Opinion
February 19, 1947.
Mandamus proceeding by Ernst Czuczka against Honorable Simon H. Rifkind, the United States District Judge, to compel the District Judge to hold a final hearing on Ernst Czuczka's naturalization petition.
Petition denied.
Czuczka, petitioner here, is an alien who entered this country on September 28, 1940. His wife is a citizen, under a naturalization certificate dated March 7, 1945. He filed his application for naturalization on June 19, 1945. On January 10, 1947, he made a motion in the district court to compel the court clerk and the District Director of the Immigration Service to place his naturalization petition on the court calendar for final hearing. The Immigration and Naturalization Service opposed this motion. The respondent, the district judge who heard that motion, received an affidavit of the Naturalization Examiner in charge of this naturalization petition which read in part as follows: "At the present stage of the investigation which the Immigration and Naturalization Service is charged with conducting, I am not in a position to make any recommendation to the court. I cannot now find that the petitioner is either qualified or unqualified for naturalization. There has been no undue or unnecessary delay in the effort of the government to ascertain the facts which are being sought, not only by me, but at my instance and request, by other governmental agencies. These investigations have not as yet been completed and I cannot now predict the result of such inquiries. As soon as the government's investigation is concluded, the petition will be calendared promptly for final hearing with an appropriate recommendation based upon the facts developed." The district judge, on January 21, 1947, denied the motion with leave to renew it in six months. Czuczka, in a petition to this court, has asked that it issue a writ of mandamus directed to the judge directing him to "proceed with this cause and to hold a final hearing thereon." The judge, by way of return to the petition, has filed with us his own affidavit reading as follows:
"On January 10, 1947, I sat in the motion part of the District Court. On that day there was returnable before me a motion by the petitioner to compel the clerk of the District Court and the District Director of the New York District of the Immigration and Naturalization Service to calendar for final hearing the petition for naturalization filed by him on June 19, 1945, in the clerk's office. This motion did not bring before me, for determination on the merits, petitioner's application for naturalization, nor has that application ever been before me or before any other judge of the United States District Court for the Southern District of New York, for adjudication. It was then, and is now, in a pending status in the office of the clerk of the court. Upon the argument of the motion, I was informed by counsel for the District Director that although the investigation required to be made by the designated naturalization examiner, in accordance with the appropriate statutes and regulations (8 U.S.C.A. § 733(a), 8 C.F.R. § 352.2; 8 C.F.R. § 353.2), had been pursued without undue or unnecessary delay, it had not yet been completed and that as soon as it was, movant's petition for naturalization would immediately be calendared for final hearing with appropriate recommendation to the court based upon the facts developed. This was borne out by the designated examiner's affidavit submitted in opposition to the motion. Upon this showing, and in the exercise of the discretion vested in me, I denied petitioner's motion with leave to renew in six months. On January 21, 1947 I signed an order to this effect. There is not now pending before me, or before any other district judge, any motion or other proceeding relating to petitioner's application for naturalization."
Wachtell, Manheim Grouf, of New York City (Hans Harnik and Harold Manheim, both of New York City, of counsel), for petitioner.
Louis Steinberg, of New York City (Alvin Lieberman, of New York City, of counsel), for respondent.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
Ours is an appellate court, without power in ordinary circumstances to control the administration of the district court. We may not, by mandamus, interfere with that administration except in aid of our appellate jurisdiction. When a district judge arbitrarily refuses to hear a case, we may require him to do so. But here the judge merely denied a motion to expedite a hearing, and with leave to renew the motion in six months. It is irrelevant that, had we been sitting in the court below, we might not have been satisfied with the vague statement by the government officer of the reasons for the considerable delay in concluding the investigation.
See, e.g., Schwab v. Coleman, 4 Cir., 145 F.2d 672, 156 A.L.R. 355.
We are not now deciding whether a further postponement at the end of the six months, with no more satisfactory explanation, would be the equivalent of an arbitrary refusal to hear, so as to justify our interference. It is conceivable that such an equivalence would exist were there such an inadequately justified delay for close to twenty-five months after the filing of a naturalization application by an alien married to a citizen, in the light of the Congressional policy embodied in the statutory provision that such an alien may apply for citizenship at the end of two rather than five years. However, we seriously doubt whether, at the expiration of six months, if Czuczka then renews his motion, the district court will permit further delay on the mere statement by the officials that more time is needed for investigation.
Petition denied.