority to support a conclusion that Panes Psalidas had sufficient
notice by registered mail through the consul at Athens.
Some cases holding that there was not adequate notice arose from
war conditions.
Several cases holding that there was noncompliance with the
requirements for notice are unsatisfactory as authorities, because
they were litigated during hostilities. After the emergency has
passed, the courts tend to compensate the individual for the severity
of the war-time legislation or the inconvenience he has experienced.
In this category comes R7apprott v_ United States,
335 U.S. 601
(1949), wherein' a Bund member was in jail for several years on
criminal charges and continuously-during denaturalization proceedings. In ,united States' v. Nicolay,
148 F.2d 608 (2d Cir., 1945),
the court found the order of publication and other requirements were
adequate and stated, "On the face of the record there was jurisdiction to cancel Nicolay's certificate of naturalization." However,
Nicolay was in Germany, and because of the war he could not return
to testify or even to supply a deposition. - It was held that, until communication with him became possible, so that he could appear if he
desired, he has not been given his day in court.
The form of "consent and waiver" in lieu of personal notice and
service, disapproved in several decisions. zr«* not used in this Pa P.
Jurisdiction of the trial court cannot be predicated upon. a form
of consent to the judgment and waiver of further notice, when Con-
85
Interim Decision #1440
gross has outlined the procedure to be followed. In •Stenvierman
v. Brownell, 204 F.2d 336 (9th Cir., 1958), and Laranjo v. Brownell,
126 F. Supp. 370 (ND. Cal., 1954), the Government had used a
"Form of Consent and Waiver" as the basis for jurisdiction. In
both cases judgment had been entered in the trial court against each
defendant the day following the filing of the petitions. There had
been no attempt by the Government to comply with the publication
and service requirements of the statute. It was held that a denaturalization decree taken by default may be set aside for lack of jurisdiction through improper service, and that a default decree based
only on the consent and waiver by the absent defendant cannot operate to nullify his citizenship ab because such a consent and
waiver is in the nature of a vohnitary relinquishment of citizenship
and does not evidence a. fraud. The "consent and waiver" technique
was used in Matter of e—, 6 L & N. Dec. 366, and we followed
Stehnerrnan and Laranjo and found that this procedure (combined
with the Government's failure to comply with other statutory
requirements) was insufficient, and that the Illinois court never
acquired jurisdiction of the absent 0— to vacate his decree 'of citizenship. In the instant case the consent and waiver was not used.
A. letter from Commissioner of Immigration and Naturalization
Service, Washington, D C., to Immigration and Naturailization Service, New York, April 27, 1938, states, "Mr. Psalidis has refused to
sign a form of consent and waiver." This is a significant distinction
between 67— and the instant case.
A. few decisions hove pemitted attacki on denaturalization decrees
for Tionprepjudidal pr000duro2 errors_ •
United States v. Kiriase,
172 F.2d 1000 (5th Cir., 1949), United
States v. &tie,
131 F.2d 783 (7th Cir., 1942), and United States v.
Milana,
148 F. Supp. 152 (RD. Mich., 1957), all held denaturalization judgments void for noncompliance with statutes authorizing
service by publication. Kiriase, supra, stated that where the United
States "seeks not by actual notice to the citizen but by substituted
service by publication to deprive him of this precious right, it must
strictly comply with the statute authorizing such service." The
opinion is not helpful to us, because it does not state in what respect
the substituted service failed to comply with the statute. The court
said,
172 F.2d 1001, footnote 2, "The contention made was -that the
judgment was based upon citation by publication under the Mississippi Jaws and there had been a failure to coihply therewith." Kiriase was caught in Greece during World War II and had been
86
Interim Decision #1440 •
unable to return to the 'United States to defend his citizenship .
against the denaturalization proceeding. The action of the court
may have ben influenced by this circumstance.
supra, held that "there was compliance with the Illinois
provision" but that the record did not "show compliance with the
federal requirement." The court held that the marshal's "affidavit
of nonresidence" was inadequate, and that there was unreasonable
delay in publishing the notice. The ,"affidavit" was executed .on
March 22, 1938, and flied on March 28, 1938 but the first publication
was not made until September 13, 1938. In this respect it is
like- the instant case. The court declared that the record disclosed
no circumstances to justify the unreasonable delay in publish -Fog the
notice, and that the delay was such as to invalidate the notice. The
court found that the denaturalization decree on March 14, 1939, was
a nullity, and could be expunged whenever the jurisdictional question was called to its attention. Sotis had no actual notice, and his
certificate of naturalization was cancelled without his kno wledge.
While his motion to set aside the decree of cancellation was presented
nearly three years after the decree was entered, it was within a
month after Sotis acquired actual knowledge thereof. Again, the
circumstances 'differ from the instant case where Psalidas received
notice at the time of the commencement of the action, but no move
was made to challenge the Government's action until his son came
to this country 22 years later.
Milano, supra, is similar on its facts to the instant case. Palao
Milana moved the court to vacate an order entered in 1936. cancelling his father's (Rosario Milana's) certificate of naturalization for
having taken up permanent residence in his native country within
five years of his naturalization. Rosario died in 1947. Palao attacked the jurisdiction of the court on the ground that Rosario was
never served with notice of the proceedings. The Government contended the service was valid, and that Palao was not a proper party
to bring the motion, in that, under Rule 60 (b) a court might give
relief from judgments only on the motion of a "party or his legal
representative." The court said that Palao was not born at the time
of the order, but even if he were thew in emistenee his derivative
citizenship would not have given him standing to be heard in n,
proceeding to revoke hie father's citizenship, citing U. S. es rd.'
Harrington v. Agchlotfeldt, 136 F.2d. 935, 939 (7th Cir., 1943), and
Benders. v. Clark,
76 F. Supp. 486 (D.C. Pa. ; 1943). The court
held, however, citing TV itmora v. Karrick
205 U.S. 141 (1907), and
other cases, that it may on its own motion set aside a void jud•
87
Interim Decision #1440
provided notice has been given of the contemplated action, and an
opportunity to be heard is afforded the parties. On this basis, then,
the court took jurisdiction of the proceeding, stating, "The conclusion that the judgment in question is void is inescapable," and it is
• "almost too elementary to bear repeating that a judgment rendered
without valid personal or substituted service on the defendant is
void." The court found that there was no personal service, on Rosario Milano, and that the substituted service did not comply with
the statutory provisions in.effect in Michigan. It is not clear from
the decision whether Milano had actual notice of the proceeding.
An affidavit in the record stated only that the order of publication
was mailed to the defendant but did not state that the mailing was
by registered mail and the return receipt demanded, as required liy
the Michigan statute. There was a delay of three and one -half
• months between the date of the return that personal service could
not be made and the date of the execution of the affidavit of inability
to make personal service. The court stated that it must appear at
the time 'substituted service is employed that personal service was
unobtainable, and the affidavits or proofs were not in the • record.
We are not persuaded by leiriaze, Botis and Mama that a delay
in service in this type of case constitutes a detriment to the defendant. The reason for the rule that only a'short period should elapse
between the proof of inability to serve a defendant and the making
of the affidavit or the order of publication, or the actual publication,
is that "absence from customary places" may be a temporary condition, and there is no inference that it will continue indefinitely.
This reasoning loses its application and its logic in a denaturalization proceeding where the very basis of the proceeding is the fact
that the citizen has departed from this country and has taken, up
his residence elsewhere. The Government must establish not only
that he' is absent from the jurisdiction (as required by the statutes
.governing substituted service), but that he established hiS foreign
residence within five years of his naturalization. It is this foreign
residence that was under the statute (8 V.S.C. 405 (1927) ) "prima,
facie evidence of a lack of intention … to become a permanent
citizen of the United States."
While a delay in publication may prejudice a, defendant in some
kinds of litigation, the absentee defendant in a, denaturalization
proceeding is more apt to be prejidieed by speed than by delay.
,He is abroad and he must be served through the United. States Consul nearest his home.. Arrangements to appear personally or by
counsel are costly and time-consuming. This could have been the
88
Interim Decision #1440
reason for the -leisurely pace* which apparently was the standard
procedure for these cases in the United States District Court in New
York in the 1930's when respondent's father was denaturalized. If
service is made at a great distance and the answering time is CAM*
paratively short, the constitutional question of due process may arise.
The federal statute does not specify any time limit within which the
defendant must be served or publication must begin. The court in
its Order for Service by Publication specified that service be ha
accordance with Rules 50 and 52, but did not incorporate in the
order the time limit prescribed by Rule 51. Under the eirnumstancei
of this case the lapse of five and one-half months between the date
of the order for publication and the date publication was commenced
did. not "trench on any - constitutional rights of defendant (Panos
Psalidas) nor involve the jurisdiction of the trial court," to borrow
from Sunal v. Large, 67 S.Ct. 1588. During this five and a half
month period Panos Psalidas was served by registered mail At
best due process is a slow ritual. What is termed "an unreasonable
delay in publishing the notice" in the state court decisions, becomes
a reasonable time for the defendant to return to meet the challenge
to his citizenship in a denaturalization proceeding.
The Service contends that Rule 60(b), Federal Rules of Civil ProCedure, precludes respondent's attack on the 1940 denaturalisation
decree.
The Service representative argued that respondent's present attack
on the 1940 decree of denaturalization is precluded by Rule 60 (b) of
the Federal Rules of Civil Procedure.s We have paid particular
T Exhibit 3: Memorandum to Commissioner of Immigration and Naturalization from Assistant District Director, New York, October 23, 1939, states,
"This case is being • placed on a call-up for one year."
°Rule 60(b). Mistalces r Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the
court may -relieve a party or his legal representative from a Anal judgment,
order, or proceeding for the following reasons: (1) mistake, inadvertence, •
surprise, or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial
under Rule 59(b) ; (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment has been satLitted, released, or discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying relief from the
()Pentium of the judgment. The motion shall be made within a reasonable
SO .
Interim Decision 41140
attention to the discussion of the application of Rule 60(b) in Title
v. United States, 263 F.2d 28 (9th Oir. 1959), and in United States v.
Borolzers,
163 F.2d 347 (2d Cir., 1947), cert. den.
332 U.S. 811, and
United States v. Mena,
163 F.2d 314 (2d Cir., 1947). These cases
do nut involve the entry of a denaturalization judgment by default.
In each case the defendant had appeared but failed to prosecute his
appeal. These cases hold that motions to open and vacate do not
lie as a substitute for a deliberately abandoned appeal, and that
appellants in effect consented to the entry of the decrees against
them, that their time to appeal had long since expired, and that the
motions, based on alleged. newly discovered evidence and other
technicalities, had no merit. ZurIni v. United States, supra, holds
that Rule 60(b) of the Federal Rules of Civil Procedure applied to
this proceeding and required that a motion to vacate a denaturalization judgment be made within a reasonable time, and, upon certain
grounds, within one year.
The Supreme Court in. Elapprott v. United States,
355 U.S. 601
(1949) , split on. the application of Rule 60(b) to vacate a denaturalization judgment by default where the judgment was entered without
proof of the charges made. The four decisions stressed the "special
circumstances," and the majority decision states that Klapprott was
as deprived by the Government of an opportunity to defend himself
as if ,he had "never received notice of the charges." There are no
"special circumstances" in the matter now before as were present in
Klapprott (war, criminal prosecution and a long imprisonment).
It seems to us that, only if we were to find the 1940 decree of
denaturalization against Panos Psalidas void for lack of jurisdiction,
would the application of Rule 60 (b) boocnno an issue. Believing
that the notice to respondent's father was adequate and complied
with the requirements, and that the decree is, therefore, valid and
binding, we do not reach this question.
time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. 6. motion under this
subdivision (b) does not affect the finality of a judgment or suspend its
Operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding,
or to grant relief to a defendant not actually personally notified as provided
in Title
23, U.S.C., §1655, or to set aside a judgment for fraud upon the court.
Writs of coram nobis, coran vobis, audita querela, and bills of review and
bills in the nature of a bin of review, are ibolLshed, and the procedure for
obtaining any relief from a judgment shall be by motion as prescribed in
these rules or by an independent action. As amended Dee. 27, 1946, and
Dee. 29, 1848, effective Oct. 20, 1949.
90
Interim Decision 4E1440
Respondent received adequate notice under the New York law.
Respondent received personal notice of the Petition to revoke
his citizenship, but, because he was absent from the 'United States
and from the district in which he last had his residence, he believes
that he is entitled also to notice by publication in the manner provided by the laws of New York for serving absentee& The applicable rules of practice are set forth above in footnotes 2, 3 and 4.
The New York Rules of Civil Practice and Carmody-Wait, Cyclopedia of New York Practice, mike a clear 'distinction between substituted service and service by publication.. New York also permits
a third form of service referred to as "service without the state
under an order of publication," with which we are not concerned
here. The Cyclopedia states, Vol. 8, par. 86, p. 191, "Substituted
service may be made only within the state upon a resident thereof."
Psalides who resided abroad could not have been served by substituted service. Panos Psalides was, in fact, served by publication
as well as personally. Volume 3, par. 105, pp. 212-914, describes
service by publication as follows: •
Service of a summons by publication is a method adopted, generally speaking, to reach cases where service cannot be effected either.personally within
the state or by substitution. Nonresident persons and, under certain circumstances, residents who cannot otherwise be reached are thus constructively
notified of the commencement of legal proceedings by the publication of the
summons in a newspaper in accordance with prescribed formalities for a
certain length of time, and Meal:ailing of the :summons to them, or by serving
the summons personally on the defendant without the state.
The prescribed method of service by publication is .designed to afford a
reasonable probability that actual notice will reach the defendant Notice is
diroeted through several channels in the reasonable expectation that. through
one of the channels, it will be brought to the attention of the defendant. But .
the. court acquires jurisdiction to proceed in such ease whether the defendant
is actually notified or not
Where a summons has been served by publication and a defect in the
course of the proceedings has been discovered, the question arises whether
the deed is jurisdictional so that the proceedings are absolutely void and not
amendable, or whether the defect is a mere irregularity which may be cured.
In order for the court to acquire jurisdiction, there must be a substantial
cotoplitmce with the statute. Notice to the defendant of the pendency of the
action given in a manner substantially different from that prescribed by the
•
legislature is nugatory. If a defect' is jurisdictional, it is fatal • •
The court may disregard and cure defects and irregularities "not being
against the right and justice of the matter." And so the warts may disregard unsubstantial defects even in the service of process of (sic) publication.
There was an irregularity in service under the New York Rules,
as complained by respondent. It is provided by the New York
91
Interim, Decision #1440
Rules that the first publication of a summons must be made within
three Months after the order of publication is granted. (For R.C.Y.
51 see footnote 4.) Ac pointed out above; the order of the court on
December 7, 1939, for service 'by publication made no mention of
Rule 51.
Respondent refers to New York cases holding that failure to
comply strictly with the statutory requirements for publication ran- ,
dared proceedings ineffective and that improper mailing is jurisdictional, and not an irregularity. The New York cases on substituted
service have no application here. Respondent relies on Korn v.
Lipman, 201 N.Y. 404, 94 N.B. 861 .(1911), as the leading New York
case concerning substituted service. Substituted service was also involved in Robinson v. Five One Five Associates Corp.,
180 Misc. 906,
45 N.Y.S.2d 20 (1943), cited by respondent.
We have examined the numerous New York cases and believe the
leading cases are Vale v. Bheepshead Bay Bungalow Corp., 249 N.Y..
122, 163 N.B. 124, cert. den.
49 S.Ct., 82,
278 U.S. 647, and Mishkind-Feinberg Realty Co., -v. 'Wonky:
189 N.Y. 402,
82 N.E. 448. In
Yale v. Bleeepsheacl Bay Bungalow Corp., the court found that there
was no willful failure to comply with the order, and that the error
did not deprive the defendants of the opportunity to appear and
defend. The lower court pointed out,
223 N.Y.S. 329,. 337, that a
case where the defendant did not know of the pendency of the action
should not be followed as authority. That there is a close question
is indicated by the fact' that the Court of Appeals,
249 N.Y. 122,
sustained the decision of the lower court by a vote of four to three.
The majority hold that the defendants' failure to appear "was not
occasioned, or contributed to, by the defect in publication," and that
they received formal notice of their right to defend, and they chose
not to assert any defense. Counsel maintains that Sheepalbearl Bay
is applicable only to a situation where the error in publication was
corrected by a mow pro tune order. We think the holding is of
broader application and that the rule that the defect may be disregarded or cured in the court's discretion where the parties have not
been prejudiced is consistent with the holdings in the federal cases of
Cardillo and
Antonacci, supra.
Mishkind-Feinberg Realty Co. v. Bidorsky,
189 N.Y. 402, 406, N.B.
448, 449, is a persuasive New York authority wherein the court
stated:
The Supreme Court has very broad powers, either before er after judgment
in ftrtherance of justice to amend any process, pleading or proceeding.
Section 723. It would be difficult to use more comprehensive language than
is used in that section. The correction of the clerical error in the order wasnot harmful to itabinovitch, but was in furtherance of justice. To deny
92
Interim' Decision *1440
power in the court in this case to make such an order would subordinate
substance to form.
As with the federal cases, we believe the New York cases which
developed from wartime situations shoUld not be considered binding
precedents. For example; respondent cites Risky v. Phenix Bank,
83 N.Y. 318, (Ct. App. N.Y., 1880), which related to the confiscation of property belonging to a South Carolina bank, but which was
deposited in a .bank in. New York. This decision in no way relates
to the matter now before us. Robinson v. Five One Five
Associates,
supra, concerns a defendant whose whereabouts was unknown, because
he was serving in the armed forces in World War IL The court
stated that clearly'he did not know of the action and could not know,
and that the Civil Procedure Act was unsuited to wartime conditions.
Respondent cites Malone v. Gitarella,
182 N.Y.S.2d 200 (S.Ct.
App. Div. 1959), wherein a judgment obtained in 1940 was found
void in 1959 for serious procedural irregularities. The judgment
was entered by a clerk with no authority and was a nullity. Malone
v. Oitarella differs materially from the instant case which involves
both actual notice and what the courts refer to as "substantial compliance."
The state court decisions depend on the individual facts and the
applicable statute. For example, Bekv2to Beal Estate Co., Inc., v.
78 N.Y.S.2d 815 (S.Ct. N.Y. City, 1948), points out the dif- •
forme& between. Rule 50, Rules of Civil Practice of 1933, regarding
service by publication, and paragraph 231, Civil Practice Act, 1933,
providing for substituted service, and the case involves the latter
rule. Counsel cites In re Afareley's Estate,.
226 N.Y.S.2d 21 (Surrog.
Ct. N.Y. City, 1962), which is not pertinent for our purposes. It
involved an estate and probate controversy; wherein there were false
statements of essential facts, and the executrix failed to notify some
of the distributees under most questionable circumstances.
Counsel cites Mojarriets v. &ens,
80 N.Y. 547 .(N.Y. Ct.
1860), where publication of a summons was not made within 30 days
after an attachment of property, and the court held that by that
omission the attachinent fell. Ferguson v. Crawford, 'TO N.Y. 253
(N.Y. et. Apps., 1887) concerned a foreclosure of a mortgage where
the defendant was alleged to have appeared through his attorney,
vheieas, in fact, neither he nor his attorney was served or appeared,
but the appearance by the attorney and.consent to entry of a-judgment was by forgery. The other New York cases cited also relate
to attachments of property, and orders of foreclosure and for damageA and are not pertinent.
93
Interim Decision #1440.
As pointed out above, there are purposes for the time limits in
the state rules and statutes authorizing substituted service or service
by publication in state cases. These .purposes are absent in a denaturalization proceeding. The state courts recite (see United States
v. Boas, supra) that there is no presumption of continued absence
from customary places, and for this reason service by publication
must be accomplished within a given, and usually short, period of
time. In denaturalization proceedings there is an assumption of continued absence from the country, and for this reason the state decisions requiring prompt publication deal with the situation in reverse.
A policy of delayed publication in a situation whore the party has
absented himself in a foreign country for an extended period is a
practical and sensible policy consonant with due process.
Conclusion
Re pondent's father, Panes Psalidas, received notice by registered
mail that the United States sought cancellation of his citizenship.
The order of publication of the United States District Court required compliance with Rules 50 and 52, but made no provision for
compliance with Rule 51 which provided that publication commence
within three months of the date of the order. We conclude that if
there was a defect in the publication of this notice it was an irregularity rather than a jurisdictional defect, and it was cured when
notice was given to respondent by registered. mail. The notice to
him was adequate both under the federal statutes and under the laws
of New York, because it served reasonably to inform him of the legal
steps which were being taken against him and afforded him an opportunity to appear and to defend his citizenship_
A. few decisions have permitted attacks on denaturalization decrees for procedural errors, even though a period of years has
elapsed since the decree was entered.
We believe that the better view is that a procedural error, in this
case a delay in publication of notice, not affecting the rights of the
parties should be disregarded.
Respondent's complaint about the time of mailing to the United
States Consul at Athens, Greece, is not substantial. The Consul
knew Psalidas' whereabouts and relayed the notice to him. This
eonstituted the best possible Method of serving the defendant.
There is no contention that, had Panes Psalidas been given notice
in any manner different from.that employed, he would have defended
the action. Having received adequate notice, he was under obligation to respond within a reasonable period to protect his rights.
94
' Interim Decision #1440
This case differs from Matter of C—, 6 I. & N. Dec. 866, in that
C— had only 29 days' notice between the time the Government petitioned to cancel his citizenship and the date of the decree of cancellation, and we held that this was not sufficient notice under either
the federal statute (giving 60 days) or the Illinois law (giving 30
days). The complaint in the instant ease is that too long a period
elapsed between the order of publication and the date publication
commenced. The defendant in a denaturalizatiori proceeding living .
abroad may be prejudiced by receiving too short a period of notice,
but he is not prejudiced by being given a longer period than the
statutory minimum.
This case is distinguishable from Matter' of also in that C—
signed a "consent and waiver" form which was used as a basis of
jurisdiction. It has been held that the use of this form constituted a
voluntary relinquishment of citizenship in which there is no implication of fraud, rather than a cancellation for presumptive fraud. It
has been held also that this "hearsay waiver" and consent constituted
a short-cutting of the procedure provided by Congress which the
courts will not approve. Psalidas refused to sign this consent and
waiver form and he, therefore, was given notice in accordance with
the statute.
There is no contention that respondent has any citizenship status
independent of his father. Paws Psalidas was denaturalized by
binding decision of the United States District Court in New York
on September 28, 1940, and any claim respondent had to United
States citizenship was extinguished at that time.
The appeal must be dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.
95
