MATTER
- OF T
In DEPORTATION Proceedings
A-11407466
Decided by Board January 15, 1959
Evidence--Alienage—Effect to be given dismissal of section 503 action in subsequent deportation proceedings.
Special inquiry officer was not justified in refusing to receive evidence on
issue of alienage from respondent admitted temporarily with certificate of
Identity to prosecute action under section 503 of Nationality Act of 1940
whose suit was dismissed by court without entry of final order determining
citizenship.
CHARGE'
Order Act of 1952--Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained
longer.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated
above.
The respondent, a 32-year-old male, native of China, was admitted to the United Sla t es on February 25, 1952, upon the presentation of a certificate of identity issued under section 503 of
the Nationality Act of 1940 (8 U.S.C. 903). This law provided for
the admission of a claimant to United States nationality who had
filed a judicial action for declaration that he is a national of the
United States. The respondent had filed such an action in the
United States District Court at San Francisco, California. Trial
of the case was postponed while the State Department conducted an
investigation abroad. The action was dismissed by the court on
May 9, 1958, pursuant to a stipulation between counsel for the
respondent and the United States attorney. The Service then informed the respondent that he was required to depart from the
United States by July 7, 1958. Respondent remained beyond the
period authorized and these proceedings were brought. At the deportation hearing, the Service established the fact that the respondent had entered the United States on a certificate of identity, and
that the judicial action had been dismissed without a declaration
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by the court that respondent is a national of the United States.
The Service then rested. The respondent attempted to introduce
evidence that he was a citizen of the United States. The special
inquiry officer refused to receive this evidence. He held that by
statute the jurisdiction to determine the nationality of a holder of
a certificate issued under section 503 is in the court and that until
the respondent obtained a court ruling to the effect that he is a
national, the special inquiry officer was required to find him to be
an alien.
Tt appears that, counsel entered into the stipulation for the withdrawal of the case because he had been shown evidence which
established that the respondent was not the son of the man he
claimed to be the son of. However, counsel is of the belief that the
respondent is a citizen through the person who is his father and
counsel wishes to present evidence on this issue.' I'he question for
determination is whether respondent should have been permitted to
present evidence on his own behalf on the issue of nationality.
The Service representative asks that the decision of the special
inquiry officer be sustained since he finds it to be the congressional
intent that an individual admitted under section son was to receive
only a judicial trial of his claim to citizenship. He points out that
the regulations interpreting the act, and the certificate of identity
bearing respondent's signature, indicate that the holder of the certificate would depart from the United States unless he obtained a
favorable decision by the court finding him to be a citizen of the
United States. The Service representative states that the issue is of
importance not only to the case before us but because it will serve
as a precedent in other cases which are pending in district courts.
He states that a decision permitting the introduction of evidence
as by ultizmiship will place a great burden upon the Service and
will permit the individuals who have been in the United States for
periods of time to prolong their residences since they can again
resort to court action to test the administrative decision in deportation proceedings if it is adverse to them.
Section 503 of the Nationality Act of 1940 provides in pertinent
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
uniten States, such person, rug. alu,s of ohoffici Le i. wuLhiu the TJoltull
States or abroad, may institute an action against the head of such Depart-
'At the hearing counsel contended that he had been requested by the gaseminent to enter into a stipulation for dismissal of the court action so that
the Service could reexamine the issue. The examining officer has submitted a
brief pointing out that the United States attorney who handled the matter
has denied the allegation.
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meat 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
aim io be a national of the United States. If such person is outside the
United States and shall have instituted such an sego' is 'mart. he may.
upon submission of a escorts application showing that the claim of nationality
presented in such action is made in goad faith and has a subStautial basis,
obtain from a diplomatic or consular officer of the United States in the foreign country in which he Is residing a certificate of identity stating that his
nationality status is pending before the court, and may be admitted to the
United States wills such certificate upon the condition ,that he shall be subject to deportation in soon it shall be decided by the court that he is not a
national of the United States. v *
The pertinent regulations in effect at the time of the respondent's
arrival were as fnllows;
8 CFR § 112.2 Entry upon certificate of identity; conditions. me holder of
such a certificate of identity shall he regarded as an alien until otherwise
finally held by the court in the action for a judgment declaring him to be a
national of the United States. He may be admitted to the United States as
a temporary visitor for business on the condition, including, when deemed
necessary, the giving of a bond with sufficient surety, that he shall depart
from the United States if it is discovered that he has obtained admission by
fraud or other illegality or sr the liens action in court to determine his nationality is not to the effect that he is a national of the United States.
The conditions shall be such as may be deemed necessary to safeguard the
piddie and to require periodic reports by the person of his whereabouts to the
immigration authorities or the -Coifed 2tato., so that departure or deportation
therefrom may be effected in the event it is discovered that he obtained admission by fraud or other illegality or if the Anal outcome of his action in
court to determine his nationality is not to the effect that he is a national of
the United. States and if he then fails to depart without delay from the United
States in accordance with directions from the immigration authorities. v v
A person admitted on a certificate of identity shall be informed at the time of
admission that, mail he departs from the United States or there is a decision
of the court that he Is a national of the United states, ho is required hir law
to notify the Commissioner of Immigration and Naturalization, Washington,
D.C., in writing of his address at the expiration of each three months' period
of residence in the United States, Also, at the time of such admission, a
report of the name of such person and the date and port of his admission
shall be made by the immigration office at once to the United States attorney
for the judicial district in which the action by the person Is pending for a
judgment declaring that he is a national of the United States. If the final
decision in such action in court be that he is a national of the United States,
a. record to that effect shall be made by the immigration authorities at the
pur l of admission .
8 Chat § 112.4 When deportation proceedings coats ae tostitorm Steps for
the institution of deportation proceedings against a person admitted on the
basis of a certificate of identity shall be taken by the Immigration and Nature
ralization Service in accordance with the applicable sections of Part 150 of
this chapter if found to have obtained admission to the United States unlaw
fully or if he fails to comply with the conditions under which admitted ti
the United States.
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These regulations are not applicable at this time. They are included in this discussion for the light they may shed upon the
construction to be given the statute. There are no Service regulations now specifically referring to admission or deportation of
"persons holding a certificate of identity under section 503." The
State Department does have regulations concerning the issuance of a
certificate of identity (22 CFR 50.45).
The laiv and regulations contemplate a situation where the court
has declared either the claimant is a citizen or that he is not. It
does not appear to contemplate a situation where the court took
action other than upon the merits. Here, by reason of a stipulation entered into by the parties who appeared in the action, there
was a voluntary dismissal. This left the situation as if suit had
never been filed (Burger v. United States Blind Stitch Mach. Corp.,
8 F.R.D. 362, D.C. N.Y. (1948) ). Deportation is sought not under
section 503, but under section 241(a) (2) of the Immigration and
Nationality Act. What is presented to us is the case of one who
was admitted as a temporary visitor for business and who has
remained beyond the period for which he was authorized to enter.
Unless somewhere there is a clear statement to the contrary, as is
found in 8 CF1% 214.2(c) relating Cy (attach, aliens, the piocedura
normally followed must control. In such procedure, alienage is a
jurisdictional fact and the special inquiry officer has authority to
make a determination of deportability only after the percon placed
under proceedings has had a reasonable opportunity to present evidence in his own behalf. Moreover, the decision must be based upon
evidence which is reasonable, substantial, and probative (section
242(b), Immigration and Nationality Act, 8 U.S.C. 1252(b); 8
CFR 242). As a matter of fact, the procedure here was instituted
under such a theory. The order to show cause bearing the allegation that respondent is not a citizen or national of the United States
also states that if the allegations are not admitted, the individual
"will be given reasonable opportunity to present evidence" on his
own behalf.
The special inquiry officer's ruling that respondent is deprived
of the right to contest the issue of alienage is apparently based on
the belief that a conclusive presumption of alienage exists. The
special inquiry officer relies upon the language of section 503 and
the regulations promulgated thereunder. However, this proceeding
is not brought under sertion 5n2, and in any event., neither the statute
nor the regulations state that a conclusive presumption of alienage
exists in deportation proceedings concerning an individual admitted
with a certificate of identity. The statute and regulations merely
state that the holder of the certificate shall be admitted upon condition that he shall be subject to deportation in a case where the
247
court decides that he is not a national of the United States. This
may be no more than a warning to the individual that he will not
be permitted to remain in the United States if his application is
rejected by the court; that he receives no right as the holder of
the certificate except the right to prosecute an action; and that
while he is in the United States, he is to be considered an alien
and is not to exercise the rights of a citizen until decision is made
in his favor. The old regulations which we have set fOrth state
that if the holder of the certificate fails to depart from the United
States, steps to effect his removal were to be taken under 8 CFR
150 which then provided for the deportation of aliens against whom
a prima facie case of deportability has been made. The procedure
then used is similar to the procedure followed at present in that
alienage was a jurisdictional matter and the presentation of "all
available evidence" concerning alienage and other matters was required (8 CFR 151). The old regulations contain no express statement concerning a conclusive presumption of alienage.
Deportation proceedings here do not differ from any proceeding
brought under eeetion 241(a) (2) of the Immigration and Nationality
Act. Evidence by the respondent on the issue of alienage should
be permitted so that he can refute the prima facie case of alienage
which exists. The burden of establishing alienage still rests upon
the Service.
In passing, we note that the Service itself apparently has recognized as citizens holders of certificates of identity who have not
been declare' nationals by judicial action. It cannot with consistency take the position that it is not estopped from administratively
weighing the merits of a case which it believes will establish citizenahip, but that it is estopped from considering the merits of a sass
in which in some manner unstated it has formed the opinion that
the holder of a certificate is an alien.
Proceedings will be ordered reopened in accordance with the foregoing.
Order: It is ordered that the proceedings be reopened in accordance with the foregoing and for such further action as the special
inquiry officer may deem appropriate.
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