The opinion of the court was delivered by: BYERS
The Government seeks to cancel defendant's naturalization certificate No. 2,896,447 granted in this court on January 22, 1929.
The facts involved are not substantially controverted, and can be chronologically summarized thus:
The defendant was born in Italy May 16, 1889 and came to this country in 1909 under an Italian passport.
March, 1915 -- Returned to Italy to enter Military Service, under direction of the Italian consul in New York City, that he was subject thereto.
He entered such service and so continued until the end of 1919. He did not return to this country, however, for more than four years.
1924 -- Defendant being a steward on the Italian ship Duilio, jumped ship at the end of his second voyage, that is, he had no passport bearing a visa.
On July 18, 1924 the defendant filed a declaration of intention to become a citizen of the United States of America.
1927 -- November 22, 1927 the defendant went back to Italy to get married; that purpose was there effected on February 18, 1928, and on July 13, 1928 he returned alone to this country.
1928 -- On October 18, 1928 defendant filed and verified his petition for naturalization in this court. The fact of marriage and the name of the wife of petitioner appear therein.
1929 -- January 22, 1929, an order was entered granting the said petition.
That petition recited in part:
'I have resided continuously in the United States of America for the term of five years at least immediately preceding the date of this petition, to wit, since the -- -- day of January A.D. 1909, and in the State of New York, continuously next preceding the date of this petition, 22 day of January A.D. 1909, being a residence within this State of at least one year next preceding the date of -- -- .'
The period of five years preceding the date of the petition began October 18, 1923 at which time and until an undisclosed date in 1924, the defendant had remained in Italy for upwards of four years after his discharge from the Italian Army.
1932-1940 -- In the month of June he returned to Italy and remained there continuously until 1950, living with his wife and family; from 1934 until 1940 he was regularly employed as a steward on the Italian passenger S/S Rex, plying between Naples and New York; he was listed on the ship's manifest during those years as being of Italian nationality, although he did not sign articles.
The defendant used a landing card, issued by the U.S. Inspector of Immigration, for the purpose of going ashore, while he was so employed.
When he spent any time ashore he slept at an apartment in 634 Union Street, Brooklyn, occupied as tenant by one Genero Sammarco and the latter's brothers; as to this lodging arrangement, the defendant testified as follows:
'Q. Did you pay anything for rent? A. Yes, I pay money * * * becuase I share the apartment which was mine, I share all the time.'
'Q. Now, you were here on a number of occasions between 1934 and 1940. Why didn't you take a job in the United States? A. Well, I was working between Italy and the Rex. I don't suppose to give up. I suppose I like the job like another job.'
The Rex was laid up in 1940, and the defendant was discharged in January of that year. Thereafter he was idle for about one year and then entered the employment of the recruiting office of the Italian Army in June of 1942 until July of 1943, remaining in the town of Torre del Greco in Italy with his wife and family. His occupation after July 1943 is not clearly shown.
1945 -- On November 23 of 1945 the defendant made verified application at the office of the America Vice Cousul in Naples for Registration (U.S.Ex. 2) in order to obtain a new passport to come to the United States. At the time of signing that application, he delivered upon request, his certificate of naturalization.
A supplemental statement attached thereto contains details of the defendant's residence in Italy and his activities during the period between 1932 and 1945. This recital includes his membership in the Fascist Party from 1927 to 1943 and in a labor union which was an adjunct thereof.
1946 -- Under date of October 2, 1946 the said Vice-Consul certified pursuant to Section 338(c) Nationality Act of 1940, as to defendant's residence in Italy from 1932 to the date of the certificate 'within five years after his naturalization' on January 22, 1929 (U.S.Ex. 1).
The certificate recites the ownership by defendant of property (an apartment) in Italy valued at approximately 200,000 lire. The defendant testified that it is actually his wife's property by inheritance.
Following the certificate above referred to, the defendant refused to sign a consent to a decree cancelling his naturalization which was submitted to him.
1948 -- January 29, 1948, complaint filed in this cause seeking cancellation of defendant's naturalization certificate based upon the said certification by the United States Consul. Process was duly served by publication and mailing.
A default decree duly ensued on December 8, 1948; it was vacated by order dated November 18, 1952 pursuant to petition filed by defendant in January, 1952, for leave to contest the cause on the merits.
1950 -- On September 22, 1950 the defendant returned to the United States, being then a seaman (steward?) on the Italian S/S Liguria. He used a landing permit that he overstayed, and which subjected him to deportation proceedings which were duly initiated and resulted in a hearing on June 19, 1952. The proceeding was terminated in view of the order opening defendant's default in this pending cause.
1955 -- By order dated January 17, 1955, an amended complaint was authorized over defendant's opposition, and the issues based thereon were reached for trial on December 1 and 2, 1955.
First, under Sections 340(a) and (d) of the Nationality Act of 1952, 8 U.S.C.A. § 1451, and Section 338(c) of the Act of 1940, 8 U.S.C. § 738(c).
(1) Procurement of the naturalization certificate on January 22, 1929 by fraudulent concealment as alleged, of defendant's intention not to reside permanently in the United States.
(2) That within five years from January 22, 1929, namely in June, 1932, the defendant left this country, and gave up and abandoned his residence and domicile here, removed to Italy, 'where he ...