The opinion of the court was delivered by: LEIBELL
The plaintiff Medeiros arrived in New York from a German prison camp on February 21, 1945 on board the S.S. Gripsholm, listed as a repatriated citizen of the United States. He had been captured by the Germans while serving on a merchant ship. Upon arrival in the United States he was detained by the Immigration and Naturalization Service in New York. He was granted a hearing by a Board of Special Inquiry and was held for deportation under an order of 'exclusion' based upon a finding that he was an alien without an unexpired visa or other proper papers, that he had been convicted of a felony, and was therefore inadmissible under the immigration laws of the United States. In a habeas corpus proceeding thereafter instituted by Medeiros the District Court dismissed a writ of habeas corpus after a hearing at which 'the relator appeared in person and was examined at great length'. But as Judge Frank of the appellate court stated in his dissent on the appeal, the relator did not have a trial 'de novo' in the District Court on the issue of his citizenship. The dismissal of the writ was sustained on appeal, United States ex rel. Medeiros v. Watkins, 2 Cir., 1948, 166 F.2d 897, 899, the majority of the court holding 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.' The statute, 8 U.S.C.A. § 153, provides that 'the decision of the board of special inquiry adverse to the admission of such alien shall be final, unless reversed on appeal to the Attorney General'.
It was the contention of the relator that he had been born in San Francisco on March 16, 1902. The Government maintained that he was born in Bermuda, November 20, 1899. The Circuit Court opinions review the evidence in some detail and give a history of the various steps taken by the Naturalization Bureau in this case since 1929.
On July 20, 1948, the plaintiff commenced an action in this Court by the filing of a complaint praying for relief under Section 903 of Title 8 U.S.C.A. which went into effect ninety days after October 14, 1940 and provides in part, as follows:
'If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. * * * '
The named defendants are the Attorney General of the United States, the United States Attorney for the Southern District of New York, and the District Director of the Immigration and Naturalization Service. They have not yet filed an answer to the complaint. On October 5, 1948 the defendants moved:
'1. To dismiss the action herein because the complaint fails to state a claim upon which relief can be granted;
'2. To dismiss the action herein on the ground that the court lacks jurisdiction of the subject matter hereof;
'3. To dismiss the action as to the defendants McGohey and Watkins on the ground that said defendants McGohey and Watkins are not the proper parties defendants;
'4. To dismiss the action herein on the ground that the plaintiff is not a resident within the Southern District of New York;
'5. That this Court has no jurisdiction to grant plaintiff a trial de novo on the merits; and
'6. That the sole issue herein raised, namely, that of citizenship, has heretofore been decided adversely against the plaintiff herein.'
The plaintiff, in his complaint, alleges among other things that he is being held in custody and barred from entry to the United States, that he claims residence in the City of New York within the Southern District of New York, and that he is a national of the United States. On their face and disregarding other allegations, these allegations appear to state a claim for relief within the provisions of 8 U.S.C.A. § 903. See Brassert v. Biddle, 2 Cir., 148 F.2d 134, 136; Ginn v. Biddle, D.C., 60 F.Supp. 530; Attorney General v. Ricketts, 9 Cir., 165 F.2d 193; Bauer v. Clark, 7 Cir., 161 F.2d 397. However, the complaint contains further recitals relating to the proceedings before the Board of Special Inquiry of the Immigration and Naturalization Service, and the proceedings before the District Court and the Circuit Court of Appeals, and the rulings made therein.
In United States ex rel. Lapides, v. Watkins, 2 Cir., 1948, 165 F.2d 1017, at pages 1018, 1019, where a Board of Inquiry had determined the question of citizenship in an exclusion case, holding that the applicant had lost his citizenship (evidenced by a naturalization certificate) by thirteen years residence in Palestine, the Circuit Court of Appeals of this Circuit, by Swan, Chase and Frank, C.Js., in affirming the dismissal of a writ of habeas corpus, stated per, Chase, C.J.:
'It is unnecessary to consider whether the relator by reason of his claim to citizenship was entitled to a trail de novo in the habeas corpus proceeding. The facts were conceded and no evidence additional to that before the board of special inquiry was offered. On the ...