Before CHASE, CLARK, and FRANK, Circuit Judges.
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 grounds: (1) He is not in possession of our immigration visa, as required by § 13(a)(1) of the Immigration Act of May 26, 1924, 8 U.S.C.A. § 213(a)(1); (2) he does not present any passport, or any document in lieu thereof, as required by the Passport Act, approved May 22, 1918, as amended, 22 U.S.C.A. § 223 et seq., and Exec. Order 8766, June 3, 1941; (3) he has not received permission from the Attorney General to reapply for admission after deportation under § 1(d) of the Act of March 4, 1929, 8 U.S.C.A. § 136(j); and (4) he has been convicted of a felony and is therefore excluded under § 3 of the Act of February 6, 1917, 8 U.S.C.A. § 136(e).Relator sought a writ of habeas corpus on the ground that he could establish citizenship through birth in San Francisco on March 16, 1902, but the district court dismissed the writ and this appeal followed.
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.*fn1
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, Virginia, agreeing to leave the United States and to notify the Service of the vessel and date of its sailing, so that his departure could be verified, and stating further that "I * * * will not return to the United States without first receiving the permission prescribed by the law and rules." Within a month after executing this agreement, he departed from this country on a British ship and did not return until brought here on the Gripsholm.
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 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 Gucy Him v. Reimer, supra; Flynn ex rel. Dea Ton v. Ward, supra; United States ex rel. Chung Yuen Poy v. Corsi, supra; United States ex rel. Fong On v. Day, supra; Ex parte Ver Pault, 2 Cir., 86 F.2d 113; O'Connell ex rel. Kwong Han Foo v. Ward, 1 Cir., 126 F.2d 615; Dong Ah Lon v. Proctor, 9 Cir., 110 F.2d 808; (2) as to the claim of citizenship by virtue of marriage to a citizen, Ngai Kwan Ying v. Nagle, 9 Cir., 62 F.2d 166; (3) as to the claim of citizenship by birth, United States v. Ju Toy, supra; Chin Yow v. United States, supra; Tang Tun v. Edsell, supra; Kwock Jan Fat v. White, supra; United States ex rel. Scimeca v. Husband, 2 Cir., 6 F.2d 957; United States ex rel. Palermo v. Tod, 2 Cir., 296 F. 345; Brownlow v. Miers, 5 Cir., 28 F.2d 653; Wong Wing Sing v. Nagle, supra; Tsutako Murkami v. Burnett, supra; Ng Heu Yim v. Bonham, 9 Cir., 79 F.2d 655; United States v. Wong Gong, 9 Cir., 70 F.2d 107; United States ex rel. Di Giorlando v. Curren, D.C.S.D.N.Y., 2 F.2d 179; Ex parte Fong Chow Oi, D.C.N.D.Cal., 15 F.2d 209.
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 nonresidents.
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 ...