CLARK, Circuit Judge.
On February 21, 1945, the relator, listed as a repatriate, arrived at New York aboard the S. S. Gripsholm. There was doubt as to his claim of United States citizenship, and accordingly he was detained by the immigration authorities. On June 22, 1945, after several hearings before an Immigration Board of Special Inquiry, he was ordered excluded. This order was affirmed by the Board of Immigration Appeals, July 16, 1945. The exclusion order is based on the Board's finding that relator is an alien, a native and citizen of Bermuda, and that he is inadmissible upon the following
At the original hearing before the district court, the respondent immigration officers introduced as an exhibit the record of the Immigration and Naturalization Service of the exclusion proceedings had as to relator. From this the following facts appear. As disclosed by his fingerprint record, relator had been committed to the New York County Penitentiary in 1921 for "unlawful entry." At the time of commitment he gave his name as Harry Brown, and his birthplace as Bermuda. Later that year he was transferred to the State Farm in Hampton, New York, from which he escaped in 1922. On recapture he was committed to the Westchester Penitentiary and there gave his name as Henry C. Brown, and his place of birth as Bermuda. He was released in 1923. On November 22, 1928, he was convicted in the Circuit Court of Fairfax County, Virginia, of felonious robbery and sentenced to twenty years in the Virginia State Penitentiary. While in prison he was questioned by immigration officers, and on December 8, 1929, a warrant of arrest in deportation proceedings was issued. The warrant stated the date of his last entry as being August 15, 1924. A hearing was held on March 6, 1930, at which time he claimed to have been born in Portugal. He also stated that he had a maternal aunt, Mary Hall, who resided in Bermuda, and that he last entered the United States in 1926 under the name of Henry Brown.
In November, 1939, he was released from the Virginia prison, and it was then discovered that he had not been born in Portugal. A further investigation was made, and a number of letters were obtained from among his effects. This showed correspondence between him and a Mrs. Mary E. Hall of Bermuda, wherein she addressed him as her son, a relationship corroborated by letters between relator and Mrs. Louise Lathan, sister of Mrs. Hall. A consular investigation in Bermuda convinced the authorities that relator was born in Hamilton Parish, Bermuda, on November 20, 1899, the illegitimate son of Mrs. Hall, then known as Martha Hodgson, his father being one Jose Medeiros, a Portuguese and former resident of Bermuda. The evidence was adequate to support this view, and the facts that Mrs. Lathan repudiated previous statements and Mrs. Hall denied that relator was her son were not sufficiently persuasive to compel a contrary conclusion.
As a result of such new information a warrant of deportation was issued on October 6, 1939, directing that relator be deported to Bermuda. This warrant set forth the date of entry as June 15, 1926. After his release from the penitentiary he was taken into custody by the immigration authorities. On May 16, 1940, Medeiros signed an agreement with the authorities at Norfolk,
The district court, in dismissing the writ, held that his status as a citizen had been decided by a body authorized to make the decision. It further held that his present claim of citizenship was "clearly frivolous in view of his acquiescence in his deportation in 1940, his failure to produce any proof of when or where born, and his varying statements upon the subject." A rehearing was granted, in the course of which relator appeared in person and was examined at great length. Thereafter the court again denied the writ, stating that "it does not appear to me that there is any substantial difference in the facts now elicited than were before me when I rendered my opinion on August 27, 1945."
The relator contends that the question of citizenship is not an issue of fact to be decided by an administrative agency, but rather a matter for judicial determination. He seeks support for his position in Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, and United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221. The language in the cases cited is directed to the jurisdictional requirements in a deportation proceeding. Each affirms that for deportation, alienage is a jurisdictional fact. Here the matter in issue is not one of deportation; rather it is an exclusion proceeding. The relator has not cited any case where the question of alienage was held to be one for judicial determination in an exclusion proceeding. Our own search of the authorities has failed to disclose holdings consistent with the position he advances. In fact, there is unanimity in the cases that a claim of American citizenship advanced by one applying for admission does not entitle him to a judicial trial of the validity of his claim. Such a person has only the right to a fair hearing by the administrative agency entrusted with the enforcement of the immigration laws. United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040; Chin Yow v. United States, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369; Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410; Tang Tun v. Edsell, 223 U.S. 673, 37 S.Ct. 359, 56 L.Ed. 606; Kwock Jan Fat v. White, 253 U.S. 454, 40 S.Ct. 566, 64 L.Ed. 1010; Ng Fung Ho v. White, 259 U.S. 276, 282, 42 S.Ct. 492, 66 L.Ed. 938; Quon Quon Poy v. Johnson, 273 U.S. 352, 47 S.Ct. 346, 71 L.Ed. 680; United States ex rel. Mark Guey Him v. Reimer, 2 Cir., 115 F.2d 241; Flynn ex rel. Dea Ton v. Ward, 1 Cir., 82 F.2d 223; United States ex rel. Chung Yuen Poy v. Corsi, 2 Cir., 62 F.2d 777; United States ex rel. Fong On v. Day, 2 Cir., 54 F.2d 990; Tsutako Murakami v. Burnett, 9 Cir., 63 F.2d 641; Wong Wing Sing v. Nagle, 9 Cir., 299 F. 601. See 3 C.J.S., Aliens, § 99a; Van Vleck, Administrative Control of Aliens, 1932, 189; United States ex rel. Lapides v. Watkins, 2 Cir., 165 F.2d 1017. At this date it cannot be challenged that the administrative determination on the question of citizenship in an exclusion proceeding is conclusive so long as a fair hearing was had and there has been no application of an erroneous rule of law.
There are certain recurring situations in which the claim of citizenship is made: (1) where one claims to have been born abroad of parents who were citizens; (2) where one has claimed citizenship by virtue of marriage to a citizen; (3) where one claims citizenship by birth. The courts, in disposing of claims for citizenship by those seeking admission who assert their claims in terms of the above-described categories, have invariably held that the administrative determination — if fair hearing had been allowed — was final. As examples of the many precedents, the following may be cited: (1) as to the claim of citizenship, notwithstanding birth abroad, by reason of the citizenship of the parents, Quon Quon Poy v. Johnson, supra; United States ex rel. Mark Guey Him v. Reimer, supra; Flynn ex rel. Dea Ton v. Ward, supra;
In view of this weight of authority no distinction is possible between those exclusion cases where the claim of citizenship is supported by some evidence of residence in the past and those where such element is lacking. Indeed, it would be a distinction without substance. As we have seen, a claim of citizenship by birth does not entitle the claimant to a judicial determination of his claim. In all such claims there is necessarily a subsidiary claim of residency or presence in the country, at least at the time of birth. Nor does it seem reasonable that the element of residency should add anything to the claimant's right to a court trial. At most, past residency can be no more than some slight substantiation of the claim of citizenship. Yet, as the above-cited cases indicate, evidence more substantial than past residency has been offered to support a claim and the courts have denied judicial determination of it. Moreover, the practical reasons justifying strict proof in the case of deportation, which necessarily severs one from his home and present connections, are non-operative, or at least much less compelling, in the case of exclusion of non-residents.
The force of these precedents cannot be dissipated by attempting to distinguish between cases involving races rigorously excluded, such as the Chinese, and those involving other aliens. Thus the following cases considered the claim of citizenship advanced by Europeans. Ex parte Ver Pault, supra; United States ex rel. Scimeca v. Husband, supra; United States ex rel. Palermo v. Tod, supra; Brownlow v. Miers, supra; United States ex rel. Di Giorlando v. Curren, supra. Accordingly we hold that the relator was not entitled to a judicial determination of his claim for citizenship. Hence we do not need to consider the question as to how extensive a retrial of "jurisdictional facts," so called, must be accorded by a district judge upon a habeas corpus assailing deportation and the further question whether the hearing actually accorded relator satisfied such requirements.
The relator's claim that he was denied a proper hearing is unpersuasive. It largely turns on a difference in interpretation of the evidence on which the Board acted in ordering his exclusion. The record shows he was given a fair hearing. The mere fact that the results strike him as erroneous lends no support to his contention that the hearing was improper.
The orders dismissing the writ are affirmed.
FRANK, Circuit Judge (dissenting).
Were my colleagues' decision correct, the following rule would now prevail: If a citizen leaves this country and if, upon his return, the immigration officials give him a hearing after which they decide as a fact that he is not a citizen, that decision is final, provided only there was conflicting evidence before those officials as to his citizenship, and the hearing was fair. I cannot agree. I therefore think that the district judge erred in holding that relator here was not entitled to a judicial trial de novo of his claim to citizenship.
Clearly, a citizen of the United States cannot be either excluded or deported. Clearly, too, the Immigration and Naturalization Service has no jurisdiction either to exclude or deport any person unless in fact he is an alien. The determination of this jurisdictional fact of alienage must be made in the first instance, of course, by the Immigration Service, which exercises the jurisdiction in either type of proceeding. But the question whether that determination is reviewable de novo by the courts should, in reason, depend not on the category of "exclusion" or "deportation" in which circumstances place the alleged alien, but on the substantial nature of the evidence which he advances to support his claim of citizenship. Absent conflicting testimony, his own assertion of birth within the United States, plus a plainly established period of residence within the United States, would be evidence sufficient to support a finding of citizenship by either the Immigration Service or a court.
Support for my position can, I believe, be found in the Supreme Court cases dealing with the problem of review of administrative findings in exclusion and deportation cases. True, in the early leading case of United States v. Ju Toy, 198 U.S. 253, 25 S.Ct. 644, 49 L.Ed. 1040, an exclusion case, a person of Chinese parentage who showed long residence in the United States and claimed birth here was held not entitled to a writ of habeas corpus where there was no showing of an unfair hearing by the Immigration Board; a fair hearing, though administrative, was considered due process of law. But that case made no distinction between deportation and exclusion proceedings, and I think its force has been considerably weakened by later holdings.
The weakening began with Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 494, 66 L.Ed. 938. There the Court considered the question of deportation of four Chinese who had lawfully entered the United States.
To be sure, in the Ng Fung Ho case, the relators held entitled to a judicial hearing de novo were residents of the United States when the administrative proceedings began. But, in Quon Quon Poy v. Johnson, 273 U.S. 352, 358, 47 S.Ct. 346, 348, 71 L.Ed. 680, the latest case of exclusion to come before the Supreme Court where there was a claim of citizenship, the Court said a judicial hearing de novo was not required where the petitioner "had never resided in the United States." That statement plainly implies that the critical factor is not residence in this country at the time of institution of the administrative proceedings but the undisputable fact of residence here at any time in the past. The Supreme Court has never since held that a United States resident returning from a trip abroad was not entitled to a judicial determination of his claim to citizenship. Consistently, with regard to administrative proceedings in deportation cases, it has stated that "the claim of citizenship" is "a denial of an essential jurisdictional fact,"
Deportation, of course, while not a criminal penalty, is certainly a deprivation of liberty, and "may result also in loss of both property and life, or of all that makes life worth living."
With the exception of several months spent as a fireman on British merchant ships and three years spent as an American prisoner of war in Germany after his ship was sunk by the Germans, relator has been a resident of the United States at least for a period of more than twenty years. If excluded now, he will literally become a man without a country, since the British authorities, after a police investigation conducted for the Governor of Bermuda, determined that he was not a citizen of Bermuda, and would not give him travel papers to go there.
Furthermore, the following circumstances which have led to his transfer from the "deportation" to the "exclusion" category add no weight to the position of those who would now deny him a judicial hearing: Relator was discharged from prison on November 11, 1939, after serving only ten years of a twenty-year sentence. A warrant of deportation was issued, directing his deportation to Bermuda, as a result of an American consular investigation in Bermuda mentioned by my colleagues which reported that Medeiros had been born there. But the deportation could not be effected because of the refusal of the British authorities, based on their own investigation of his citizenship, to issue travel documents. Relator was nevertheless induced by our government officers to sign an agreement to depart voluntarily from the United States
A trial de novo for relator would be but a futile gesture were there no room for difference of opinion about his citizenship. In the recent case of United States ex rel. Lapides v. Watkins, 2 Cir., 165 F.2d 1017, we held it unnecessary to consider whether relator by reason of his claim to citizenship was entitled to a trial de novo, since on the conceded facts relator had lost his citizenship, and no evidence additional to that before the board of special inquiry was offered. In this context, the following facts of the instant case are pertinent: The Board of Immigration Appeals order excluding relator apparently rested on the theory that Medeiros was in fact one Henry Brown, born in Bermuda, who had deserted from the British Navy and came to the United States in 1920 or 1921. (Relator had claimed that he had known this Henry Brown, but that Brown had died in Boston in 1927.) The same order, however, admitted that it was "extremely difficult to ascertain the true facts as to this man's identity," adding that no one had checked to find whether a Henry Brown had died in Boston in 1927, as claimed by relator. After the Board had made its order, and after the District Court had handed down its first opinion denying a writ of habeas corpus, relator's attorney discovered a Boston death certificate, dated 1927, of one Henry Brown who answered in every way the description given by relator. This important piece of evidence was never considered by the Immigration Board, nor by the District Court, since the latter founded its decision on the Board's finding of fact. The District Court, granting a trial de novo on the issue of citizenship, might, with the evidence now available to it, come to a